Why can't felons vote? The question is long overdue

By Barbara J. Miner

I grew up believing that the United States is an unparalleled beacon of democracy — the home of the free and the land of the brave.

So I find it disturbing that when it comes to a fundamental democratic right — the right to vote — the United States has a dismal record.

In fact, the United States has more restrictions on voting rights than any other democratic nation in the world, according to Marc Mauer of the highly respected Sentencing Project. 

Even South Africa is more enlightened.

In South Africa, all prisoners have the right to vote. In a 1999 ruling that eloquently speaks to issue, the constitutional court of South Africa declared: “The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.” 

In the United States, meanwhile, an estimated 5.8 million people are ineligible to vote as a result of current or previous felony convictions, even non-violent offenses such as writing bad checks or embezzling money. Or, in the case of Kelly Rindfleisch, doing campaign work on county time when an aide to then Milwaukee County Exec and now Wisconsin Governor Scott Walker.

(In the plea agreement with Rindfleisch this October, the judge denied a request to delay matters until after the Nov. 6 elections so Rindfleisch could vote. Circuit Judge David Hansher said that if he made an exception for Rindfleisch, he’d have to also do so for every defendant up to election day, according to the Milwaukee Journal Sentinel.)


Disenfranchisement Growing


In the four most restrictive states — Iowa, Florida, Kentucky and Virginia — felons permanently lose the right to vote, even after they have served their sentence. The can regain the vote only through a cumbersome process of applying for a pardon from the governor or a decree by a clemency board. 

Equally troubling, the number of disenfranchised felons is growing, as are the racial disparities in the loss of voting rights.

Largely due to the mis-named War on Drugs, the U.S. prison population has skyrocketed, growing from about 500,000 in 1980 to nearly 2.3 million three decades later. A disproportionate number of those imprisoned are blacks and Latinos.

As a result, almost 7.7 percent of blacks of voting age cannot do so because of their criminal records, compared to 1.8 percent of non-African Americans.

In three states — Florida, Kentucky and Virginia — one out of five African Americans is not allowed to vote. (For these and other disturbing statistics, see the July 2012 report by The Sentencing Project: “Voting Behind Bars: An Argument for Voting by Prisoners.”) 

The issue of prisoners voting not only raises moral and ethical concerns, but also has a clear impact on electoral outcomes. It’s hard not to wonder whether felon disenfranchisement is a modern-day reincarnation of Jim Crow restrictions on voting.

A look at Florida is enlightening.

In the historic Bush versus Gore 2000 election, the Florida vote was decided by only 537 ballots. Due to Florida’s prohibitions on voting, on the day of the 2000 election an estimated 600,000 ex-felons — in other words, not including those still in prison, on parole or on probation —were ineligible to vote. 

“If disenfranchised felons in Florida had been permitted to vote, Democrat Gore would certainly have carried the state, and the election,” concluded Jeff Manza and Christopher Uggens in their article in the American Sociological Review.

Lessons from History


The United States experiment in democracy has always been a work in formation. During the Colonial period when our democratic institutions were first developed, only about 6 percent of the population could vote. Women, African Americans, Native Americans, those who couldn’t read, those who did not own property and people with felony convictions — all were excluded.

Over time, and through popular struggle, the right to vote has expanded. Today, all those Colonial era restrictions are gone — except one.

African Americans and Native Americans can vote. Women can vote. Poor people can vote. Illiterates can vote. But, by and large, felons cannot.

The right to vote, even in federal elections, is determined at the state level. And it’s a hodge-podge of laws.

In 12 states, convicted felons may permanently lose their right to vote, with exceptions depending on the crime committed, time since their sentence was completed and other variables. In this group, the four most restrictive states are Iowa, Florida, Kentucky and Virginia.

In the two least restrictive states — Maine and Vermont — felons do not lose the right to vote and may cast absentee ballots while in prison.

In 13 states and the District of Columbia, felons can vote after they leave prison. In another four states, felons can vote after they finish their prison sentence and parole. In another 19 states, including Wisconsin, convicted felons may vote after they complete their entire sentence (prison, parole and probation).

In 10 states, restrictions may apply to some people with a misdemeanor conviction.

In Canada, meanwhile, in 2002 that country’s Supreme Court ruled unconstitutional a ban on federal prisoners voting. “The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside,” the court ruled. “… denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values.”

The international human rights community has taken a similar view.

Thomas Hammarberg, Commissioner for Human Rights at the Council of Europe (with 47 member states), has argued strongly that prisoners should have the right to vote. “Prisoners, though deprived of physical liberty, have human rights,” he has argued. “Measures should be taken to ensure that imprisonment does not undermine rights which are unconnected to the intention of the punishment. Indeed, authorities should ensure, for instance, that a prisoner can receive health care and have contact with his or her family. The right to study, to be informed and to vote belongs to this same category of rights which should be protected.” 

In the United States, there is little talk of the rights of prisoners; lock ‘em up rhetoric holds the day.

But fundamentally, this is an issue of voting rights, not law and order. If there is a silver lining to the rash of voter ID and voter suppression efforts in the last few years, it is the growing awareness that protecting the right to vote is fundamental to protecting our democracy.

After Nov. 6, with the heat of the presidential election over, there’s no reason not to ask the question: why can’t felons vote?

If that’s too big a step for you, ask this question: why not allow the vote for felons on probation or parole, or those who have completed their sentence” According to public opinion polls, most Americans favor such reforms.

As The Sentencing Project notes, “How much difference would it make if state laws were changed to reflect the principles most Americans endorse? The answer is straightforward: Voting rights would be restored to well over 4 million of the 5.85 million people currently disenfranchised.” 

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This blog is cross-posted at the Milwaukee Journal Sentinel Purple Wisconsin project.