A primer on felony disenfranchisement

*This excerpt is part of a forthcoming report on felony disenfranchisement titled ‘Democracy Needs Everyone’ by Initiate Justice*

While there is certainly no shortage of unconscionable features of the criminal justice system, felony disenfranchisement stands out as particularly draconian. In California, felony disenfranchisement laws were written into the state constitution in 1849, but its historical origins may date back to Antiquity. The practice of disenfranchising citizens for felony convictions is widely legitimized across the United States, and actively functions at historically unprecedented rates in a modern constitutional democracy. The number of people who have been stripped of their right to vote has risen dramatically as a result of mass incarceration. In 1976, 1.7 million Americans were disenfranchised due to a felony conviction. This number rose to 3.34 million in 1996, 5.85 million in 2010, and 6.1 million in 2016. The rationale for disenfranchisement often rests on unarticulated ideological grounds, but has significantly diluted the minority vote over time and has caused incalculable harm. It is fair to speculate that if the trend of hyper incarceration hadn’t grown in a racially disproportionate manner, such that the criminal laws were applied more generally to members of the political majority (white middle class, or suburban voters), this exclusionary practice would have been abolished by now.

The Ancient Greek civilization relied on an early practice of felony disenfranchisement that involved heavy handed themes of isolation and deprivation that are still very much alive in the contemporary practice. Punishment in Athens revolved around the penalty of atimia, a form of disenfranchisement that allowed the democracy to identify and ostracize citizens who violated the collective honor of society. Those sentenced to atimia were unable to attend Assembly meetings, serve as jurors, or have grievances addressed by the courts, which often resulted in de facto civic death. The link between honor and citizenship was central to the existence of Greek society, and the exclusion from these political spheres contributed to social, physical, legal, and economically vulnerability that pushed offenders to the fringes of society. The creation of a new caste of non-citizens who were barred from participating in basic democratic activities as a result of a conviction became a common practice that would be replicated throughout history.

Although felony disenfranchisement was present from the time that the first colonists arrived in America, it was not until after the American Revolution that disenfranchisement laws were formalized and written into state constitutions. Virginia became the first state to pass a law prohibiting ex-felons from voting, but many soon followed. During the Antebellum period, some two dozen states had statutes barring felons from voting or included felon disenfranchisement provisions in their state constitutions. At the time of the Civil War, over seventy percent of the states had adopted felony disenfranchisement laws. A wave of broader felony disenfranchisement laws was implemented in the 1860s and 1870s, following the passage of the 15th amendment, which expanded the right to vote to formerly enslaved Black men. The re-enslavement of Black Americans after the Civil War in the form of convict leasing also greatly increased racially discriminatory laws aimed at controlling this population of new voters, and is inextricably linked to the history of felony disenfranchisment in the United States.

The spectrum of felony disenfranchisement laws across the United States ranges from two states with no voting restrictions at all, to seven states that disenfranchise citizens for life. In California, individuals in prison and on parole are barred from voting.  While this has generated widespread outrage, it actually represents an evolution from the original language of the California Constitution that permanently disenfranchised all Californians with a criminal record before 1974.

In the judicial arena, several landmark cases have challenged felony disenfranchisement as patently unconstitutional, but none have been found to invalidate the practice. The watershed moment in jurisprudence regarding felony disenfranchisement revolves around the Richardson v. Ramirez (1974) decision. The case involved three Californian citizens who had been convicted of felonies, served their sentences and completed their terms of parole, but were subsequently denied the right to register to vote when they attempted to because of their felony convictions. A petition was filed in a California court challenging the exclusion on the basis that it violated the Equal Protection Clause of the 14th amendment. The California Supreme Court agreed, found the practice to be constitutionally impermissible, and stated that the penalty of disenfranchisement was ‘too blunt an instrument’ to protect the ballot box. However, this decision was promptly appealed to the United States Supreme Court, which contradicted the lower ruling and reversed course on the constitutionality of felony disenfranchisement. The majority used a strict textualist interpretation and decided felony disenfranchisement is permissible per the language of the 14th amendment that allows punishments like denying the right to vote for participation in crime. The legal reasoning is worth quoting at large:

“Pressed upon us by the respondents, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California’s present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.”

After the Richardson decision, California voters approved Prop. 10 in 1974 that allowed citizens with a criminal record who aren’t on parole or in prison the right to vote. But since felony disenfranchisement laws are still in and of themselves constitutional in the United States, Courts are not the proper forum for reform. Legal scholars suggest that Congress and state legislatures may be the more appropriate venues.

A 2016 study estimated that 222,557 Californians do not have the right to vote due to felony disenfranchisement. This is .74% of the California voting age population. However, the same study found that 3.41 percent of African Americans in California have been disenfranchised. Heroic grassroots efforts to eliminate felony disenfranchisement laws are gaining steam across the country. The movement is increasingly entering public consciousness, and rationales to support the continued practice remain unpersuasive. A recent poll found that 81.7% of voters believe right to vote should be restored at some point after felony conviction. Looking to the global community, the Supreme Court of Canada, the Constitutional Court of South Africa, the Supreme Court of Israel and the European Court of Human Rights have overturned voting restrictions for incarcerated people, invoking principles of rehabilitation and promotion of civic life over the past two decades.

In many ways, voting can be seen as the right to have rights. As such, it should be considered the most important social good, and should not be revoked without serious consideration instead of continuing as an unfortunate accident of history. Initiate Justice is committed to the long-term goal of restoring voting rights to all Californians.