The Case for Re-Enfranchisement

I was registering voters not too long before the California primary in June when two men came in. One registered, and the other thanked us but declined. We asked if he was a citizen and a resident of California. He said he was both, but that he couldn’t register. We pushed further, only to be met with more deflection. We soon began to wonder if maybe he was an ex-convict who thought he couldn’t vote and was embarrassed to admit it. We probed gently to confirm this and, trying to ease his humiliation, offered to find out if he could indeed vote.

We were the ones who should have been embarrassed for not knowing the laws in California. What we learned is that after release from parole, felons are automatically re-enfranchised. So this man could have registered to vote and hopefully he has by now.

Felon disenfranchisement is one of the greatest threats to our democracy and to our human rights. There are still many states that disenfranchise felons even after incarceration, and in states such as Alabama, Arizona, Mississippi, and Nevada, felons may permanently lose their voting rights. Other states, like California, restore this right post-imprisonment, but individuals face considerable time and bureaucracy before their voting rights may be restored. Only two states in our union, Maine and Vermont, grant felons full voting rights. Although some states are considering reforms, we still have a long way to go before this fundamental right is granted to everyone.

The statistics of this grand perversion of our democracy are startling. According to the sentencing project, nationwide almost six million voters are banned from the polls today. One in every thirteen black adults cannot vote as the result of a felony conviction. This injustice is in addition to the voter suppression inflicted upon the African-American community by other laws duplicitously masquerading as voter fraud prevention. Even more shocking and troublesome is the fact that some recent elections have been won or lost based on thousands or even just a few hundred votes. Arguably, Al Gore would have won the presidency were it not for felon disenfranchisement in Florida.

As startling as the official numbers are, I suspect they are actually much larger. Meeting this man at the voter registration event brought to light an aspect of voter disenfranchisement not usually considered. The 5.85 million number is derived from the population of felons currently serving time, combined with those released from prison in states where ex-felons can’t vote. But what about people like him—ex-felons who are either uninformed about their rights, race shamed, embarrassed by the stigma society places on ex-cons, still waiting out the years after probation to be eligible to vote, or just too overwhelmed to tackle the bureaucracy set in place by states in order to reacquire this constitutional right? The numbers of this group of disenfranchised voters must be much, much larger.

Furthermore, no one can claim that it isn’t a race issue (unless they’re being purposefully obtuse or misleading for political benefit, which, unfortunately, is the conservative modus operandi). Felon disenfranchisement laws began as a reactionary measure to preserve white dominance soon after African Americans were given the right to vote. That purpose continues today, if not so overtly.

This threat looms large because it seems sociologically ectopic and thus is ignored. They’re not us, the majority thinking goes. They’re not mainstream. They’re criminals, so why should we focus on their rights? Secondly, people don’t realize the severity of the issue. Committing crimes is front page news but defending criminals’ rights, whether of those convicted or just accused, is apparently much less newsworthy. But they are us and we are them; we are all humans and deserve the same rights.

Some argue that you can’t trust the judgement of a criminal. That begs the obvious questions: Who is a criminal and what constitutes crime? The courts have decided that convicted felons are the only ones who meet specific enough criteria to remove their civil rights. However, the line between “us” and “them” loses focus when we consider, for example, ideas raised in the groundbreaking exhibit “We are All Criminals.”

Besides the fact that there are many people convicted of felonies who are innocent, there are also many crimes that go unsolved. The number of all us uncharged criminals in the general population combined with the number of innocent people incarcerated should nullify this justification.

And, again, what is crime? Why is domestic abuse illegal but drone warfare not? What separates the petty thief from the CEO who cheats the American public by exploiting loopholes in laws? Should a transgender man convicted of an assault that occurred while defending himself from harassment never be allowed to vote again? Should an African-American single mother, convicted of robbery because she’s desperate to get formula for her child, never be allowed to vote again?

Social contract theory states that each individual has moral and political obligations to all others to obey laws or else everyone will start disobeying. However, inversely, society as a whole abandoning or ignoring its obligations to the individual citizen is just as detrimental. Ultimately, as Socrates pointed out, people must act lawfully simply because it’s the right thing to do. Using fear of retribution or anarchy, essentially holding a gun to each other’s head to keep order, isn’t conducive to a healthy society. Finally, if there were a social contract, it would be either in place or broken, but one party simply removing specific terms of the contract, as in the right to vote, collapses the theory altogether.

The second part of the Fourteenth Amendment to the US Constitution states in the broadest terms that “rebellion, or other crime” disqualifies a citizen from voting. Should those calling for the annexation of Texas be considered rebels? What about conscientious objectors to military service? Notwithstanding treason, which is almost certainly the meaning intended, it would be unethical, un-American, and patently absurd to suggest these groups lose their civil rights.

As well as dispelling false justifications for disenfranchisement, we must also seriously consider the purpose and consequences of incarceration. According to the American Society of Criminology, until the mid twentieth century, rehabilitation was the primary goal. Today, we lock people up to deter further crime and, sadly, for retribution. The ASC’s national policy white paper states:

At one time, it seemed that prison was reserved for violent offenders who posed a threat to public safety and to those who were repeatedly convicted for felonious acts. More recently, a heightened fear of crime among the voting public coupled with economic prosperity has created a criminal justice system that imprisons persons who have never been convicted of violent crimes and who have had no prior convictions. The single justification for incarcerating so many Americans is that it reduces crime. This is, perhaps, the most hotly debated topic today.

If the dual purpose should be to rehabilitate criminals and protect the public, denying prisoners the right to vote accomplishes neither and runs counter to both. “Allowing prisoners to vote,” writes Cambridge criminologist Mandeep K. Dhami, “may strengthen their social ties and commitment to the common good, thus promoting legally responsible participation in civil society.”

The Fourteenth Amendment was meant to give equal civil rights to all by declaring that all naturalized citizens have civil rights. Of course it excluded Native Americans, females, and anyone under the age of twenty-one. The aforementioned phrase that nobody participating in “rebellion, or other crime” could vote was also added.

Skip ahead to the conservatively weighted US Supreme Court of 1974, and, after years of trying to figure out what the heck that phrase meant, they confirmed with their ruling in Richardson v. Ramirez that, indeed, the authors of the Fourteenth Amendment specifically wanted to deny felons the right to vote and it was a state’s prerogative to do so if there was a compelling state interest.

Where do we go from here? We can start by acknowledging that felon disenfranchisement is a civil rights issue of great importance. We cannot elect a leader who will ignore or irreversibly and indefinitely perpetuate this injustice. At the same time, we have to inform ex-cons, like the gentleman I met at the voter registration event, of their rights and eventually re-enfranchise all felons.

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