Disenfranchisement, or the deprivation of the right to vote, of criminals is a practice adopted from English law which many states integrated into their constitutions after the Civil War. Every state except Maine, Vermont, and Washington, D.C., enforces some restriction on voting for incarcerated persons. The Tenth Amendment gives states jurisdiction over their election and voting laws, so every state has its own policy on felon disenfranchisement.
Within the range of policies, 20 states restore voting rights upon an inmate’s release, 17 require completion of parole/probation, and 11 states have additional requirements including personal grants of clemency from the governor. To learn about your state’s policy and how it compares to the rest of the nation, see this interactive map designed by the American Civil Liberties Union.
De Facto Disenfranchisement
Today, felon disenfranchisement occurs mostly through “de facto disenfranchisement,’’ meaning those impacted could still legally cast a ballot, but are unable to due to other obstacles. Pretrial detention is not legal grounds for disenfranchisement in any state, yet many people held in jails awaiting conviction are not given the chance to vote. Misinformation spreads easily because those working with incarcerated individuals receive limited, if any, training on their state’s felony disenfranchisement laws. Incarcerated individuals are often overlooked during election season, so efforts are not made to register and educate incarcerated individuals. In addition, many of the materials needed to vote, like voter registration forms, mail-in ballot applications, and information regarding candidates and ballot measures, are available online. Inmates often have limited internet access, so they have to submit physical applications through the postal service. This longer process can cause inmates to miss important deadlines for registering with their state and casting their ballots.
Felon Disenfranchisement and Socioeconomic Status
African Americans are disenfranchised due to felony conviction at a rate four times greater than other racial groups. This is partly due to a disproportionate incarceration rate of Black versus white Americans: Black men and women comprise about 13% of the US population, but account for 35 and 44% of the incarcerated populations, respectively. Hispanic Americans are imprisoned 1.4 times more than whites. Incarceration rates for Latinx/Hispanic Americans is likely understated as some states’ ethnicity reporting includes Hispanic inmates within the white prison population, and four states—Alabama, Maryland, Montana, Vermont—do not record racial/ethnic data at all.
Low income Americans are also overrepresented in the nation’s jails and prisons. Some states like Florida and Alabama require payment of LFOs (legal financial obligations) before re-enfranchising a felon, so low economic standing—perpetuated during incarceration periods—leads to the suspension of voting rights. Current policies restricting voting rights of incarcerated people and convicted felons affect people of color and low-income Americans at higher rates than white and high income citizens. The states without felon voting restriction, Maine and Vermont, are overwhelmingly white compared to the rest of the country, meaning their universal suffrage status still favors whites over people of color in their communities.
Arguments For and Against Felon Voting Restrictions
Although it has recently gained momentum as a topic of public discourse, much of the public believes felons should not retain voting rights. A 2019 poll conducted by Hill-HarrisX showed 69% of Americans believe incarcerated felons should not be able to vote. Debates around the four categories of restrictions—de facto, during incarceration, parole/probation, and following the completion of additional requirements—all follow the same logic.
Those who believe that felons should not be able to vote often base their arguments on their interpretation of what it means to vote. Proponents for felon voting restrictions argue that voting is a privilege, rather than an absolute right of citizenship. Once a person is incarcerated, they lose that privilege to vote. By committing a crime, a person has chosen not to follow the law, and has no place deciding the nation’s future. Those who support disenfranchisement argue that those who have violated the law in a manner serious enough to warrant arrest, detention, and probation should not have a role in shaping the laws for everyone else, especially citizens who have not violated any laws. It is argued that individuals who have committed serious crimes do not meet the minimum standards of conduct and responsibility required to vote.
Opponents of restrictions on incarcerated individuals believe that voting is a fundamental right which can’t be taken away, even if one is convicted of a crime. Especially in cases of de facto disenfranchisement, they see these restrictions as unjust because they prevent people who would normally cast a ballot from participating in elections. They argue that if under the law a person is allowed to vote, they should not face additional obstacles to casting their ballot. In addition, some feel that extra effort should be made to reintegrate felons into society, and participating in the democratic process is an important part of existing in the community.
In addition to those two black and white perspectives, some believe that incarcerated felons should not be able to vote, but should be allowed after they have paid their debt to society. They view incarceration as a time when the right to vote is limited along with the freedom of movement, but that should only occur for a finite period of time. In 2018, Florida voters passed Amendment 4 which restored voting rights to felons who had completed their prison sentences (with the exception of those convicted of murder or felony sexual offense). The Florida legislature weakened the amendment by including a provision that all LFOs had to be paid in addition. Many were outraged by this decision, because they felt like the voters of Florida had made a decision about when voting rights should be reinstated and the legislature had reworked it, pushing back the finish line.
Effects of Disenfranchising Felons
Preventing felons from voting disproportionately impacts communities of color and can result in misrepresentative election results. This is particularly true for Black Americans, with more than two million being prevented from voting. Advocates for enfranchising felons argue that restricting voting may lead to skewed election results. Local, state, and federal elections can be decided by extremely small margins and the inclusion of citizens who were previously unable to vote could greatly influence these outcomes.
Beyond deciding elections, disenfranchisement of incarcerated people affects the ways in which communities are afforded representation. The Census Bureau counts incarcerated people as residents of the location of their detention facility. When it comes to redrawing congressional districts or allocating representatives in local weighted voting systems, for example, the incarcerated population is counted towards the population tally but are not able to participate in the decision-making process. That is, incarcerated individuals swell the data upon which representatives are delegated to certain communities without being able to offer their opinions about candidates. This grants a disproportionate amount of influence to citizens living outside of detention centers, undermining the premise that each voice matters equally in a democratic election.
