The Felon Franchise
A partisan prison strategy.


Peter Kirsanow

Wesley Clark recently told a black audience in Birmingham, Alabama that states should restore the right to vote to felons who’ve completed their sentences. Clark’s not alone. Several Democratic presidential candidates, including frontrunner Howard Dean, also support felon voting.

A cynic may be forgiven for suspecting that the motivation behind such support has as much to do with political expediency as principle. Although polls currently show President Bush with a comfortable lead, strategists from both parties expect the 2004 presidential election to be another close one. While it’s unlikely that the election will be as close as that of 2000, minor shifts in demographics and voting patterns could have a dramatic, if not decisive, effect. This is particularly true in the case of felon voting, a cause championed by a growing number of politicians and interest groups.

The estimates of the number of people who have either temporarily or permanently lost the right to vote due to felony convictions vary, but most agree that the figure hovers around four million. Forty-eight states currently have some form of restriction on the right of felons to vote. The exceptions are Maine and Vermont, which even permit inmates to vote. Thirty-three states disenfranchise felons who are on parole. Eight states deny felons the right to vote for life.

Several recent studies contend that even allowing for their expected lower participation rates, the restoration of voting rights to felons would have shifted the outcome of a number of recent congressional elections. This tantalizes the felon-vote movement. But the movement receives its greatest inspiration from the 2000 election fiasco in Florida. Felon-vote proponents claim that had felons who have completed their sentences been permitted to vote in Florida, Gore would be president today. And they’re probably right.

As David Lampo has noted, a study by sociologists Christopher Uggen of the University of Minnesota and Jeff Manza of Northwestern shows that felons vote overwhelmingly for Democrats–at a rate approaching 70 percent. (In fact, this estimate may be low. In some Florida counties more than 80 percent of the felons who voted illegally were registered Democrats.) Therefore, had Florida’s felons voted in the 2000 presidential election at a rate comparable to the rest of the Florida electorate, Al Gore would have won the state by more than 60,000 votes.

Florida again promises to be interesting in the 2004 presidential election. A few months ago, the state’s department of corrections settled a lawsuit by felon-advocacy groups to ease restoration of voting rights for felons who’ve completed their sentences. (Florida bars felons from voting unless their rights have been restored by executive clemency.) Pursuant to the settlement, the state will provide advice and assistance to felons regarding the restoration process. According to the Naples Daily News, Florida officials estimate that nearly 130,000 felons should have their voting rights restored in the near future.

The restoration of voting rights to felons is decidedly unpopular with the electorate. For example, in 1998, more than 80 percent of Utah voters approved a measure to bar inmates from voting. In 2000, the Massachusetts electorate, among the most liberal in the country, voted for a constitutional amendment barring felon inmates from voting.

But overwhelming public opposition has not deterred felon-vote advocates. They’ve simply resorted to a receptive judiciary to achieve their objective. Several recent lawsuits throughout the country assert that state felon-disenfranchisement laws violate Section 5 of the Voting Rights Act and the equal-protection guarantees in state constitutions. Typical among these suits is Farrakhan v. State of Washington, a case that had been dismissed by the U.S. District Court in Spokane, but revived a short time ago by the Ninth Circuit. Farrakhan was brought by minority inmates challenging the state of Washington’s constitutional prohibition against voting by imprisoned felons. The inmates maintain that racial disparities in the state’s criminal-justice system effectively result in a denial of the right to vote on the basis of race. The court noted that while constituting only 3 percent of the state’s population, blacks represent 37 percent of those adjudicated “persistent offenders.” The Ninth Circuit remanded the case to the district court for a full hearing on the issue of whether racial bias in the criminal-justice system, combined with the denial of voting rights to inmates, violates the Voting Rights Act.

The racial-disparity argument is a recurrent theme in challenges to felon-voting prohibitions. Claims of racial discrimination tend to generate greater public concern than complaints that murderers and rapists won’t get to elect the next president. Felon-vote advocates recite the statistic that nearly 1.5 million black men are prohibited from voting due to felony convictions. The Sentencing Project maintains that black men are disenfranchised by state restrictions on felon voting at a rate seven times the national average. The group asserts that at current incarceration rates, in some states as many as 40 percent of black men will soon be disenfranchised. These figures are clearly disconcerting, but for reasons more fundamental than the inability of felons to vote.

As might be expected, the issue has captured the attention of some in Congress. Representative John Conyers (D., Mich.) introduced the Civil Participation and Rehabilitation Act of 1999. The bill had 37 cosponsors and sought to provide federal voting rights to all felons released from prison, regardless of whether their respective states barred them from voting. The bill was referred to the Subcommittee on the Constitution, and went nowhere.

Conyers reintroduced the bill in January 2003. The list of co-sponsors dropped to 25, but still boasted many members of the Congressional Black Caucus along with Democratic presidential aspirant Dennis Kucinich.

The bill’s findings prominently cite some of the racial disparities noted above. The purpose of the findings is to provide Fourteenth Amendment support for overriding state restrictions on felon voting. But franchise qualifications are generally the prerogative of the states. It’s unlikely that a facially neutral felon-disenfranchisement law (without discriminatory intent) that has a racially disparate impact would violate the equal-protection clause. (Such a law’s validity under the Voting Rights Act is another inquiry altogether.)

Most state disenfranchisement laws don’t have blanket prohibitions against felon voting. Distinctions are made between inmates and releasees, parolees and probationers, etc. Some states even differentiate between first offenders and repeat offenders. Most people grasp the reasoning underlying these distinctions: Denying the franchise to a violent repeat offender is a bit different than denying it to a youthful, one-time drug offender. And many find distasteful the prospect of politicians pandering to the interests of criminals. (What might a governor facing recall promise tens of thousands of inmates in exchange for their votes? Pardons? Weekend furloughs?)

States may plausibly deny the franchise to murderers on the basis that they have permanently disenfranchised their victims, or to violent criminals because they generally have high recidivism rates. These rationales may not be exemplars of logical perfection, but they are no less defensible than those for denying felons a number of other rights (certain categories of employment, child custody, firearms ownership, etc.)

On the other hand, a state may decide that certain classes of felons should regain the right to vote because it assists their reintegration into society. Denying an 18-year-old the right to vote for the rest of his life because of a nonviolent crime is unlikely to act as either a deterrent or enhance the integrity of the political process.

As David Lampo notes, these distinctions are immaterial to many felon-vote advocates. Their aim is nothing less than the wholesale restoration of voting rights to all convicts–and that suggests an agenda that’s more partisan than altruistic.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights.