[News] struggle to break free of felon voting bans
News at freedomarchives.org
News at freedomarchives.org
Wed Oct 13 08:59:55 EDT 2004
Minorities struggle to break free of felon voting bans
by Chisun Lee
October 12th, 2004 10:40 AM
Voters at the voting booths, ca. 1945
(photo: Copyprint. NAACP Collection, Prints and Photographs Division.
(9-17) Courtesy of the NAACP)
In Focus: Election 2004
Washington: We've Got Hard Questions Let's pretend that we can get some
real answers, especially from Bush
Washington: Bring Your Own Boots Infantryman writes of having to buy his
own supplies for Iraq
Clips: Moderate Rock Enough with the news anchors running the debatesit's
time to give Oprah a turn
the Pill New ad campaign targets Bush record on birth control
Prisoners Minorities struggle to break free of felon voting bans
early 5 million citizensa hugely disproportionate share of them racial
minoritieswill not be allowed to vote in next month's presidential
election. Laws in 48 states automatically stripped them of that right when
they were convicted of a felony. Now, in a number of high-stakes lawsuits
across the country, minorities are struggling to end the state felon
disenfranchisement laws they say are slicing down the black and Latino
vote. But first the courts will have to agree that this is a civil rights
crisis worthy of federal attention, not just a jailhouse gripe.
Maddeningly, from the point of view of the plaintiffs, the key legal
dispute is not whether the numbers of disenfranchised racial minorities are
as vast as they claim they are. They are. Nor is the dispute whether voting
is a legally recognized fundamental right, guaranteeing every citizen a say
in government and thereby legitimating the very existence of democracy. It
is. And certainly there is no dispute that U.S. history is replete with
local voting procedures that, sometimes crudely and sometimes subtly,
blocked minorities from accessing the ballot.
This is the sticking point, as summed up by one federal judge in Florida,
where over 10 percent of black adults are disenfranchised for life: "It is
not racial discrimination that deprives felons, black or white, of their
right to vote but their own decision to commit an act for which they assume
the risks of detection and punishment." State officials from Florida
governor Jeb Bush to New York governor George Pataki insist that the voting
bans are a criminal justice matter for the states to manage, not a minority
political access problem warranting the most robust federal protections
under civil rights laws.
If the states are right, then there is virtually no avenue for these
disenfranchised plaintiffs to bring proof of racial inequities into federal
courts, much less demand that the courts invalidate these laws. But,
counters civil rights attorney Jessie Allen of the NYU Brennan Center for
Justice, "The federal Voting Rights Act was created exactly in recognition
that states would come up with a whole host of seemingly neutral but
actually discriminatory measures."
With federal courts around the country differing on whether to hear out the
disenfranchised, the U.S. Supreme Court is expected to announce in the
coming weeks if it will take up the question this term and make the final
call. At stake: not only millions of potential votes, but also longstanding
questions about racial bias in criminal law enforcement and about the
fullness of the nation's commitment to minority political participation.
The battle over felon disenfranchisement is shaping up to be the greatest
contest over race and democracy since the end of the Jim Crow era.
Even putting race aside, the sheer scale of casualties to felon
disenfranchisement suggests a democratic crisis. Some 4.7 million adult
Americansone in 43have been politically erased by laws in 48 states that
automatically strip the right to vote from people convicted of a felony.
(Procedures for regaining the right exist, but the steps vary by state and
are often little-known or extremely difficult to accomplish.) Equivalent to
the population of Alabama, this group is the largest deliberately
disenfranchised class in the nation.
About 3 million of them are not even behind bars, but mingle with society
on parole or probationsafe to live next door but not to vote. Yet in some
states the voting ban sticks not just beyond the cell, but for life, no
matter how mild or long ago a person's crime.
Many social scientists doubt the value of felon disenfranchisement to begin
with, arguing that it serves none of the legitimate purposes of criminal
lawnot incapacitation or deterrence, and certainly not rehabilitation.
But, civil rights advocates insist, even if disenfranchisement made sense
in theory, its proven effect of amputating the minority vote makes it an
unacceptable racial constraint in practice.
And the especially heavy impact of felon disenfranchisement on racial
minorities is undeniable. Blacks make up 40 percent of the nation's
disenfranchised, even though they are only 12 percent of the general
population. At least 1.4 million black men13 percent of all black
mencannot vote because of state felon disenfranchisement laws. These laws
do not, of course, target particular races by name, but they nevertheless
have a provably drastic effect on black and Latino voter eligibility.
The racial impact is extreme in some states, by latest estimates, with
Alabama and Florida barring nearly a third of all black men from the polls
for their entire lives. A quarter or more of all black men face lifetime
voting bans in Iowa, Mississippi, Virginia, New Mexico, and Wyoming.
It is no wonder that racial minorities are most severely affected, since
they represent an astonishing majority of those Americans sentenced to jail
or prison. More than two-thirds68 percentof the nation's incarcerated are
people of color. Black men in the U.S. face a 30 percent likelihood of
being locked up at some point in their lives and Hispanic men 17 percent,
while white men's chances are around 4 percent, according to the U.S.
Department of Justice.
Some analysts attribute the race imbalances in felony convictions largely
to politics. Drug enforcementa major source of convictionsdescended on
minority communities beginning in the 1980s, when the infamous
crack-versus-powder cocaine sentencing difference was born. The stiffer
penalties for drugs associated with low-income, minority areas, along with
police strategies prioritizing urban street sweeps over suburban
investigations, have sent floods of blacks and Latinos to prison.
With blacks being incarcerated at a rate seven times higher than whites,
felon disenfranchisement laws threaten a hemorrhaging of minority political
power into the future.
Historians say the racial voting imbalances born of felon
disenfranchisement are hardly a coincidence. It is well-known that white
majorities in former slave states used criminal-law enforcement to retain
power following emancipation. Sociologist Christopher Uggen has mapped
today's most restrictive felon voting bansthose disenfranchising not only
during incarceration, but also during parole, probation, or even for
lifeto Southern states, which also hold the highest percentage of nonwhite
In Alabama, Florida, Mississippi, and Virginia, for instance, approximately
one in 25 people are disenfranchised. Florida and Texas have
disenfranchised the most peoplein each state more than 600,000. Together
they have taken away the right to vote from over 1 million Americans.
Alabama, Virginia, and California disenfranchise around a quarter of a
million people each.
The only two states that allow even felony inmates to vote, Maine and
Vermont, house relatively few minority prisoners. The prevalence of felon
disenfranchisement in Northern and Western states, scholars say,
illustrates that racism, or at least indifference to the fate of racial
minorities, is misunderstood to be only a "Southern" problem.
A documented history of state discrimination tends to win the greatest
sympathy from courts. The strongest felon disenfranchisement challenge
today, then, is Johnson v. Bush, in which a class of some 600,000 former
felons from Florida are fighting their lifetime ban from the polls. The
Brennan Center, which will represent the plaintiffs before the 11th Circuit
Court of Appeals later this month, points to racist legislative language it
unearthed from the time of the voting ban's creation. The 1868 lawmakers
were determined to "prevent a negro legislature" and keep Florida from
being "niggerized," according to documents cited by the plaintiffs.
Lawyers for Governor Bush insist that the voting ban was later re-enacted
without such racist intent. But plaintiff lawyer Jessie Allen points out
that the Supreme Court's own juris-prudence requires governments wishing to
continue once discriminatory policies to demonstrate an entirely new and
legitimate justification. Allen claims there is no reason good enough to
overcome a clear history of racism, especially considering the contemporary
data showing the disenfranchisement rate for blacks to be more than twice
as high as for nonblacks.
A panel of the 11th Circuit had ruled for the Florida plaintiffs last year,
reasoning that "although felon disenfranchisement does not apply only to
African Americans, racially discriminatory policies can be deliberately
overinclusive. Poll taxes, for example, surely disenfranchised some whites
as well as blacks even though they were discriminatorily intended to impact
blacks." Jeb Bush's lawyers appealed and were granted the upcoming
rehearing en banc. Some observers wish that Johnson v. Bush, with its
historical evidence and especially stark disenfranchisement numbers, were
up for possible review by the Supreme Court, instead of the ones that are
Yet the Voting Rights Act is intended to prevent not just intentional
racism, but also seemingly neutral voting restrictions that result in
Armed with data on racial disparities in law enforcement and voting loss,
but without a historical record of intentional discrimination, felons in
Washington state filed one of the challenges currently appealed to the
Supreme Court. In the early stages of Farrakhan v. Locke, a federal trial
court came to the ratherremarkable conclusion that the plaintiffs'
"evidence of discrimination in the criminal justice system, and the
resulting disproportionate impact on minority voting power, is compelling."
Nevertheless, the court dismissed the case, deciding that proof of
discrimination in law enforcement was not relevant to voting rightseven
though the criminal justice system directly produces the pool of convicts
summarily stripped of the right to vote.
The state, after all, was not disenfranchising only black felonsit was
also disenfranchising white felons. How people were accused and convicted
of felonies in the first place was simply a criminal justice question and
not relevant to voting, the court concluded.
A three-judge panel of the Ninth Circuit Court of Appeals reversed the
district court. Discrimination in law enforcement was part of the "totality
of circumstances" that the Voting Rights Act covers in forbidding
discriminatory voting practices, the panel concluded, law enforcement being
a necessary "circumstance" to disenfranchising people based on felony
convictions. Over the vigorous objection of a widely respected and
conservative judge, the full circuit refused to reconsider the panel's
decision. The state then appealed that decisionfrom the most notoriously
liberal and most overruled circuit in the nationto the Supreme Court.
If the Supreme Court declines to review the case, then minority felons in
all nine states within the Ninth Circuit will be able to use evidence of
law enforcement discrimination to challenge felon vote denial. But minority
advocates fear that the courtgenerally impatient with the Ninth Circuit,
unfriendly to federal interference in state criminal matters, and faced
with a split among the nation's various courtswill not be able to resist.
The conflicting case from New York, Muntaqim v. Coombe, then gives the
court an alternative that is dreaded by the civil rights community.
Originally filed by an inmate without counsel, the New York case lacks the
sort of factual record that civil rights lawyers prefer to build, one that
would fully show the racial disparities in the state. For even in liberal
New York, the figures are grim: Blacks and Latinos compose 80 percent of
the state's prison population, even though they are just 30 percent of the
general population. The state-friendly decision questions whether Congress
believed disenfranchisement laws to be a possible means of racial
oppression when it was deciding how far into state affairs the protections
of the federal Voting Rights Act could be extended. Not far enough to help
the plaintiffs, the New York appeals court concluded.
If that analysis prevails on the national level, then the only recourse for
the felon plaintiffs will be to lobby Congress to pass new legislation or
to mobilize, state by state, for local law change. But not only are felons
a far from popular bunch, they are notsince they cannot votea political
At its core, the contest over felon disenfranchisement is a debate about
whether and how to reinforce minority voices in American democracy.
The problem is obvious just in the way that felon disenfranchisement
actually works. Voters elected the legislators who enacted the felon voting
bans that have robbed the very groups most affected by the bans of the
opportunity to vote them down one day. It is a vicious cycle of shrinking
political participation, with minority groups pushed to the outside.
If that shrinking circle of decision making makes felon voting bans seem
less than legitimate, it is natural to wonder about the legitimacy of other
policieseducation, social services, policingthat heavily affect these
disenfranchised minority groups and their run-ins with the criminal justice
Supporters of felon disenfranchisement cast convicts as calculating,
immoral individuals whose race is beside the point. But the disenfranchised
and their advocates are struggling to show that criminal matters are a
creature of the political system, and that the minority status of the
disenfranchised therefore matters a lot in the context of group politics.
(An entire movement has even cropped up against the policy of counting
felon bodiesfor allocation of services and elected government seatsin the
rural, white districts where prisons are typically located, instead of in
the convicts' urban hometowns. Critics claim that the approach adds insult
to injury. Not only are minority communities robbed of voting power by
felon disenfranchisement, but they are further robbed of their share in
government attention by this counting method.)
This debate over minority political power is timely, since key provisions
of the Voting Rights Act are set to expire in 2007 unless Congress
reauthorizes them. Many disappointed voices say that the civil rights
movement's crowning document has failed to achieve the racial equality
imagined back in 1965. The act has become just words on a page, they say,
while the cultural commitment to breaking racial restrictions has dissipated.
Whether federal voting rights law can be resurrected to vindicate racial
minorities is the key question in the felon disenfranchisement cases up for
possible review by the Supreme Court. The outcome will depend on whether
the court looks through the lens of minority political access or merely
views the issue as a raceless criminal matter.
The court may avoid jumping into this democracy debate altogether this
term. But everyone knows that it is not a question of if, but when.
One source for data and analysis about felon disenfranchisement is the
(<http://www.sentencingproject.org>sentencingproject.org), a nonpartisan
criminal justice think tank. Information on legal activity and organizing
can be found at Right to Vote (<http://www.righttovote.org>righttovote.org).
Research assistance: Ben Shestakofsky
The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
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