Felon Disenfranchisement

Felon disenfranchisement refers to the practice of restricting the voting rights of those convicted of felony-level crimes. The loss of voting rights is a Collateral Consequence of a felony conviction. Almost every state in the United States bars felons from voting for some amount of time. States vary, however, in the classes of felons disenfranchised and the duration of disenfranchisement.

In general, states follow one of four disenfranchisement schemes: (1) disenfranchising prisoners; (2) disenfranchising prisoners and parolees; (3) disenfranchising prisoners, parolees, and probationers; or (4) disenfranchising prisoners, parolees, and probationers, and former felons who have completed their sentences. In the first three categories, voting rights are usually restored automatically on completion of prison, parole, or probation. In the last category, however, persons wishing to vote must receive a pardon or clemency from the state. Some states make further distinctions by restoring rights automatically only to first-time offenders or to those convicted of nonviolent crimes, while requiring recidivists and violent offenders to receive a pardon or clemency. The United States is unusual in restricting the voting rights of non-incarcerated felons, because almost no other democratic nation does so.

Origins and Development of Felon Disenfranchisement Laws in the United States

The practice of limiting the Citizenship rights of criminals has ancient origins, and some form of disenfranchisement has been practiced in the United States since colonial times. Earlier forms of disenfranchisement, however, were limited both in scope and duration, because laws typically barred from voting only those convicted of specific crimes and only for a limited time. It was not until the 1800s that states began disenfranchising entire classes of felons without regard to the underlying crime. By 1850, eleven states disenfranchised felons, all of which imposed indefinite disenfranchisement that typically required a gubernatorial or legislative pardon to regain voting rights. The 1860s and 1870s were a period of significant change, during which seventeen states added a felon disenfranchisement law.

Because this period coincided with the end of the Civil War and the passage of the Fourteenth and Fifteenth Amendments, which expanded both definitions of Citizenship and the right to vote, many assert that felon disenfranchisement laws are linked to racial conflict. This theory stresses that states used felon disenfranchisement laws as a tool to suppress the voting power of African Americans. Research has found a link between the proportion of African Americans in a state’s prison population and passage of a felon disenfranchisement law. Competing views, however, stress that the laws are race-neutral, and any disparate impact is an incidental effect.

Another period of marked change occurred nearly a century later. During the 1960s and 1970s, many states liberalized their disenfranchisement laws, typically by providing for automatic restoration of rights on completion of sentence. This trend toward expanding the voting rights of felons continued throughout the rest of the century, although a few states implemented new restrictions on felon voting rights.

Constitutional Challenges to Felon Disenfranchisement

Although voting attained and confirmed its status as a fundamental right through a series of decisions by the Warren Court, felon disenfranchisement laws are treated differently than other Voting Rights cases. Most challenges to the laws have been unsuccessful. In 1974, the Supreme Court upheld the practice of felon disenfranchisement. In Richardson v. Ramirez, the Court interpreted disenfranchisement as an ‘‘affirmative sanction’’ of Section Two of the Fourteenth Amendment, which reduced congressional representation of states disenfranchising males, unless that disenfranchisement was for ‘‘rebellion or other crimes.’’ Thus, while other restrictions on the right to vote are subjected to judicial ‘‘strict scrutiny’’ under which states must demonstrate a Compelling State Interest served through narrowly tailored means, felon disenfranchisement laws have not been held to this standard.

In addition to general challenges, others claim that felon disenfranchisement denies the right to vote based on race. In 1985, in Hunter v. Underwood, the Supreme Court invalidated an Alabama disenfranchisement law based on an impermissible intent to racially discriminate. Race-based challenges focus on the Fourteenth and Fifteenth Amendments, as well as the Voting Rights Act of 1965. Despite the disproportionate impact of felon disenfranchisement on African Americans, courts have rejected these claims in the absence of establishing a clear discriminatory intent.

The Impact of Felon Disenfranchisement Laws

Although the size of the disenfranchised population varies by state, the laws collectively have a large impact in the United States. In the 2000 presidential election, nearly 4.7 million people—about 2.3 percent of the voting-age population—were disenfranchised because of a felony conviction. Of this group, 1.8 million people were African Americans, representing more than seven percent of the African-American voting-age population.

The size of the disenfranchised population also holds the potential to change the outcomes of closely contested elections, particularly in states with laws that ban voting beyond completion of sentence. Because of the demographic characteristics of disenfranchised felons, these voting restrictions seem to have provided a small but consistent advantage to Republican candidates in several U.S. Senate and presidential elections.

Despite the prevalence of laws disenfranchising felons across the United States, the restrictions do not enjoy widespread popular support. One national poll indicated that eighty percent of Americans approve of permitting felons to vote after they have completed their sentences, whereas sixty percent approved of allowing felons on probation and parole to vote. Incarcerated felons, however, receive less support, with only one-third believing that prisoners should be permitted to vote.

Conclusion

Felon disenfranchisement laws restrict the voting rights of those convicted of felonies. Although the laws in their contemporary form did not take shape until the mid- to late-nineteenth century, nearly all states eventually adopted a law prohibiting certain classes of felons from voting. Although state laws vary, the laws collectively disenfranchise millions and likely hold the power to change elections. Despite the breadth of felon disenfranchisement laws and their disproportionate impact on African Americans, courts have generally upheld their constitutionality as a restriction on the right to vote.

ANGELA BEHRENS and CHRISTOPHER UGGEN

References and Further Reading

• Allard, Patricia, and Marc Mauer. Regaining the Vote: An Assessment of Activity Relating to Felon Disenfranchisement Laws. Washington, D.C.: The Sentencing Project, 1999.
• Behrens, Angela, Christopher Uggen, and Jeff Manza. ‘‘Ballot Manipulation and the ’Menace of Negro Domination’: Racial Threat and Felon Disenfranchisement in United States, 1850-2002.’’ American Journal of Sociology 109 (2003): 3:559–605.
• Chin, Gabriel J., Rehabilitating Unconstitutional Statutes: An Analysis of Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998), University of Cincinnati Law Review 71 (2002): 2:421–455.
• Clegg, Roger, Who Should Vote? Texas Review of Law and Politics 6 (2001): 1:159–178.
• Demleitner, Nora V., Continuing Payment on One’s Debt to Society: The German Model of Felon Disenfranchisement as an Alternative, Minnesota Law Review 84 (2000): 4:753–804.
• Ewald, Alec C., ’Civil Death:’ The Ideological Paradox of Criminal Disenfranchisement Law in the United States, University of Wisconsin Law Review 2002 (2002):5:1045–1137.
• Fellner, Jamie, and Marc Mauer. Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States. Washington, D.C.: Human Rights Watch and The Sentencing Project, 1998.
• Fletcher, George, Disenfranchisement as Punishment: Reflections on Racial Uses of Infamia, UCLA Law Review 46 (1999): 6:1895–1908.
• Hench, Virginia, The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, Case Western Law Review 48 (1998): 4:727–798.
• Itzkowitz, Howard, and Lauren Oldak, Restoring the Ex-Offender’s Right to Vote: Background and Developments, American Criminal Law Review 11 (1973): 3:721–770.
• Keyssar, Alexander. The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books, 2000.
• Manza, Jeff, Clem Brooks, and Christopher Uggen. ‘‘Civil Death or Civil Rights? Public Attitudes Toward Felon Disenfranchisement in the United States.’’ Public Opinion Quarterly 68 (forthcoming 2004).
• Shapiro, Andrew, Challenging Criminal Disenfranchisement under the Voting Rights Act: A New Strategy, Yale Law Journal 103 (1993): 2:537–566.
• Uggen, Christopher, and Jeff Manza. ‘‘Democratic Contraction? The Political Consequences of Felon Disenfranchisement in the United States.’’ American Sociological Review 67 (2002): 6:777–803.
• United States Department of Justice, Office of the Pardon Attorney. Civil Disabilities of Convicted Felons: A Stateby- State Survey. Washington, D.C.: United States Government Printing Office, 1996.

Cases and Statutes Cited

• Hunter v. Underwood, 471 U.S. 222 (1985)
• Richardson v. Ramirez, 418 U.S. 533 (1974)
• Voting Rights Act of 1965, Act of Aug. 6, 1965, 79 Stat. 437, codified at 42 U.S.C. } 1973

See also Collateral Consequences; Fourteenth Amendment; Voting Rights; Voting Rights Act of 1965; Warren Court