Tag: disenfranchisement

North Carolina court restores the vote to 56,000

Update: This decision was stayed by the North Carolina Court of Appeals on September 3, 2021. As a result, the decision will not go into effect either until the appeal is resolved or further order of the court. A three-judge state court in North Carolina has ruled that state’s felony disenfranchisement law unconstitutional as applied to individuals under supervision in the community, immediately restoring the vote to some 56,000 individuals. The decision means that in 24 states and the District of Columbia individuals convicted of felonies and serving a sentence in the community may vote.  North Carolina is the first southern state to restore the vote to convicted individuals upon release from prison. As the New York Times noted in describing the court’s action, the ruling was “not entirely unexpected,” since “the same court had temporarily blocked enforcement of part of the law before the November general election, stating that most people who had completed their prison sentences could not be barred from voting if [the] only reason for their continued supervision was that they owed fines or court fees.”  See Community Success Initiative v. Moore, No. 19-cv-15941 (N.C. Super. Ct. Sept. 4, 2020). While last year’s preliminary decision rested on the ground that requiring payment of court debt represented an poll tax, the challenge to North Carolina’s reenfranchisement scheme relied more broadly on its origins in intentional post-Civil War discrimination against Black people.  As the Times article noted, the decision “followed a trial that bared the history of the state’s disenfranchisement of Black people in sometimes shocking detail.” The law struck down on Monday, which was enacted in 1877, extended disenfranchisement to people convicted of felonies in response to the 15th Amendment, which enshrined Black voting rights in the Constitution. But in the decade before that, local judges had reacted to the Civil War’s freeing of Black people by convicting them en masse and delivering public whippings, bringing them under a law denying the vote to anyone convicted of a crime for which whipping was a penalty. A handful of Black legislators in the General Assembly tried to rescind the 1877 law in the early 1970s, but secured only procedural changes, such as a limit on the discretion of judges to prolong probation or court supervision. The court has not yet released its opinion, and state officials may decide to appeal. Read more

“Wealth-based penal disenfranchisement”

This is the title of a study by UCLA law professor Beth Colgan, published in the Vanderbilt Law Review, in which she documents how every state that disenfranchises people based upon criminal conviction also conditions restoration of the vote for at least some people upon their ability to pay.  In some states this is because the law requires people to pay fines, fees, restitution and other court costs before they can vote.  Even in the states that restore the vote immediately upon release from prison, “wealth-based penal disenfranchisement” may occur through policies applied by parole and probation authorities. Colgan proposes that such laws and policies can be challenged on Equal Protection grounds, arguing that felony disenfranchisement should be considered not as a civil rights deprivation but as punishment.  She argues that the test developed by the Supreme Court in cases involving disparate treatment between rich and poor in criminal justice practices, should operate as a flat prohibition against “the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.” Colgan’s article is particularly relevant in light of Florida’s recent enactment of a law that seems to frustrate the will of the 64% of Florida voters who acted last fall by ballot initiative to provide relief from one of the country’s strictest disenfranchisement provisions.  On Friday, shortly after the Governor signed into law a bill conditioning restoration of the vote on payment of all court-imposed debt, a group of civil rights organizations filed suit in federal court, claiming that the new law violates the Constitution in several ways, most premised on the notion that disenfranchisement constitutes punishment.  Among other things, the suit argues that “the Fourteenth Amendment’s doctrine of fundamental fairness prevents states from punishing individuals if they fail to do the impossible—satisfy legal financial obligations when they do not have the means to do so,” and that the new law violates Equal Protection in discriminating between those who are able to pay and those who are not.  We intend to follow this litigation all the way to the Supreme Court, if necessary. Here is the Colgan article’s abstract: This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution—may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices. Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia. After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them. There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses. Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice. This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame—the right to vote—when the proper frame is through the lens of punishment. This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly. Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny. The resulting test operates as a flat prohibition against the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense. Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach. Read more

Felony disenfranchisement, state by state

Felony disenfranchisement has become a hot topic as election day looms, and rightfully so given the significant impact that conviction-based loss of voting rights has on the makeup of the electorate and the slim margins by which many national elections are decided.  In the perennial swing state of Florida, for example, over 10 percent of the entire adult population is barred from voting for life because of a felony conviction. Within that group lies an astounding 21.3 percent of the state’s African-American population. Those numbers come from a new Sentencing Project report, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, which attempts to determine just how many individuals are ineligible to vote because of a felony conviction in each state, and how those numbers have changed over time.  It estimates that 6.1 million individuals are ineligible to vote nationwide because of a felony conviction, and that 1 in 13 African-Americans are barred from the polls due to a conviction.  Florida leads the nation in felony disenfranchisement, with Kentucky, Mississippi, and Tennessee close behind.  Kentucky and Virginia (another swing state) disenfranchise the largest share of their African-American population, at 26.2 percent and 21.9 percent, respectively, with Florida close behind at 21.3 percent.  The high level of disenfranchisement in these states is largely due to the fact that all but one (Tennessee) strip individuals convicted of felonies of their voting rights for life absent discretionary executive action.  Even in states that restore the right to vote automatically, many convicted people assume they cannot vote and therefore do not register.  The laws on felony disenfranchisement differ widely from state to state.  Our 50-state chart on the “Loss and Restoration of Civil Rights and Firearm Privileges” and our state-by-state profiles of restoration of rights provisions describe the law and policy on felony disenfranchisement in each state, as well as the mechanisms by which convicted individuals are restored to the franchise.   These resources show just how much variation there is among the states when it comes to felony disenfranchisement: In every state except Maine and Vermont, at least some people convicted of a felony lose the right to vote.  In 16 states and the District of Columbia only those sentenced to prison lose the right to vote, and in 28 states all or most felony offenders are restored to the franchise after completion of sentence.  Only four states (Florida, Iowa, Kentucky, and Virginia) apply a lifetime bar to all felony offenders which may only be lifted by executive action or, in the case of Kentucky, expungement.  Seven states apply a lifetime bar to selected categories of offenses or offenders:  two of these seven apply it to many (Alabama and Mississippi), while two apply it to very few (Delaware and Tennessee).  Of the other three states in this group, one applies the lifetime bar only to recidivists (Arizona) while two apply it based on serious violence and recidivism (Nevada and Wyoming).     Our state-by-state profiles include detailed information on how these laws and policies have changed in recent years.  With restoration of voting rights left entirely to executive discretion in most of the states with lifetime bans, the availability of relief and the way that it is dispensed can change drastically depending on who is in office and how they choose to exercise their authority.  Virginia provides the most recent example of this:  Earlier this year the state’s Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe that purported to restore voting rights automatically to everyone who had completed their sentence and satisfied attendant financial obligations.  In response, McAuliffe vowed to restore the right to vote on an individual basis to more than 200,000 individuals affected by his order.  By way of contrast, under Florida’s current governor voting rights have been restored to fewer than a thousand people in 2014 and 2015.  Recent developments in law and policy have also affected the extent of disenfranchisement in Alabama, California, Delaware, Iowa, and Maryland. For an overview of the felony voting laws in each state — and the law surrounding other civil rights such as jury participation, firearm possession, and the right to hold public office — view our 50-state chart here. More in-depth descriptions of each states’ laws and policies can be found in our state-by-state profiles on “Restoration of Rights, Pardon, Sealing & Expungement,” accessible via the links below:     Read more

Felony Disenfranchisement: Setting the Record Straighter

Recently, a woman standing outside of a Berkeley grocery store asked if I wanted to register to vote. I asked her, “Can I vote if I’m on probation?” She looked at me with horror, gripped her clipboard, and physically recoiled from me and the cantaloupe I was holding. Once she regained some composure, she sincerely, confidently, and erroneously informed me that California’s laws prohibit voting while on probation. That encounter inspired me to draft these goals for all of the voter registration advocates (including me!) working the sidewalks this election season: 1: Practice not physically recoiling in horror from people we encounter in life. 2: Learn the voting laws in our jurisdictions to avoid disenfranchisement through disinformation. Each state has its own laws about voting following a felony conviction.  Two states never disenfranchise voters following conviction. (Hey, Maine! Hey, Vermont!) Some states permanently terminate the voting rights of outrageous numbers of its citizens: Florida’s draconian voting laws disenfranchise 10% of its total population. In 2000, Florida disenfranchised 600,000 citizens with felony convictions. That same year, its presidential race was decided by 537 votes. Surprising no one who understands America’s criminal justice system, the burden of felony disenfranchisement laws falls disproportionately on black Americans. The United States disenfranchises 7.7% of its black citizens compared to 1.8% of the rest of its population. Back to Florida: 23% of black adults there—nearly one in four—are disenfranchised. Permanently. If statutory disenfranchisement and structural racism weren’t bad enough, disenfranchisement through ignorance is rampant. Take my grocery store disenfranchiser.  Widespread dissemination of misinformation is a consequence of a number of problems including our failure to properly fund our elections systems, a confounding web of frequently changing voter eligibility laws that vary state to state, and general confusion about criminal justice system processes. In many states, the right to vote turns on the difference between probation and parole. And in California, recent changes to voting laws requires an understanding of the difference between Post Release Community Supervision (PRCS), mandatory supervision, probation, and parole. In fairness, it’s not only individuals like Ms. Clipboard Gripper who get it wrong. Last night I asked the internet, “Can I vote while I’m on PRCS?” (Spoiler alert, the answer is yes.) The internet sent me to a number of sites that give the wrong, disenfranchising answer. These include the pages of many public defender’s offices, including the largest in the state. (That wrong answer was extra painful to read because it came right after this preamble: “There is a lot of confusion about the impact of a criminal conviction on voting rights. To set the record straight. . . .” ). Which brings me to voter registration Goal Number 3: Organizations that care about voting rights — unless you have the resources and expertise to keep your websites updated, accurate, and enfranchising, then take down details about voting laws and instead re-direct people to sites with up-to-date information and recent legal and political developments. Advocates are working to improve California’s voting laws. One bill now sitting on Governor’s Brown’s desk, AB 2466 (Weber), would restore voting rights to tens of thousands of people sentenced to jail for low-level, non-serious, nonviolent felony Realignment offenses. But even under California’s current laws, people on any type of probation can register and vote. Most people currently in custody in California jails can register and vote by mail while they are in jail. Once people sentenced to prison are discharged from felony parole, they can register and vote, even if they have felony convictions, even if they have been to prison in the past, and even if they remain on law enforcement registries. And they can register to vote without taking any steps to restore their civil rights, such as obtaining a pardon or Certificate of Rehabilitation. They simply have to register and vote. And they should do it now: In California, October 24 is the deadline to register to vote in the November 8 election. America is the America it can and should be only when voting rights are fully extended and fully exercised. Full stop. But it’s also worth noting one practical reason to fix our punitive and overreaching felony disenfranchisement laws. In November, Californians will vote on initiatives to end the death penalty, legalize marijuana, increase parole opportunities for people convicted of non-violent crimes, and limit the practice of trying children in adult court, among others. Which experts do I want weighing in on these criminal justice reform measures? People who have been directly impacted by existing laws and know from personal experience which polices will increase public safety and economic stability in our communities. In California, we have fewer than 50 days left to empower all eligible voters people to register. Let’s grip our clipboards, direct our horror at the disenfranchising myths about voting rights, and get to it.   More information on the loss and restoration of voting rights is available in the CCRC’s state-by-state guides to rights restoration, and our 50-state comparison chart. Read more