Category: Voting

New 2019 laws restore voting rights in 11 states

This is the first in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief in various ways.  The full report on 2019 laws is available here.

Restoration of Civil Rights

  1. Voting 

In 2019, eleven states took steps to restore the right to vote and to expand awareness of voting eligibility.  Our experience is that many people convicted of a felony believe they are disqualified from voting when they are not:  almost every state restores voting rights automatically to most convicted individuals at some point, if they are even disenfranchised to begin with.

The most significant new re-enfranchisement laws were enacted in Colorado, Nevada and New Jersey, where convicted individuals are now eligible to vote except when actually incarcerated.  Colorado restored the vote to persons on parole supervision, while Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except while in prison.  In one of the final legislative acts of 2019, New Jersey’s governor signed a law limiting disenfranchisement to a period of actual incarceration, even in cases where a court has ordered loss of the vote for election law violations, immediately restoring the vote to 80,000 people.  These three states joined the two states (New York and Louisiana) that in 2018 took steps to limit disenfranchisement to a period of incarceration:  New York’s governor issued the first of a series of executive orders under his pardon power restoring the vote to individuals on parole, and Louisiana passed a law allowing people to register if they have been out of prison for at least five years.

Now, only three of the 19 states that disenfranchise only those sentenced to prison still extend ineligibility through completion of parole:  California, Connecticut, and Idaho.  Bills under consideration in 2019 in both California and Connecticut would allow people to vote once they leave prison, though in California this will require a constitutional amendment.

Kentucky saw perhaps the most dramatic extension of the franchise in 2019, when its incoming governor Andy Beshear issued an executive order restoring the vote and eligibility for office to an estimated 140,000 individuals convicted of non-violent felonies who had completed their sentences.  Before the order, individuals were required to petition the governor individually to obtain restoration of their voting rights.  (Governor Beshear’s father had issued a similar order in 2015 at the end of his own term as governor, but it was revoked by his successor.)  Iowa is now the only state that does not restore the vote automatically to most convicted individuals at some point.

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Legislative update: third quarter 2019 sees more new licensing and expungement laws

In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction.  A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions.  Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing.  In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record.  Another area of progress was restoring voting rights.

Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions.  Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions).  (California enacted a “clean slate” law shortly after the beginning of the fourth quarter.)  At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.)

By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon.

All of the laws described briefly below are more fully analyzed in the context of the state’s overall restoration scheme, in the detailed profiles of the Restoration of Rights Project.

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Florida gov asks state court to resolve felony voting dispute

Florida Governor Ron DeSantis has opened up a new front in the legal battle in Florida over voting rights for people with felony convictions.  DeSantis is asking the state supreme court for an opinion on whether Amendment 4, passed by Florida voters in 2018, restores the vote for people with outstanding court-ordered fines and fees.  DeSantis signed a law passed by the legislature saying no, but that law is being challenged in federal court.

Amendment 4

Amendment 4 automatically restored the right to vote for people convicted of felonies, other than murder or sexual offenses, upon “completion of all terms of sentence including parole or probation.”   On June 28, 2019, DeSantis signed legislation (SB7066) that defines “completion of all terms of sentence” to include legal financial obligations (LFOs), including if a court has converted the LFOs to a civil lien.  Supporters of SB7066 point to a previous hearing before the Florida Supreme Court—regarding whether Amendment 4 should be on the 2018 ballot—where the Amendment’s sponsors told the Justices that completion of sentence includes court-ordered fines and costs.

In federal court, individuals and supporters of Amendment 4 have brought several challenges to SB7066 as violating the U.S. constitution on a variety of grounds.  One complaint argues that by disqualifying persons with outstanding LFOs, even if a person has no ability to pay and even if the court has converted an LFO to a civil lien, the law violates the Equal Protection and Due Process guarantees of the Fourteenth Amendment.  It also argues that the law burdens the fundamental right to vote, is an unconstitutional poll tax, infringes on free speech and association, and was enacted with a racially discriminatory purpose.

UCLA law professor Beth Colgan recently published a survey of wealth-based penal disenfranchisement in the U.S.  She argues that while this widespread practice has been upheld in the lower courts under rational basis review, properly considered as a form of punishment it violates the Equal Protection Clause of the Fourteenth Amendment.

Request for Opinion

On August 8, DeSantis filed a four-page letter asking the Florida Supreme Court to weigh in on the meaning of the amendment.  “I will not infringe on the proper restoration of an individual’s right to vote under the Florida Constitution,” DeSantis states, asking the justices for “your interpretation of whether ‘completion of all terms of sentence’ encompasses financial obligations, such as fines, fees and restitution (‘legal financial obligations’ or ‘LFOs’) imposed by the court in the sentencing order.”

“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: Read more

Symposium on felony disenfranchisement set for Friday in Missouri

On Friday, April 12, a day-long symposium on felony disenfranchisement will be held at the University of Missouri in Columbia, MO.  The event, hosted by the Missouri Law Review and Kinder Institute on Constitutional Democracy, is open to the public.

Three panels of scholars will address: (1) the historical origins of conviction-based disenfranchisement and its consequences for democracy—featuring CCRC board member Gabriel “Jack” Chin, among other panelists; (2) felony disenfranchisement, voting rights, and elections; and (3) the democratic challenges of voting rights restoration.  Pamela S. Karlan will deliver the keynote.

For further reference, see our 50-state comparison chart documenting the loss and restoration of voting rights across the country; Gabriel “Jack” Chin’s recent book review: “New book argues collateral consequences can’t be justified”; and our comment on Professor Beth Colgan’s article on how inability to pay economic sanctions associated with a criminal conviction results in continuing disenfranchisement nationwide.

Updated report on 2018 fair chance and expungement reforms

On January 10, 2019, we released a report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  Since that time, we discovered five additional laws enacted in 2018 (in AL, PA, OR, MO, and the U.S. Virgin Islands), and have updated our report accordingly.

In 2018, 32 states, the District of Columbia, and the U.S. Virgin Islands enacted at least 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime. The CCRC report analyzes last year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

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“Wealth-Based Penal Disenfranchisement”

This is the title of an important new article by Professor Beth Colgan, forthcoming in the Vanderbilt Law Review, in which she documents how inability to pay economic sanctions associated with a criminal conviction (such as fines, fees and restitution) results in continuing disenfranchisement nationwide.  While the law in almost every state now restores the vote to those convicted of felonies no later than completion of sentence, and while fewer than a dozen states explicitly condition re-enfranchisement upon payment of court-imposed debt, Colgan shows how the link between re-infranchisement and conditions of supervision “significantly expands the authorization of wealth-based penal disenfranchisement across the country.”  Through a detailed analysis of interrelated laws, rules, policies and practices, including those related to conditions of probation and parole, she establishes that “wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.”

After describing the mechanisms of wealth-based penal disenfranchisement, Colgan offers a legal theory for “dismantling” them.  She argues that courts have looked at these mechanisms “through the wrong frame—the right to vote—when the proper frame is through the lens of punishment.”  Applying the doctrine developed in cases restricting governmental action that would result in disparate treatment between rich and poor in criminal justice practices, she concludes that wealth-based penal disenfranchisement violates the Fourteenth Amendment.

The article’s abstract follows:

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Press release: New report on 2018 fair chance and expungement reforms (updated)

Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  In the past twelve months, 32 states, the District of Columbia, and the U.S. Virgin Islands have enacted 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime.  The CCRC report analyzes the past year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.  The report, titled “Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018,” is available to download here. 

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

Read more

Marijuana decriminalization drives expungement reform

The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018.  By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction.  We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year.  Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring.

Another important series of second chance reforms this year has accompanied marijuana decriminalization.  These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”  Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman’s paper showcases issues that will becomes increasingly important as the War on Drugs winds down.  Professor Berman is the executive director of Ohio State University’s Drug Enforcement and Policy Center, whose official launch is November 2.  We expect that the Center under his management will give restoration of rights an important place on its policy agenda.

The abstract of Professor Berman’s article follows:  Read more

More states enact major “second chance” reforms

In recent weeks, three more states — Colorado, Louisiana and Vermont — have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status.

We are just now noting Wyoming’s enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws.

In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way.  States have enacted several different types of “second chance” laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing.

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