Are felony voter laws a civil rights issue?

In a recent speech to the Leadership Conference on Civil and Human Rights at Georgetown University, Attorney General Eric Holder said it is “time to fundamentally rethink state laws that permanently disenfranchise people who are no longer under federal or state supervision.”

He added some exaggeration by saying that “5.8 million Americans are prohibited from voting because of current or previous felony convictions …” and that “2.2 million African Americans are banned because of these state laws.” The fundamental point of his speech was that African Americans are discriminated against by felony voter laws because they were passed during post-Reconstruction in order to strip African Americans of their voting rights. If Holder’s assertion is correct, the laws would definitely be unconstitutional. These laws further discriminate against African Americans today, Holder said, because “the impact of this disenfranchisement on modern communities of color remains both disproportionate and unacceptable.”

Several of the attorney general’s assertions and implications are simply wrong.

Surely even he means that the 5.8 million should be reduced by the approximately 1,477,000 still in prison or jail and 655,000 parolees and felony probationers, because he began his speech with “no longer under federal or state supervision.” He may sympathize with those who believe that felons who are incarcerated, on parole or probation should cast ballots, but in his speech he talked about “former inmates and not under supervision” more than once. What he is really saying is approximately 2,700,000 ex-felons are not voting because they have not fully completed state requirements to be restored. Of those, about 540,000 are African American. Of these 2,700,000 ex-felons, 1,325,000 (49 percent) are in Florida and of these, 265,000 (20 percent) are African American. Although he indicts the states in general, given the statistics his remarks are directed mostly to one or at most a few states.

He is also wrong when he uses the term “permanent” because no state “permanently” disenfranchises ex-felons. Every state has a legal procedure by which ex-felons can regain their voting rights. However, three states make it very difficult. For example, Florida requires non-violent ex-felons to wait five years and violent ex-felons seven years before they can request executive clemency. Given the criminal recidivism involved, a large number will not achieve these good behavior goals. In 2013, Virginia, which had the second highest number (351,943) of ex-felons not voting, ended any requirements for non-violent crimes, which will reduce their numbers considerably.

On the other end of the of the spectrum, 38 states (including Arkansas) allow ex-felons to vote when they are no longer under “supervision.” Some of the remaining 12 states have stricter laws delineated by specific crimes which make restoration difficult but not permanent. Most of them require a higher standard of restoration for those who have committed murder, rape, treason, voter fraud and child abuse or molestation; Tennessee, which has the third highest number of ex-felons (247,808) not voting, requires a pardon for these crimes for ex-felons to regain their rights to vote. The area where Mr. Holder’s assertions are most clearly wrong is that the origins of these state laws are rooted within specific efforts to discriminate against African Americans and were used to strip them of their voting rights. Criminal disenfranchisement actually has its roots in the punishment of “civil death” imposed for criminal offenses under Anglo-Saxon law and beyond. These principles came to the British colonies and were later adopted in the United States. Voting rights, including specific requirements for voting, were left to the states under the new Constitution in 1787. Long before the Civil War, a large majority of the states had criminal disenfranchisement laws.

In most Southern states including Mississippi, Alabama, Virginia, Tennessee, Florida, Louisiana and Texas, these laws were established in the early to mid-1800s. It is correct to say that some of the Southern states enhanced the laws to discriminate during post-Reconstruction. Indeed, some provisions in 1901 Alabama Constitution were for this specific purpose. However, felony disenfranchisement language was about the same in most of the new constitutions that followed Reconstruction. Today the former Confederate states no longer have post-Reconstruction voter language in their constitutions or voting laws designed to intentionally discriminate. The Voting Rights Act settled this issue. In the case of Florida the most recent law was passed in 2011, not following Reconstruction.

Mr. Holder is correct in his assertion that felony disenfranchisement has a disproportionate effect on communities of color because African Americans as a percentage of their population are convicted of crimes at higher rates than whites. However, these state felony disenfranchisement laws have been repeatedly upheld by the courts. One example is the Washington state law. A three-judge panel of the Ninth U.S. Circuit Court of Appeals on January 5, 2010, declared that blue state Washington’s felon disenfranchisement law violated the Voting Rights Act in the fact that it was attributable to racial discrimination in the case of Farrakhan v. Gregoire.

However, the Washington law was upheld on October 7, 2010 by the full Ninth Court Circuit Court of Appeals. The judges held that the plaintiffs presented no evidence of discrimination. In a related case, Simmons v. Galvin (2010), the United States Supreme Court refused to hear the case because the petitioners were incorrect when they claimed that the Massachusetts law banning felons from voting while incarcerated was racially discriminatory and in violation of the Rights Act. Although there have been many challenges in the courts, these laws have repeatedly been declared constitutional and apply equally to all Americans. I am positive that Mr. Holder is not unaware of the many court decisions related to this issue,but he still wrongfully states that the laws are based on racial discrimination. Those committing crimes make the numbers disproportionate, but the laws are not discriminatory.

Since the history of felony disenfranchisement laws and court decisions upholding these laws are available to anyone, why does the attorney general continue to argue that this is all about racial discrimination? My theory is that an appeal to this kind of argument politically benefits Democrat candidates, and Holder’s commentary is politically motivated. If in fact ex-felons were to vote with no restrictions, one may assume that most of their votes would be cast for Democrats.

This is particularly true as it relates to Florida. The outcome of the 2000 presidential election in Florida is still in the craw of the Democrat party.As they see it, allowing ex-felons to vote with no accountability may have changed the outcome of that election and possibly others. Therefore, this is another instance of a federal official demanding that the states forfeit their rights to possibly satisfy some political party goal.

This is clearly an area where the states are fully and legally within their rights to disenfranchise anyone who violates the laws of the land. On an individual basis, the states do not have to restore voting rights until they are fully satisfied that felons have met all the requirements the states see fit to impose. It has been so from the founding of the United States.

Tom Howard is Distinguished Professor of Political Science Emeritus at Harding University.

Perspective, Pages 79 on 02/23/2014

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