Where the Criminal Justice System Blocks Americans’ Right to Vote

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Fewer Americans convicted of felonies will be barred from voting this year thanks to rule changes in many U.S. states, but a lack of information around those reforms may still stop people from heading to the polls, according to criminal justice advocacy groups.

The Sentencing Project estimatesmore than 5 million could be barred from voting on Tuesday because of felony convictions, down from 6 million in 2016. At the same time, the number of formerly incarcerated people eligible to vote has increased to as many as 18 million — more than the entire population of Pennsylvania, according to the Campaign Legal Center. While both nonprofits havecreated resources to help people determine their eligibility to vote, misinformation and the complexity of state-by-state laws remain barriers for those who have had their rights restored. 

“Millions of Americans believe that felony convictions permanently take away your right to vote,” said Blair Bowie, Restore Your Vote manager for the Campaign Legal Center. “Unfortunately, this belief is sometimes perpetuated by misinformed corrections officials or local elections staff who wrongly tell people they cannot vote. Other times, felony disenfranchisement laws are too confusing.” 

Some states like Arizona and Mississippi actually do permanently disenfranchise those convicted of certain offenses, while Vermont, Maine and Washington, D.C. impose no restrictions, allowing people to vote from prison. Other states fall in between, creating a lack of cohesion and clarity aboutvoting rights across the U.S. 

The Sentencing Project estimates that one of every 44 American adults — or 2.27% of the total eligible U.S. voting population — is disenfranchised because of a current or previous felony conviction. For Black and Latinx communities, that percentage is much higher, especially in southern, Republican-leaning states. That is often by design, says Sean Morales-Doyle from the Brennan Center for Justice, a nonpartisan legal research institute.

“It’s important to keep in mind that many of these laws that disenfranchise people with convictions and disproportionately disenfranchise Black and Latinx voters were intended from the outset to do just that,” said Morales-Doyle, deputy director for the Brennan Center’s Democracy Program.

Many criminal disenfranchisement laws were put in place after the Civil War to intentionally deprive Black people of their right to vote and evade the mandate of the 15th Amendment, he said. And while some of the most overt practices to suppress the political power of communities of color were either eradicated or significantly blunted by the passage of the Voting Rights Act of 1965, others  still remain. 

The effects of these state laws appear in the data. One in 16 Black Americans of voting age is disenfranchised due to a felony conviction, a rate 3.7 times greater than that of any other group, according to the Sentencing Project. And although Black people make up about 13% of the U.S. population, 6.3% of the adult African American population is disenfranchised, compared with 1.7% percent of non-African American groups. In Wyoming, more than 36% of Black voters are disenfranchised because they are felons or ex-felons. In Mississippi, the state with the highest disenfranchisement rate overall, it’s about 16%.

 

Criminal disenfranchisement laws have also taken their toll on the Latinx community, a growing segment of the electorate with surging early and absentee voting rates for the 2020 election. With a record 32 million Latinx voters projected to be eligible to vote this year, they will outnumber eligible Black voters for the first time in a presidential election, according to Pew Research Center.

In three states — Tennessee, Arizona and Kentucky — the disenfranchisement rate is more than three times higher than the national rate of 2.04% for Latinx Americans.

This isn’t to say states aren’t taking some steps to reverse these trends. Last year, Arizona governor Doug Ducey signed into a law a bill that removed the requirement that citizens convicted of a first-time felony offense pay off their restitution before having their rights restored. In 2017, Alabama passed a law clarifying what it means for felonies to involve “moral turpitude,” the term used to describe disqualifying convictions in the state, by listing specific convictions that take away the right to vote. The law excluded drug possession offenses from the ban, and provided newfound clarity for citizens with convictions.   

In 2018, about 65% of Florida citizens voted in favor of Amendment 4, a ballot measure restoring the right to vote for people with prior felony convictions — except those convicted of murder or a felony sexual offense. The state legislature then passed Senate Bill 7086, which conditioned rights restoration on payment of all fines, fees and restitution. Though a handful of advocacy groups challenged this in court, the law was ultimately left in effect for this year’s general election. About 900,000 of Florida’s 1.1 million disenfranchised citizens have completed their sentences, but many are denied voting rights due to outstanding court fees, according to estimates from the Sentencing Project. (Disclosure: Michael R. Bloomberg, the founder and majority owner of CityLab parent Bloomberg LP,is funding a program run by the Florida Rights Restoration Coalition to pay fines for former prisoners.)

”You have a group of people with a prior conviction, many of whom are indigent and who should have been restored based on Amendment 4, but now see their rights clawed back simply because they can’t afford to pay LFOs (legal financial obligations),” said Julie Ebenstein, senior staff attorney with the American Civil Liberties Union’s Voting Rights Project.

Some states have pursued restoration through executive orders. Just this past August, Iowa governor Kim Reynolds issued an executive order restoring the right to vote for Iowans with convictions who had completed probation or parole and were not convicted for homicide. Governor Andy Beshear in Kentucky issued an executive order restoring voting rights to citizens convicted of nonviolent offenses upon completion of their sentence, making more than 100,000 citizens eligible to vote. 

And then there’s Cook County jail in Chicago. The detention center operates as an election precinct where detainees held pre-trial can vote in-person for the general election. The nonpartisan research center Prison Policy Initiative estimates that nearly half a million people in the U.S. are sitting in jail awaiting trial, meaning they haven’t been convicted and are eligible to vote. 

”If we’re serious about getting people reintegrated into communities, what better way than to have them vote,” said Cook County Sheriff Tom Dart. “It’s more than just checking off a box.”

Before the pandemic effectively ended visitation in jails, Dart worked with local advocacy groups and universities to bring election information to detainees. Early in-person voting took place on the weekends of Oct. 17-18 and 24-25, and, according to Dart, almost didn’t happen. “Originally, the board of elections suggested that we call [early voting] off and just do it by mail-in or absentee ballot,” he said. “I asked them to give me a chance.”

Turnout in the jail has been better than expected at nearly 50% participation, Dart said. It’s just one example of a place bringing civic engagement directly to those who are often left out of the process. Rhode Island and Washington, D.C., designated corrections facilities as formal registration agencies under Section 7 of the National Voter Registration Act. Twenty-one states and D.C. allow same-day registration on Election Day, and, as of April, 19 states and D.C. had enacted automatic voter registration policies.

If the 2018 vote in Florida is any indication of voter attitudes, Americans are overwhelmingly in favor of restoring voting rights regardless of partisan politics or how the votes of formerly incarcerated people may influence an election.

“It’s encouraging that many states since the last election cycle have expanded the electorate to include people with a prior conviction who have an important perspective to add to the political process,” Ebenstein said. “I hope that’s the way things keep trending and that people who have had their rights restored will come out and vote in this election.”

— With assistance by Marie Patino

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