Preservation of political rights: The need to end permanent disenfranchisement of felons By: Nikki Skolnekovich

Preservation of political rights: The need to end permanent disenfranchisement of felons

By: Nikki Skolnekovich

“If voting changed anything, they’d make it illegal.”[1] This quote sums up the circumstances of millions of Americans who are banned from voting due to a felony conviction. The value of the right to vote was best captured by the Supreme Court stating, “[t]he political franchise of voting [is] a fundamental political right,” which exercised “in a free and unimpaired manner is preservative of other basic civil and political rights.”[2] Despite the importance of the right to vote to the operation of the democratic process in our country, millions of American citizens are permanently and categorically disenfranchised due to criminal convictions.[3] In many states, individuals with felony convictions face life-time voting bans, even after completing their term of incarceration and any post-release requirements of probation or parole.[4] In nine states, including Virginia, individuals with felony convictions are permanently disenfranchised and their right to vote may only be restored by court or Governor’s action.[5] Recently, Governor McAuliffe restored the right to vote to “approximately 206,000 Virginians who had been convicted of a felony but who had completed their sentences of incarceration and any periods of supervised release, including probation and parole.”[6] The Virginia Supreme Court found Governor McAuliffe’s blanket restoration of civil rights “to an entire class of unnamed felons without regard for the nature of the crimes or any other individual circumstances” to violate the Article V, Section 12 of the Virginia Constitution, which requires “the Governor communicate to the General Assembly the ‘particulars of every case’ and state his ‘reasons’ for each pardon.”[7] This case demonstrates the impossibility of restoring voting rights in states that impose life-time disenfranchisement on individuals with felony convictions. Permanent disenfranchisement of felons degrades the right to vote by providing inferior protection of the right, disqualifying large numbers of individuals from voting, and disproportionately affecting African American individuals.  States should take action to eliminate life-time voting bans.

Nationwide, millions of individuals are disenfranchised due to a felony conviction.[8] The extreme number of individuals facing disenfranchisement is counter to the democratic values and strides made for voting rights and a government of the people. “The fact that most states view people who have served time in prison as beyond the protection of bedrock, democratic principle of the right to vote shows how terribly short this country has fallen from achieving its ideals.”[9]

Beyond the sheer number of individuals disenfranchised by these statutes, the racial impact cannot be ignored. Virginia’s permanent disenfranchisement of 7.34% of the voting eligible population, resulting in “more than one in five African Americans [being] disenfranchised” is reminiscent of other policies that threatened the right to vote, such as poll taxes and literacy tests.[10] Discussing felon disenfranchisement, Brent Staples states that “statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.”[11] States, such as Virginia, must take action to end unreasonable and permanent disenfranchisement of individuals with felony convictions. The Virginia legislature fought the blanket restoration of civil rights to hundreds of thousands of individuals with felony convictions because of a lack of “specificity” and consideration of the “particulars of every case,” yet imposes a blanket disenfranchisement on those with felony convictions, with no consideration of the “particulars of every case.”[12] The right to vote, which when exercised in a  “free and unimpaired manner is preservative of other basic civil and political rights,”[13] should not be categorically and permanently denied to individuals, disproportionality of minority populations, who have served their sentence and paid their debt to society.

Finally, disenfranchisement of individuals with felony convictions does not provide protection for that right proportionate to the significance and impact of the right to vote. The right to vote, given its integral part in our democratic process, should be protected on the same level as other rights, such as the freedom of speech. Many qualifications, such as “literacy, or long residency in a community, or ability to prove identity, or lack of a criminal past” would likely not be “allowed to restrict free speech, or freedom from ‘unreasonable’ searches, or the right to counsel.”[14] With most constitutional rights, only restrictions that are “necessary to promote a compelling governmental interest” will be tolerated.[15] Similarly, life-time disenfranchisement of individuals with felony convictions should not be lightly or categorically imposed. The importance of the right to vote demands limited restrictions and only those with an important governmental interest.

As Governor McAuliffe stated in the wake of the reversal of his executive order restoring voting rights to hundreds of thousands of Virginians, “The struggle for civil rights has always been a long and difficult one, but the fight goes on.”[16] It is imperative that states take action to end the disenfranchisement of individuals with felony convictions.

 

[1] Kevin Robillard, Ten Great Quotes About Voting, Politico (Nov. 1, 2012), http://www.politico.com/gallery/10-great-quotes-about-voting?slide=8 (quoting anarchist Emma Goldman to which this quotation is commonly attributed).

[2] Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667 (1966) (internal citations omitted).

[3] Christopher Uggen et al., State-Level Estimates of Felon Disenfranchisement in the United States, 2010, The Sentencing Project (July 2012), at 16, http://www.sentencingproject.org/wp-content/uploads/2016/01/State-Level-Estimates-of-Felon-Disenfranchisement-in-the-United-States-2010.pdf (estimating that in 2010, 5,852,180 people had lost the right to vote due to a felony conviction).

[4] Felon Voting Rights, National Conference of State Legislatures (April 25, 2016),  http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx.

[5] Id.

[6] Howell v. McAuliffe, 788 S.E.2d 706, 710 (Va. 2016).

[7] Id. at 719.

[8] Uggen supra note 3, at 2.

[9] Brent Staples, The Racist Origins of Felon Disenfranchisement, N.Y. Times (Nov. 18, 2014) http://www.nytimes.com/2014/11/19/opinion/the-racist-origins-of-felon-disenfranchisement.html?_r=0.

[10] Uggen, supra note 3, at 2.

[11] Staples, supra note 9.

[12] Howell, 788 S.E.2d at 719.

[13] Harper, 383 U.S. at 667.

[14] Garrett Epps, What Does the Constitution Actually Say About Voting Rights?, The Atlantic (Aug. 19, 2013), http://www.theatlantic.com/national/archive/2013/08/what-does-the-constitution-actually-say-about-voting-rights/278782/.

[15] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 56 (1973).

[16] Fenit Nirappil & Jenna Portnoy, Va. High Court Invalidates McAuliffe’s Order Restoring Felon Voting Rights, Wash. Post (Jul. 22, 2016), https://www.washingtonpost.com/local/virginia-politics/virginia-court-invalidates-gov-terry-mcauliffes-order-restoring-felon-voting-rights/2016/07/22/3e1d45f6-5058-11e6-a7d8-13d06b37f256_story.html.

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