Isabella Carter
The topic of whether banning felons from voting is a violation of the constitution is a highly contested issue in the United States. The 14th Amendment, ratified in 1868, prohibits states from denying citizens life, liberty, or property, without due process of law, but includes the caveat that the right to vote may be abridged...for participation in rebellion, or other crime. While some critics argue that felony disenfranchisement violates the equal protection clause of the 14th Amendment, the Supreme Court has exempted criminal disenfranchisement laws from strict scrutiny, interpreting the amendment as granting states the power to disenfranchise those convicted of criminal offences. The issue is further complicated by the fact that different states have different laws regarding felon voting rights, with some states imposing lifetime bans and others restoring voting rights upon completion of sentences. The debate surrounding felon voting rights is deeply intertwined with racial discrimination, with critics arguing that many state felon voting bans were designed to disproportionately target African Americans.
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What You'll Learn
Felon disenfranchisement laws violate international law
The United States has some of the world's most restrictive criminal disenfranchisement laws. In 2013, a coalition of non-profit civil rights and criminal justice organizations argued that these laws violate Articles 25 and 26 of the International Covenant on Civil and Political Rights (ICCPR), which the US ratified in 1992. Article 25 of the ICCPR states that every citizen has the right to vote, and this right must not be subject to discrimination based on race, sex, religion, or other categories. It also emphasizes that restrictions on voting rights should be "objective and reasonable".
The racially disproportionate impact of disenfranchisement laws in the US contradicts the principles of non-discrimination outlined in the ICCPR and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which the US ratified in 1994. CERD requires states to guarantee political rights, including the right to vote and stand for election, without distinction based on race, color, or national or ethnic origin. It also targets laws that may appear race-neutral but have the "purpose or effect" of restricting rights based on race.
The US criminal disenfranchisement laws disproportionately impact specific racial groups, creating significant racial disparities in voting rights curtailment. Scholars have linked the origins and intentions of many state felon voting bans to racial discrimination. For example, in some states, legislators have been accused of tailoring felon voting bans to disproportionately target African Americans by targeting minor crimes more common among these citizens.
The international law scholar Karl Josef Partsch rejects blanket criminal disenfranchisement provisions, arguing that exclusion from voting should be reasonable and proportionate to the offence and sentence. The United Nations Human Rights Committee, which reviews adherence to the ICCPR, has affirmed that restrictions on voting rights should be proportionate to the offence and sentence.
The US may be the only democracy where convicted offenders who have served their sentences are nonetheless disenfranchised for life. While some countries, like Germany and France, permit disenfranchisement only when imposed by a court order, and others restrict voting rights for a short period after release, the US stands out for its stringent and permanent denial of voting rights to felons.
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The 14th Amendment allows felony disenfranchisement
The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. The most commonly used and frequently litigated phrase in the amendment is "equal protection of the laws", which has been central to many landmark cases. The Fourteenth Amendment has been interpreted in different ways in relation to felony disenfranchisement.
In Richardson v. Ramirez, the U.S. Supreme Court exempted criminal disenfranchisement laws from strict scrutiny, construing Section 2 of the Fourteenth Amendment as granting states an "affirmative sanction" to disenfranchise those convicted of criminal offenses. This reversed the California Supreme Court's ruling that the disenfranchisement of ex-felons was unconstitutional as a violation of equal protection guarantees. The Supreme Court held that a state does not have to prove that its felony disenfranchisement laws serve a compelling state interest.
In contrast, critics argue that Section 2 of the 14th Amendment allows but does not endorse felony disenfranchisement statutes as constitutional in light of the equal protection clause, and is limited to the issue of reduced representation. In Hunter v. Underwood, the Supreme Court unanimously declared that Section 2 did not protect disenfranchisement provisions that reflected "purposeful racial discrimination" that violated the equal protection clause. The Court ruled that a state's crime disenfranchisement provision will violate equal protection if it can be demonstrated that the provision was motivated by racial discrimination and had a racially discriminatory impact.
While the Fourteenth Amendment has been interpreted to allow felony disenfranchisement, it is important to note that the interpretation and application of this amendment in relation to voting rights is complex and continues to be a subject of legal debate and scrutiny. The constitutionality of felony disenfranchisement laws has been challenged, particularly in light of the Voting Rights Act of 1965, which was amended in 1982 to bar voting qualifications and practices that result in the denial or abridgment of the right to vote on account of race or color.
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Felony disenfranchisement is racially discriminatory
The argument that felony disenfranchisement is racially discriminatory has been a topic of debate for decades. The United States Commission on Civil Rights, The Lawyers' Committee for Civil Rights Under Law, and The Sentencing Project are among the critics of felony disenfranchisement. They argue that while Section 2 of the 14th Amendment allows for felony disenfranchisement statutes, it does not endorse them and is limited to the issue of reduced representation.
In the case of Hunter v. Underwood 471 U.S. 222, 232 (1985), the Court ruled that a state's crime disenfranchisement provision violates the Equal Protection Clause if it is demonstrated that the provision was enacted with an impermissible racial motivation and has a racially discriminatory impact. This ruling was further supported by the Supreme Court's decision in 1982, which clarified that the Voting Rights Act bars voting qualifications or practices that result in a denial or abridgment of the right to vote based on race or color.
The origins of many state felon voting bans have been linked to racial discrimination by scholars. In some states, legislators have been accused of tailoring felon voting bans to disproportionately target African Americans by targeting minor crimes more common among these citizens while allowing those convicted of more serious crimes to vote. For example, in Baker v. Pataki, inmates claimed that New York laws denying the franchise to incarcerated and paroled felons violated the Voting Rights Act due to their racially disproportionate impact.
The first felony disenfranchisement provisions were introduced in the United States in the early 19th century, coinciding with the consideration and contestation of voting rights for African American citizens. By the American Civil War, about 24 states had some form of felony disenfranchisement policy, and this number has only grown since. Today, most states have some form of restriction on the voting rights of citizens with felony convictions, and up to 19 million Americans with past convictions may be eligible to vote but may not know it due to confusing disenfranchisement laws.
While the courts have generally upheld the constitutionality of felony disenfranchisement, there have been efforts to restore voting rights to convicted felons. Notable examples include Senator Benjamin L. Cardin's introduction of the Democracy Restoration Act of 2017 and former New York City mayor Michael Bloomberg's fund of over $16 million to help convicted felons vote in Florida by paying their outstanding fines and fees. Additionally, reforms between 1997 and 2018 have resulted in 1.4 million Americans regaining their voting rights.
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Felony disenfranchisement is a form of taxation without representation
The United States Constitution has been interpreted in different ways by different people when it comes to felony disenfranchisement. The 14th Amendment, ratified in 1868, prohibits states from denying citizens "life, liberty, or property, without due process of law". However, it also includes the caveat that the "right to vote" may be "abridged...for participation in rebellion, or other crime".
Felony disenfranchisement, or denying felons the right to vote, has been a long-standing policy in the US, with the first felony provisions introduced in 1792 in Kentucky, and the first law disenfranchising felons enacted in 1818 in Connecticut. By 1840, four states had felony disenfranchisement policies, and by the American Civil War, about 24 states had some form of felony disenfranchisement policy. Many of these policies were linked to racial discrimination, as they targeted minor crimes more commonly committed by African Americans while allowing those convicted of more serious crimes, such as murder, to vote.
The question of whether felony disenfranchisement is constitutional has been the subject of much debate and several court cases. In Richardson v. Ramirez, the US Supreme Court exempted criminal disenfranchisement laws from strict scrutiny, interpreting Section 2 of the 14th Amendment as granting states the right to disenfranchise those convicted of criminal offenses. However, in Hunter v. Underwood, the Supreme Court unanimously declared that Section 2 did not protect disenfranchisement provisions that reflected "purposeful racial discrimination" in violation of the equal protection clause.
Despite these rulings, felony disenfranchisement continues to disproportionately impact African Americans, and critics argue that it is a form of taxation without representation. According to the Internal Revenue Service, "incarceration neither changes one's obligation to pay taxes and tax debts nor prohibits the receipt of tax credits and deductions upon release". As a result, many people with felony convictions who pay taxes are denied representation because they are denied their right to vote. This goes against the founding principle of the country that "no freeman should be subject to any tax to which he has not given his own consent, in person or by proxy".
In recent years, there have been efforts to restore the voting rights of convicted felons. In 2020, former New York City mayor Michael Bloomberg put together a fund of over $16 million to help convicted felons in Florida vote by paying their outstanding fines and fees. Additionally, reforms between 1997 and 2018 have resulted in 1.4 million Americans regaining their voting rights. However, as of 2020, Iowa was the only state to impose a lifetime felony voting ban, regardless of the crime committed.
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Felony voting bans disproportionately target African Americans
The United States Constitution does not explicitly prohibit felons from voting. However, felony voting bans disproportionately impact African Americans, perpetuating racial inequities and hindering progress towards a more inclusive democracy. This issue has attracted scrutiny from civil rights organisations and scholars, who have exposed the racial motivations and consequences of these bans.
The historical context of felony voting bans in the US is crucial to understanding their discriminatory nature. Many states adopted these bans in the 1860s and 1870s, coinciding with the contentious debate surrounding African Americans' voting rights. Scholars have established links between the timing and intent of these bans, suggesting they were employed as a tool to disenfranchise African Americans. This interpretation is supported by the fact that legislators in certain states have been accused of tailoring felony voting bans to disproportionately target African Americans. For instance, by targeting minor crimes more prevalent among African Americans while permitting those convicted of more severe offences, such as murder, to retain their voting rights.
The impact of felony voting bans is starkly evident in the racial disparities they create. African Americans are four times more likely than their non-African American counterparts to lose their voting rights. In five states—Arizona, Florida, Kentucky, South Dakota, and Tennessee—over 10% of African American citizens are barred from voting due to felony convictions. This disparity is not arbitrary but rooted in systemic racism within the criminal justice system. African Americans face higher rates of misdemeanour arrests and receive lengthier prison sentences compared to their white counterparts for similar offences. For instance, despite similar rates of drug use across races, African Americans are 3.7 times more likely to be arrested on drug-related charges.
The consequences of felony voting bans extend beyond the individual level, impeding the creation of an inclusive democracy. By disenfranchising individuals with felony convictions, these bans prevent communities that have been historically marginalised and under-resourced from attaining equal representation in democratic processes. This perpetuates a cycle where policies and laws are shaped without the input of those they directly affect, further entrenching racial inequities.
The intersection of felony voting bans with economic barriers further exacerbates the problem. Approximately 30 states require individuals to settle legal debts, fines, or restitution before regaining their voting rights. This effectively ties voting rights to financial status, disproportionately disenfranchising those who cannot afford these payments. As a result, even when felony voting bans are lifted, economic disparities may continue to hinder voting rights, particularly within African American communities, which have historically faced economic disadvantages.
In conclusion, felony voting bans in the United States disproportionately target African Americans, both in their design and impact. This has resulted in the marginalisation of African American communities and the perpetuation of racial inequities. Addressing these disparities is essential to fostering a more inclusive and equitable democracy, where all voting-age citizens, regardless of race, can actively shape the policies and laws that govern their lives.
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Frequently asked questions
The U.S. Supreme Court has ruled that criminal disenfranchisement laws are constitutional if there is no racially discriminatory intent. However, some critics argue that these laws violate the equal protection clause of the 14th Amendment.
Yes, Vermont and Maine are the only two states that do not disenfranchise felons while in prison.
Yes, according to the Internal Revenue Service, incarceration does not change one's obligation to pay taxes. Felons who pay taxes are denied representation because they are denied their right to vote.
It depends on the state. Most states restore the right to vote to citizens after they complete their sentences. However, some states restore voting rights automatically upon release from prison.
