Why can’t felons vote?

SDStaff Manhattan replies:

First, let’s lay out the facts. Although some felons have been legally disenfranchised, others have not. Specifically, while only four states allow felons to vote while they are in prison, 18 allow felons to vote while they are on parole and 21 allow them to vote while on probation. Only 10 states permanently disenfranchise all felons and another handful do so to some ex-offenders or restore the ability to vote after a time limit. The Sentencing Project, a prisoner advocacy group, says that 13% of black males are disenfranchised under these laws. They’re an advocacy group and their exact figure is subject to challenge, but let’s not quibble over a few percentage points. Clearly, this is a big deal.

The simple answer to your question is that felons can’t vote is because voting is a civil right and you forfeit certain rights, temporarily anyway, when convicted of a serious crime. But the full story, as always, is more complex. Pull up a chair and light a cigar.

The voting history of the United States is mostly one of extending voting rights from the few to the many, not the other way around. Over the course of our Constitution, rights have been extended to non-whites (Amendment XV in 1870), to women (XIX in 1920), to people unable or unwilling to pay a poll tax (XXIV, 1964) and to people over the age of 18 (XXVI, 1971). Additionally, state laws extended the right to non-property owners and others. Felons mostly just never got out from the historical and common-law prohibitions against their ability to vote.

Convicted felons have been denied various privileges granted to other citizens going all the way back to ancient Rome and Greece — this practice is laced throughout the common law that serves as the basis for U.S. law. Hey, at least we don’t banish offenders any more.

The guiding case law currently is Richardson v. Ramirez, 418 U.S. 24 (1974). In that case, a majority of the Supreme Court found that the 14th Amendment gives the states clear permission to deny the vote to felons. The second part of the amendment essentially reduced a state’s representation in Congress if the state has denied the right to vote to otherwise eligible citizens for any reason “except for participation in rebellion, or other crime.” William Rehnquist, then a green associate justice, wrote for the majority that this language (and the accompanying legislative history) made it clear that the states may abridge the rights of those convicted of “other crimes.” Given your point about black males’ voting rights, it is interesting to note that one purpose of the 14th Amendment was to encourage states to extend voting rights to newly-freed slaves. If you ever write a song about irony, you’ll want a list of words that rhyme with Ramirez.

“That’s not fair!” you say. Well, here’s a glimmer of hope. In Hunter v. Underwood, 471 U.S. 222 (1985), the court found that the right to disenfranchise felons was not absolute. Specifically, the court found that a disenfranchisement law reflecting “purposeful racial discrimination” was not constitutional. So if one could show that the pattern of convictions of blacks vs. whites in the war on drugs or otherwise showed “purposeful racial discrimination,” one might be able to get Wild Bill and the Supremes to reconsider. When you go to argue the case, be sure to point out that states with tough anti-felon laws tend to be located in the South and that a lot of these laws were beefed up around the turn of the century to include crimes thought to be more commonly committed by blacks. But you probably won’t win. Your better bet is to get a change to the laws of your state. Good luck — not a lot of legislators want to put “I’ll give felons more rights!” on their campaign posters.

I’m grateful for the assistance of The Sentencing Project in the preparation of this item. You can learn more about felon-disenfranchisement laws from The Sentencing Project at http://www.sentencingproject.org/.

SDStaff Manhattan, Straight Dope Science Advisory Board

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