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April 01, 2009

Challenging Disenfranchisement for Felony Convictions

by Ryan S. King

For Tayna Fogle, a former basketball star at the University of Kentucky, casting her ballot in 2006 was a profoundly emotional experience. “I cried as I came out of the voting booth,” she reported. For most Americans, voting is a duty that comes with living in a participatory democracy. It serves a practical need by acting as the mechanism of appointing our local, state, and federal representatives, while also playing a symbolic role by affirming our membership in the broader social collective and supporting our institutions of governance. But for Fogle, the process has an even deeper significance. She struggled for thirteen years to restore her right to vote after being released from prison for a drug conviction, having to navigate Kentucky’s complex restoration process in order to achieve her ultimate goal of regaining the franchise. Lamentably, Fogle’s success story is an exception that proves the rule, a fact to which millions more Americans can attest.

In forty-eight states, a felony conviction and sentence to prison results in a loss of voting rights. In thirty-five of those states, persons on parole cannot vote, and thirty states prohibit persons on probation from voting as well. In addition, in ten states a conviction for a felony can result in a lifetime loss of voting rights. As a result, more than five million Americans cannot vote due to a felony conviction, four million of whom are residing in the community, either under community supervision or having completed their sentences. The impact is most profound in the ten states with a lifetime disenfranchisement provision. For example, in Florida alone, more than three-quarters of a million persons who have completed their sentences are ineligible to vote.

Nationally, this policy has had a disproportionate impact on African Americans. More than two million African AmericansСone in twelveСare ineligible to vote due to a felony conviction. The geographical concentration of felony conviction patterns exacerbates preexisting racial inequities in the political system by diluting the political voice of many communities of color.

Moreover, the complex and confusing interstate variation of disenfranchisement laws and restoration procedures, described by some as a “crazy quilt,” serves as an obstacle for many persons who are eligible to vote but are unaware of their rights. Couple this de facto disenfranchisement with documented cases of state officials sharing misleading or incorrect information on voting laws and it is clear that far more than the five million legally disenfranchised Americans are unable to exercise their right to vote due to felony disenfranchisement laws.

The silver lining is that as the fairly high profile of the issue has raised public awareness of felony disenfranchisement policies over the last dozen years, support for reform has grown significantly. Surveys reveal that eight in ten persons support the restoration of voting rights upon completion of sentence, and nearly two-thirds believe that people on probation or parole should be permitted to vote. Many organizations have come out in support of reform, including the American Bar Association, which recommends that voting rights not be denied “except during actual confinement.” Policymakers have clearly taken notice of this groundswell of support for reform. Since 1997, nineteen states have amended felony disenfranchisement policies, restoring the right to vote to at least 760,000 persons in the process. These reforms included the repeal of lifetime disenfranchisement laws, the expansion of the right to vote to persons on probation and parole, and an easing of the restoration process for persons seeking to have their right to vote restored after completing their sentence.

These developments have emerged through a variety of different institutionsСlegislative, executive, and public referendum. Each underscores increasing public dissatisfaction with these restrictive policies. In Maryland and New Mexico, legislatures repealed lifetime disenfranchisement laws, restoring the right to vote to 52,000 and 69,000 residents, respectively. In Iowa, an executive order by ex-Governor Tom Vilsack restored the right to vote to 100,000 residents who had completed sentence. And in Rhode Island, a referendum on the ballot in 2006 was approved by voters granting voting rights to 15,000 persons on probation or parole. In addition to these reforms, procedural reforms to the postsentence restoration process in states such as Alabama, Florida, Tennessee, and Virginia eased the process of applying for rights to hundreds of thousands of state residents.

The momentum for legislative reform continues unabated. The 2009 legislative season has already witnessed the introduction of a number of reform-minded bills, including efforts to repeal blanket lifetime voting bans in Kentucky and Virginia, the two most restrictive states in the country. The past decade provides evidence of a clear national trend away from restrictive felony disenfranchisement laws toward a more inclusive system that is reflective of the bedrock American principles of equality and full representation.

Ryan S. King

Ryan S. King is a policy analyst with The Sentencing Project, a criminal justice policy organization in Washington, D.C.