The Constitutional History of Felon Disenfranchisement

The topic of allowing incarcerated people to vote is in the news this week as part of the presidential primary conversation. Bernie Sanders has expressed the strongest support for the idea with Warren, Harris, O’Rourke, Castro all expressing openness to the idea, and Buttigieg being opposed until felons are released from jail. While felony disenfranchisement has long been accepted, the legal justifications are far from conclusive.

“Civil Death” as a criminal punishment dates back to ancient Athens, Rome, and Medieval Europe. However since only elites had civil rights this punishment was only applied to elites historically. This punishment could result in a completely loss of citizenship rights which could include the loss of the right to serve in the Roman legion, living outside the protection of law in Medieval Europe, the loss of all property, and of course suffrage.

The concept of civil death carried over to Britain and then the colonies with British common law. Punishment in this period was often physical with the stocks, public whipping, and even branding. Foucault called the movement from these punishments to our contemporary idea of imprisonment a change from enacting punishment on the body to enacting it on the mind. The purpose of the rise of the penitentiary in the early 19th century was to restrain freedom of movement in order to encourage silent religious contemplation and improve a person specifically to become a better more productive citizen of a democracy. Earlier “civil death” punishments didn’t come with jail time.

The Constitution left specific suffrage rules up to the states and so says nothing about criminal or incarcerated voting rights. Kentucky was the first state in 1792 to establish criminal disenfranchisement by excluding those convicted of “bribery, perjury, forgery, or other high crimes and misdemeanors” from voting. Vermont followed in 1793 and Ohio in 1802. Between 1812 and 1821, Louisiana, Indiana, Mississippi, Connecticut, Alabama, Missouri, and New York all passed criminal disenfranchisement laws mostly applying to high crimes or “infamous” crimes. Others states continued to pass laws that disallowed criminals from voting until the Civil War. The 13th Amendment outlawed slavery but specifically exempted criminals but it is the 14th Amendment that has mostly been at issue in the Constitutional discussion of felony voting rights.

During Jim Crow criminal disenfranchisement was expanded in order to keep black people from voting. Jim Crow laws criminalized black people expanding the number who became felons and the new felony disenfranchisement laws expanded the crimes that would cause one to lose their right to vote. Alabama passed the first such expanded criminal disenfranchisement law in 1901.

The Voting Rights Act of 1965 sought to correct the racially discriminatory voting laws that kept black people from voting but did little to address felony disenfranchisement. With this law theoretically universal suffrage for all citizens was possible.

Relevant Constitutional case law on felony disenfranchisement began in 1966 with Otsuka v. Hite. The California Supreme Court ruled that the phrase “infamous crimes” should only disenfranchise those “deemed to constitute a threat to the integrity of the elective process.” If followed this would seriously limit the number of felons that would result in disenfranchisement.

In 1967 the New York Supreme Court upheld criminal disenfranchisement in Green v. Board of Elections by arguing that “a man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact… It can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws…”

Usually the state has to prove a “compelling interest” in order to limit voting rights but the court has generally found criminal disenfranchisement to be an exception. The Ninth Circuit addressed this specifically in Dillenburg v. Kramer in 1972 by acknowledging that Constitutional justifications on this subject have been vague and that courts have been hard pressed to specifically define the state’s interest in disenfranchising those who have been convicted of a crime. While the court agreed that historically felon disenfranchisement had been ruled constitutional, they also left the door open to the law evolving by writing “the constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber.”

The controlling precedent for allowing felon disenfranchisement laws is Richardson v. Ramirez in 1974. While the lower California court ruled that felon disenfranchisement violated the Equal Protection Clause of the 14th Amendment, the Supreme Court ruled that criminals were exempt from EPC protections.

Recently there has been a huge movement towards allowing felons to vote with Florida residents recently voting to enfranchise their 1.4 million felons (though the legislature is now trying to pass a law that will now allow felons to vote until all their court fees are paid). Felon enfranchisement is becoming more accepted among democrats while incarcerated voting is still a fringe position. Constitutionally these voting rights don’t seem to been distinguished in the case law. The reasoning for not allowing an incarcerated person to vote is the same as not allowing a felon who has served their time to vote.

While the court has exempted criminal enfranchisement from having to meet the “compelling state interest” standard many still question what is served by disenfranchising prisoners or felons. The initial reasoning for the penitentiary as a form of punishment was explicitly to turn criminals into good citizens, which suggests the need for incarcerated voting rights to achieve this. Additionally isolation and a strict focus on punishment tends to increase recidivism rates while education and a connection to the outside world decreases them.

Finally allowing incarcerated people to vote would address a phenomenon called “prison gerrymandering,” where inmates are counted in the census for population purposes where the prison is located but not allowed to vote. Many states house their prisons in rural, predominantly white, areas while the prisons are disproportionately filled with urban people of color. Therefore this practice gives outsized voting power to rural white areas by counting people who can’t vote in those areas.

Two states, Maine and Vermont, have unrestricted voting rights for felons and even allow incarcerated people to vote from jail. 14 states reinstate voting rights immediately upon release, 4 after parole, and 20 states enfranchise felons automatically after probation is completed. Six states re-enfranchise felons depending on the details of their crime, with four more requiring individual petitions. However, as previously stated, the trend is moving toward more felon enfranchisement. Since the constitutional justifications are similar for incarcerated disenfranchisement it’s logical to consider real universal suffrage for all citizens. Unlike early forms of “civil death” punishment criminals don’t lose their citizenship or their property and, again, penitentiary justifications include rehabilitation through good citizenship.

Previous legal arguments to justified felon enfranchisement have often relied on the Voting Rights Act to argue that felony disenfranchisement is racially motivated (or at least has a racial impact). Many legal scholars also suggest that criminals shouldn’t be exempt from the state needing a “compelling interest” to disenfranchise them. Another fruitful argument could lie in the number of felonies leading to disenfranchisement being too broad.

PhD in American legal history, freelance writer, political activist, follow me on twitter @QueenMab87

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