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Democracy Imprisoned: The Prevalence and Impact of Felony Disenfranchisement Laws in the United States

September 30, 2013
Submitted to the United Nations Human Rights Committee, this shadow report details the impact of felony disenfranchisement laws in the United States and how they violate Articles 25 and 26 of the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992.

This report has been authored by a coalition of non-profit organizations working on civil rights and criminal justice issues in the United States.

The following organizations contributed to this report: the American Civil Liberties Union (ACLU), the ACLU of Florida, the Hip Hop Caucus, the Lawyers’ Committee for Civil Rights Under Law, the Leadership Conference on Civil and Human Rights, the National Association for the Advancement of Colored People (NAACP), the NAACP Legal Defense and Educational Fund, Inc. and The Sentencing Project (collectively, the “Reporting Organizations”). Descriptions of each organization are attached as Appendix A.

Introduction and Issue Summary

Some of the Reporting Organizations made List of Issues Submissions to the Human Rights Committee (the “Committee”) in December 2012. This report updates items from those submissions and provides additional information to aid in the Committee’s review of the United States’ (“U.S.” or “Government”) felony disenfranchisement practices.1)The authors refer the Committee to the List of Issues Submissions from the ACLU of Florida, the Lawyers’ Committee for Civil Rights Under Law and the Leadership Conference on Civil and Human Rights. As a supplement to those Submissions, this report includes an overview of the history of and rationale for felony disenfranchisement laws in the United States, considers the U.S.’ disenfranchisement practices in the context of other nations, and discusses recent state law developments.

After its review of the United States’ second and third periodic report, the Committee expressed concern that the country’s felony disenfranchisement practices have “significant racial implications.” It also  noted  that “general  deprivation  of  the right to vote  for persons  who  have received  a  felony conviction, and in particular for those who are no longer deprived of liberty, do not meet the requirements of articles 25 and 26 of the Covenant, nor serves the rehabilitation goals of article 10(3).”2)Concluding Observations of the Human Rights Committee on the Second and Third U.S. Reports to the Committee, CCPR/C/USA/CO/3/Rev.1 (2006) 35. The Reporting Organizations are encouraged by the Committee’s interest in felony disenfranchisement practices in the United States and share the Committee’s concerns about the extent to which these laws and their impact are consistent with the critical human rights protections enshrined in the Convention.

The United States continues to lead the world in the rate of incarcerating its own citizens. The reach of the American correctional system has expanded over the course of the past half-century. In 1980, fewer than two million individuals were either incarcerated or on probation or parole; in 2011, that number was over seven million.3)Lauren E. Glaze & Erika Parks, Correctional Populations in the United States, 2011, BUREAU OF JUSTICE STATISTICS (Nov. 2012).  Despite a decrease in the prison population over the past three years and substantial reform efforts in some states, the overall disenfranchisement rate has increased dramatically in conjunction with the growing U.S. corrections population, rising from 1.17 million in 1976 to 5.85 million by 2010.4)E. Ann Carson & Daniela Golinelli, Prisoners in 2012 Advance Counts, Bureau of Justice Statistics (July 2013); Christopher Uggen, Sarah Shannon & Jeff Manza, State- Level Estimates of Felon Disenfranchisement in the United States, 2010 (July 2012), The Sentencing Project. The growing incarceration rate has been mirrored by the disenfranchisement rate, which has increased by about 500% since 1980.5)Christopher Uggen, Sarah Shannon & Jeff Manza, State- Level Estimates of Felon Disenfranchisement in the United States, 2010 (July 2012), The Sentencing Project. The fact that felony disenfranchisement is so wide reaching is deeply  disturbing,  and  indicates  that these  laws undermine  the open, participatory  nature  of  our democratic process.

Disproportionate Impact of Felony Disenfranchisement Laws on Minorities

There  is clear evidence  that state felony  disenfranchisement  laws have a disparate impact  on African  Americans   and  other  minority  groups.  At  present, 7.7%  of  the adult  African-American population, or one out of every thirteen, is disenfranchised. This rate is four times greater than the non- African-  American population  rate  of  1.8%.6)Id. at 1-2. In  three  states,  at  least  one  out  of  every five African- American adults is disenfranchised:  Florida (23%), Kentucky (22%), and Virginia (20%).7)Id. at 1-2. Nationwide, 2.2 million African-Americans are disenfranchised on the basis of involvement with the criminal justice system, more than 40% of whom have completed the terms of their sentences.8)Id. at 17.

Information on the disenfranchisement  rates of other groups is extremely limited, but the available data suggests felony disenfranchisement laws may also disproportionately impact individuals of Hispanic origin  and  others.  Hispanics  are incarcerated  in  state  and  federal  prisons  at  higher rates  than non- Hispanics: about  2.4  times  greater  for Hispanic  men  and  1.5  times  for Hispanic  women 9)Paul Guerino et al., Prisoners in 2010, Bureau of Justice Statistics, 27 (Feb. 9, 2012). If  current incarceration trends hold, 17% of Hispanic men will be incarcerated during their lifetimes, in contrast to less  than 6%  of  non-Hispanic white  men.10)Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement  and American Democracy, 71 (2006).  Given these disparities, it  is  reasonable  to assume  that individuals of Hispanic origin are likely to be barred from voting under felony disenfranchisement laws at disproportionate rates.

History and Rationale of Felony Disenfranchisement Laws

In one form or another, laws that disenfranchise individuals with felony convictions have existed in the United States since its founding. In fact, twenty-nine states had such laws on the books at the time of the ratification of the Constitution 11)Erwin Chemerinsky, Constitutional Law: Principles and Policies 901 (4th ed. 2011).  These laws were borne out of the concept of a punitive criminal justice system  –  those convicted  of  a  crime  had  violated  social  norms,  and, therefore, had proven themselves unfit to participate in the political process. Beginning around the end of Reconstruction  – about 1870 – many southern states significantly broadened felony disenfranchisement and began focusing on crimes believed to be disproportionately committed by African Americans.12)Reuven Ziegler, Article: Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives, 29 B.U. INT’L L.J. 197, 217 (2011).  It was used along with a bevy of other measures as a means to circumvent the requirements of the Fifteenth Amendment,13)Angela Behrens, Voting–Not quite a Fundamental Right? A Look at Legal and Legislative Challenges to Felon Disfranchisement Laws, 89 MINN. L. REV. 231, 236 (2004). which prohibited  states  from  preventing  individuals from voting on  the basis  of  “race,  color,  or  previous condition of servitude.”14)U.S. CONST. amend. XV, § 1.  The justifications for disenfranchising individuals with felony convictions were ostensibly based on fears over the “purity of the ballot box” and concern that allowing certain current or even former inmates to vote would “pervert” the political process.15)Washington v. State, 75 Ala. 582, 585 (Ala. 1884) (arguing that felony disenfranchisement is designed to “preserve the purity of the ballot box, which is the only sure foundation of republican liberty, and which needs protection against the invasion of corruption, just as much as against that of ignorance, incapacity, or tyranny.”). These laws were often upheld by reference to an exemption for felony disenfranchisement in Section 2 of the Fourteenth Amendment  – “participation  in rebellion,  or other crime.”16)U.S. CONST. amend. XIV, § 2. Rather than punitive focusing  on the individual–  these laws were deemed by the Supreme Court to be regulatory – focusing on the ballot and election itself.17)Trop v. Dulles, 356 U.S. 86 (1958).

Over the course of the twentieth century, attitudes towards criminality have gradually come to include  recognition  of  the possibility  of  the rehabilitation  and reintegration  of  former  prisoners into society  upon  their  release.18)Ziegler, supra note 12 at 203.  However, there  has  not  been  a  corresponding  realignment of felony disenfranchisement laws to make them consistent with more contemporary goals of the criminal justice system – increasing public safety and reducing reoffending.

Proponents  of  felony  disenfranchisement   argue  that such  laws  may  deter crime,19)Behrens, supra note 13 at 236.  though disenfranchisement has not been shown to actually accomplish the goal of deterrence. One commentator, for example,  has observed  that, “[r]ecent research  suggests  a negative  correlation between  voting and subsequent criminal activity among those with and without prior criminal history.”20)Ziegler, supra note 12 at 207. Disenfranchisement, on the other hand, is likely to have the opposite effect by further marginalizing and alienating formerly incarcerated individuals from civil society. Other arguments in support of felony disenfranchisement are unpersuasive,  as  well.  For example,  some  suggest that, if  allowed  to vote,  individuals  with  felony convictions would constitute a cohesive voting bloc, which would distort criminal law.21)Guy Padraic Hamilton-Smith & Matt Vogel, The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism, 23 BERKELEY LA RAZA L.J. * (2013) (previous version available here. However, the fear  that individuals  with  felony  convictions  may “distort” the law through  voting  is unfounded and certainly not an acceptable ground to prevent them from exercising that right.22)Guy Padraic Hamilton-Smith & Matt Vogel, The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism, 23 BERKELEY LA RAZA L.J. * (2013) (previous version available here. The Supreme Court, for example, has previously held – although not in a felony disenfranchisement case – that “‘[f]encing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.”23)Carrington v. Rash, 380 U.S. 89, 94 (1965) (citing Schneider v. New Jersey, 308 U.S. 147, 161 (1939.))  In addition, little  evidence exists to suggest  that former  inmates  of any  sort  would cohere into a constituency, or that, if they did, any viable candidate would specifically court their votes.24)Ziegler, supra note 12 at 206.

The arguments against felony disenfranchisement are strong. Felony disenfranchisement operates contrary to the goals of ensuring public safety and reducing reoffending by alienating from society those individuals that the criminal justice system is simultaneously attempting to reintegrate. Further, as the Committee has noted, state disenfranchisement laws are problematic not only due to the vast numbers of potential  voters  they affect,  but  also  their  disproportionate  impact on racial minorities,  particularly African Americans and Hispanics. Further, many of these laws extend punishment beyond the walls of the prison by continuing to disenfranchise  individuals who are on probation, parole or have completed their full sentences. For this reason, it is particularly important that the Committee urge the United States to provide its rationale for continuing to deprive individuals with felony convictions of the right to vote after they are no longer incarcerated.

The United States in International Context

Not only does the sheer number of individuals the United States imprisons set it apart from most nations, the United States has further distinguished  itself from other countries through the widespread practice of depriving individuals  with felony convictions  of the right to vote. Disenfranchisement  is a rarity in the democratic world, both for the incarcerated and for those released.25)For example, one scholar argues that “an identifiable global trajectory has emerged towards the expansion of felon suffrage. American jurisprudence lies outside of this global trajectory….” Ziegler, supra note 12 at 210. Under article 25, governments  may  impose reasonable  restrictions  on  the right  to vote,  such  as  prohibiting  voting  by inmates. However, permanent disenfranchisement for a felony conviction—the policy in Florida, for example—fails to meet the requirements of article 25 of the ICCPR. Lifetime disenfranchisement  does not  satisfy  the requirement  that the grounds for the deprivation  of  voting  rights be  “objective and reasonable”  or  that the suspension  of  rights be  “proportionate”  to the offense  and  sentence.26)Human Rights Comm., 57th Sess., General Comment No. 25, The Right to Participate in Public Affairs, Voting Rights, and the Right of Equal Access to Public Service (Article 25), ¶14, U.N. Doc. CCPR/C/21/Rev.1/Add.7.  This conclusion is consistent with the Committee’s 2006 Concluding Observations after the U.S.’ review.

The United States’ status as an outlier is further affirmed  by the growing  reluctance of other nations to accept felony disenfranchisement.  Even when such laws have been promulgated,  they have often been struck down in the courts.27)Internationally, what is referred to in the United States as “felony disenfranchisement”  is often termed “convict disenfranchisement.”  Although within the United States a “felon” is a particular subclass of convict, internationally this distinction is rarely made. Hamilton-Smith & Vogel, supra note 21. For example, in 1999, the South African high court struck down legislation  disenfranchising  all prisoners,  noting  that a  republic  is “founded on…universal  adult suffrage” which is “one of the fundamental values of the constitutional order.”28)August v. Electoral Commission, 1999 (3) SA 1 (CC) at 23 para. 17 (S. Afr.). Likewise, the European Court  of  Human  Rights has  struck down  similar  laws  in  both  the United Kingdom  and  Austria  as incompatible with the European Convention on Human Rights.29)Ziegler, supra note 12 at 223. This approach has been echoed by the Canadian  Supreme  Court, as  well.  Striking down  a law providing  for blanket  disenfranchisement  of prisoners, the Court held that the “universal franchise has become . . . an essential part of democracy.”30)Sauve v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, paras. 31-33 (Can.).  It continued, “if we accept that governmental power in a democracy flows from the citizens, it is difficult to see  how that power  can legitimately be  used  to disenfranchise  the very  citizens  from  whom  the government’s power flows.”31)Sauve v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, paras. 31-33 (Can.). Yet despite growing international consensus around the elimination or even limitation of felony disenfranchisement laws, these antiquated practices continue in the United States.

State Felony Disenfranchisement Laws

Currently, individuals with felony convictions in the United States are subject to a patchwork of state laws governing their right to vote. The scope and severity of these laws varies widely, ranging from the uninterrupted right to vote to lifetime disenfranchisement,  despite completion of one’s full sentence. The Table in Appendix B provides an overview of the various state laws.

While  some  states  provide  only  for the disenfranchisement  of  those  currently serving  their sentence,  the vast  majority  of disenfranchised  individuals  have completed  their  prison  term.32)Christopher Uggen, Sarah Shannon & Jeff Manza, State- Level Estimates of Felon Disenfranchisement in the United States, 2010 (July 2012), The Sentencing Project. Of  the estimated 5.85 million American adults barred from voting, only 25% are in prison. By contrast, 75% of disenfranchised individuals reside in their communities while on probation or parole or after having completed their sentences.33)Christopher Uggen, Sarah Shannon & Jeff Manza, State- Level Estimates of Felon Disenfranchisement in the United States, 2010 (July 2012), The Sentencing Project. Approximately 2.6 million individuals who have completed their sentences remain disenfranchised  due to restrictive  state laws.34)Christopher Uggen, Sarah Shannon & Jeff Manza, State- Level Estimates of Felon Disenfranchisement in the United States, 2010 (July 2012), The Sentencing Project. Although voting rights restoration  is possible in many states, it is frequently a difficult process that varies widely across states.  Individuals with felony convictions are typically unaware of their restoration rights or how to exercise them. Further, confusion among  elections  officials  about  state  law contributes  to the disenfranchisement  of  eligible  voters.35)The Discriminatory Effects of Felony Disenfranchisement  Laws, Policies and Practices on Minority Civic Participation in the United States (2009); Our Broken Voting System and How to Repair It: The 2012 Election Protection Report.

Reliable information on the rate and number of individuals whose rights have been restored is difficult to obtain, but preliminary data suggests that in states that continue to disenfranchise after the completion of an individual’s  sentence,  the percentage  of restoration  ranges  from  less  than 1%  to 16%.   This  data indicates that the vast majority of individuals in these states remain disenfranchised.36)See List of Issues Submission by the Leadership Conference on Civil and Human Rights at 6.

Recent Developments in State Felony Disenfranchisement Laws

In the past fifteen years there has been a general trend toward liberalization of felony disenfranchisement laws. Since 1997, twenty-three states have changed their felony disenfranchisement policies with the goal of expanding voter eligibility and reducing the restrictiveness  of these laws.37)Nicole D. Porter, Expanding the Vote: State Felony Disenfranchisement  Reform, 1997-2010, The Sentencing Project, 1 (2010). Notable changes include the following: nine states eliminated or changed lifetime disenfranchisement laws; eight states simplified the rights restoration process for individuals who are no longer under state supervision; and two states extended voting rights to people on probation or parole. In some states, this momentum has continued in recent years, while in others, lawmakers have moved in a more restrictive direction.

One of the most recent developments  was in Virginia, which, historically,  has had one of the most restrictive felony disenfranchisement  laws in the country: persons convicted of felonies are barred from voting for life. Voting rights can be restored to individuals  on a case-by-case  basis, but this has required application to and affirmative intervention by the governor.38)Id. at 28.  Virginia also has an extraordinarily high rate of disenfranchisement  among adult African-Americans—at  least 20%.39)Uggen et al., supra note 4 at 11. Given this historically restrictive policy and its disparate impact on communities of color, it is notable that Virginia’s Governor Bob McDonnell  announced  positive changes to the voting rights restoration procedure. As of July 15, 2013,  Virginia  started automatically  (albeit  individually) restoring  the voting  rights of  any  person convicted of a non-violent felony who is no longer under state supervision, does not have pending felony charges, and has paid off any financial obligations imposed by the court.40)Press Release, Governor McDonnell Announces Automatic Restoration of Voting and Civil Rights on Individualized Basis for Non-Violent Felons, Virginia.Gov (May 29, 2013).  As many as 100,000 people could be eligible to have their voting rights restored under Governor McDonnell’s new policy.41)Editorial, Restoring the Vote in Virginia, N.Y. Times (June 1, 2013). While Virginia’s new procedure will restore voting rights to a substantial number of people, the fact that the change was achieved through a gubernatorial policy means it may be revoked or revised by future administrations.

In April 2013, Delaware amended the state constitution to repeal a voter disenfranchisement provision. As a result, individuals convicted of most felonies will no longer have to wait five years after completion of their full sentences (including probation and parole) to regain their voting rights. Instead, they will be automatically eligible  to vote.  However,  some  other  felony  convictions  will result  in permanent disqualification from voting, unless a pardon is secured from the governor.42)Doug Denison, Voter Rights will be Expanded for Felons in Delaware, Delaware Online.com (Apr. 16, 2013, 5:50 PM).

Other states have also relaxed felony disenfranchisement restrictions, but have seen the policy reversed by subsequent administrations. For example, in 2005 Iowa Governor Tom Vilsack issued an executive order that changed Iowa’s felony disenfranchisement  policy from lifetime disenfranchisement with  the possibility  of individualized  gubernatorial  pardon  to a  more moderate  policy  of automatic restoration of voting rights upon completion of a criminal sentence.43)Porter, supra note 38, at 12.  Governor Vilsack’s action led to an 81% reduction in the number of people disenfranchised in Iowa and an estimated 100,000 individuals regained the right to vote.44)Porter, supra note 38, at 12. In 2011, however, a new governor, Terry Branstad, reversed this policy and reinstated the former process of individualized  executive review. Two years later, the Associated Press reported  that although 8,000 individuals  had completed  their sentences  since Governor Branstad  took office, less than a dozen had successfully regained their voting rights.45)Ryan J. Foley, Iowa Felons’ Voting Rights: Terry Branstad Executive Order Disenfranchises Thousands, Huffingtonpost.com (June 24, 2012, 3:57 PM).

The state of Florida has also experienced both advances and setbacks in its felony disenfranchisement  policy  during  the course  of the last  two  decades.  However,  the net  result  is that Florida’s disenfranchisement  rate remains the highest and most racially disparate in the United States. Florida  permanently  disenfranchises   all  individuals  with  a  felony  conviction,  unless they receive discretionary executive clemency.  As described in the ACLU of Florida’s List of Issues Submission, the United States singled out Florida’s record on felony disenfranchisement as one of the most restrictive in the nation.   As of 2010, Florida has disenfranchised 1,541,602 citizens due to a felony conviction. This amounts to the disenfranchisement of 10.42% of the state’s voting age population and 23.3% of Florida’s African-American  voting  age population.  Compare  that to the U.S. rates  of 2.4%  of the 238 million voting  age  Americans  disenfranchised,   and  7.7%  of  the nation’s  29  million  voting  age  African Americans, disenfranchised.   As this data demonstrates, Florida’s status as an outlier among the states is particularly pronounced in terms of the absolute number of disenfranchised citizens and racial disparities in rates of disenfranchisement.

Following a felony conviction, the clemency process provides the only route to rights restoration in Florida.  Citizens’ eligibility to apply for voting rights restoration ebbs and flows with changes in the state administration,  leaving Floridians  susceptible  to political manipulation.   For example,  soon after Charlie  Crist  became  governor  in 2007,  he  amended  the Clemency  Board  rules  such  that citizens convicted of non-violent offenses became eligible for voting rights restoration following release from incarceration.   From the 2007 amendments through the end of Crist’s term in 2010, 155,312 people had their rights restored. When Florida’s next Governor, Rick Scott, took office in 2011, he amended the Clemency  Board  rules  to severely restrict  eligibility  for rights restoration. The impact  of  Governor Scott’s rollbacks has been striking.  In 2011, Florida’s Board of Executive Clemency restored the voting rights of only seventy-eight people, while in 2012 the voting rights of just 342 people were restored.46)Restoration of Civil Rights’ Recidivism Report for 2011 and 2012, Fla. Parole Comm’n, 5 (2013).

Legal Challenges to Felony Disenfranchisement Laws

Legal challenges to felony disenfranchisement laws in the United States have been mostly unsuccessful because courts have refused to apply the same legal principles regarding the fundamental right to vote to individuals with criminal convictions.  As a result, there has not been an adequate judicial response to the disproportionate racial impact of felony disenfranchisement laws on minorities or the unreasonableness  of  state  requirements  regarding  the restoration  of  voting rights – claims  which  fall squarely within the province of Section 1 of the Fourteenth Amendment which ensures equal protection under the law for all people.

The U.S. Supreme Court’s decision in Richardson v. Ramirez, in which individuals with felony convictions who had completed their sentences argued that California’s felony disenfranchisement law violated their equal protection rights, cemented this dichotomy.47)418 U.S. 24 (1974).  The Court held that “the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment,” which was not present in other cases involving  restrictions  on the franchise.48)Id. at 54.  This ruling is especially  difficult  to reconcile because the Fourteenth Amendment’s Equal Protection Clause has been successfully used to challenge  laws  that appear  racially  neutral  on  their  face,  but  are racially  discriminatory  in  practice. Despite this grim legal landscape, civil rights attorneys have tried to fight these laws by focusing on the misapplication  of  felony  disenfranchisement  laws49)In South Dakota, for example, election officials removed hundreds of individuals with felony convictions from the voter rolls for the 2008 election without regard to their sentences. At the time, state law only disenfranchised individuals sentenced to prison. In 2009, two American Indian women serving sentences of probation were denied the right to vote in the 2008 election and successfully sued government officials.   Janis v. Nelson, Civil Action No. 5:09-05019 (D. S.D Dec. 30, 2009). However, following the lawsuit, the South Dakota legislature amended law (SDCL § 12-4-18), and now anyone convicted of a felony on or after July 1, 2012 loses the right to vote until completion of his or her entire sentence, including probation and parole., the ambiguity  which  exists  in  some  state  laws regarding which crimes are disenfranchising in the first place50)Alabama and Georgia deny voting rights to anyone convicted of a “felony involving moral turpitude,” but neither state has created an exhaustive or final list of which crimes fall under that umbrella category.  Georgia’s response to questions regarding the lack of uniformity in the application of the law was to issue an Attorney General’s opinion, which concluded that, until the state legislature provides a more adequate response, “all felonies,” are considered to involve moral turpitude and, therefore, are disenfranchising offenses.  Alabama, on the other hand, was sued for the lack of uniformity in the application of the state’s felony disenfranchisement law, but the case was dismissed on jurisdictional grounds.  Baker v. Chapman, Civ. Action No. 03-cv-2008-900749.00  (Cir. Ct. Montgomery Co., Ala. Oct. 9, 2008). and the racial disparities inherent in the criminal justice system that result in minorities being disproportionately prosecuted, convicted and, consequently, disenfranchised.51)In Washington state, several minorities with felony convictions challenged the state’s felony disenfranchisement law under the Fourteenth and Fifteenth Amendments of the U.S. Constitution, as well as Section 2 of the Voting Rights Act of 1965, which prohibits racial discrimination in voting.  Farrakhan v. Gregoire, 523 F.3d 990, (9th Cir. 2010).  After a long and expensive legal battle, the plaintiffs’ constitutional claims were ultimately dismissed and the Ninth Circuit Court of Appeals ruled that plaintiffs could not prevail on their Voting Rights Act claim without proof of intentional discrimination in the state’s criminal justice system – essentially incorporating an “intent” requirement into the statute, which Congress never intended.  Id. at 994. This standard of intentional discrimination is generally very difficult to prove. Similar cases brought under Section 2 of the Voting Rights Act challenging various state felony disenfranchisement laws also have failed.  See Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009) (Massachusetts); Hayden v. Pataki, 449 F.3d 305, 323 (2d Cir. 2006) (en banc) (New York); Baker v. Pataki, 85 F.3d 919 (2nd Cir. 1996) (New York); Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986) (Tennessee); Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005).

Individuals with criminal convictions also have argued in court that state laws that condition the restoration of voting rights on the payment of legal financial obligations, namely court fines, fees and restitution, are  a  form   of  wealth-based discrimination in  violation   of  not   only   the Fourteenth Amendment’s Equal Protection Clause, but also the Twenty-Fourth Amendment to the U.S. Constitution. The Twenty-Fourth Amendment prohibits Congress and states from denying voting rights based on one’s “failure  to pay  any  poll tax or other  tax.”52)In Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010), the plaintiffs argued that Tennessee’s law conditioning voting rights restoration on the payment of restitution, court fines, and child support was equivalent to a “poll tax or other tax,” in violation of the Twenty-Fourth Amendment of the U.S. Constitution.  The Sixth Circuit Court of Appeals affirmed the dismissal of the plaintiffs’ claim reasoning that it was rational for Tennessee to require completion of one’s sentence before restoring the right to vote, regardless of whether that sentence also included financial penalties.  624 F.3d at 751.  See also Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010) (upholding Arizona law that requires payment of restitution and court fines and fees), and Johnson v. Bush, 214 F. Supp. 2d 1333, 1343 (S.D. Fla. 2002) (dismissing plaintiffs’ poll tax claim related to Florida’s restoration process).  Unfortunately,  cases  with  this  specific  claim  have been unsuccessful as well.

Overall, courts should examine the actual practice and operation of felony disenfranchisement laws and the unequal treatment they exact.  However, until they do, federal legislation is still necessary to address the issue.

Conclusion

The last  few  decades  have been  a  time  of  movement  toward  relaxation  of  the restrictions surrounding felony disenfranchisement in many states. This is in keeping with American public opinion, as surveys show that eight of every ten Americans support the restoration  of voting rights to persons convicted  of  felonies  who  are no longer  under  state  supervision.53)Jeff Manza et al., Public Attitudes Toward Felon Disenfranchisement  in the United States, 68 PUB. OPINION Q. 275, 283 (2004).  In  addition,  six  of  ten  Americans support the restoration of voting rights to individuals on probation or parole.54)Jeff Manza et al., Public Attitudes Toward Felon Disenfranchisement  in the United States, 68 PUB. OPINION Q. 275, 283 (2004). There have been setbacks alongside  the victories,  however,  both  in  the courts and  at  the state level. Furthermore,  despite  the relaxation of restrictions in some states, disenfranchisement policies in the United States are extreme by international standards, and an estimated 5.85 million Americans are still disenfranchised.55)Uggen et al., supra note 4 at 1. Additionally, the reforms to date have not eliminated the disparate impact that felony disenfranchisement policies have on minority communities.

Relevant Question in List of Issues

This report focuses on Question 26(a) in the Committee’s List of Issues, concerning felony disenfranchisement  laws and article 25 of the Convention  and the right to take part in the conduct of public affairs.

U.S. Government Response56)Please see the List of Issues Submissions from the Reporting Organizations, referenced in note 1, for additional discussion of the Committee’s 2006 Concluding Observations and the U.S.’ responses in its Fourth Periodic Report.

In  its  July  2013  response  to the Committee’s  List  of  Issues,  the U.S. Government  failed  to directly respond to the Committee’s inquiries on felony disenfranchisement in Question 26(a). The Government failed to directly address the Committee’s questions regarding the rationale for post- incarceration disenfranchisement, did not discuss steps it has taken to ensure states restore voting rights to individuals  who have completed  their sentences  or have been released on parole, and did not provide information on the discriminatory impact of felony disenfranchisement laws on minority populations.57)See United States Responses to Questions from the United Nations Human Rights Committee Concerning the Fourth Periodic Report of the Unites States on the International Covenant on Civil and Political Rights (ICCPR).

The Government noted that under the U.S. Constitution, states generally determine eligibility to vote,  and,  while  it  recognized  Congress’  power  to regulate  elections for federal  office  and enact legislation under the anti-discrimination provisions of the Fourteenth and Fifteenth Amendments, the Government  did not express support for Congressional  legislation, such as the Democracy  Restoration Act of 2011, previously introduced in both houses.

The U.S. Government did note that the majority of the forty-eight states that restrict voting by individuals with felony convictions also have restoration processes for those that have completed their sentences  or  have been  released  on  parole.  However, it  failed  to acknowledge  how burdensome, confusing  and costly  the restoration process  can be in some  states.  Further,  the Government  did not mention what steps it plans to take to ensure that states are implementing  fair, uniform  processes for restoring voting rights.

Recommended Questions

The Reporting Organizations recommend that the Committee ask the U.S. Government the same questions posed in Question 26(a) on its List of Issues. These questions capture our major concerns, as well  as those  raised  in the U.S.  review in connection  with  its second  and third  periodic report. The Reporting Organizations do not believe that the U.S. Government has provided a satisfactory response to these questions.

Suggested Recommendations

We ask the Committee to recommend the following:

  1. That the U.S.  Government  publicly  support  the automatic  restoration  of voting  rights to citizens  upon  their  release  from  incarceration  for felony conviction  This  should  include urging Congress to reintroduce and pass the Democracy Restoration Act, which would restore voting rights in federal elections to disenfranchised individuals upon their release from incarceration.
  2. That the U.S.  Government   investigate   the disproportionate   impact  of felony disenfranchisement laws on minority populations and issue a report of its findings.
  3. That the U.S. Government encourage states to inform criminal defendants of the voting rights implications of their arrest or sentencing and to provide information on the voting rights restoration process upon release from prison and/or completion of criminal sent
Appendix A – Reporting Organizations

The American Civil Liberties Union was founded in 1920 and is our nation’s guardian of liberty. The ACLU works in the courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States. The ACLU today is the nation’s largest public interest law firm, with a 50-state network of staffed, autonomous affiliate offices. We appear before the United States Supreme Court more than any other organization except the U.S. Department of Justice. About 100 ACLU staff attorneys collaborate with about 2,000 volunteer attorneys in handling close to 6,000 cases annually. The ACLU of Florida, with headquarters in Miami, is the local affiliate of the national organization.  Chartered in 1965, the ACLU of Florida operates with the help of 25 staff members and 18 volunteer-run chapters across the state. The organization’s oldest chapter — the Greater Miami  Chapter of the ACLU of Florida — was founded in 1955. The newest chapters —in Collier and Bay Counties – were chartered in May 2007.

The Hip Hop Caucus is a civil and human rights organization for the 21st Century. Our movement began in 2004. Our vision is to create a more just and sustainable world by engaging more people, particularly young people and people of color in the civic and policy making process.

Founded in 1963 at the request of President John Kennedy, the principal mission of the Lawyers’ Committee for Civil Rights Under Law is to secure, through the rule of law, equal justice under law by marshaling the pro bono resources of the private bar for litigation, public policy advocacy and other forms of service to promote the cause of civil rights.  Its primary  focus is to represent the interests of racial and ethnic minorities  and other victims of discrimination  through programs  that promote economic  development  of minority  communities, and ensure voting rights, fair housing, equal access to education and employment, and environmental justice. The Lawyers’ Committee is a national organization with 8 independent affiliates across the country.

The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership to promote and protect  the civil and human  rights of all persons  in the United States. Founded in 1950 by A. Philip  Randolph, Arnold Aronson, and Roy Wilkins, The Leadership Conference  works in support of policies that further the goal of equality under law through legislative advocacy and public education. The Leadership Conference’s  more than 200 national organizations represent persons of color, women, children, organized labor, persons with disabilities, the elderly, gays and lesbians, and major religious groups. Since its inception, The Leadership Conference has worked to ensure that all persons  in the United States are afforded civil and human rights protections under the U.S. Constitution  and in accordance with international human rights obligations. www.civilrights.org

The mission of the National Association  for the Advancement of Colored People is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate race-based discrimination. The vision of the NAACP is to ensure a society in which all individuals  have equal rights without discrimination based on race. Founded February 12, 1909, the NAACP is the nation’s oldest, largest and most widely recognized grassroots based civil rights organization.  Its more than half-million  members and supporters throughout the United States and the world are the premier advocates  for civil  rights in  their communities, conducting voter mobilization and monitoring equal opportunity in the public and private sectors.

The NAACP Legal Defense and Educational Fund, Inc. is America’s  premier legal organization fighting for racial justice.  Through  litigation,  advocacy,  and public education, LDF seeks structural changes to expand democracy, eliminate disparities, and achieve racial justice in a society that fulfills the promise of equality for all Americans. LDF also defends  the gains and protections  won over the past 70 years of civil rights struggle and works to improve the quality and diversity of judicial and executive appointments.

Established in 1986, The Sentencing Project works for a fair and effective U.S. criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration. The Sentencing Project was founded in 1986 to provide defense lawyers with sentencing advocacy training and to reduce the reliance on incarceration. Since that time, The Sentencing Project has become a leader in the effort to bring national attention to disturbing trends and inequities in the criminal justice system with a successful formula that includes  the publication  of groundbreaking  research,  aggressive media  campaigns and strategic  advocacy  for policy reform.

 

 

Footnotes   [ + ]

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