Ex-felon Disenfranchisement: A Vestige of Jim Crow

Ballot Box

By Michael Pelle.

Last Tuesday, over two million people voted in Virginia’s gubernatorial election. No ballots, however, were cast by the state’s 350,000 ex-felons. 

Virginia, Florida, Iowa, and Kentucky permanently disenfranchise those with felony convictions, regardless of the crime’s nature. Ex-offenders can only restore their voting rights by directly applying to the governor’s office, a process that takes months or years depending on the state.

Fortunately, Virginia Governor Bob McDonnell vowed in 2010 to limit the waiting period to sixty days, and newly elected Governor Terry McAuliffe promised to implement automatic rights restoration following release for nonviolent offenders.

The situation in Florida is far bleaker. Nonviolent felons must wait five years after the end of their sentences to even apply for rights restoration, and violent offenders must wait seven years.

And like many unjust voter suppression laws, ex-felon disenfranchisement disparately affects the black community. According to the Sentencing Project, 7.3% of the voting-age population is disenfranchised in Virginia, but 20.4% of all voting-age blacks are unable to cast ballots. In Florida and Kentucky, over 22% of blacks are barred from the polls due to felony conviction. 

Similar to the literacy tests of the early and mid-1900s that relied upon a racially biased public school system, ex-felon disenfranchisement derives its impact from racial disparities in criminal justice. During the 1990s, for example, black men were disenfranchised at a rate seven times the national average.

Not only do ex-felon disenfranchisement laws disproportionally impact blacks today, but they also have a history steeped in racial discrimination.

The laws first became prevalent in the Northeast during the early and mid 1800s. Universal white male suffrage laws swept the region, and ex-felon disenfranchisement quickly followed as a means of curbing the new expansion. The first American laws of the kind were not expressly connected to race, but their use as a tool for disenfranchising social underclasses had been realized.

Following the Civil War, nine of eleven Confederate states passed their first ex-felon disenfranchisement law. Many of these early laws specified crimes that lawmakers believed were more often committed by blacks. ‘Black crimes,’ such as larceny, resulted in permanent disenfranchisement, while ‘white crimes’ allowed offenders to automatically regain voting rights.

During Virginia’s 1901-1902 Constitutional Convention, Senator Carter Glass promoted new Jim Crow laws, which included ex-felon disenfranchisement provisions: “This plan…will eliminate the darkey as a political factor in this state in less than five years, so that in no single county…will there be the least concern felt for the supremacy of the white race in the affairs of government.”

Modern defenders of these laws fail to take their racial impact and history into account, proposing rationales that are at best ignorant and at worst intentionally deceitful. Some assert ex-felon disenfranchisement statutes prevent crime, but the laws do little to deter misconduct in comparison to the threats of prison and fines. Others argue that we cannot trust ex-felons’ judgment. Such opposition, however, constitutes a form of viewpoint discrimination previously deemed unconstitutional by the Supreme Court.

Ex-felon disenfranchisement’s greatest constitutional defense ironically comes from the Fourteenth Amendment. Section Two, which immediately follows the famed Equal Protection Clause, prohibits the disenfranchisement of any male constituent except on the basis of “participation in rebellion, or other crime.”

But the framers of the Reconstruction Amendments sought to impose greater racial equality upon the defeated Confederate States. They could not have foreseen the use of Section Two’s language to subvert the equality that the Fourteenth Amendment guaranteed. Upheld by Supreme Court through Section Two, ex-felon disenfranchisement policies must now be nullified through policy changes rather than legal challenges. 

The laws currently in place in Virginia, Florida, Kentucky, and Iowa disenfranchise over 1.5 million individuals who have already paid their debts to society. Constituents in all four of these states must demand automatic rights restoration for felons upon completion of their sentences. Condoning this antiquated practice only perpetuates the racial logic of the Jim Crow Era.  

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