At times in the not so distant past, our nation has criminalized activity that we now at least tolerate. It has been a felony to criticize our government, to marry outside of one’s race, to make wine, to engage in some forms of sex with one’s spouse, to belong to the Communist Party, to be a homosexual, and much else. In some states, if you were found guilty of violating one of these laws, you would have lost forever your right to vote. Moreover, laws have been made that criminalize activities thought to be more common among certain people for the purpose of catching some of them breaking these laws and then disenfranchising them. In particular such laws have been devised to deny voting rights to black Americans.
The Fourteenth Amendment, passed following the Civil War, gave freed slaves full citizenship. But, with the war so recent, the Fourteenth Amendment allowed disenfranchisement for “participation in a rebellion, or other crime.” Southern states seized upon this phrase to craft laws to prevent freed slaves from voting. For example, legislators in Alabama believed that black men beat their wives more often than white men, so they made conviction for wife beating a felony that would permanently deny a man his voting rights. But Alabamans did not believe blacks were more likely to be murderers than whites, so a murder conviction did not result in disenfranchisement. In theory a man could keep his right to vote if he killed his wife, but did not beat her.
Southern states managed to prevent essentially all of their black citizens from voting for the next 100 years, until thwarted by the Voting Rights Act of 1965. The product of a Democratic administration, it led to a major shift in political party allegiance among Southern whites and by black Americans throughout the country. African Americans now cast the great majority of their votes for Democrats in all elections. Where previously Democratic-led Southern states worked to prevent blacks from voting, now southern Republican legislatures resurrected felony disenfranchisement as a means to suppress votes for their Democratic opponents. As Republicans gained control of more state governments outside of the South, they spread this strategy throughout the country.
Felony disenfranchisement laws are on their face “race-neutral.” They annul the voting rights of the guilty, regardless of race, for a range of criminal activity as defined by individual states. The racial discrimination effect depends on the well-established bias in the criminal justice system, a bias that results in the imprisonment of African Americans at a rate seven to eight times higher than for whites. In 2012 the various state felony disenfranchisement laws combined to deny voting rights to an estimated 6 million people, up from 1.2 million in 1976 [i]. Felony disenfranchisement thus acts to significantly reduce the number of votes cast for Democrats.
The great majority of those presently disenfranchised have committed non-violent crimes, have been out of prison for more than 10 years, and are now middle-aged. Nonetheless, arguments in favor of felony disenfranchisement center on the disgrace of the guilty – that they have forfeited their rights to full citizenship. Such arguments are deeply flawed for two central reasons. First, disenfranchisement ignores any differences in what law was broken or the circumstances of the crime. It adds an inflexible punishment beyond what has been determined as proportional to the offense – it smells more of spite than of justice. More importantly, such arguments overlook the sinister implications such measures hold for all citizens.
Look again the list of outdated felonies in the beginning of this piece. Whatever your beliefs and your lifestyle, it is likely that at times there have been elected officials who would have considered you a criminal. The present effort to disenfranchise black voters takes advantage of serious flaws in how the law is administered, and no one claims that present laws have been passed with the intent to disenfranchise any group of Americans. But such laws have been enacted for just this purpose before. It would be naive to assume this will never happen again. Protecting the voting rights of ex-felons is protecting your own rights, because legislators have been elected who disapprove of you, and who would charge you with a crime and take away your right to vote.
[i] While the total US population increased about 44% during this time, the crime rate decreased. The unavoidable conclusion is that the five-fold increase in disenfranchisement resulted from the increased number of states that enacted disqualifying legislation.