An argument for incarcerated voter enfranchisement by Emmett Sanders
A publication of
Many countries fully recognize the right of incarcerated citizens to vote. Today, 26 European nations at least partially protect their incarcerated citizens’ right to vote, while 18 countries grant prisoners the vote regardless of the offense. In Germany, Norway, and Portugal, only crimes that specifically target the “integrity of the state” or “constitutionally protected democratic order” result in disenfranchisement. The European Court of Human Rights has forcefully defended the voter franchise, going so far as to condemn in 2005 Britain’s blanket ban on voting rights for prisoners, calling it a violation of human rights. In December of last year, after 12 years of resistance to the ECHR’s decision, the UK partially relented by allowing prisoners on temporary release and at home under curfew to cast their ballots.
Even our Canadian neighbors acknowledge the right of people in prison to have their voices heard at election time. In South Africa, meanwhile, prisoners have participated in the democratic process since 1999, when their Constitutional Court declared that “The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood.”
Despite this growing international consensus, however, the United States—the self-proclaimed lighthouse of democracy—significantly abridges the voter franchise. Only in Maine and Vermont can prisoners participate in elections; for the vast majority of the 1.5 million people in federal and state prisons, democracy remains a spectator sport. All told, less than 4,000 prisoners have the right to vote. It is time for this to change.
At the state level, some efforts to enfranchise people with criminal backgrounds have already begun:
In 2016, Former Virginia Governor Terry McAuliffe signed an executive order restoring voting rights to more than 200,000 people with felony convictions in Virginia, a state which has permanent felony disenfranchisement laws. Virginia’s Supreme Court invalidated this order, but the former governor countered this move by restoring rights to more than 172,000 people individually.
In California, more than 50,000 people serving felony sentences had their voting rights restored via Assembly Bill 2466. Though this did not extend the franchise to those incarcerated in state and federal prisons in California, it did recognize the right of incarcerated citizens in the state’s jails.
Earlier this year in Florida, US District Court Judge Mark Walker declared the continued denial of the right to vote ”nonsensical” and a constitutional violation. Florida is one of only four states to not automatically restore voting rights after full completion of a sentence (including probation/parole).
Though denied the vote themselves, prisoners in Pennsylvania were able to form a political action campaign in which they successfully organized their friends, families, and home communities to elect Larry Krasner, a progressive District Attorney, in Philadelphia.
Meanwhile, the Democracy Restoration Act, a federal bill which would provide the franchise to all upon release from prison, has been rejected in Congress a number of times since 2008.
These are all important steps in the right direction—but the fact remains that the United States, home of nearly 25% of the world’s prison population, denies to them a right that is foundational to democracy. As formerly incarcerated author, educator, and Detroit community activist Yusef Shakur commented, “In a country that prides itself on being democratic…the democratic thing to do would be to allow millions of incarcerated Americans to participate in the democratic process.”
Prisoner disenfranchisement in the US is as old as the American prison. In 1792, Kentucky’s State Constitution became the first to disenfranchise people convicted of a crime, declaring that “Laws shall be made to exclude from office and from suffrage those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors.” A flurry of other states would follow. As prisons emerged in the US during the 1820s, a system was already in place to deny representation to those who found themselves within those walls.
Formal racial disenfranchisement soon followed. Legal Fellow Scott Novakowski of the New Jersey Institute for Social Justice points out that a number of Northern states used their constitutions to block black participation in civic engagement. In 1844, almost twenty years before the Civil War began, New Jersey excluded free blacks from the electoral realm in its state constitution.
The Reconstruction Era brought a temporary respite when the Fifteenth Amendment endowed the right to vote regardless of “race, color, or previous condition of servitude.” Soon, however, policies that restricted the franchise based on felony conviction emerged, giving birth to laws designed to criminalize blackness and uphold white supremacy. In 1898’s Williams vs. The State of Mississippi, the Mississippi Supreme Court Court found it “within the field of permissible action under the limitations imposed by the federal constitution” that “Restrained by the federal constitution from discriminating against the negro race” the state could still “discriminate against its characteristics, and the offenses to which its criminal members are prone.” Three years later the 1901 Alabama Constitutional Convention, in addressing “White Supremacy By Law,” brought forward perhaps the most explicit mention of the racialization of felony disenfranchisement: “The justification for whatever manipulation of the ballot that has occurred in this State has been the menace of negro domination.” This strategy would continue through the Jim Crow era, and laid the foundation for the current situation in the era of mass incarceration. A 500% increase in the prison population over the past 40 years, has also meant a 500% increase in incarcerated voter disenfranchisement over the same period of time.
One of the most vocal opponents of a right to vote for the incarcerated is Roger Clegg of the Center for Equal Opportunity. In an Op-Ed piece in the New York Times, Mr. Clegg maintained that “if you won’t follow the law yourself, then you can’t make the law for everyone else, which is what you do—directly or indirectly—when you vote.”
This position encounters a wide range of objections.
Marc Mauer, executive director of The Sentencing Project and a leading expert on sentencing policy, race, and the criminal justice system, says that Clegg’s argument is an attempt to establish a “character test” for voting. Further, Mauer argues, “It also rests on the dubious assumption that people who have been convicted of stealing a car, for example, cannot be trusted to participate in decision-making about which of two candidates has a more reasonable position on the war in Afghanistan, publicly-funded abortions, or health insurance policy.”
Rachel Corey, of the Massachusetts-based Emancipation Initiative, echoed Mauer’s views in a telephone interview. Incarcerated people involved with the Emancipation Initiative don’t fit into Clegg’s narrative, she suggested—they are engaged citizens. In 2016, for example, many voiced concern about local ballot initiatives on charter schools: “They have children and grandchildren, nieces and nephews [that go to these schools],” Corey said. “Education is important to a lot of [people in prison].” This sort of concern also demonstrated how the right to vote while incarcerated helps to maintain a connection between the incarcerated person and their family and community.
Ronald Pierce, an intern with the New Jersey Institute of Social Justice who spent over 30 years in New Jersey state prisons, maintained in a phone interview that “the right to vote is a fundamental right, and a right to be connected to society. Not only a right to participate, but an obligation to the society.” When people in prison are prevented from fulfilling that obligation, he said, they become disconnected from the rest of society—and without that connection, there is no feeling of responsibility. “If you can’t fulfill your obligation to that community, why should that community look at you as an asset? You aren’t an asset to that community; you are a debit to that community.”
Ronald Simpson-Bey, the Director of Outreach and Alumni Engagement for Just Leadership USA—a national organization dedicated to empowerment of “people most affected by incarceration”—reiterates Pierce’s perspective: “Allowing incarcerated people the right to vote will strengthen their social and community ties. It encourages them to become assets to their communities instead of liabilities because it encourages legally responsible involvement and behavior in a civil society.”
The effect of incarcerated voter disenfranchisement can be particularly devastating to urban communities of color. “Because prisons are disproportionately built in rural areas but most incarcerated people call urban areas home, counting prisoners in the wrong place results in a systematic transfer of population and political clout from urban to rural areas,” the Prison Policy Initiative explains. This political dynamic effectively commodifies incarcerated people as batteries used to fuel and amplify the votes of people in mostly rural, predominantly white communities—while muting representation in urban communities of color.
The collective concerns of urban communities of color then go unaddressed. “While not all members of a given racial or ethnic group vote as a uniform bloc, there are nonetheless strong patterns of party affiliation or issue identification in such communities,” Marc Mauer points out. “Therefore, to the extent that felony disenfranchisement reduces the scale of the black electorate in particular, it also reduces the political impact of the larger black community, including those who have never been convicted of a felony themselves.”
Prison-based gerrymandering, made possible because of incarcerated voter disenfranchisement, silences and effectively disenfranchises communities of color. As Ronald Pierce put it, “Felony disenfranchisement not only strips the voice of the felon, but it strips the collective voice of the community and limits the community’s efficacy.”
In addition to its effects on community representation, the disenfranchisement of incarcerated citizens also has generational consequences. Studies suggest that voting is as much a learned behavior as it is a habit. Children whose parents engage in civic activity and discuss politics and voting are more likely to find value in taking part in the democratic process themselves, Dr. Henry Brady of the Goldman School of Public Policy at the University of California, Berkeley observed. “If you’ve had the behavior modeled in your home by your parents consistently voting, by political discussion, sometimes by participation, you start a habit formation, and then when you become a little older you’ll feel it’s your duty and responsibility to register and vote,” Brady says.
When parents are not able to vote, however, children often have no model for civic engagement. This suggests that when parents in prison are disenfranchised, their children are effectively disenfranchised as well. It remains to be seen what sort of ripple effect millions of children with politically silenced incarcerated parents will have on our country’s future. “We’re only now beginning to have a generation of young people who have grown up under mass incarceration,” Mauer says—so considering “the number of people affected, in terms of what it’s done to their vision of the political environment, this is when we’d see those effects. It’s a little hard to say, but it can’t have been a very good effect.”
Novakowski addressed another objection to voting rights for the incarcerated: the fear that if incarcerated people are allowed to vote, they will support “pro-crime” candidates and “pro-crime” policies. “What does that really look like?” Novakowski said. “It’s just not realistic...even if there were this sort of mythical pro-crime candidate running for office, or even someone whose positions on crime are totally different than your own, you can’t not allow people to vote based on your fear that they’re going to vote for someone. That’s not democracy. That’s not what we do.”
Voting rights for the incarcerated isn’t just an academic issue—it could have a significant impact on actual election results:
Christopher Uggen and Jeff Manza emphasize that if people with felony convictions had been allowed to vote in the 2000 Florida general election—the state that Bush won over Gore by just over 500 votes—Gore would have handily won and secured the Presidency. With roughly 70,000 people disenfranchised in Florida prisons at that time, the same argument could be made for just the incarcerated vote alone.
More recently, in the 2016 Presidential election, Trump won Michigan by just 13,080 votes—with over 42,000 voters disenfranchised due to incarceration. This might have been enough to swing that state’s 16 electoral votes in the other direction.
Perhaps more relevant might be the effect on local and state elections in that same year. In North Carolina the 2016 race for Governor was decided by just 4,772 votes, while the disenfranchised prison population was over 35,000. In the closest election that year, the New Hampshire Senate race was decided by a mere 743 votes while the right to vote has been stripped from almost 2,900 in that state.
Apart from these instances, allowing people in prison to vote could impact the outcome of local results on issues ranging from tax increases to criminal justice reform, issues with a direct effect on communities with high rates of incarceration.
In late February, a network of organizations involved in disenfranchisement issues—some focusing on the incarcerated—met to discuss the state of the movement and various related initiatives. One suggestion that emerged was to implement voter education in creative spaces often occupied by people with connections to incarceration. Another proposal was to disseminate voting information through businesses that provide transportation services to people visiting incarcerated loved ones. On the ride to connect with incarcerated friends and family, passengers would learn of voting rights, of the restrictions faced by those on the inside, and of the importance of pushing back.
Several pieces of legislation are being advanced to enfranchise every citizen silenced through incarceration. Most notable was a bill in New Jersey introduced on February 26 that would restore the vote to all people in the state, both inside and outside of prison. This would make New Jersey the third state to remove all disenfranchisement due to criminal conviction.
Outside of efforts to pass legislation, the Emancipation Initiative launched a vote donation program—its response to former Massachusetts Governor Paul Cellucci’s war against incarcerated voters, which in 2000 rolled back voting rights for the state’s prison population. The brainchild of Elly Kalfus and Rachel Corey, the “Ballots Over Bars” campaign is a collaborative effort begun by people in prison that works to “return political power to people incarcerated in Massachusetts.”
“I just had this idea one day where I said [to Rachel Corey that] everyone’s talking about the [2016] election and what a big deal it is that it’s Trump versus Hillary, and I didn’t feel passionately about it,” Kalfus explained in a telephone interview. She then asked her colleague: “Could we give our votes to someone in prison so they could choose who we should vote for?”
The group began recruiting volunteers to do just that; they were matched with people in prison, and voted as the prisoners requested. Unfortunately, the interest from people inside the prison was so great that there were not enough volunteers to match all of them with surrogate voters. “We hope to double our efforts for the next election,” Corey said. In a state where the incarcerated can run for office—but can’t even vote for themselves—the Emancipation Initiative is working to find way to amplify the voices of the incarcerated; to recognize, as Corey puts it, the right of people to be “full human beings.”
Efforts like “Ballots Over Bars” demonstrate the rising momentum from both people inside prison and their allies in the community to make universal franchise a reality. With more projects like this, the United States might actually join the ranks of countries that view incarcerated people as “full human beings.” As someone who spent over 22 years of my life denied the right to vote because of my incarceration, this would be a most welcome development.
Here are three pieces of model legislation—drafted by LEAP, and reproduced here with their permission—that your state government can copy to enable prisoners to vote. Use the table to determine which legislation model is appropriate for your state. Note that prisoners can already vote in Maine and Vermont.
| State | Constitutional Amendment | Statute | Executive Order |
|---|---|---|---|
| Alabama | Yes | Yes | |
| Alaska | Yes | Yes | |
| Arizona | Yes | Yes | Yes |
| Arkansas | Yes | Yes | |
| California | Yes | ||
| Colorado | Yes | Yes | |
| Connecticut | Yes | ||
| Delaware | Yes | ||
| District of Columbia | Yes | ||
| Florida | Yes | Yes | Yes |
| Georgia | Yes | Yes | Yes |
| Hawaii | Yes | Yes | |
| Idaho | Yes | Yes | |
| Illinois | Yes | Yes | |
| Indiana | Yes | ||
| Iowa | Yes | Yes | Yes |
| Kansas | Yes | Yes | Yes |
| Kentucky | Yes | Yes | |
| Louisiana | Yes | ||
| Maine | |||
| Maryland | Yes | ||
| Massachusetts | Yes | Yes | |
| Michigan | Yes | ||
| Minnesota | Yes | Yes | |
| Mississippi | Yes | Yes | |
| Missouri | Yes | ||
| Montana | Yes | Yes | |
| Nebraska | Yes | Yes | |
| Nevada | Yes | Yes | |
| New Hampshire | Yes | ||
| New Jersey | Yes | ||
| New Mexico | Yes | Yes | |
| New York | Yes | Yes | Yes |
| North Carolina | Yes | Yes | |
| North Dakota | Yes | Yes | |
| Ohio | Yes | ||
| Oklahoma | Yes | ||
| Oregon | Yes | ||
| Pennsylvania | Yes | ||
| Rhode Island | Yes | ||
| South Carolina | Yes | Yes | |
| South Dakota | Yes | ||
| Tennessee | Yes | ||
| Texas | Yes | ||
| Utah | Yes | ||
| Vermont | |||
| Virginia | Yes | Yes | Yes |
| Washington | Yes | Yes | Yes |
| West Virginia | Yes | Yes | |
| Wisconsin | Yes | ||
| Wyoming | Yes | Yes | |
