A Blow to “Civil Death”: Kentucky Governor Restores the Right to Vote for Ex-Felons

Over 150,000 non-violent ex-felons now have the right to vote in Kentucky, thanks to an executive order signed by Governor Steve Beshear on Tuesday. The Democratic Governor’s term ends in only two weeks, but believes this order is an important legacy to leave behind. In a press conference on Tuesday, he stated that, “The right to vote is one of the most intrinsically American privileges, and thousands of Kentuckians are living, working and paying taxes in the state but are denied this basic right.” He also emphasized that restoring voting rights to ex-felons is necessary to facilitate their re-integration into the community after incarceration.[1] Beshear’s Republican successor, Bevin, has voiced support for the order, increasing the likelihood that it will not be repealed once Beshear leaves office.

Before Beshear took office in 2007, ex-felons had to apply to the Governor’s Office to have their voting rights restored. Applicants were required to write an essay, pay a fee, and provide three character references. Beshear got rid of these requirements in 2008, but retained the requirement for ex-felons to apply to his office to be considered on a case-by-case basis. With the new order, individuals will be given “Restoration of Rights” certificates upon their release from prison. Those who have already left prison will be able to download a form from the Department of Corrections website. However, there are still restrictions on voting rights for several classes of ex-felons; for example, the order does not cover those convicted of violent or sex crimes, bribery, or treason.[2]

Felony disenfranchisement laws vary by state, with the most extreme states imposing lifetime bans on voting for all ex-felons, even after they have completed their sentence and are no longer on probation or parole (Florida, Iowa, and, until this order, Kentucky). On the other extreme, some states do not restrict the right at all and allow prisoners to case votes from prison (Maine and Vermont). Over the past two decades, over 20 states have improved their criminal disenfranchisement laws to allow more people with past convictions to vote, to vote sooner, or to have easier access to voting.[3] However, these disenfranchisement laws still affect almost six million American citizens, including 2.2 African Americans.[4]

Felony disenfranchisement is a concept that is deeply rooted in American common law. English colonists introduced the practice of “civil death,” whereby criminal penalties and revocation of voting rights were imposed on individuals who had committed “egregious violations of the moral code.” After the American Revolution many states codified restrictions and expanded them to all felony offenses, and even more states did so after the Civil War. In the post-Reconstruction period, some Southern states attempted to target their disenfranchisement laws at black male voters, focusing the restrictions on crimes African Americans were more likely to be convicted of. For example, party leaders in some states called for disenfranchisement for crimes such as burglary or arson but not for theft or murder.[5]

Regardless of whether states have retained these policies for the purpose of reducing political participation by minority communities, they undeniably continue to have this effect. Black Americans of voting age are four times more likely to lose their voting rights than the rest of the population, and in three states more than one in five black adults is disenfranchised.[6] In addition to the disparate impact on minority communities, which is inherently condemnable, the political impact of felon disenfranchisement policies is not negligible. Some studies have found that disenfranchisement policies affected the results a number of senate races in the last fifty years, as well as the 2000 Bush-Gore presidential election.[7]

Felony disenfranchisement laws have survived several legal challenges in the last century. In Richardson v. Ramirez (1974), three ex-felons from California sued for the right to vote, arguing that California’s crime disenfranchisement law violated the Equal Protection Clause of the U.S. Constitution. They argued that under Section 1 of the Fourteenth Amendment, states cannot restrict voting rights unless they are able to show a compelling government interest. However, the U.S. Supreme Court upheld the Constitutionality of these laws, citing Section 2 of the Fourteenth Amendment to the United States Constitution. Section 2 states that States which deny the vote to male citizens, except on the basis of “participation of rebellion, or other crime,” will suffer a reduction in representation. The Court found that this language represented an “affirmative sanction” of the practice of felon disenfranchisement, and the Fourteenth Amendment could not prohibit in one section that which is expressly authorized in another. Richardson v. Ramirez, 418 U.S. 24 (1974). The only way that a state’s crime disenfranchisement provision will be held to violate the Equal Protection Clause is if it can be demonstrated that the provision has “both [an] impermissible racial motivation and racially discriminatory impact.” Hunter v. Underwood, 471 U.S. 222, 232 (1985). Since it is extremely difficult to show both a discriminatory intent and a discriminatory impact, state and federal courts continually uphold felon disenfranchisement laws. Therefore, initiatives to end the practice of felon disenfranchisement have largely come through legislative and executive action on the parts of individual states.

Governor Beshear’s executive order represents a resounding victory for the movement to end criminal disenfranchisement policies nationwide. The announcement is particularly significant coming from a state with a history of conservative criminal justice policies. It seems that there has been a national shift toward curbing these policies in recent years, and even many conservative politicians have come out in support of restoring these rights in at least some capacity. President Obama also came out in support of restoring the right to vote for those with felony convictions: “If folks have served their time and they’ve re-entered society they should be able to vote,” he said at the NAACP annual conference in Philadelphia.[8] Hopefully this national momentum continues, so that in the next decade more states will consider dialing back or ending altogether their crime disenfranchisement policies. The right to vote is one of the most fundamental civil rights in a democratic society, and it should not be denied to such a substantial population.

 

[1] http://www.msnbc.com/msnbc/kentucky-restores-voting-rights-ex-felons

[2] http://abcnews.go.com/US/wireStory/kentucky-governor-restores-voting-rights-felons-35391201

[3] https://www.brennancenter.org/analysis/sustained-momentum-and-growing-bipartisan-consensus-voting-rights-restoration

[4] http://sentencingproject.org/doc/publications/fd_Felony%20Disenfranchisement%20Primer.pdf

[5] http://www.nytimes.com/2014/11/19/opinion/the-racist-origins-of-felon-disenfranchisement.html

[6] http://sentencingproject.org/doc/publications/fd_Felony%20Disenfranchisement%20Laws%20in%20the%20US.pdf

[7] Uggen, C., Shannon, S., & Manza, J. (2010). State-level estimates of felon disenfranchisement in the United States, 2010. Washington, D.C.

[8] http://www.slate.com/blogs/the_slatest/2015/07/14/obama_calls_for_fundamental_criminal_justice_reforms_in_major_naacp_speech.html

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Emma is a 2L at HLS. She is originally from Vancouver, Canada and graduated from Georgetown University in 2012. Prior to law school, Emma taught Chemistry and ESL for two years at John Overton High School in Nashville, Tennessee. Emma's interests include immigration law, criminal justice, and prisoners' rights. At HLS, Emma is currently a student in the Immigration and Refugee Clinic, and is a member of the Prison Legal Assistance Project and Harvard Defenders.

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