Earlier this month, the Maryland General Assembly expanded voting rights to around 44,000 people with felony convictions, overriding six vetoes by Republican Governor Larry Hogan. The vote means that Maryland will soon join the ranks of thirteen states and the District of Columbia where those with felony convictions can now vote after they have been released from prison.
In a political climate in which voting rights feel increasingly under threat, felony disenfranchisement stands out as surprisingly unpopular. A 2004 public opinion survey, for example, showed that eight in ten U.S. residents supported restoring voting rights for citizens who had completed their sentences. In 2014, then-Attorney General Eric Holder urged states to reform their felony disenfranchisement statutes, calling restrictions “unnecessary,” “unjust” and “counterproductive.” And increasing numbers of states are taking steps to roll back laws barring those with felony convictions from voting after they have been released from prison. Politicians as ideologically far-ranging as Rick Santorum, Rand Paul and Hillary Clinton have argued for the expansion of voting rights for those who have been convicted of a felony.
Despite the growing momentum in favor of reform, the number of disenfranchised individuals continues to grow. According to a report from The Sentencing Project, 5.85 million American citizens will be unable to vote in the 2016 presidential election as a result of felony convictions, up from approximately five million in 2008. Those individuals are concentrated primarily in the twelve states that restrict felony voting post-sentence, some of which impose lifetime voting bans on those convicted of a felony.
Not surprisingly, felony disenfranchisement overwhelmingly impacts low-income people of color. Nearly 8% of adult black Americans are disenfranchised under these laws (at a rate over four times greater than the rest of the population). In states such as Florida, where an estimated 1.5 million people are disenfranchised, nearly 25% of adult black citizens are unable to vote as a result of felony convictions.
Policies that systematically disenfranchise such a large voting bloc are fundamentally at odds with the values of democracy and equal protection espoused by politicians and academics. They also have a real impact on local and national elections, and will have an impact this November. It is hard to estimate exactly how disenfranchisement will affect this year’s presidential election, and guessing if or how currently disenfranchised citizens might vote if they could is inherently challenging. Many advocates and political analysts agree, however, that the political implications of felony disenfranchisement are dramatic and far-reaching. The effects of felony disenfranchisement are magnified in close presidential elections, as many of the nation’s strictest bans are in traditional “swing states” (as Desmond Meade of the Florida Rights Restoration Coalition put it, “If these people were able to vote…Florida would no longer be a swing state.”)
The political implications of disenfranchisement were particularly acute in 2000, when George Bush defeated Al Gore in Florida by only 537 votes. According to one estimate, if just 1% of Florida’s disenfranchised population had voted, 60% Democrat to 40% Republican, the national election would have come out differently. Presidential elections in subsequent years may have been less dramatic, but felony disenfranchisement still has the potential to dramatically change the dynamics in a close election.
The Maryland legislature’s decision is a victory for voting-rights advocates, but the extent of felony disenfranchisement should continue to alarm those concerned with equal protection, voting rights, and racial justice. Problems with the criminal justice system have been widely discussed in the lead-up to the 2016 Presidential election. Yet nearly six million people with the most at stake in criminal justice reform will be unable to participate in the political dialogue in the most basic way. The Supreme Court has addressed challenges to felony disenfranchisement laws twice, in Richard v. Ramirez (1974) and Hunter v. Underwood (1985). In Hunter, the court held that, absent a showing of discriminatory intent, states could continue to deny the vote to citizens with past felony convictions. But it is time for advocates to capitalize on the growing momentum in favor of reform and to mount a concerted political effort to re-enfranchise individuals with felony convictions. Restrictive voting bans, particularly in light of their racially disparate impact, violate basic notions of fairness and allow for a political process that is unjustifiably unrepresentative.