Today ACS joined IMPACT, CJAN, the ACLU and CRLS in hosting a panel discussion on felon disenfranchisement. The panel featured Professor Richard Briffault of CLS, an election law expert, Jenign Garrett, staff attorney at the NAACP Legal Defense Fund, and Glenn Martin, Associate Vice President of Policy and Advocacy of the Fortune Society.
Professor Briffault began the panel by outlining the dimensions of felon disenfranchisement. Felon exclusion currently constitutes the largest voting exclusion in the United States. About four million people, or 2% of the adult population, are currently denied the right to vote because of a felony. Briffault identified three major categories of individuals impacted by felon disenfranchisement. About one third of the individuals impacted are those currently incarcerated. 46 states currently disenfranchise those who are incarcerated. A second major category is comprised of individuals currently in the criminal justice system but not incarcerated, such as individuals on parole or probation. This represents a third of disenfranchised felons, as 32 states deny the right to vote to people on parole and 29 to people on probation. The final group of disenfranchised individuals are those who are currently free but were previously convicted of a felony. About 14 states prevent ex-felons from voting without going through extensive procedures to regain the right to vote. Briffault noted that in states like Alabama and Florida that have lifetime disenfranchisement these categories can represent as much as one third of African American male residents.
Briffault traced the laws denying the right to vote to felons to post-Reconstruction statutes that were designed to make it harder for African Americans to vote. Strangely, many states that deny felons the right to vote still count them in the apportionment of state and congressional seats – this explains why upstate New York (home to numerous prisons) is so well represented.
Garrett then spoke about the Voting Rights Act’s impact of felon disenfranchisement. Because the VRA was designed to prevent racial discrimination in voting regardless of its form, Garrett argues that Section 2 should apply to felon disenfranchisement laws as fellow laws in effect discriminate against minorities. Garrett discussed a recent case in which the District Court for Eastern Washington found that discrimination in the criminal justice system impeded the ability of minorities to vote because of felon disenfranchisement. Though minorities make up only 12% of the Washington population, they comprise 36% of those who have lost the right to vote due to felon disenfranchisement. However, the District Court held that this evidence of discrimination did not mean that the VRA was violated; instead, the District Court ruled that discrimination occuring today not rooted in historical discrimination does not violate the VRA. This case with go to the 9th Circuit next month. Garrett also discussed the current challenge to Alabama’s felon voting laws, which disenfranchise individuals who commit crimes of moral turpitude, yet fail to define what crimes fall in this ambiguous category.
Finally, Glenn Martin discussed the dimensions of felon disenfranchisement in New York. Currently, about 100,000 New Yorkers are prevented from voting due to felon disenfranchisement. While New York law does not prevent those on probation from voting, many on probation are denied the right to vote due to the mistaken beliefs of local boards of elections. A previous survey by the Fortune Society found that 50% of the boards of elections in New York supplied the wrong response when asked questions about the impact of probation on an individual’s ability to vote. Following extensive efforts by the Fortune Society, a more recent survey found now 35% of the boards of elections in New York are still making such errors. The Fortune Society is continuing to address this issue and may elect to engage in litigation. Martin has also worked on efforts to pass state laws reducing or eliminating felon disenfranchisement. However, despite support in the state house, such bills have failed to get through the Republican-controlled state senate. The Fortune Society is now working on having Gov. Spitzer issue an executive order stating that anyone not incarcerated can register and vote. Martin noted that this method succeeded in Iowa and successfully stood up to legal challenges. Finally, there may be some efforts in the near future by Sen. Specter to push similar federal legislation through Congress.