How the right to vote became a weapon of exclusion

President Barack Obama votes in the 2012 presidential election. Photo courtesy the White House.

This article is the third in a three-part series on felon voting rights in the United States. Click here to read part one. Click here to read part two.

In the United States, battlegrounds over the right to vote are de facto battlegrounds over White supremacy as a political system. And there is probably no more troubled time to talk about voting rights or White supremacy than during an election year. Yet it is in the months running up to electoral contests that we are also most likely to see legislators and governors take action, invoking the most powerful rhetoric they can muster in support of the franchise.

In some cases, they step directly into the political breach themselves, as Virginia Governor Terry McAuliffe did recently, restoring voting rights to an estimated 200,000 individuals previously disenfranchised as felons. Just before that, in Maryland, the state assembly passed a sweeping reform bill re-enfranchising an estimated 40,000 citizens on probation and parole and then successfully defended the bill against a veto, making it law. And in Kentucky, which has long been infamous for some of the toughest and most racially disproportionate disenfranchisement laws in the nation, new legislation may make it possible – which is not to say easy – for some individuals with felony convictions to regain voting rights after a significant waiting period.

These actions put several Southern states (along with California, which recently re-enfranchised roughly 60,000 citizens as part of a broader court-ordered reduction of its prison population) at the heart of the contemporary felon disenfranchisement reform movement in the United States. This movement draws on earlier periods of reform, dating back to the late 1960s, in which states began to remove lifetime exclusions from the right to vote. Then as now, reformers called attention to the injustice of disenfranchising citizens who had already paid their debts to society by serving out prison terms. What they sought to end, then, was not so much felon disenfranchisement as ‘ex-felon’ disenfranchisement.

The states now at the front of this "reform" movement are those that link disenfranchisement to incarceration itself and provide automatic rights restoration once a carceral sentence is complete, instead of requiring burdensome applications or individual petitions. Thus, compared to the lifetime disenfranchisement that was widely practiced in the 19th century and most of the 20th century, a new “progressive” norm has been established: Persons serving carceral sentences for felony-status crimes typically lose their voting rights for the duration of their incarceration, but after that they may, depending on where they reside, regain the right to vote.

But what, to borrow a phrase from W.E.B. Du Bois, is the meaning of such “progress” when the expansion of suffrage to hundreds of thousands of citizens leaves out the millions who are still incarcerated, such that “reform” is purchased at the cost of those who remain not just outside the democratic community, but also behind bars?

It is no coincidence that the post-Civil Rights Movement-era saw both the 1) “democratization” and “reform” of voting rights and 2) the skyrocketing imprisonment rates that ushered in what is now called (even by presidential candidates) “mass incarceration.” (See note 1 below.) Today, one percent of the U.S. population is incarcerated, and roughly two percent of the voting-age population is barred from the ballot box. That percentage is statistically and substantively significant for the outcome of elections, and while it may seem small on its face, the intense geographic and demographic concentration of incarceration means that some communities and groups are overwhelmingly locked up and locked out of the voting booth. While it is largely young Black men who bear the brunt of “mass incarceration,” women make up the fastest growing population of persons incarcerated for criminal convictions in the United States, African-American and Latina women in particular.

Even the strongest critics of felon disenfranchisement (almost without exception) presume that the electoral exclusion of currently incarcerated persons is self-evident and needs no justification. But from where does the seeming self-evidence come? Why, at the heart of a reform movement, do progressives work to draw a clear line between individuals in prison, who are presumed unfit to vote, and those presumptively eligible voters who have come to be known by the strange neologism, “ex-felon”? What does it mean that the logic of disenfranchisement – that “some” people do deserve to lose a fundamental political right – is invoked and even affirmed by the very movement to reform it?


That felon disenfranchisement can be both “reformed” and strengthened at the same time should not be surprising if we consider what disenfranchisement actually does, rather than focusing on simply whether we should or shouldn’t continue it. If felon disenfranchisement is a form of punishment, it is a clear failure. It has no retributive value, it does not deter crime, and it undermines rehabilitation by preventing individuals from taking part in civic life. But felon disenfranchisement is a productive failure. It does identifiable social and political work for our society, even if that work is deeply anti-democratic.

Specifically, it performs two functions through which our society tells itself who ‘we’ are in contrast to whom ‘we’ are not. First, felon disenfranchisement conveys moral approbation by denying individuals an emblematic right of self-government. Second, it brings into being the very figure that seemingly justifies it as a legal practice: the “felon” as a racialized fallen citizen, imbued with infamy, turpitude, and deceit.

Disenfranchisement is able do this productive work not because voting is itself an effective practice of self-government (it arguably is not), nor because the franchise creates a more representative government (it arguably does not), nor because it ensures that policy reflects the needs of all who live and die within a given political community (it demonstrably does not). Rather, the right to vote marks its holder as an equal member in a political community and defines what sort of “equality” the community recognizes. This insight, developed succinctly by the late political theorist Judith Shklar, highlights how the right to vote sets boundaries and limits to equality insofar as it held only by those individuals who have been granted equal public standing on the decisions put up for a vote.

Throughout U.S. history, the claim to full and equal citizenship has always been shaped by, and granted at the expense of, those less-than-citizens who are marked as unequal. And no figure has done more literal or figurative work to shore up equal standing among citizens than that of the “slave.”

To fight for the right to vote is to fight to exit this degraded political position while pushing for public standing as an equal among the non-slaves, the citizens. As the historian and theorist Saidiya Hartman argues, “The slave is the object or the ground that makes possible the existence of the bourgeois subject and, by negation or contradistinction, defines liberty, citizenship, and the enclosures of the social body.” (See note 2 below.) That is to say, “American” liberty, “American” citizenship, and “America” itself have each found their meaning through racial slavery and its White supremacist afterlives. (See note 3 below.)

But the key is to recognize that the right to vote can only designate one as a political equal when the sphere of equality is bounded by exclusions that the included recognize and know, even if they disavow those exclusions. In the end, what underwrites the status of the full and equal citizen is the hypocrisy of claiming to be a nation with “universal” suffrage in the face of very real suffrage restrictions. This is the dark side of democratic equality in the United States: it is produced through policies that identify and mark those whose known lower status can secure one’s own inclusion in the demos.

When arguments are made (if they are even made at all) to justify the exclusion of someone from voting in a nominally democratic community, these arguments hinge on disqualification from equal public standing, explicitly or implicitly suggesting that those who lack that standing are inferior to the community of equals who possess it. In the U.S., all of the major struggles to be considered a “qualified” voter – struggles by White workingmen in the antebellum period, by non-White men at the end of the Civil War, by (White) women in the early 20th century, and again by non-White men and women during the Civil Rights Movement – have reshaped the community of equals in relation to some continued set of disqualifications.

Hence it is that today, all children, all unnaturalized foreigners, persons under guardianship for mental incompetence (in 39 states), and persons convicted of felonies (in every state except Maine and Vermont, two of the Whitest states in the US) are all marked by the franchise as unequal.

Maryland, it turns out, is an exemplary case for showing how the expansion of democratic suffrage is accomplished by quietly shoring up barriers at the margins of the franchise. This makes it a revealing bellwether of “progressive” voting rights reform more generally.

By the close of the Civil War, all adult men in Maryland could vote, regardless of race, unless they were under guardianship for mental incapacity or convicted of an “infamous crime.” But at the same moment that this expansion of the franchise was enshrined in state law and the 14th and 15th Amendments to the U.S. Constitution, new state voting rules leveraged an exception in the 14th Amendment to entrench wide-sweeping criminal disenfranchisement policies.

As in most states that instituted these restrictions in the 19th century, lawmakers sought to secure the authority of a patriarchal White vote and to defend the political position afforded by Whiteness itself. Of course, this was most visible in “Black Codes” and the formation of Jim Crow. But what criminal disenfranchisement could do, perhaps uniquely, was ensure that the work of White supremacy could continue through an officially “color-blind” criminal justice system.

To strip a convicted criminal of the right to vote, according to 19th century legislators, was an appropriate punishment because of the individual’s deficient moral character. To be a criminal was to be marked with "infamy," imbued with deceit and deception, and therefore no longer a rights-bearing member of the polity. Without having to mention or consider racial difference openly, the categories of infamy, moral turpitude, and deceit were directly linked with Blackness. (See note 4 below.)

At the Maryland constitutional conventions in 1851 and 1864, delegates did not invoke race expressly when debating criminal disenfranchisement, yet the same delegates were panicking that Maryland might soon be flooded with “free negro labor.” And even the most strident slavery abolitionists were concerned that “free negros” were sure to steal livestock and supplies from innocent farmers in the western part of the state, that they would “steal” jobs from White laborers in the cities, and that they would “steal” the political rights of White manhood suffrage.

“Free negroes” were, in the minds and rhetoric of convention delegates, persons always already characterized by turpitude and infamy. It is thus not surprising that the crime of “larceny” was specifically included in the 1851 and 1864 disenfranchisement provisions as a paradigmatic “infamous” crime. The “free negro” embodied larceny itself; the theft of property and work could only lead, delegates insisted, to the theft of political rights and authority of from the White rulers of the state.

This previous attempt to hide White supremacy beneath moral judgement can help us understand how felon disenfranchisement reform and mass incarceration became intertwined in the post-Civil Rights era. In Maryland again, in the late 1960s and early 1970s, legislators criticized 19th century lawmaker’s reliance on the language of “infamy” and “turpitude” to link together punishment and citizenship. Their solution in 1972 was to preserve the spirit of criminal disenfranchisement laws but shift the language to “felonies and other serious crimes.” And again in 2007, reformers removed the terms “serious crimes” from the statute, leaving only the language of “felony” in the election code.

These reforms were defended as introducing a more specific and neutral categorization of criminal offenses and removing the “archaic” notions of moral approbation implied by “infamy” and “turpitude.” But even a cursory glance at the 19th century debates shows that the term “felony” was readily used alongside “infamy” to identify the same deficient moral character as a threat to the purity of the ballot box.


If current usage of the term appears to be less archaic or more technical, this is arguably because of the widespread standardization of criminal codes across the U.S. during 1960s and 70s, and consensus that felony-status crimes are those which are tied to imprisonment of longer than one year. But the logic of moral differentiation and political inequality remains. And in 2016, the new reforms follow in the same mode: slowly bringing into the democratic community individuals newly deemed worthy while relying on the continued exclusion of individuals (currently incarcerated persons, in this case) whose known lower public standing affirms the equality of the newly eligible voters.

In 1972, 2007, and now again in 2016, the “reform” of disenfranchisement proceeds by taking for granted, rather than questioning (or even considering) the anti-democratic work of social and political differentiation that disenfranchisement does. This work remains the same, no matter how narrowly disenfranchisement is targeted, how technically it is applied, or how swift the restoration process is. And in this process, the criminal justice system—with its clearly racialized impact—becomes the primary mechanism for determining whether a citizen is morally fit for political life.

This is not to say that the new reforms aren’t improvements, especially in terms of raw numbers for those re-enfranchised persons who are finally (and rightly) able exercise a right they never ought to have lost. But we must acknowledge that these improvements have costs. As with all reforms that leave the underlying logics in place, these costs cannot be measured or known in advance. And perhaps even worse, such reforms work by solidifying, rather than challenging, the logic and spirit of the very institutions that reformers set themselves against.

Like previous changes, the new reforms have forced the system of moral and political differentiation to adopt the covert terms of White supremacy, or what the philosopher Charles Mills has called “racial opacity.” (See note 5 below.) But the reforms have not altered how this system constructs the full citizen as innocent and deserving in opposition to the devalued, racialized felon.

And yet, in this November Maryland and Virginia (where nearly 70% of currently incarcerated persons are African-American), and in every other state save Vermont and Maine, “eligible” voters will go to the ballot box in full knowledge that we have “arrived” in an era of universal adult suffrage. And we will know this in part because 200,000 citizens in Virginia and 40,000 in Maryland can finally rejoin the body politic as full members (even if the stigma of criminal convictions still limits their ability to find work, apply for credit, maintain custody of their children, access government benefits, receive professional licensure, etc.).

And we will know ourselves as full and equal citizens of a worthy regime precisely because we know the history of struggles for the vote, and because we can look around and see other equal citizens casting their ballots, persons who are no longer categorically denied that right.

This is progress indeed, but it is progress whose price is paid by others. The political exclusion of those others underwrites not only our own inclusion in the democratic community, but also the pride with which we celebrate the historical expansion of that community. What would it mean, in this electoral season, to acknowledge this price, instead of disavowing it? What would it mean to center, rather than marginalize, those held behind bars within our stories of American citizenship – to admit that their convictions do not merely disqualify them from voting, but also qualify each and every eligible voter as an ostensibly full and equal citizen, so that in casting our ballots we perform the covert work of reproducing and maintaining white supremacy, no matter whom we vote for?

One thing it would mean – one deep and difficult thing – is that the franchise we are so ready to celebrate cannot be separated from the mechanisms of mass incarceration that we are so ready to criticize. If we want to free the institutions of democracy from the institutions of racialized punishment, to become free of our pernicious past, the end of ‘ex-felon’ disenfranchisement will not be enough.


Notes:

  1. As Dylan Rodríguez has noted, the concept of “mass incarceration” can mask the very character of racial domination that it seeks to point out. To whom exactly, Rodríguez asks, does the “mass” in “mass incarceration” refer? There is no “common subjection” of the “American masses” in “mass incarceration.” On the contrary, there is a racially targeted set of practices of domination and oppression that (re)produce rather than simply reflect racial caste systems.

  2. Saidiya Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth Century America (Oxford: Oxford University Press, 1997), 62.

  3. Or, as political theorist Joel Olson argues, the “American citizen” is really the “white citizen,” and “American democracy” is really “white democracy.” See Joel Olson, The Abolition of White Democracy (Minneapolis: University of Minnesota Press, 2004).

  4. See Dilts, Punishment and Inclusion: Race, Membership, and the Limits of American Liberalism (Fordham University Press, 2014) in addition to Pippa Holloway, Living in Infamy: Felon Disenfranchisement and the History of American Citizenship (Oxford: Oxford University Press, 2014) and Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (Cambridge: Harvard University Press, 2010).

  5. See Charles W. Mills, “Liberalism and the Racial State,” in State of White Supremacy: Racism, Governance, and the United States, ed. Moon-Kue Jung, João H. Costa Vargas, and Eduardo Bonilla-Silva, 27–46 (Stanford, CA: Stan- ford University Press, 2011), 33