Late in April, Virginia Governor Terry McAuliffe issued an executive order allowing those convicted of felonies to vote after completing their sentences. Based on a broad understanding of his office’s clemency powers, McAuliffe’s action restored voting rights to hundreds of thousands of citizens of his state—and immediately met a backlash from the legislature’s Republicans. But Virginia is only the latest state to see such drastic policy reversals on this matter. Early in February, the Maryland legislature overrode Governor Larry Hogan’s veto of a law that restored full voting rights to felons upon release from prison and ending the practice of denying the franchise to those sentenced only to probation. In March, forty thousand Maryland citizens thus became eligible to vote. In a state where around half of all felony convictions go to African Americans, this shift is at least a step toward ameliorating the effects of decades of racially-skewed suffrage restrictions. But from a regional and national perspective, it’s still only a very small step – across the US, about 5.8 million people are unable to vote as a consequence of past convictions.
“Felon disenfranchisement” refers broadly to the practice of imposing limitations on the voting rights of those found guilty of particular criminal offenses. In the U.S., laws governing felon disenfranchisement are enacted at the state rather than the federal level, so there’s little consistency across the country regarding the crimes that trigger disenfranchisement and the conditions for restoring voting rights. The result is a complex, confusing patchwork of policies. Yet taken as a set, these policies impose one of the most serious and far-reaching formal restrictions on the franchise. And like other controversial restrictions on voting, felon disenfranchisement policies are deeply politicized and increasingly contested.
Nowhere is this clearer than Kentucky, whose 1792 constitution was the first to empower the state to deny the vote to individuals with criminal convictions. For a long time, Kentucky permanently stripped voting rights from anyone convicted of any felony, unless the governor chose to restore them. However, last year’s state elections left Democratic Governor Steve Beshear a lame duck, and in his final weeks in office he issued an executive order restoring the vote to non-violent felons upon their release. His Republican successor, Matt Bevin, reversed this policy change almost immediately, reinstating a policy under which individuals with convictions must appeal individually to the governor’s office for any chance of having their voting rights restored. Then, in April, the Kentucky legislature passed a new bill, which Bevin signed into law, which makes some individuals eligible to have their criminal records expunged, and voting rights restored, after a mandatory waiting period. Tellingly, the law defines the waiting period as five years following the completion of an individual’s sentence or probation period, whichever is longer. And many individuals with felony convictions are not eligible at all.
Most states allow for felon re-enfranchisement after sentence completion, after release from prison, or at the conclusion of parole. But Iowa and Florida permit the indefinite disenfranchisement of all persons convicted of any felony, even after they have "paid their debt to society," and a number of other states indefinitely deny the vote to individuals convicted of certain serious crimes. Only two states – Maine and Vermont – have refused to limit suffrage in these ways, permitting incarcerated people to vote absentee during their sentences.
Just as the American carceral state cannot be understood without engaging the nation’s centuries of white supremacy, it is impossible to grasp the contemporary effect of felon disenfranchisement without confronting the racialized history of American suffrage. To be sure, older forms of what we now call felon disenfranchisement have been practiced in parts of North America since the colonial era, predating in some places (as in Kentucky) even the first large-scale extensions of the franchise to non-Whites. But most modern limitations on felon voting date back to the Reconstruction years. Very few such statutes were adopted before the Civil War, and in the South, their emergence foreshadowed the rise of other obstacles to Black suffrage, such as poll taxes and literacy tests. Moreover, sociological data reveals that when disenfranchisement laws were passed after the war, their severity correlated strongly with the size of a state’s Black population.
It is striking, indeed, that the two states without any such voting restrictions – Maine and Vermont – are among the most overwhelmingly White states in the nation. In those states, there was no widespread fear that White interests were threatened by local Black popular power. In short, wherever White supremacy appeared to be at risk, felon disenfranchisement grew increasingly popular and markedly more draconian.
Functioning as part of a complex set of legal strategies to dilute the strength of the post-Civil-War constitutional amendments, felon disenfranchisement laws have managed to outlive many of the other maneuvers that also restricted minority access to the polls. While old Southern classics like grandfather clauses and property requirements were largely eviscerated by the Voting Rights Act, there’s still no judicial consensus on whether existing federal civil rights law could be used to roll back felon disenfranchisement statutes in states where they have a racially disparate impact.
Thus, while their 19th century origins predate the rise and fall of other official mechanisms of segregation and voter suppression, today felon disenfranchisement laws operate in tandem with the prison-industrial complex to deny Americans of color full access to political life. The system of racial oppression that Michelle Alexander has called “the new Jim Crow” (in her widely influential book of the same name) is intimately connected with, and reinforced by, these statutes. Just as the war on drugs in particular and the racially skewed criminal justice system more broadly have reproduced the hierarchical social order of Jim Crow through the institutional mechanisms of the carceral state, felon disenfranchisement policies recreate the voting restrictions of that old order within the officially reformed sphere of electoral politics. As a result, about a quarter of African Americans in Florida may never be able to vote at all. And nationally disenfranchisement laws have “stripped one in every 13 [B]lack persons of the right to vote – a rate four times that of non[B]lacks.”
Viewed together, felon disenfranchisement laws and the broader context of institutionalized racism reveal a distinctly American form of anti-democratic social hierarchy. On its face, it may seem reasonable that individuals who violate the law should lose their right to participate in the democratic processes that author the law. That very idea is often associated with social contract theory, the philosophy of state legitimacy most closely associated with the “American experiment,” in which rational individuals agree to the restrictions of law in order to enjoy the benefits of the state. But beyond the idealized realm of political theory, these premises were mobilized in the service of racially exclusionary visions of American identity. The noble ideal of the “social contract” played out in the real world in the form of what Charles Mills has called the “racial contract” of American law and order. By disproportionately casting people of color outside the official sphere of political participation, felon disenfranchisement laws have contributed to the illusion that U.S. electoral politics is an egalitarian enterprise – ‘one person, one vote,’ – for all individuals who choose to abide by the terms of the ‘contract’. In this way, the rhetoric of the liberal social contract has infused the reality of racialized disenfranchisement, helping to legitimize the broader racial inequalities that structure a society that is composed, not only of voters, but also of all individuals who are officially barred from voting.