Free but Disenfranchised: Why We Still Don't Have Votes for (All) Women [1]

"Just because we've committed a crime, doesn't mean we shouldn't be able to vote. I've paid my dues. I want to be a good citizen, and voting comes along with that," a client at the Center for Women in Transition, Tammy Robinson, said. 

As we go into the 2020 election, it is estimated that 5.2 million American citizens with a felony conviction are unable to vote, which is equivalent to 1 in 44 Americans [2]. The United States is one of the only democracies left in the world that denies the right to vote to people who are currently or formerly incarcerated. But the long practice of denying voting rights to American citizens with felonies is not often questioned. Now is the time to consider anew when, if ever, voting rights of American citizens should be taken away. When one uncovers the history of disenfranchisement and its connection to systemic racism in the criminal justice system, voter suppression, and gerrymandering, it becomes hard to justify the laws restricting voting rights.

Each state has different laws on disenfranchisement for folks with felony convictions. In only two states and one territory—Maine, Vermont, and Washington, D.C.—voting rights are never taken away from anyone based on a felony conviction, even for those currently incarcerated. Three states—Iowa, Kentucky, and Virginia—permanently bar people with felony records from voting, and another eight states permanently disenfranchise some categories of felons. Most states’ laws are somewhere in the middle, barring people from voting for a limited period of time, generally either for the period a person is incarcerated or until completion of probation or parole, sometimes with a requirement that fees and restitution are paid.  

In Missouri, which ranks 28th out of 50 in restoration laws, voting rights are restored to felons after completion of their entire sentence, including probation or parole. Disenfranchisement for people with a felony conviction in Missouri has affected almost 90,000 people, about 2% of the voting age population. 

Although some strides have been made to change disenfranchisement laws for people with felonies, for many justice-involved folks and advocates, reforms must ensure that every citizen’s voice can be heard at the ballot box. For Tracy Stanton, a Board Member with the Center for Women in Transition, a Bail Disruptor at the Bail Project, and an organizer with EXPO-MO (Ex-Incarcerated People Organizing-Missouri), the way the U.S. treats people who have been involved with the criminal justice system is not surprising considering the “horrific circumstances that this country was built on, off of the back of stolen people.”

In fact, there is a long history in this country of disenfranchising Black Americans. There’s no denying the racial disparities of incarcerated folks in the United States; it has been well-documented, discussed, and criticized by many, including Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and Ava DuVernay, director of 13th [3]. 

Here is a graph from the Sentencing Project showing the disproportionate impact of mass incarceration on Black and Latino Americans:

These racial disparities are not an accident; they reflect one form of voter suppression that has been in effect since the beginning of our country and which has grown as other forms of suppression have been held unconstitutional. Now, in a time when our country is collectively considering what it means to be anti-racist, we must acknowledge the racist underpinnings of the felony disenfranchisement laws, which helped to create the modern era of mass incarceration. 

History of Disenfranchisement for People with Prior Convictions
According to the Sentencing Project, taking away the right to vote from people with a criminal record is a practice referred to as “civil death” brought over by English colonizers to North America. However, disenfranchisement only applied to crimes involving voting and limited other crimes. Americans expanded the concept to serve elitist and racist goals, first to respond to the elimination of the property test for voting after the Revolution, and then after the Civil War to respond to the end of slavery. 

Despite the patent manipulation of the “civil death” concept to achieve political ends aimed at impoverished and Black communities, in 1974, the Supreme Court in Richardson v. Ramirez ruled that voting rights for people convicted of a felony crime are not protected under Section 2 of the Fourteenth Amendment, which states the right to vote cannot be denied “except for participation in rebellion, or other crime.” 

In the 6-3 majority opinion by Justice Rehnquist, voting rights revocation was held to be constitutional based on a number of factors, including the intent of the legislators who drafted the Fourteenth Amendment and precedent. This section of the 14th Amendment is usually referred to as the provision that ensures “one person, one vote,” and together with the Thirteenth and Fifteenth Amendments, was meant to ensure full equality, including voting and representation rights, to former enslaved persons. (Section 2 of the Fourteenth Amendment specifically discriminated against women, however, and it was not until ratification of the Nineteenth Amendment that white women were guaranteed the right to vote.) Ever since the passage of the Fourteenth and Fifteenth Amendments, Section 2 of the Fourteenth Amendment has provided a useful loophole for silencing politically unpopular voices. In fact, by 1870 when the Fifteenth Amendment was ratified, 28 states had already passed laws disenfranchising people convicted of felonies. Today, all but 2 states have some version of these laws.

These laws have disproportionately  suppressed Black people from voting. According to the Sentencing Project, in 2016 while 2.47% of the total voting age population were disenfranchised, 7.44% of African Americans were disenfranchised. 

Recently, Sara Baker, Policy Director of the American Civil Liberties Union (ACLU) of Missouri, discussed the racial disparities of disenfranchisement for people with a felony conviction:

“Our criminal justice system is already riddled with such racial injustice that it would be impossible not for that to perpetuate into the voting system,” said Ms. Baker. “We try to connect these two on the idea that if you've been incarcerated, then there are suddenly additional limitations, but on your voting rights, so I think they mirror each other. You see absolute echoes of the racism in the criminal justice system in the voting system as well.”
 
Those who support removing voting rights of citizens with felonies may be unaware of this history, and they often rely on arguments that these laws are justifiable as a punishment, as a deterrent, or because of the justice-involved individuals’‘moral failings’ and disregard of Rousseau’s ideation of a social contract. But for the vast majority of people who are incarcerated  in this country, they are coming from communities of poverty and communities of color, which are less likely to vote in the first place due to systematic voting barriers. And punishment for crimes is dictated by criminal statutes and sentences imposed by judges. Disenfranchisement laws are like other collateral consequences of incarceration--barriers that make successful reintegration into community more difficult and amount to extended, sometimes life-long, non-judicial punishments.    

Our country’s oversized prison population is not reserved for the most morally corrupt individuals. In fact, our prisons largely house people who suffer from mental illness, severe trauma, and substance use disorders, who come from communities where the social contract does not seem to apply. One could say they are inadvertently playing their role in the social contract by removing themselves from participation in democratic decision making. Even assuming that most people with felony convictions have committed a crime that calls for a criminal consequence, it does not automatically follow that there should be voting rights consequences. The only crimes that seem self-evidently to call for such consequences are voter fraud and treason, but almost all disenfranchisement laws go far beyond this.

And people who are incarcerated are contributing citizens, even while they are in prison. In fact, our country relies on inmate labor for a wide variety of products and services, for which incarcerated people are paid essentially nothing. We should be concerned by how closely our modern prison system echoes the structure of slavery, with people who are incarcerated providing near-free labor without rights to participate in our representative democracy.   
 
“When you get incarcerated….you still contribute to society by way of labor. Right now, there's currently people that are fighting the [forest] fires that are incarcerated. They get paid $2 a day. Because you know, the 13th Amendment says….you're not a slave unless you're incarcerated, and you can still get free labor. So, you still contribute to society.” said Ms. Stanton. “A bad decision can lead you to stay in prison. Right? So, does that mean you're just this horrible person? Are you still not human? Are you not someone that just made a mistake? I personally believe that you shouldn't lose your right to vote, you don't lose your citizenship.”

Although current, and in some states formerly, incarcerated people are not able to vote, their bodies are counted in the drawing of state and local electoral districts where they are imprisoned. This dilutes representation in their home districts while increasing the population for election districts in the rural areas where they are incarcerated. This occurs because the U.S. census counts incarcerated individuals as residents of their place of incarceration--largely in rural areas where prisons are located, rather than in their last residence prior to incarceration--which are more likely to be urban areas, and states use the census data to draw their districts. Although this blatant practice of skewing representation towards whiter, more conservative, rural areas is the subject of constitutional challenge, only nine states have passed laws to end it.

In summary, history has shown that removing voting rights from people with felonies has created numerous perverse incentives, including targeting certain groups for criminal prosecution and encouraging the development of more prisons in rural areas in part to bolster rural electoral districts. Both of these practices contribute to some degree to the explosion of incarceration in this country, which in turn, has most damaged poor folks, Black Americans, and people with disabilities and has left those with records with a lifetime of hurdles to successful reentry. These same individuals and communities are not able to use their voting power to address injustices that impact them, or to push for criminal justice reforms. It is not surprising that politicians respond to “tough on crime”-minded constituents when those directly impacted by tough-on-crime legislation are not constituents at all because they have no right to vote.

There is little evidence of any benefit to America from felony disenfranchisement, or that American democracy would suffer if people with felony records were allowed to vote. Evidence does show, however, that having a high level of community ties and civic engagement reduces the likelihood of criminal behavior. By denying voting rights, we are missing an opportunity to engage with struggling people in a positive and meaningful way.

Voter Suppression
When describing the act of one’s right to vote being taken away as disenfranchisement, in essence, we are also describing a form of suppression of the vote. We have seen how this type of voter suppression of people who are disenfranchised due to a criminal record manifests itself beyond the one person and their vote. Many scholars have conducted research on the impact of disenfranchisement on not only the political behavior of those who have been or are incarcerated, but also their family, friends, and community [4]. In these studies, they found a substantial decrease in voter turnout and political engagement among families and communities impacted by the criminal justice system and its subsequent iteration of disenfranchisement. There are a number of reasons why this occurs, but two important reasons are 1) inaccessibility to voter and political education resources, and 2) feeling that your vote does not matter because it hasn’t made a difference in the past.  

Voter information needs to be more accessible. For instance, the Missouri Secretary of State’s website has some information on how to vote, but according to Ms. Baker of the ACLU of Missouri, it is not “enough information, particularly for people who are coming back into society who have experienced the criminal justice system.” 

The lack of information is one of the easiest barriers to remove for voting, and one that the ACLU of Missouri has been filling the gap on for quite some time. They are delivering informational flyers across prisons and jails in the state to inform people of their voting rights and ensure every person’s vote is counted. However, in a study done by Dr. Traci Burch, a political science professor at Northwestern University, voter information is not the sole way to increase turnout and political participation. Here is an excerpt from her study:

“Even with full information, turnout might still be low. When Florida restored the civil rights of hundreds of thousands of ex-offenders, the Department of Corrections, Clemency Board, and Board of Elections teamed up to contact those eligible offenders to tell them that their rights had been restored automatically. These bureaus also held community events and ran advertisements to alert eligible ex-felons of the change in laws. Moreover since 2006, the Department of Corrections in Florida has advised eligible ex-felons about the restoration of their rights as they exit supervision. Undoubtedly, the state found it difficult to reach ex-felons released before the change in the law (Moore 2008). However, turnout remains low even among those ex-offenders released after 2006, suggesting that lack of information is not the primary cause of nonvoting among ex-felons because this group was told explicitly about the automatic restoration of their rights.” [5]

This study reveals another profound reason that people do not vote in this country: not feeling like their vote will make a difference. 

“The system has failed the majority of us that have come from this certain type of lifestyle or this certain type of surroundings or environment that you don't even believe in democracy, period.” Ms. Stanton talks about empowering folks she meets in her community to feel that their voices matter and that they can enact change. She says, “So, as we restore your rights to vote, then you become civically engaged in your community, then you start becoming politically engaged. And then not only that, now we want to encourage you and empower you and provide you with the resources and the knowledge to make you be a person that is eligible or capable to be a candidate to run. So, that's where it starts with giving us the right to vote. So, we have a voice, but it's so much more than that, you know, it’s empowering us.”

Current Efforts at Expanding Enfranchisement
All over the nation, community organizers and civil rights activists are pushing for restoration of voting rights for incarcerated and formerly incarcerated individuals. Most recently, thousands of dollars are pouring into crowdsourcing campaigns and billionaires are establishing funds to help eligible voters in Florida pay court and restitution fees so they can register to vote. Here in Missouri, there’s also a lot happening. Activists like Ms. Stanton are organizing to restore voting rights and to empower those who have been disenfranchised. On the legal side, the American Civil Liberties Union of Missouri just started a voter education campaign for pre-trial and post-release folks leading up to the 2020 election. During the state legislative session this year, State Senator Jamilah Nasheed introduced a bill to restore voting rights to people with nonviolent felony convictions who are on parole or probation [6].

Some progress has been made. The number of Americans barred from voting because of a felony record has gone from 6.1 to 5.2 million since 2016. More states are reforming their laws to expand voting rights. But there is still much progress to be made.

Future of Voting Rights
At the end of interviews, I asked people, “What do you envision for the future of voting rights, of enfranchisement, to look like?”

For Ms. Stanton, “Everyone should be allowed to vote. Voting rights should never be taken away. You never lose your citizenship. The issues that cause people to engage in  behaviors that lead them to prison should be the focus in criminal justice reform. No one is born with an innate ability to be evil: life experiences, subjective and objective learning, systemic racism as well as the lack of available resources  are only some of the factors that contributes to the choices that some people make. So we should focus on solving those issues and then of course, invest in holistic healing, provided the communities with resources, education, healthcare,  personal and professional development trainings and jobs. Poverty leads to crime. When we are able to restore marginalized communities and nurture the needs of the people then we create a new reality for us.  So that's what I feel like is enfranchisement.”

For Ms. Robinson, “We've done our time, and we should be allowed to vote.”

The importance of listening and empowering people with the lived experience of incarceration cannot be overstated. For people like Ms. Stanton, Ms. Robinson, Ms. Baker, and thousands of activists in this country, the burden is often heavy to create this change. They should not have to do this all by themselves. People who have been privileged in their lives to not be involved in some way with the U.S. criminal justice system have a duty to change the narrative around voting rights for people with a criminal record, to spread awareness on this issue, and to encourage others to join. Together, we can lead our country down a path to enfranchise the millions of citizens who have lost their rights to choose who governs their lives. 

When you go to vote this week, if you have not done so already, please remember the millions of people who cannot, who did not know how, who didn’t feel like their voices would be heard. Our country will be stronger when we encourage our justice-involved neighbors to vote, rather than exclude them from this basic right of citizenship.

Endnotes
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1. “Votes for Women” was a slogan used during the Women’s Suffrage Movement of the early 1900s. While the movement made strides for securing the right to vote for women, like the 19th Amendment, the movement has been criticized for its classism and racism that pushed many African American, Native American, and poor women out of the movement by only advocating for suffrage for white women and creating elitist spaces. Further reading: Women, Race, and Class by Angela Davis.  

2.  The Sentencing Project. “Locked Out 2020:  Estimates of People Denied Rights Due to a Felony Conviction.” (2020). Retrieved October 29, 2020, from https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/

3. These are both highly acclaimed and popular at this moment in time but are not exhaustive. For more educational resources on racism in the American criminal justice system: films here; books, films, and podcasts here; books here; related books here.

4. These studies are: Burch, Traci. “Turnout and Party Registration among Criminal Offenders in the 2008 General Election.” Law & Society Review 45, no. 3 (2011): 699–730. https://doi.org/10.1111/j.1540-5893.2011.00448.x.; King, Bridgett A., Erickson, L. “Disenfranchising the Enfranchised: Exploring the Relationship Between Felony Disenfranchisement and African American Voter Turnout” Journal of Black Studies 47, no. 8 (2016): 799-821. https://doi.org/10.1177/0021934716659195. Lerman, Amy E., Weaver, Vesla M. Arresting Citizenship: the democratic consequences of American crime control. University of Chicago Press (2014).

5. Burch, Traci. “Turnout and Party Registration among Criminal Offenders in the 2008 General Election.” Law & Society Review 45, no. 3 (2011): 699–730. https://doi.org/10.1111/j.1540-5893.2011.00448.x.

6. For complete text of the bill, SB 542, go here: https://www.senate.mo.gov/20info/bts_web/Bill.aspx?SessionType=R&BillID=26838184