This article originally appeared in The American Prospect.
Mercedies Harris was 27 in 1990, when he was arrested for drug possession and distribution in Fairfax, Virginia. Harris had served in the Marines, but the death of his brother in 1986—killed by a hit-and-run driver—sent him down a familiar path. “I was angry and I couldn’t find the guy who did it,” Harris says. “I got into drugs to find a way to medicate myself.”
Upon his release in 2003, Harris, who had earned his GED in prison, found a job and began to rebuild his life. He faced the usual practical challenges: “I couldn’t get on a lease, I had no insurance, I had no medical coverage, my driver’s license was expired.” But he found one obstacle that was especially difficult to overcome: He couldn’t vote. Virginia is one of four states—along with Florida, Iowa, and Kentucky—that strip Voting Rights from felons for life. The U.S. is the world’s only democracy that permits permanent disenfranchisement. While most states have some restrictions on felons voting, it takes a decree from the governor or a clemency board to restore voting rights in the four states with lifetime bans. In Virginia alone, 450,000 residents are disenfranchised. In Florida, the total is an astonishing 1.5 million. (These and several other numbers in this article were gathered from the Sentencing Project, a nonprofit based in Washington, D.C.)
For Harris, voting was an essential part of his effort to become a full-fledged citizen again. “It was important to me to have a place in this democracy,” he says, “and to have a say, too.” He was persistent: He began petitioning the state to restore his rights in 2008, under then-Governor Tim Kaine, and continued for the next four years. Last year, he finally got his vote back. He remembers the exact date: October 15, 2012. Harris has made voting-rights restoration for others his mission as well. For the past two years, he has led the Hollaback and Restore Project, a ministry in the sleepy Blue Ridge Mountain town of Waynesboro that counsels ex-felons, helps them find jobs, and guides them through the application process to regain the franchise. Voting is at the heart of Hollaback and Restore’s mission of rehabilitating ex-felons through full participation in community life. The ministry’s message, Harris says, is that “you can be anything you want to, and being a felon doesn’t hold you back.” When the state says you can’t vote, he says, it’s sending the opposite message.
All but two states, Vermont and Maine, disenfranchise felons for some period of time. Thirteen states strip voting rights only for the period of incarceration. Most have waiting periods with various requirements, like paying fines and completing special applications. Seven states—Alabama, Arizona, Delaware, Mississippi, Nevada, Tennessee, and Wyoming—have lifetime bans for particular crimes or repeat felony offenders. They aren’t the strictest laws, but they affect enough potential voters to sway statewide elections. In Alabama, more than 260,000 residents are stripped of their voting rights; more than half, just over 137,000, are African American. In Mississippi, blacks account for nearly 60 percent of the 182,000 disenfranchised citizens.
When you add it all up, the numbers are startling. More than five million Americans are currently disenfranchised because of felony convictions—an increase of some 270,000 over the past decade. Nearly 1.4 million are, like Harris, black men. They represent 24 percent of the total disenfranchised population and a whopping 13 percent of all voting-age African American men.
Black men’s overrepresentation is no accident. Felony disenfranchisement laws trace back to the post-Reconstruction era when former Confederates and white Southern Democrats rolled back the political gains made by free slaves after the war. The whole point of these laws was the mass exclusion of black men from mainstream civic life. It still is.
You can see the effects most clearly in black turnout rates. The nation’s 27 million African American voters are concentrated in the South and in Northern urban centers. Almost two-thirds—66 percent—voted in last year’s presidential election, giving African Americans higher turnout than any other racial group. But unlike with other groups, there was an odd gender gap: While more than 70 percent of black women voted, only 60 percent of black men went to the polls. The difference, according to Bernard Fraga of Harvard University, is explained entirely by the huge number of black men who are disenfranchised.
The dampening effect on African American turnout is enough to swing elections—even a presidential contest. In fact, it already has. After the Bush v. Gore debacle in Florida in 2000, a University of Minnesota sociologist compiled the numbers and found 600,000 disenfranchised felons in Florida. Given the composition of the state’s prison population—at the time, 48 percent black—it’s fair to say that a large number, if not the majority, of those felons were African American. If even a fraction of them had been allowed to vote in 2000, Gore would have carried Florida and won the White House.
Disenfranchised felons are concentrated largely in the South. Which means that if you’re a voting-age American who’s forbidden to vote, odds are good that you’re living in the former Confederacy. You’re probably black, probably a man, and likely went to prison for a nonviolent offense like drug possession or theft. Racism didn’t put you in jail, necessarily, but the legacy of discrimination put you in the class of people who are more likely to be arrested, more likely to be convicted, more likely to be sentenced—and more likely to have basic rights of citizenship taken away.
As a concept, the denial of voting rights for ex-criminals stretches far back before the Civil War or the American Revolution; it has roots in Greek and Roman law, medieval law, and English common law. Many ancient societies imposed “civil death” on those convicted of serious crimes, stripping them of all citizenship rights. But felon disenfranchisement as we know it began in the years following Reconstruction, during the “Redemption” period in which former Confederates violently deposed Republican governments throughout the South. With a constituency of freed slaves and sympathetic whites, the “party of Lincoln” had built a foothold in the region. The fiercely contested 15th Amendment to the Constitution had extended suffrage to freed African American men and their descendants, and the 1870s saw a flowering of black political activity. Freed slaves ran legislatures, served in both chambers of Congress, established public schooling, and built political organizations. Whites were eager to dismantle this embryonic political order.
They got their chance. To resolve the bitterly disputed 1876 presidential election, members of Congress struck an informal deal, dubbed the Compromise of 1877, which pulled federal troops out of the South. Without the Union Army enforcing the law, blacks’ voting rights immediately came under assault—sometimes by restrictive laws, other times by violent means. Alabama and Mississippi were among the first to pass poll taxes, literacy tests, and other measures designed to prevent freed slaves from voting. “Grandfather” laws, which allowed men to vote only if they were eligible in 1867—before blacks had the vote in the South—were especially devastating. After Louisiana passed its grandfather clause in 1896, the percentage of registered black voters plummeted from 45 percent to 4 percent in four years.
From the start, criminal disenfranchisement laws were part of the white Democrats’ Redemption campaign. They were written as race-neutral but were racist in their effects, as Middle Tennessee State University history professor Pippa Holloway documents in her book Living in Infamy: Felon Disenfranchisement and the History of American Citizenship. In just the period between 1874 and 1882, every Southern state but Texas found ways to disenfranchise those convicted of minor crimes like petty theft. “Some Southern states changed their laws to upgrade misdemeanor property crimes to felonies,” Holloway explains, “and finally, Southern courts interpreted existing laws to include misdemeanors as disenfranchising crimes.” In 1896, for example, the Mississippi Supreme Court ruled that the disenfranchisement provision in the state constitution applied to crimes such as theft, perjury, and forgery—crimes for which blacks were convicted far more often than whites.
Lawmakers made no secret of their motivations. During the Virginia Constitutional Convention of 1901, Delegate Carter Glass—who would later become Senator Glass, co-sponsor of the Glass-Steagall Act—praised felon disenfranchisement as a plan to “eliminate the darkey as a political factor in this state in less than five years.” The view among many white Southerners was that the 15th Amendment was a mistake that needed correcting. “We do not believe that the colored man is the equal of the white man,” Delegate R.L. Gordon said during that same convention. “I wish to put myself on record here as being opposed to what is known as manhood suffrage,” he continued. “I believe the right to vote … is not a right but a privilege.”
From the beginning of the 20th century through the civil-rights revolution, most felon disenfranchisement laws remained on the books. There were a handful of legal challenges, most unsuccessful. One exception was the case of a Knoxville, Tennessee, man named Cornelius “Canary” Curtis, who lost his voting rights after a larceny conviction in 1907. Seven years later, Curtis petitioned for the restoration of his rights of citizenship and was twice denied by local courts. But he took his case to the Tennessee Court of Civil Appeals, which ruled in his favor. Even so, the state’s law was unaffected; the ruling applied to Curtis alone.
The civil-rights laws of the 1960s revolutionized the world of black political participation. The 1965 Voting Rights Act enfranchised more than 20 million people and reopened elective office to African Americans. Within one generation in the former Confederacy, African American voter registration more than doubled from an average of 30 percent to 65 percent. The number of black elected officials jumped from practically none in 1964 to more than 9,000 in 2000, with two-thirds of them residing in the South.
Most of the South’s restrictive voting laws were outlawed and overturned by the courts—but for the most part, felony disenfranchisement measures were not. In the 1974 case Richardson v. Ramirez, the Supreme Court ruled that denying felons the right to vote was permitted under Section 2 of the 14th Amendment. Section 2 spells out penalties for states that deny citizens the right to vote for any reason “except for participation in rebellion, or other crime.” Because of that exemption, the Court determined that—unlike with other voting laws—states did not have to prove they had a “compelling interest” in denying felons the vote, making these laws tough to challenge. Six years later, the justices set the bar even higher, ruling that it wasn’t enough for plaintiffs challenging the laws to prove that they had discriminatory results; they also had to prove discriminatory intent.
Alabama’s law, which stripped voting rights from those who committed crimes of “moral turpitude,” was overturned because the Court found that the intentionally vague term was meant to target black voters. But for the most part, legal challenges have proved vexingly difficult. One result: In the nearly 50 years since the Voting Rights Act was passed, the number of legally disenfranchised blacks has actually increased, thanks to felony laws interacting with a justice system that disproportionately locks up African Americans.
For those who want to end this last vestige of Jim Crow, the past two decades have brought decidedly mixed news. On the one hand, nine states—including the South’s two largest—have repealed or amended lifetime disenfranchisement laws since the late 1990s. In 1997, the Texas Legislature—under Governor George W. Bush—ended its two-year waiting period for regaining eligibility after release, restoring rights to 317,000 citizens. Seven years later, in 2004, another Governor Bush—Jeb—ordered the state clemency board to simplify Florida’s procedure, leading to the restoration of voting rights for 152,000 people.
But after the Tea Party wave election of 2010, Republicans in several states began to call again for stricter disenfranchisement. In Florida, Republican Governor Rick Scott reversed the reforms that had smoothed the process for ex-felons and added a five-year period for rights restoration for nonviolent felonies, and a seven-year period for violent ones and other serious crimes. One in ten voting-age Floridians now lacks voting rights as a result of past crimes. Florida’s harsh disenfranchisement laws are reflected in another stark statistic—more than 25 percent of all disenfranchised Americans reside in the state.
In North Carolina, where ex-felons are granted voting rights after completing parole or probation, Republican lawmakers began pushing one of the nation’s toughest laws this spring. It would impose a five-year waiting period and then require the ex-felons to present affidavits from two registered voters vouching for their “upstanding moral character” and win unanimous approval from their local board of elections. The bill’s primary sponsor, state Senator E.S. “Buck” Newton, told Raleigh’s News & Observer that he considered it a lenient measure, because “the vast majority of people I have spoken to regarding election laws think convicted felons should not be able to vote at all.” Newton’s bill is part of a broad push by the state’s GOP legislators to reduce minority voting. Other proposals would shorten early voting, end same-day registration and Sunday voting, and impose a strict voter-ID requirement at the polls—all of which would disproportionately affect black voters.
Another Southern Republican, Virginia’s Governor Bob McDonnell, has taken the opposite tack. Lifetime disenfranchisement remains in the state constitution, but there has been a slow march to reform under McDonnell, who has made the restoration of rights an issue since he served in the state legislature. In 2010, he streamlined the rights-restoration process, shortening the waiting period for nonviolent felons and implementing a faster turnaround for processing their applications. By this year, his administration had restored the civil rights of nearly 5,000 felons, more than any governor in state history. In late May, McDonnell took a much bigger step, announcing that he would automatically restore the rights of all nonviolent felons (though his office will still review each application individually). The order, which excludes some drug crimes, could cover more than 100,000 ex-felons. That’s less than a quarter of the state’s 450,000 disenfranchised citizens, but voting-rights advocates celebrated McDonnell’s action as a step forward. “Any way you slice this, it’s huge,” says Judith Browne Dianis of the Advancement Project, a civil-rights group. “We’ve pushed on past governors to do an executive order, and we couldn’t get it.”
A month before McDonnell’s action, another state liberalized its law: Delaware, which had imposed a five-year waiting period on ex-felons, now has no waiting period, thanks to a constitutional amendment passed by lawmakers in April. The provision applies to all felons except those convicted of murder, public corruption, or sex crimes. “They’re back, they’re working, they’re paying taxes, they’re paying rent or mortgage or whatever it might be,” said Representative Helene Keeley, the state lawmaker who sponsored the amendment. “They’re full members of society, so they should have the right to vote.”
With forward movement in some states and backsliding in others, the future of felony voting laws is murky. The Supreme Court’s decision in June to overturn Section 4 of the Voting Rights Act was a gut punch to reformers. Under Section 4, most Southern states were required to seek Justice Department preapproval for any changes to their voting laws to ensure they weren’t discriminatory. In recent years, the department has blocked strict voter-ID laws that targeted minorities in states like Texas and South Carolina. The same day that the court announced its ruling in Shelby County v. Holder, Texas Attorney General Greg Abbott announced that his state’s voter-ID law would now be implemented; in just the next few days, five other Southern states also began to move ahead with restrictive voting laws.
With the GOP controlling nearly every Southern legislature, momentum may now swing to the side of those who—like the Redeemers of the 19th century—want to make voting a privilege for some, not a right for all. Voting-rights and civil-rights groups will be playing defense, fighting new restrictions in the states freed from preapproval. When the 50th anniversary of the Voting Rights Act is commemorated in 2015, at least one major element of Jim Crow will remain very much alive.
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