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Voting Criminal Record Voting WITH A Criminal Record HOW REGISTRATION FORMS FRUSTRATE DEMOCRACY OCTOBER 2008 Voting WITH A Criminal Record HOW REGISTRATION FORMS FRUSTRATE DEMOCRACY Voting With A Criminal Record: How Registration Forms Frustrate Democracy Published October 2008 THE AMERICAN CIVIL LIBERTIES UNION is the nation’s premier guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and freedoms guaranteed by the Constitution and the laws of the United States. OFFICERS AND DIRECTORS Nadine Strossen, President Anthony D. Romero, Executive Director Richard Zacks, Treasurer ACLU NATIONAL OFFICE 125 Broad Street, 18th Fl. New York, NY 10004-2400 (212) 549-2500 www.aclu.org ACKNOWLEDGMENTS Nicole Kief, State Strategist with the American Civil Liberties Union’s Racial Justice Program, drafted this report. She would like to thank Laleh Ispahani and Rachel Bloom for their guidance throughout the course of this project, and Aron Cobbs and Sarah Hinger for their research assistance. She is also grateful to Nancy Abudu of the ACLU’s Voting Rights Project, Jessica Hewitt of AIGA Design for Democracy, Erika Wood and Lawrence Norden of the Brennan Center for Justice, and Marshall Clement of the Council of State Governments, and Margaret Love of the Law Office of Margaret Love for their advice. For more information about the ACLU’s work to end felony disfranchisement, visit www.aclu.org/righttovote. Cover Photos: Brande Jackson, Lokahi Outreach (www.lokahioutreach.org) VOTING WITH A CRIMINAL RECORD: HOW REGISTRATION FORMS FRUSTRATE DEMOCRACY CONTENTS Executive Summary . .3 Findings . .6 I: Inaccurate, Incomplete and Misleading Explanations of Who is Ineligible to Vote and for How Long . .6 A: Imprecise Description of Crimes That Disqualify Voters . .6 B: Misleading Information Concerning Voting with a Misdemeanor Conviction . .7 C: Inaccessible Language Concerning Eligibility to Vote . .8 II: Incorrect and Misleading References to How Voting Rights Are Restored . .10 III: Confusing and Misleading Presentations of State Disfranchisement Policy . .12 IV: No Guidance on Registering to Vote with a Criminal Record . .14 Recommendations . .15 General Recommendations . .15 Principles of Accessible Registration Forms . .16 Model Eligibility Language . .17 Appendix: Voter Registration Forms . .19 Endnotes . .21 VOTING WITH A CRIMINAL RECORD: HOW REGISTRATION FORMS FRUSTRATE DEMOCRACY This confusion is exacerbated by voter registration forms that, in too many states, fail to properly communicate state disfranchisement policy. In the absence of clear eligibility guidelines, many Americans, unsure if they are permitted to EXECUTIVE SUMMARY vote, will choose not to register for fear of registering improperly (itself a crime); others are left vulnerable to improper registration. The result is the practical—or de facto—disfranchisement of countless eligible voters, and the The right to vote is the cornerstone of American democra- possibility that ineligible voters will mistakenly register. cy.For many Americans, the primary source of information about voter eligibility is the voter registration form. Particularly vulnerable are voters with limited literacy, those Consequently, the availability of clear, accurate registration who do not speak English as a first language, new voters, and forms is critical to ensuring this fundamental right. even seasoned voters who rush through registration forms assuming they are already familiar with their content.4 As such, these problems have the potential to impact a large seg- For the 47 million Americans with criminal records,1 how- ment of the voting population: in addition to the 47 million ever, it may be risky to rely on voter registration forms to 5 determine whether they may register to vote.The findings Americans with criminal records, 3.5 million Americans that follow reveal that the vast majority of U.S. states—33 registered to vote for the first time in the first quarter of 2008, and more than 29 million voting-age individuals move plus the District of Columbia—currently use registration 6 forms that provide inaccurate, incomplete or misleading annually (and must re-register if they wish to vote). information about whether individuals with criminal records are eligible to vote. As a result of the omissions, mistakes and inconsistencies identified in the findings, eligible voters may be kept from ineligible The back-story to this problem is the patchwork of state the polls and voters are vulnerable to registering 8 without disfranchisement laws that prevent over 5.3 million improperly. Voters criminal records may also be Americans with criminal records from voting. In 48 states affected by problematic language or formats. (all but Maine and Vermont) and in the District of Columbia, citizens lose the right to vote upon conviction Improved administration of disfranchisement policies, of a felony; in at least a handful of states, the right is also lost including better registration forms, would ensure that all upon conviction of a misdemeanor. All 48 states (and the eligible voters have unfettered access to the polls. District of Columbia) also provide mechanisms by which Amending the forms at issue is an attainable goal that will these citizens may seek to regain their voting rights, though benefit untold numbers of voters and strengthen our some processes are much more viable than others. These democracy. mechanisms range from automatic restoration (upon com- pletion of incarceration or sentence) to restoration only Following this report’s findings are a series of concrete rec- after satisfaction of an extensive, onerous and sometimes ommendations all states can implement to promote greater costly individual application process. voter access, including guidelines for amending voter regis- tration forms.Though only some states are discussed in the The variety and complexity of these disfranchisement poli- findings, all states can take similar steps to promote smooth cies has led to considerable confusion and misapplication of and fair elections. the laws, effectively barring countless eligible Americans from the ballot box. Research has shown that many people We also encourage states to statutorily expand voting rights with past criminal records mistakenly believe they are inel- for people with criminal records.The flaws identified in this report are evidence of the difficulty of effectively adminis- igible to vote,2 a problem compounded by the prevalence of similar confusion among elections officials, who often dis- tering felony and misdemeanor disfranchisement laws, par- ticularly complex ones. Simplifying and streamlining these pense incorrect eligibility information to potential voters.3 3 VOTING WITH A CRIMINAL RECORD: HOW REGISTRATION FORMS FRUSTRATE DEMOCRACY laws—in favor of automatic post-incarceration enfranchise- (2) Eleven states’ registration forms contain incorrect or misleading ment, which is easy to administer and gives people living in references to how voting rights are restored. our communities the voice they deserve—would greatly reduce confusion about voter eligibility and eliminate the Virginia—which, along with Kentucky, has the harshest need for complex rights restoration schemes and adminis- felony disfranchisement law in the nation—poorly commu- trative procedures. Voter participation actually increases nicates its cumbersome and discretionary rights restoration public safety, and people who vote are far less likely to be process on the state’s voter registration form.The form reads re-arrested than those who do not.9 Enfranchising people as follows: with criminal records is good for our communities and for our democracy. Have you ever been convicted of a felony? YES NO The right to vote is a core principle of American democra- State where convicted _______________ cy.The ACLU welcomes the opportunity to partner with state officials to safeguard this fundamental right. If YES, have your voting rights been restored? YES NO The voter registration forms analyzed in this report suffer from four primary types of flaws with respect to felony and If YES, when restored MM/DD/YYYY _______________ misdemeanor disfranchisement: The problems with this language are manifold: first, voters whose rights have been restored may not be able to recall the exact day, month and year of their restoration or easily (1) Twenty-two states’ and the District of Columbia’s registration access documentation of such restoration. Second,Virginia forms provide inaccurate, incomplete or misleading explanations of residents convicted in states where rights are restored auto- who is ineligible to vote and for how long. matically may also be unsure of how to answer the above questions. Unlike Virginia, many states restore voting rights Delaware’s registration application, for example, unreason- automatically upon release from incarceration or comple- ably requires voters to display familiarity with the state’s tion of sentence, so people convicted in these states may be election code. It instructs potential voters as follows: “You unsure whether to check “yes” to certify that their voting may register to vote if you are…an ex-felon who meets the rights have “been restored.”These individuals will be even requirements as specified by law according to 15 Del C. less likely to know that they are required to demonstrate such Chapter 61.” In the absence of further explanation, it is restoration; even if they were aware of this requirement, the unreasonable to expect
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