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Restoring the Right to Vote | 2 Criminal Disenfranchisement Laws Across the U.S

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Restoring the Right to Vote | 2 Criminal Disenfranchisement Laws Across the U.S R E S T O R I N G T H E RIGHT TO VOTE Erika Wood Brennan Center for Justice at New York University School of Law ABOUT THE BRENNAN CENTER FOR JUSTICE The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Our work ranges from voting rights to redistricting reform, from access to the courts to presidential power in the fight against terrorism. A singular institution – part think tank, part public interest law firm, part advocacy group – the Brennan Center combines scholarship, legislative and legal advo- cacy, and communications to win meaningful, measurable change in the public sector. ABOUT THE BRENNAN CENTER’S RIGHT TO VOTE PROJECT The Right to Vote Project leads a nationwide campaign to restore voting rights to people with criminal convictions. Brennan Center staff counsels policymakers and advocates, provides legal and constitutional analysis, drafts legislation and regulations, engages in litigation challenging disenfranchising laws, surveys the implementation of existing laws, and promotes the restoration of voting rights through public outreach and education. ABOUT THE AUTHOR Erika Wood is the Deputy Director of the Democracy Program at the Brennan Center for Justice where she lead’s the Right to Vote Project, a national campaign to restore voting rights to people with criminal records, and works on redistricting reform as part of the Center’s Government Accountability Project. Ms. Wood is an Adjunct Professor at NYU Law School where she teaches the Brennan Center Public Policy Advocacy Clinic. Prior to joining the Center, Ms. Wood was an attorney with the Legal Action Center where she worked on cases involving HIV/AIDS dis- crimination and privacy, as well as various criminal justice issues. ACKNOWLEDGMENTS The author would like to thank Garima Malhotra, Liz Budnitz, Judith Joffe-Block, Larry Schwartztol, and Denise Schulman for their invaluable research assistance, and Matt Robin- son, Carl Wicklund, Deborah Goldberg, Ryan King, Kimberly Haven, Andres Idarraga, Denver Schimming, Koren Carbuccia, Myrna Pérez, Renée Paradis, Ana Muñoz, and members of the Brennan Center Law Enforcement and Criminal Justice Advisory Council for their helpful com- ments. The Center thanks the Carnegie Corporation of New York, Educational Foundation of America, Ford Foundation, JEHT Foundation, Open Society Institute, and an anonymous donor for the generous support that made this paper possible. The statements made and views expressed in this paper are solely the responsibility of the Brennan Center. TABLE OF Contents I. Introduction 1 Map: Criminal Disenfranchisement Laws Across the U.S. 3 II. The Case for Post-Incarceration Voting Rights Restoration 4 Building a Stronger Democracy 4 Advancing Civil Rights 6 Ending Second-Class Citizenship 8 Aiding Law Enforcement 9 Empowering Families and Communities 12 Assuring Fair and Accurate Voter Rolls 13 III. The Time Is Now 16 IV. Policy Recommendations 18 V. Appendix: Components of a Voting Rights Restoration Bill 19 VI. Endnotes 26 2nd edition. © 2009. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCommercial” license (see http://creativecommons.org). It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s web page is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint. i. introduction The right to vote forms the core of American democracy. Our history is marked by suc- cessful struggles to expand the franchise, to include those previously barred from the electorate because of race, class, or gender. As a result our democracy is richer, more diverse, and more representative of the people than ever before. There remains, however, one significant blanket barrier to the franchise. 5.3 million American citizens are not allowed to vote because of a felony conviction. As many as 4 million of these people live, work and raise families in our communities, but because of there remains one significant blanket a conviction in their past they are barrier to the franchise. 5.3 million still denied the right to vote. american citizens are not allowed to vote because of a felony conviction. Felony disenfranchisement serves no legitimate purpose. More dis- concerting, these laws are rooted in the Jim Crow era and were designed to lock freed slaves out of the voting process. It is time to remove this last barrier to the franchise. The Brennan Center for Justice at NYU School of Law proposes automatic post-in- carceration voting rights restoration1 in each of the 35 states that still disenfranchise people who are not in prison (see map, p. 3). Under this system, citizens released from prison would be immediately eligible to vote while on probation and parole, as would those who are sentenced to probation without serving any time in prison. These citizens would be permitted to register in precisely the same way as other eligible citizens, without submission of special paperwork. Specifically, the Brennan Center proposes that all vote restoration policies: • Automatically restore voting rights to people living in the community. Voting rights should not be contingent upon payment of fees, fines, restitution, or other legal financial obligations. • Ensure that criminal defendants receive notice: (1) before conviction and sentencing to prison, that they will lose their voting rights while in prison; and (2) upon release from prison, that they are again eligible to register and vote. 1 | Brennan Center for Justice • Assist eligible voters with registration. Make the Department of Corrections and Pro- bation and Parole authorities responsible for assisting with voluntary voter registration. Ensure that all citizens are subject to the same application procedures. • Synchronize statewide voter registration databases. Names on the state’s computerized list of registered voters should be marked inactive upon a person’s imprisonment and then reactivated upon release from incarceration by electronic information-sharing between criminal justice agencies and elections agencies. • Educate eligible voters. The state’s chief election official should be responsible for educat- ing other government agencies and the public about the new law. These proposals are based on research, policy objectives, and historical analysis presented in this report. We conclude that post-incarceration voting rights restoration builds a stronger democracy, advances civil rights, ends second-class citizenship, aids law enforce- ment, empowers family and communities, and assures fair and accurate voter rolls. Restoring the Right to Vote | 2 criminal disenfranchisement laws across the u.s. States vary widely on when voting rights are restored. Maine and Vermont do not with- draw the franchise based on criminal convictions; even prisoners may vote there. Kentucky and Virginia are the last two remaining states that permanently disenfranchise all people with felony convictions, unless they receive individual, discretionary, executive clemency.2 Permanent disenfranchisement for all people with felony convictions, unless government approves individual rights restoration: KY, VA Permanent disenfranchisement for at least some people with criminal convictions, unless govern- ment approves individual rights restoration: AL, AZ, DE, FL, MS, NV, TN, WY Voting rights restored upon completion of sentence, including prison, parole, and probation: AK, AR, GA, ID, IA, KS, LA, MD, MN, MO, NE,* NJ, NM, NC, OK, SC, TX, WA, WV, WI * Nebraska imposes a two-year waiting period after completion of sentence. Voting rights restored after release from prison and discharge from parole (probationers may vote): CA, CO, CT, NY,* SD * In New York, people on parole may vote if they have received a Certificate of Relief from Disabilities. Voting rights restored to people on probation and parole: DC, HI, IL, IN, MA, MI, MT, NH, ND, OH, OR, PA, RI, UT No disenfranchisement for people with criminal convictions: ME, VT 3 | Brennan Center for Justice ii. the case for post-incarceration voting rights restor ation building a stronger democracy Abraham Lincoln famously described American democracy as “government of the people, by the people, for the people.” Today our country is closer to this democratic principle than ever before, but only after centuries of persistent struggle to expand the franchise. Felony disenfranchisement represents one of the last remaining barriers between citizens and the ballot box. During the early days of the Republic, the right to vote was limited to propertied white men. Since the first elections in 1789, however, the journey towards a more equal and just society has been marked by expanded suffrage. By the end of the 1850’s most states had abolished property requirements.3 In 1870 the Fifteenth Amendment enfranchised African-American men, but grandfather clauses, literacy tests, and poll taxes still barred most freedmen from the voting booth. In 1915 the grandfather clause was struck down as unconstitutional.4 Five years later, the Nineteenth Amendment extended the right to vote to women.5 By the mid-1950s most states had extended suffrage to Native Ameri- cans.6 In 1964 the Twenty-Fourth Amendment abolished the poll tax, and the follow- ing year the Voting Rights Act outlawed literacy tests and other measures that had long been used to suppress the African-American vote.7 The continuing disenfranchisement of citizens with criminal histories today starkly contrasts with our increasingly inclusive vision of democracy. Denying the right to vote to people who are living and working in the community runs counter to the modern ideal of universal suffrage. Under that ideal, each citizen is entitled to cast one vote, and each vote counts the same regardless of who casts it. Voting thus becomes a powerful symbol of political equality; full citizenship and full equality mean having the right to vote.
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