digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 2007 The oM dern-Day Poll Tax: How Economic Sanctions Block Access to the Polls Erika L. Wood New York Law School Neema Trivedi Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Part of the Civil Rights and Discrimination Commons Recommended Citation Clearinghouse Review, Vol. 41, Issue 1 (May-June 2007), pp. 30-45 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. THE MODERN-DAY POLL TAX: How Economic Sanctions Block Access to the Polls By Erika L. Wood and Neema Trivedi Erika L. Wood [LW]ealth orfee paying has Project Director/Counsel ... no relation to voting Right to Vote Project qualifications; the night Brennan Center for Justice to vote is too precious, too 161 Ave. of the Americas New York, NY 10013 fundamental to be so bur- 212.992,8638 dened or conditioned.' erika.wood@nyu edu ver the past two Neema Trivedi centuries, sev- Former Research Associate, Brennan Center for Justice eral de jure re- strictions on the Ameri- 2233 E, Quiet Canyon Drive Tucson, AZ 85718 can franchise have been 203.507.5575 lifted, expanding suf- neema [email protected] frage to white men without property, African Americans and other racial minori- ties, and women. Yet a large segment of the American public is still barred from the political process because of felony convictions. Forty-eight states and the District of Columbia have laws limiting the voting rights of people who are convicted of felonies, resulting in the disenfranchisement of 5.3 million American citizens.' Nearly four million of those individuals are not in prison, and two million have fully served their 3 felony sentences but are still unable to vote. The past decade saw movement in the states to restore the vote to people with crim- inal convictions. Since 1997, sixteen states have reformed their laws to expand the franchise or ease voting rights restoration procedures. 4 Litigation efforts to challenge felony disenfranchisement have focused on its dis- criminatory history and impact in the United States. Many states originally enacted felon voting bans alongside literacy tests and poll taxes in the Jim Crow era as a way to bar African Americans from voting. Today, because of racial disparities in the crimi- nal justice system, these laws continue to affect people of color disproportionately, diluting the voting strength of their communities. Harper v Virginia State Board of Elections, 383 U.S. 663, 670 (1966). 2 For an overview of state laws regarding felon disenfranchisement, see SENTENCINGPROJECT, FELONY DISENFRANCHISEMENT LAWS IN THEUNITED STATES (2006), available at www. sentencingproject. org/Admin/Documents/publications/fd-bs-fdlawsinus.pdf; BRENNANCENTER FOR JUSTICE, FELONY DISENFRANCHISEMENT LAWSACROSS THE UNITED STATES (2006), available at www brennancenter. org/dynamic/subpages/download-file_47267.pdf. 3 JEFFMANZA & CHRISTOPHERUGGEN, LOCKED OUT: FELONDISENFRANCHISEMENT ANDAMERICAN DEMOCRACY 248-50 (2006). RYANKING, SENTENCINGPROJECT, A DECADEOF REFORM:FELONY DISENFRANCHISEMENT POLICY IN THEUNITED STATES (2006), available at www.sentencingproject.org/Admin/Documents/publications/fd-decadereform.pdf. Clearinghouse REVIEW Journal of Poverty Law and Policy a May-June 2007 The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls While the disturbing racial impact of tions as early as the 18th century. These felony disenfranchisement has rightfully laws followed European models and were been at the center of the legal debate, generally limited to a few specific of- there has been less consideration of the fenses.8 But by the end of the Civil War, effect of such laws on low-income indi- lawmakers found new uses for felony dis- viduals. Like African Americans and La- enfranchisement. The period following tinos, poor people are overrepresented Reconstruction saw not only a surge in the in the criminal justice system and thus number of states enacting such laws but disproportionately affected by felony also an expansion of disqualifying crimes disenfranchisement laws.5 Low-income in already existing laws. These changes individuals face felon voting bans when achieved the intended result: removal of they are required to pay all the fines, fees, large segments of the African American court costs, restitution, and other legal population from the democratic process financial obligations associated with a for sustained periods and in some cases conviction before regaining the right to for life.9 vote, resulting in the de facto permanent disenfranchisement of countless indi- The spread of felony disenfranchisement viduals who cannot pay.6 There has been laws in the late 18oos was part of a larger a notable increase in the variety, use, and backlash against the adoption of the Re- size of economic sanctions imposed on construction Amendments."' Despite such individuals in recent years, thus re- newfound eligibility, many freedmen sulting in an even larger number of low- remained practically disenfranchised as income people who have felony convic- a result of organized efforts to prevent tions and are being denied the franchise them from voting. Violence and intimi- under this modern incarnation of the dation were rampant, especially early on. poll tax.7 Over time, Democrats from the southern states sought to solidify their hold on the region by modifying voting laws to ex- I. A Brief History of Felony clude African Americans from the polls Disenfranchisement without overtly violating the Fourteenth Felony disenfranchisement laws in the and Fifteenth Amendments." The legal United States are deeply rooted in the dif- barriers employed (including literacy ficult history of race relations in America. tests, residency requirements, grandfa- Criminal disenfranchisement dates back ther clauses, and poll taxes), while facial- to colonial times; some states wrote the ly race-neutral, were designed to prevent restrictive provisions into their constitu- African Americans from voting." 'For instance, the U.S. Department of Justice reported in 1997 that "68 percent of people in prison had not completed high school, 53 percent earned less than $1,000 in the month prior to their incarceration, and nearly one half were either unemployed or working only part-time prior to their arrest." MARC MAUER,RACE TO INCARCERATE 178 (2006). 6 For a complete discussion of state statutes imposing legal financial obligations, see Brief for the Brennan Center for Justice at New York University School of Law et al.as Amici Curiae Supporting Respondents 4-7, Madison v Washington, No. 78598-8 (Wash. Sup. Ct. April 21, 2006), available at www brennancenter.org/dynamic/subpages/download-file- 36290.pdf. 'See, e.g., JON WOOL & DON STEMEN,VERA INSTITUTEOF JUSTICE,CHANGING FORTUNESOR CHANGING ATTITUDES?SENTENCING AND CORRECTIONS REFORMSIN2003, at 4 (2004), available at www.vera.org/publication-pdf/226_431 .pdf; FAHYG. MULLANEY,NATIONAL INSTITUTE OF CORRECTIONS, U.S. DEPARTMENTOF JUSTICE, ECONOMIC SANCTIONSIN COMMUNITY CORRECTIONS 1 (1988), available at www nicic. org/pubs/pre/006907.pdf. 'See Angela Behrens et al., Ballot Manipulation and the "Menace of Negro Domination": Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 AMERICANJOURNAL OF SOCIOLOGY559, 563 (2003), available at www.journals uchicago.edu/AJS/Journal/issues/vl 09n3/080073/080073.web.pdf. 11d.at 560-61; see also Alec C. Ewald, "Civil Death": The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 WISCONSINLAW REVIEW 1045, 1087-88 (2002). U0MANZA & UGGEN, supra note 3, at 56-57; Behrens et al.,supra note 8, at 560; Ewald, supra note 9,at 1087. "ALEXANDERKEYSSAR, THE RIGHT TO VOTE: THE CONTESTEDHISTORY OF DEMOCRACY IN THEUNITED STATES111 (2000), Ewald, supra note 9, at 1087. 2 1 See, e.g., Harper, 383 U.S. 663 (poll tax); Guinn v United States, 238 U.S. 347 (1915) (grandfather clause), See also KEYSSAR,supra note 11, at 111-12; Behrens et al., supra note 8,at 563; Ewald, supra note 9, at 1087. Clearinghouse REVIEW Journal of Poverty Law and Policy * May-June 2007 The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls Felony disenfranchisement laws were II. The Racial Impact of part of this effort to maintain white con- Felony Disenfranchisement trol over access to the polls. Between 1865 Not surprisingly, given the historical ori- and 19oo eighteen states adopted laws gins of felony restricting the voting rights of criminal disenfranchisement laws in the United States, these laws continue to offenders. By 19oo thirty-eight states affect had some type of felon voting restriction, people of color disproportionately. most requiring a pardon before voting Regardless of the discriminatory intent rights could be restored.' behind a given state's felony disenfran- chisement provision, the continuing At the same time states expanded the disparate effect on racial minorities can- criminal codes to punish offenses that not be disputed. they believed freedmen were most likely to commit, including vagrancy, petty lar- Nationwide 13 percent of African Ameri- ceny, miscegenation, bigamy, and receiv- can men have lost the right to vote, a rate ing stolen goods.'4 Aggressive arrest and that is seven times the national average. '- conviction efforts followed, motivated by In fourteen states more than one in ten the practice of "convict leasing," whereby African Americans may not vote due to a former slaves were convicted of crimes felony conviction, and four of those states and then leased out to work the planta- disenfranchise more than go percent of tions and factories the African American voting- age popula- from which they had 19 ostensibly been freed.'s tion. Similarly, in nine out of ten states with significant Latino populations, Lati- This mass incarceration produced not nos are overrepresented among the dis- only reenslavement but also mass dis- enfranchised. For instance, in New York, enfranchisement, usually for life.