By Jeffrey Robinson
“Do you want the Boston marathon bomber to vote?” is a provocative question that acts as a smokescreen concealing the real issue — why and when did America decide that people convicted of a crime should not vote?
The historical context for this comes from old English common law which justified the concept of “civil death” as punishment for conviction of treason or a felony because a person committing a crime had “corrupt blood,” making the person “dead in the law.” America did not immediately adopt this position because the Constitution was silent on voting rights — it neither granted nor denied anyone the right to vote.
Before the Civil War, as a Brennan Center report shows, voting rights and the loss of those rights weren’t linked to convictions. America did not incarcerate in large numbers, and states that adopted broad felony disenfranchisement did so after establishing full white male suffrage by eliminating property tests. After the Civil War, places like Louisiana granted poor illiterate whites the right to vote while denying poor illiterate Blacks the right to vote by basing the right on whether your grandfather could vote, hence the term “grandfathered in”.
In 1787, the Constitution considered Black people as three-fifths of a human being. Blacks voting was not an issue. Then came the Civil War and the 13th, 14th, and 15th Amendments. Enslaving people, except as punishment for a crime, was illegal. Birthright U.S. citizenship was established, explicitly including freed enslaved people. Black men got the right to vote. Over 2,000 Black men were elected to government offices, and they began purchasing or homesteading property and voting.
America responded. The exception in the 13th Amendment allowing slavery as punishment for a crime was paired with “Black Codes,” which basically criminalized Black life. Blacks convicted under Black Code laws were leased out to do work, providing cheap labor to boost the South’s faltering economy. In 1850, 2% of prisoners in Alabama were non-white. By 1870, it was 74%. At least 90% of the “leased” prison laborers were Black.
In the 15 years between 1865 and 1880, at least 13 states — more than a third of the country’s 38 states — enacted broad felony disenfranchisement laws. The theory was simple — convict them of crimes, strip away the right to vote, imprison them, and lease them out as convict labor and Blacks would be returned to a condition as close to slavery as possible.
No one tried to hide the intent of these laws.
In 1894, a white South Carolina newspaper argued that amendments to the voting laws were necessary to avoid whites being swept away at the polls by the Black vote. In 1901, Alabama amended its Constitution to expand disenfranchisement to all crimes involving “moral turpitude” — a vague term that was applied to felonies and misdemeanors. The president of that constitutional convention argued that manipulating the ballot to exclude Blacks was justified because of the need to avoid the “menace of Negro domination,” especially since Blacks were inferior to whites.
It wasn’t just the South. In 1874, New York was the only state that required property ownership for Blacks to vote. This law clearly violated the 15th Amendment prohibition on race-based voting restrictions. A governor-appointed “Constitutional Commission” finally struck down the property law while, simultaneously, quietly amending the New York Constitution to impose felony disenfranchisement. New York could not prevent Blacks from voting because of poverty, so it found a solution in the criminal legal system.
What is the result of this history? Black Americans of voting age are more than four times as likely to lose their voting rights than the rest of the adult population. One of every 13 Black adults is disenfranchised. In some states like Virginia, Kentucky, Tennessee, and, until recently, Florida, one in five Blacks have been disenfranchised. In total, 2.2 million Black citizens are banned from voting. Thirty-eight percent of the disenfranchised population in America is Black.
The two states that allow people in prison to vote are Vermont and Maine, the two whitest states in the country. In many other states, incarcerated people are stripped of their vote but remain counted as part of the populations of the (often very white and rural) districts where they are locked up, boosting the electoral advantage of those districts. A 2003 study found that the larger the state’s Black population, the more likely the state was to pass the most stringent laws that permanently denied people convicted of crimes the right to vote.
America is isolated on this issue — and not in a good way. South Africa, Canada, Ireland, and Spain allow everyone in prison to vote. Germany disenfranchises for certain offenses like treason, but only for a maximum of five years. Finland and New Zealand disenfranchise only for election offenses and only for a few years beyond completion of a sentence. In France, only election offenses and abuse of public power warrant disenfranchisement. When we compare America to the other heirs of the English legal tradition, one thing becomes clear: The only reason our practice resulted in racial disparity is that we designed it that way.
Why aren’t we asking why countries around the world handle this issue so differently? Doesn’t revoking voting rights of people in prison unnecessarily strip them of dignity and make rehabilitation that much more difficult? Justifications offered now regarding disenfranchisement ignore the undeniable fact that the practice in America is clearly connected to an attempt to deny Blacks full rights as citizens. We cannot change what happened in the past, but we are better than that now — we can fix it now. Restoration of voting rights to people in prison is a concept we should all support. It is consistent with whom we claim to be.
Jeffrey Robinson is ACLU Deputy Legal Director and Director of the Trone Center for Justice and Equality