By: Inka Boehm
Over fifty years have passed since President Lyndon B. Johnson signed the Voting Rights Act of 1965 into law, and yet voter disenfranchisement persists at a devastating rate. Despite the promises of the Voting Rights Act and the 24th Amendment, states continue to uphold disenfranchisement practices.
An estimated 5.2 million Americans will be unable to cast their vote in the 2020 Presidential Election due to laws targeting those convicted of felonies.[1] Felony disenfranchisement laws are an egregious violation of the International Convention on Civil and Political Rights, ratified by the United States in 1992.[2] Only Maine, Vermont, and the District of Columbia have no disenfranchisement for individuals with felony convictions, while a majority of states restore felons’ voting rights following completion of sentence, parole, and probation. In certain states, some convictions permanently bar individuals from being to vote even following completing their sentences.[3]
While the United States is not the only country to restrict incarcerated people’s voting rights, many of its democratic counterparts such as Spain, Denmark, and Switzerland allow all prisoners to vote, regardless of their sentence completion or criminal charge.[4] In 2005, the European Court of Human Rights held that a complete ban on voting from prison violated the European Convention on Human Rights.[5] What distinguishes the United States further is its notoriously high incarceration rates.[6] The legacy of the “tough on crime” era disproportionately impacts people of color, especially Black men who were found six times as likely to be incarcerated than their white counterparts in 2018.[7]
On September 11, 2020, the 11th Circuit upheld a 2018 amendment to the Florida State Constitution that restored the voting rights of Floridians with felony convictions after completion of their sentence including the paying of court fees and fines.[8] The 6-4 decision overturned U.S. District Judge Robert Hinkle’s ruling that the amendment unconstitutionally created a “pay to vote” system. Judge Hinkle’s decision was seen as a victory for the anti-disenfranchisement movement as he entered a permanent injunction for felons to vote without having to worry about fines or fees. [9]
The predominantly Trump appointed court held that the system Hinkle decried as unconstitutional did not in fact violate the Equal Protection Clause. Referencing a 1967 2nd Circuit case, the majority noted that common law has been based on the “Lockean understanding that those who have broken the social contract by committing a crime” willfully give up their right to participate in civic matters.[10] The majority went on to note that the 14th Amendment particularly allows for felon disenfranchisement, as Richardson v. Ramirez determined.[11]
Judge Adalberto Jordan’s dissent lists the numerous flaws in the majority’s reasoning. He notes that there is no system or method for felons to even confirm the amount of debt they must settle before voting. In turn, there is no real process to accurately screen the 85,000 registrations of felons pending at the time of the opinion.[12] Additionally, he argues that the fees requirement is not designed with voter fraud or electoral integrity in mind, thus failing to pass heightened scrutiny. With this realization in mind, it is easy to see how the requirement for otherwise eligible voters to pay a fee in order to register is akin to a poll tax, thus violating the 24th Amendment.[13]
In Florida, voting despite “knowing” you are ineligible is a felony. There is no requirement of intent. Without a proper system in place to know how much is owed, recently released citizens run the risk of racking up even more fees and felonies.[14] Felony disenfranchisement laws result in a vicious cycle. Without a civic voice and subject to other forms of discrimination, formerly incarcerated individuals may find themselves thrown back into the system that has set them up to fail.[15] Felony disenfranchisement policies have impacted multiple Senate races, as well as the heavily criticized 2000 Presidential Election.[16]
Voter disenfranchisement has long been an issue in the United States. Georgia’s 2018 gubernatorial race was put under a microscope as Republican Brian Kemp continued to serve as Secretary of State despite clear conflicts of interest.[17] During his campaign for governor, Secretary of State Kemp’s major responsibility was to oversee how elections are run, from maintaining voter registration lists to imposing heightened regulations on how voters can register. His victory was overshadowed by the report that 53,000 voter registrations were being held by his office due to failure of passing the ‘exact match’ test. In response to Stacey Abrams’ loss, Fair Fight Action brought suit against the board of elections and then Governor Nathan Deal with allegations of voter disenfranchisement through registration issues and election day barriers.[18]
Throw a pandemic into the mix and voter disenfranchisement concerns multiply. As of October 22, more than 294 lawsuits relating to the election changes have been filed.[19] From unreasonable restrictions to mail-in voting to a shortage in polling stations, the nation is rife with worry about how fair this year’s election truly is.[20] With an incumbent who has not answered whether he will allow for a peaceful transition of power and a Supreme Court with three of his appointees, there is good reason for concern.[21]
As the Universal Declaration of Human Rights proclaims, “Everyone has the right to take part in the government of [their] country, directly or through freely chosen representatives.”[22] It is time for the United States to reckon with its systemic oppression of the marginalized vote.
[1] Chris Uggen, et al., Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction, The Sentencing Project (Oct. 14, 2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/.
[2] FAQ: The Covenant On Civil & Political Rights (ICCPR), American Civil Liberties Union (Apr., 2019), https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr.
[3] Criminal Disenfranchisement Laws Across the United States, Brennan Center for Justice (Aug. 12, 2020), https://www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states.
[4] Prisoner votes by European country, BBC News (Nov. 22, 2012), https://www.bbc.com/news/uk-20447504.
[5] Jean Chung, Felony Disenfranchisement Primer, The Sentencing Project (June, 2019), https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/.
[6] Mass Incarceration, American Civil Liberties Union, https://www.aclu.org/issues/smart-justice/mass-incarceration (last visited Oct. 25, 2020) (stating the U.S. holds almost 25% of the world’s prison population despite only being around 5% of the global population).
[7] Criminal Justice Facts, The Sentencing Project (2018), https://www.sentencingproject.org/criminal-justice-facts/.
[8] Jones v. Governor of Florida, 975 F.3d 1016, 1025 (11th Cir. 2020).
[9] Lawrence Mower & Langston Taylor, In Florida, the Gutting of a Landmark Law Leaves Few Felons Likely to Vote, ProPublica (Oct. 7, 2020), https://www.propublica.org/article/in-florida-the-gutting-of-a-landmark-law-leaves-few-felons-likely-to-vote .
[10] Jones v. Governor of Florida, 975 F.3d at 1028.
[11] Id.
[12] Id. at 1066-71. (Jordan, J., dissenting).
[13] Id. at 1099.
[14] Mower, supra note 8.
[15] See generally Jones v. Governor of Florida, 975 F.3d at1108 (Pryor, J., dissenting).
[16] Jean Chung, Felony Disenfranchisement Primer, The Sentencing Project (June, 2019), https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/.
[17] P.R. Lockhart, The lawsuit challenging Georgia’s entire elections system, explained, Vox (May 30, 2019), https://www.vox.com/policy-and-politics/2018/11/30/18118264/georgia-election-lawsuit-voter-suppression-abrams-kemp-race.
[18] Id.
[19] Justin Levitt, List of COVID-19 election cases, Election Law Blog (Oct. 22, 2020), https://electionlawblog.org/?p=111962.
[20] See generally Zack Stanton, The Lawsuits That Could Decide the 2020 Election, Politico (Sept. 3, 2020), https://www.politico.com/news/magazine/2020/09/03/2020-election-lawsuits-trump-voting-coronavirus-408631.
[21] See Alana Abramson, ‘A Litigation Arms Race.’ Why The 2020 Election Could Come Down To The Courts, Time (Oct. 22, 2020), https://time.com/5902389/election-2020-lawsuits-litigation/.
[22] G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 21 (Dec. 10, 1948).