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Is the Right to Vote a Criminal Matter?

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  • Eric Alterman
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Amazingly ex-felons, unless they used to be CEOs or arbitragers, tend to have few political friends. This helps to explain why they enjoy so few political rights. Much of the public shares the misimpression that after one has served ones time — "paid their debt to society" — all rights and responsibilities are restored. Well, think again. Seven states permanently disfranchise even felons who have fully served their sentences. And because these states do not distinguish between types of felonies or length of sentence, an 18-year-old convicted in Virginia of a one-time drug sale who successfully completes a court-ordered treatment program, and is never rearrested, permanently loses her voting rights unless she obtains a gubernatorial pardon — which is to say almost never.

For many conservative commentators, this is a fine state of affairs. National Review’s Peter Kirsanow, for instance, accuses those who seek to restore felons’ right to vote of aiming "nothing less than the wholesale restoration of voting rights to all convicts." Others, like Roger Clegg writing in USA Today, resort to meaningless platitudes such as “society should not ignore people’s criminal records even after a sentence has been served." Writing in the New Jersey Law Journal, Clegg added, "while having served a sentence discharges a felon’s debt in the sense that his basic right to live in society is restored, it doesn’t require society to forget what he has done or bar it from making judgments about how far to trust him."

It’s not that conservatives cannot make distinctions. Kirsanow defends disfranchisement, writing that "most state disenfranchisement laws don’t have blanket prohibitions against felon voting," and goes on to approvingly discuss those states that distinguish between re-enfranchisement of parolees and probationers, and first and repeat offenders. And his National Review colleague David Lampo admits, "One can certainly make a case that nonviolent felons should be treated differently than murderers and rapists." But what about those seven states that do in fact have "blanket prohibitions" and that are home to the majority of this country’s disenfranchised? Apparently the Right’s answer is "nevermind."

Surprise, surprise, one of those states is Florida, and this, along with a few other oddities, is why they play "Hail to the Chief" when 2000's minority vote-getter enters a room. Almost 20 percent of the nearly 5 million disfranchised Americans make Florida their home, and it is nearly impossible for them to find a legal recourse to exercise their rights as citizens to choose their leaders. Florida, for instance, treats the matter as one of "executive grace." The governor and three members of his cabinet sit as the Executive Clemency Board, which can refuse the request without citing any reason at all — that is if they are lucky enough to make it past the state's parole commission’s review. There are rules, but these are almost entirely procedural, without substantive guidance, and decidedly confusing, even to the people in charge of enforcing them. At one recent hearing, Gov. Jeb Bush, the chair of the Clemency Board, was unaware whether a felon was allowed to apply simultaneously for pardon and a restoration of civil rights.

This is just fine with the likes of Clegg because, he insists, "it is impossible to draft a statute that would properly calibrate seriousness of an offense, the number of offenses and their recentness." The answer is "an across the board ban on felons' voting but with an efficacious administrative mechanism for restoring the franchise on a case-by-case basis." But if the experiences of these seven states show anything, it is that there can be no "efficacious" case-by-case system. Florida continues to pour millions of dollars into its restoration process and yet the backlog just gets larger.

Yet like the conservative pundits, Bush and his Republican legislature continue to oppose automatic post-sentence restoration of voting rights, arguing that it is a long-established piece of Florida’s justice system. Yet "justice" is hardly an appropriate word for the current system. Just last July, Florida admitted to having failed to comply with its own law by failing to assist nearly 125,000 inmates who were about to be released from custody or supervision with the application for restoration, due to a "computer glitch."

Many conservatives also played the political card. As with the debate over voting rights in the District of Columbia, we hear complaints of an alleged Democratic "partisan prison strategy" with accusations including the belief that it is "much more important to the movement's leaders to simply elect more Democrats," than to make distinctions between types of crime. Well, what about the American Correctional Association, hardly a bunch of bleeding hearts, but they passed a resolution in favor of voting rights for ex-felons last year.

Yet another procedural roadblock thrown up in front of these citizens is widespread confusion in the minds of both electoral and criminal officials, who frequently pass this along to the former felons themselves. Even where they are allowed to vote, few states undertake effective education programs. For instance, in Idaho, people convicted of a felony can vote once they have completed their sentence, unless the crime was treason. Yet an Idaho Statesman survey of all 44 county election offices found that nearly a third of those questions did not know this. And in Minnesota, voting rights are restored after an individual has finished all aspects of a criminal sentence including supervised release and community service. Yet, a report released by the Minnesota Lawyers’ Committee for Civil Rights last year found that there is no consistent procedure for notifying felons when their civil rights have been restored.

Former felons are by and large without a voice in our contemporary debate and so few seem to find their disenfranchisement a political problem worth examining. This is the case, amazingly, even when the confusion — and deliberate chicanery this confusion can invite — can put the wrong man in the White House.

For further information see the Human Rights Watch report, "Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States."

Eric Alterman is a senior fellow of the Center for American Progress who regularly writes and/or edits this column. Laleh Ispahani is a lawyer who works on felon disfranchisement for the ACLU. She represents the ACLU on the Steering Committee of Right to Vote, a national campaign to end felony disfranchisement.

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Eric Alterman

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