Posted by Jo Mckeegan on September 28, 2010
The process of removing the right to vote from a person convicted of a crime was invented by the Romans and dubbed “civil death”. It is a process that several states in America still implement today, grounded in the disturbing fact that the U.S. Constitution does not provide a citizenship right to vote.
In most states, a person who has completed serving a felony conviction is allowed to register to vote. Other states restrict this right, and in a few remaining states like Virginia, this punishment is a lifelong ban unless a waiver is granted by the governor. Anyone moving into such a state with a past felony conviction will be breaking the law if they vote, even if coming from a state where they had full suffrage rights.
In his first year in office, Virginia’s Governor Bob McDonnell (R) is on pace to restore voting rights for more of his state’s citizens than previous governors. He eliminated the need for a citizen with a felony conviction to write an essay describing their “redemption”, and is allowing former felons to apply to vote two years after incarceration instead of three.
Despite McDonnell’s positive changes, current Virginia law still allows a governor the ability to go cherry-picking among former felons, choosing which specific people he or she believes has “earned back” the vote. In their four years as governor, Tim Kaine, restored the rights of a record 4,402 felons, Mark Warner restored the rights of 3,486, and Jim Gilmore and George Allen restored less than 700 combined. McDonnell has recently restored the rights of over 90% of citizens with convictions for nonviolent crimes and 75% of citizens with convictions for violent crimes who applied to have their rights restored.
While I applaud McDonnell for his efforts to ease the restoration process, it should be noted that the laws removing the right to vote from people who have finished serving their sentence for a crime remain unjust. More than 300,000 citizens with felony convictions have had their right to vote removed in Virginia alone, a number that balloons to more than 5 million nationwide. The continued punishment of citizens who have served their time in prison is forcing many Americans to be penalized for decades longer than the court has ordered. Although most citizens with felony convictions are white, the application of the law has had a discriminatory impact, since prison populations have higher concentrations of racial and ethnic minorities than the general population. Felon disenfranchisement effects up to 13% of African-American adult men, a rate that is seven times the national average.
Because there is no explicit right in the Constitution to a vote, laws removing the right to vote from people who have previous felony convictions are legal. The Supreme Court case Richardson v. Ramirez upheld the constitutionality of disenfranchisement for felons, under section 2 of the 14th amendment which states the right to vote can be limited by "participation of rebellion, or other crime.” Later, Supreme Court cases revised this to state that a law which is disenfranchising prior felons based on a racially discriminatory animus is not constitutional.
Vermont and Maine allow felons to vote while incarcerated. 39 states and DC currently have laws where the right to vote is automatically restored for citizens with felony convictions when their time is served. In the remaining states 11 states, a petition to the governor must be completed and approved before a person may vote again, or a felon must wait several years before he or she is allowed to vote. Alabama, Florida, Mississippi, New Mexico, Virginia, and Wyoming currently disenfranchise more than 1 in 25 of their adult population. Fully one million Americans who are disenfranchised never went to prison- they became disenfranchised due to probation.
Ultimately, a right is a right, no matter how you feel about the person exercising it. Just as the Bill of Rights applies to all citizens, so should the right to vote.
For more information on laws in your state, please visit http://www.sentencingproject.org/doc/publications/fd_bs_fdlawsinusMarch2010.pdf. FairVote has additional resources in its Right to Vote pages.