Students Speak: The extremes of felony disenfranchisement

To celebrate our first 50 years at The Santa Barbara & Ventura Colleges of Law, we’ve asked our students to revisit historical and noteworthy cases.

Part one of this article followed the origin of voting laws in the United States and how individual states determine their own voting laws—allowing them to legally disenfranchise whole communities within their states.

Part two focuses on California’s felony disenfranchisement laws as it compares to those in other states. While some states insist on permanently disenfranchising individuals with a felony conviction, most states continue to expand the vote.

Who gets to vote?

Depriving citizens of their right to vote, or disenfranchisement, is not a new concept in American history. The 14th Amendment was created to prevent states from doing so based on race. Disenfranchisement only violates the U.S. Constitution under a few circumstances—felony convictions not being one. States have the authority to take away the right to vote for an individual with a felony conviction, and they are under no obligation to return that right.

Why are so many people disenfranchised today? The “tough on crime” initiative introduced in the 1980s contributed to a dramatic rise in the prison population, from 40,900 in 1980 to 452,965 in 2017. According to a study by the Sentencing Project, “Today, there are more people behind bars for a drug offense than the number of people who were in prison or jail for any crime in 1980.”

Not only have states sent more people to prison, but the laws dictate harsher and longer prison sentences. According to the Sentencing Project, “One in nine people in prison is now serving a life sentence, nearly a third of whom are sentenced to life without parole.” In all but two states, these prisoners are permanently disenfranchised, according to state law.

State-based felony disenfranchisement laws prevented 6.1 million Americans from voting in the 2016 election. In 2018 Florida citizens voted to amend its state felony disenfranchisement laws, restoring the right to vote to over one million individuals with a felony conviction. Growing public awareness has attributed to state felony disenfranchisement reform over the last 20 years. And yet some states, such as Kentucky and Iowa, maintain their permanent felony disenfranchisement laws.

A brief California disenfranchisement history

The California Constitution, first adopted in 1849, originally included a provision to permanently disenfranchise all persons convicted of any “infamous crime.” Today, the California constitution only disenfranchises those who are currently in state prisons or on parole for the conviction of a felony. Those on probation or serving time in local jails do have the ability to vote. Once an individual with a felony conviction has completed his or her prison sentence and parole, voting rights are automatically restored.

In 2014, California voters passed Proposition 47, which reduced some property and drug crimes from felonies to misdemeanors, with the intention of reinvesting savings into prevention programs. In Los Angeles alone, the prison population fell from 18,601 in November 2014 to 17,285 in January 2015.

California is not alone when it comes to automatically restoring voting rights after release from prison and discharge from parole; Louisiana and Connecticut follow suit. Several states include completion of probation before automatically restoring voting rights, whereas some may automatically restore voting rights immediately following release from prison. As of May 2019, 38 states, as well as Washington, D.C., fall under these three categories. The remaining 12 states are divided between two extreme disenfranchisement laws: no disenfranchisement and permanent disenfranchisement.

A felony disenfranchisement comparison

No disenfranchisement: Vermont

Vermont and Maine uphold “no disenfranchisement for people with criminal convictions.” Vermont has maintained this law since it first adopted its state constitution in 1777.

Vermont’s voting laws have made headlines again in the past few months as 2020 presidential candidate Bernie Sanders spoke out in favor of inmate voting. When asked during a CNN town hall meeting in April 2019 if everyone should have the right to vote, the senator from Vermont responded, “This is a democracy and we have got to expand that democracy, and I believe every single person does have the right to vote…even for terrible people.”

Permanent disenfranchisement: Kentucky

Kentucky and Iowa maintain “permanent disenfranchisement for all people with felony convictions, unless government approves individual rights restoration.” Nine other states, such as Missouri and Alabama, permanently disenfranchise at least some people criminally convicted, unless they seek restoration approval from the government.

In February 2019, Kentucky Sen. Morgan McGarvey introduced a bill that would restore voting rights to individuals with a felony conviction after completing their prison sentence, including parole and probation. But the bill failed in March 2019. McGarvey is working to get this amendment to the voters in the 2020 election.

Kentucky legislators are trying to pass an amendment that would still be more restrictive than what California passed 45 years ago. And yet, Kentucky does not seem to be budging on the issue. As long as the Senate and House continue to fail proposed amendments regarding felony disenfranchisement, the only way for the people of Kentucky to vote on this issue would be the result of a grassroots, voter-led effort. After the Florida 2018 election results, it will be interesting to see if other states, like Kentucky, are moved by similar efforts.

Noteworthy changes in disenfranchisement law across the U.S.

Florida originally sided with Kentucky in that they permanently disenfranchised all those convicted of a felony. However, as a result of a huge voter-turnout victory in the 2018 elections, Florida now only permanently disenfranchises some people. CNN reported that Florida voters made history when they passed Amendment 4 with approximately 65 percent voter approval, exceeding the required threshold of 60 percent, restoring the right to vote for about 1.4 million individuals with a felony conviction.

However, where Florida voters took several steps forward in enfranchising millions of its citizens, its state politicians halted the progression. In June 2019, Florida Gov. Ron DeSantis signed the Florida House bill that requires returning citizens to pay all legal financial obligations (LFOs) before their voting rights are restored.

The payment is a huge obstacle for these individuals with a felony conviction, as many of them will most likely die in debt. But even if they have the money or were able to eventually pay off their LFOs, it is still a difficult process to find out how much they owe and if they are even eligible to register to vote. And by the way, registering to vote without eligibility is a felony offense in Florida.

Florida is not the only state making waves in 2019 as other states continue to expand their voting rights laws. The Sentencing Project reported that both Nevada and Colorado’s governors signed state laws that went into effect on July 1, 2019, permitting individuals with a felony conviction on parole to vote. As the 2019 and 2020 elections approach, it will be interesting to see how many, if any, other changes in state law come into effect.

It is hard to tell if California will eventually align itself with states like Vermont and Maine. Luckily Californians may have an opportunity to expand the vote as early as the 2020 elections. Currently California legislators are working on expanding the right to vote to include people on parole. In early 2019, Assemblyman Kevin McCarty introduced ACA 6, a proposal to amend the California Constitution, and AB 646, a proposal to amend the Elections Code, collectively known as the “Free the Vote Act.” ACA 6 successfully passed the California Assembly on Sept. 6, 2019, and will next go to the state Senate. If the Senate passes this bill, both of these amendments will make it on the 2020 ballot.

While McCarty is working to change felony disenfranchisement law, he “declined to go as far as Vermont or Maine in allowing people to vote while they are in prison,” according to The Sacramento Bee. But if California continues to move in the direction of expanding the vote, there may be more change in the future, hopefully expanding the right to vote to include all people.

ABOUT THE AUTHOR:

Becoming an attorney was not originally one of Sarah Swisher’s career goals as she received her bachelor’s and master’s degrees in theology from Loyola Marymount University. But after teaching high school for a few short years, her passion for social justice (and several months of late-night soul searching) led her to The Santa Barbara & Ventura Colleges of Law. As a current 3L student, you will always find Sarah juggling a cup of coffee and a water bottle.

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