The Struggle for Voting Rights by Formerly Incarcerated People
In June of 2023, the Supreme Court declined to hear a Mississippi voting rights case about a law that prevents people convicted of certain felonies from voting. Two months later, a 3 judge panel from the 5th Circuit Court of Appeals struck down that same law, opening the door for hundreds of thousands of people to restore their voting rights. In the first case, the courts examined whether or not Mississippi's law, which was originally passed with the explicit intention of disenfranchising Black Americans, still violated the 15th Amendment's protections against racial disenfranchisement. They ruled that since the law had been revised since its original passing, it no longer had a “racial taint” and therefore was Constitutional. In the second case, the courts examined whether or not the stripping of voting rights constituted “cruel and unusual punishment” in violation of the 8th Amendment. They ruled that it did.
The fight over this law is far from over, but it is only one battleground in the national fight to expand voting rights for formerly incarcerated people. In almost every state, you lose the right to vote when you're convicted of a felony. This is broadly supported, with a 2019 poll showing that 69% of Americans don't support enfranchisement for people serving their sentence. In some states, those rights are restored upon your release from prison, something that is generally supported by a majority of Americans, but in others, the road to the ballot box can be a lot more difficult. Mississippi's law was one of the strictest in the nation, and its striking down is one point in a national trend towards allowing more formerly incarcerated people to vote. “This is one area in which the laws in quite recent years have been getting much more favorable to people with records,” said Sonja Starr, a professor at the University of Chicago Law School. “We've seen a pretty clear movement away from these felony disenfranchisement laws, although of course they still exist in a number of states.”
The history of felony disenfranchisement laws is complicated, and there is a commonly held belief that these laws mostly stem from post-Reconstruction attempts to disenfranchise Black Americans. There is certainly some truth to this, but actually many states had felony disenfranchisement laws on the books before the Civil War. This historical reality is reflected by the fact that the 14th Amendment, which protected against disenfranchisement based on race, had a provision stating that convicted people could still be disenfranchised. If these laws hadn't previously existed, “it would be… surprising that [they were] included in the 14th Amendment,” said Professor Starr. “They may have just been accommodating a historical practice.” At the same time, she was quick to acknowledge that “there is… a long history of passing, either expanding or adding to, or creating these laws as a method of disenfranchising people.”
When this history is explicit, the laws can be easy to combat. “When there [is] clear evidence in the legislative record that the purpose was in fact to disenfranchise formerly enslaved people, then the Supreme Court has struck [these laws] down as unconstitutional racial discrimination,” Professor Starr said. When the history is less explicit, or has been complicated as with the Mississippi law, it can become much harder. “The 14th Amendment does specifically mention the disenfranchisement of people with records, which is why, consistently, courts have upheld [felony disenfranchisement laws] so long as there isn't a provable racial motive to it.”
Making Voting Change
Connecticut Legislative Change
My home state of Connecticut, which was actually one of the first states in the country to pass a felony disenfranchisement law, is today still not technically one of the 23 states that allows formerly incarcerated people to vote upon release. This is because people convicted of election related offenses are still stripped of their right to vote while on parole or felony probation. This is the only exception, and for the most part, Connecticut is in step with the 23 states that restore voting rights upon release. This wasn't the case until recently, however. Connecticut passed a law in 2021 that restored the right to vote for people living in community residences, like halfway houses and mental health facilities, as well as people released on parole or special parole. Previously, people were only legally allowed to vote once they had completed their parole time and paid any and all related fines and fees.
“I [heard] about somebody who was threatened to be arrested because they voted, and they didn't know they were not allowed to vote while they were on parole,” said Connecticut State Representative David Michel. “And that was shocking to me. That's kind of what brought my attention to the issue… right there, I was like ‘what?' You receive a letter that you have to go to court and there's the potential that you get arrested or violated your parole because you voted. I mean, that's just incredible.” Since being elected in 2018, Michel has sponsored several bills that would expand voting rights for formerly incarcerated people, and although he sees the 2021 law as a victory, he originally pushed for more. “I was trying to push for the right of incarcerated individuals to vote. Because, I mean, the right to vote is a citizen right… so that's what I was trying to push for, and still will continue to try pushing for.”
His version of the bill faced several hurdles, and, in his first few years in the legislature, the bill was killed before it reached the floor. “There was a lot of pushback against allowing incarcerated individuals to vote. It's more controversial than you think, on both sides of the aisle.” The law that passed in 2021 ended up being a watered down version of Michel's original bill, but, according to him, you sometimes have to take what you can get. “A lot of us, who have a background in activism… we have to accept having incremental steps… and this is frustrating, it's not easy to accept having less than what you think is really just and fair… but this was a major step already for the parolees. So, that really did affect parolees. We have to pass broad and effective legislation, but sometimes, watering down is not as bad if it's actually affecting [people] in the immediate.”
Florida Legislative Change
A similar situation took place in Florida in 2019, and although Florida's laws are much stricter than Connecticut's, activists were still able to pass a constitutional amendment that restored the right for people to vote after they had served “all terms of sentence,” with some exceptions. When the law enforcing the constitutional amendment was passed, however, it defined “all terms of sentence” as including the payment of all fines and fees, in addition to the completion of probation or parole. This was disappointing for people who had pushed for more expansive action, but former Florida State Senator Jeff Brandes was adamant that this should be seen as a win for them. “They passed a constitutional amendment,” he said. “It's frickin' hard to pass a constitutional amendment. They had to do what they had to do in order to pass it. If they could've changed the language, it may have failed…. What they did was a Herculean task… [they] want to come back and take another stab at it, but [they should] declare victory and figure out how to pay these fines off.”
Constitutional Amendment
The situation in Florida highlights some of the trouble that activists have when it comes to trying to pass expansions of voting rights for formerly incarcerated people. Whereas the Connecticut law was simply folded in and passed as part of the 2021 budget, the Florida law was much harder to pass. In Florida, activists needed to propose a constitutional amendment and get it on the ballot as a ballot initiative. This initiative needed to get 60% of the vote in order to become law, and the Florida Rights Restoration Coalition (FRRC), which led the initiative, knew that in order to get past the 60% threshold, they needed to use language that required formerly incarcerated people to complete “all terms of sentence”, including the payment of all fines and fees. Once the amendment passed, however, many people wanted to forgo including the payment of all fines and fees as one of the requirements for the restoration of voting rights, despite the FRRC having defined it as including these fines in front of the Florida Supreme Court. Brandes, who introduced the language defining “all terms of sentence,” said that he would've personally liked to go further and leave off the fines and fees, but that his hands were tied by the wording of the amendment. “The constitution says it has to complete all terms of sentence, and I think the legislature followed the constitution… I don't think you can go back, I think the words are the words.” Brandes also pointed out that, in writing the bill that eventually passed, he used the exact same language that the FRRC used before the Florida Supreme Court. “If you read the bill, I literally copy and pasted their attorney's words into that bill. The bill says ‘everything within the four corners of the sentencing document.'”
Of course, there is some question as to whether the law in Florida violates the U.S. Constitution. Some critics of the bill claimed that by creating a pay-to-vote scheme, the state was, in effect, implementing an unconstitutional poll tax. On these grounds, the District Court ruled against the state of Florida, saying that they could not disenfranchise people who were “genuinely unable to pay.” A stay was put on this decision by the 11th U.S. Circuit Court of Appeals, the Supreme Court declined to vacate it, and the decision was eventually reversed. Justice Sotomayor, joined by Justices Kagan and Ginsburg wrote a dissenting opinion on the denial of the request to vacate the stay, and it's likely that those three justices viewed the Florida law as an unconstitutional poll tax.
Racial Discrimination
At the same time, Professor Starr notes that because of the textual reference to felony disenfranchisement in the 14th Amendment, it's a particularly close question, and the fact that poll taxes have historically been a method of racial discrimination doesn't help either. “Obviously, if there were a racial purpose, that would be unconstitutional, but that is usually, as a factual matter, very difficult to prove, and poll taxes historically were methods for preserving white supremacy.” Professor Starr said. A racial motivation “may be lying beneath the surface, or at least if not explicitly [for] preserving white supremacy, there might be a race related partisan motivation… which, you know, has functionally the same effect. But all of this is difficult to prove because in the modern era people don't talk about the reasons for policies in race related terms.”
Fine Forgiveness or Commuting
The argument that the Florida law constitutes a poll tax is further complicated by a provision in the law that allows people to have their fines and fees forgiven or commuted to community service. “We recognized that some people would be indigent and unable to pay these costs,” said Brandes. “80% of these fees are never really collected anyways, so just find a pathway for them to forgive that.” Such a process would involve getting a lawyer and going before a judge, and although it can be difficult to go through, it certainly is a massive step up from the previous system, which required a pardon from the governor. This was similar to the system currently in place in Mississippi, and both systems resulted in a statistically insignificant amount of people regaining the right to vote. Therefore, even though the legal recourse technically existed, it was essentially worthless to most people.
When asked about the difficulty of getting a judge to forgive or commute a fine, Brandes said that they did what they could. “It's the only process that worked, it was the only process that could pass through the legislature,” he said. “I was one of the few Republicans who were like ‘yeah, this is not just that we permanently bar them forever, and the only way to [get your voting rights restored] is to run the gauntlet of getting through the cabinet'… Pontius Pilate has granted more clemency than Ron DeSantis did… it should be hard but it shouldn't be impossible to get your voting rights restored.”
Fine Transparency
At the same time, there have been some serious problems in communicating how much people need to pay, making legal recourse and payment of debt much more difficult for people looking to get their voting rights restored. The way the system is supposed to work, someone who was formerly incarcerated should be able to contact the Florida Secretary of State or their county commissioner and find out how much they owe. Both of these operations appear to be severely understaffed, however, and in the past year people have been arrested for trying to vote while ineligible after they had been told by the state that they were eligible. When asked about this, Brandes was critical, but said that this was a problem of government, not of law. According to him, the law was sufficient, and these problems were occurring due to the failures of the executive branch.
Public Opinion, or lack of
Voting rights for formerly incarcerated people may be divisive, but because they're not necessarily a hot-button issue, like guns or abortion, many people may not have fully formed opinions on them. “A lot of the public is not necessarily educated on the subject,” said Michel. “Prison issues are usually uncomfortable for a lot of people, a lot of people don't want to talk about incarcerated people.” Michel also said that the progress being made on this issue is a step in the right direction, even if it's not everything that activists are pushing for. “We have to accept having incremental steps,” he said. “And this is frustrating, it's not easy to accept having less than what you think is really just and fair… We have to pass broad and effective legislation, but sometimes watering down [a bill] is not as bad if it's actually affecting [people] in the immediate.”
