Chandra Bozelko: Felony disenfranchisement is not a punishment
Many people with felony convictions are getting their voting rights back in Kentucky and New Jersey. It’s less a holiday miracle than you might expect. Places such as California, New York, North Carolina and Washington D.C. are mulling similar moves.
Now that the topic’s hot again, it’s time for a refresher: Felony disenfranchisement is not a punishment. It never was.
People believe it is, though. A HuffPost/YouGov poll in 2018 surveyed a group of 1,000 U.S. citizens and found that only 24% favored voting rights for prisoners. But support rose to 38% when the question turned to whether people who are out of prison and living under supervised release should be allowed to cast ballots. Then it jumped to 63% when those same parolees and probationers complete their sentences.
Most people think that rights should be enjoyed only after someone finishes his or her sentence, not before, which means that they see losing voting rights as a proper penalty.
Voting is a right that belongs to all citizens, not just good or reformed ones. Denying citizens their rights isn’t an appropriate form of accountability because citizen status can’t be punished out of someone. The Supreme Court of the United States said this years ago. In the opinion in Trop v. Dulles, Justice Earl Warren wrote that the rights of citizenship do not expire on misbehavior.
But the nation’s highest court’s take on disenfranchisement hardly matters. Felony disenfranchisement was never designed to be a punishment; it was solely a way to purloin political power from black people.
Researchers at Oxford University in 2006 posited that states were significantly more likely to adopt or extend felony disenfranchisement laws when African-Americans made up a larger proportion of a state’s prison population. The whiter a state’s prisons are, the more likely it is to restore voting rights to felons. Indeed, the two whitest states - Maine and Vermont - never strip anyone’s voting rights.
The clearest example of the silent purpose of felony disenfranchisement is New York’s treatment of felony voting laws in the late 19th century. By 1860, New York was the only state with a statute requiring only black voters to own property, in clear violation of the 15th Amendment, which in 1870 prohibited voting restrictions based on race. When the Empire State finally repealed the law, legislators replaced it with a felony disenfranchisement law. It served the same purpose.
Treating felony disenfranchisement as punitive instead of political has allowed the concept of merit to seep into discussions about rights.
We’ve used worthiness to determine voting rights before. Literacy tests weeded out voters who weren’t allegedly smart or educated enough. Poll taxes culled those deemed not financially successful enough. Identification and advance registration requirements blocked people who we decided hadn’t prepared enough. Inexplicably, the Supreme Court has struck down literacy and poll taxes as unconstitutional, but approved identification laws.
Allowing merit to enter into debates over voting rights has done us a great disservice because it covers for the purely racist history of taking people’s voting rights. This idea that you can earn your citizenship rights casts disenfranchisement as a race-neutral policy of accountability when it’s not.
The so-called “social contract” argument against voting rights for everyone, namely that we prevent allegedly wrong-headed citizens from tainting democracy, isn’t totally invalid on its face. Someone who doesn’t honor the law shouldn’t necessarily be its electoral guardian.
But ultimately this purification of the polls falls apart as a justification for restricting voting rights. Viewing felony disenfranchisement this way admits we’re shooing away anyone whose vote we don’t like. Taking voting rights confesses that don’t want certain people to elect other certain people. The fact that those certain people might not be good for the populace doesn’t matter; in every election people agree that the opposing candidate won’t benefit the people. Like I said, it’s not punishment. It’s power-stripping.
Anyone who believes in disenfranchisement and gradual reinstatement of rights would do well to learn the history of tearing these rights away from people. Then they might concentrate less on when voting rights should be restored and more on the truth that these rights can’t be taken away from citizens in the first place, at least not honestly.
Chandra Bozelko writes the award-winning blog Prison Diaries. You can follow her on Twitter at @ChandraBozelko and email her at email@example.com.