Injustice Beyond the Jailhouse: A Discussion on Felony Disenfranchisement

Introduction

Earlier this month, a lawsuit was filed in the Eastern District of Virginia over changes in the Commonwealth’s felony voting rights restoration process. The lawsuit stems from Article 2, §1 of the Virginia Constitution, which states, “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority” [1]. The past several governors had implemented objective qualifications that felons must meet in order to restore their voting rights. However, Governor Glen Youngkin recently did away with this process, replacing it with a completely arbitrary process [2]. Under the new process, the Governor will have complete discretion over the restoration of voting rights. In the complaint filed by the Fair Elections Center on behalf of Nolef Turns, Inc., Plaintiff claims that Article 12, §1 violates the First Amendment. Plaintiff claims that voting is protected under the First Amendment pursuant to the 1992 ruling in Norman v Reed that extends First Amendment protections to voting [3]. Furthermore, the suit alleges that the discretionary and arbitrary process undertaken by Governor Youngkin’s office is inconsistent with Forsyth Cnty., GA. v. Nationalist Movement, which prohibits “unfettered discretion to issue or deny licenses or permits to engage in any First Amendment-protected speech” [4].

In 2019, a lawsuit was brought against the Mississippi Secretary of State in the Southern District of Mississippi. Roy Harness and Kamal Karriem brought the suit, claiming that Mississippi’s voter disenfranchisement laws are unconstitutional based on the discriminatory intent of the law. It seeks to strike down Article 12, §241 of the Mississippi Constitution; a Jim Crow era provision that prohibits convicted offenders of specific crimes from being able to vote. The most recent version of Section 241 was amended in 1968. The law bars from voting those who have been convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy” [5]. On appeal to the Fifth Circuit, Appellant pointed to the Mississippi legislature’s intent to discriminate against Black citizens when drafting the original version Section 241 in 1890 [6]. The Fifth Circuit ruled that despite the intent of the original 1890 law, the 1968 version was not discriminatory in nature [7]. Following the Fifth Circuit’s ruling in late 2022, the Supreme Court granted certiorari. In a brief in opposition to certiorari, Mississippi Attorney General, Lynn Fitch stated, “Petitioners’ claim fails because the State’s 1950 and 1968 enactments purged any taint [of racism] from the 1890 law” [8].

Richardson v. Ramirez

The legal fight against felony disenfranchisement laws reaches back to the 1974 Supreme Court case Richardson v. Ramirez. The case was brought by three convicted felons who had completed their sentences and were seeking voter registrations in California. The Petitioners in the case, all county election officials, denied the Respondents registration pursuant to Article XX, §11 of the California Constitution. The 1879 provision barred persons convicted of ‘high crimes’ from the right to vote [9]. The Court ruled in favor of the county election officials in a 6-3 decision. Justice Rehnquist, who delivered the opinion of the court, points to Section 2 of the Fourteenth Amendment [10]. Section 2 expressly gives states permission to disenfranchise those who have committed crimes: “But when the right to vote…is denied to any of the male inhabitants of such State…or in any way abridged, except for participation in rebellion, or other crime” [11]. Richardson remains the precedent for equal protection cases involving felony voting rights.

The Disparate Impact of Voter Disenfranchisement Laws

Often, the debate around felony voting rights laws focuses on the impact on minority voters. While the question of race or ethnicity has not been brought up in the Nolef Turns case, it is the debate in Harness v. Watson. The United Nations has even weighed in on the topic of race, with the U.N. Committee on the Elimination of Racial Discrimination raising concerns over state felony disenfranchisement laws’ effect on racial minorities [12]. These claims which have been raised by the UNCERD numerous times over the past two decades are backed up by data showing one in thirteen Black voting age citizens have been disenfranchised because of convictions [13].

Policy Proposal

There is no doubt that the Constitution allows for the restriction of voting rights for convicted criminals; Richardson affirms this. While the practice may be constitutional, it does not mean that it is the best policy. Advocacy must happen at both the state and the federal level to ease restrictions on felony voting. Many states have adopted laws that allow felons to vote upon completion of their sentences, and two states, Maine and Vermont even extend the right to those in prison [14]. Furthermore, reforms must be made in the criminal justice system to shift away from punishment, and push for rehabilitation and reformation.