Voter suppression has existed in many forms throughout the history of America. Recently, thanks to ongoing attacks on mail-in ballots, long lines during early voting, and an administration that boldly (and illegally) suggested we all "vote twice," it’s in the news every day. Still, some of the most insidious forms of voter suppression are hidden in plain sight, often being given legitimacy by those in power. Case in point: the fact that more than 5.2 million Americans who have past felony convictions are barred from voting in the 2020 election.
In the United States, there is an ongoing effort to keep formerly incarcerated people from voting. This practice is known as felony disenfranchisement, and it’s bolstered by laws that say people who have been convicted of crimes are ineligible to cast a ballot.
There are only a few states where incarcerated people always retain their right to vote: Maine and Vermont. Earlier this year, Washington, D.C. became the first jurisdiction in the country to fully restore voting rights to people serving time. But these places are only the exception. Across the country, 27 states deny voting rights to people who are on probation. Meanwhile, 30 states deny voting rights to people on parole, and 11 states entirely deny voting rights to people who have been in prison, are on parole, or have probation sentences.
In Arizona, for example, people with two or more felony convictions are rendered permanently ineligible to vote. But, in Louisiana, five years after last being incarcerated, residents — including those on probation and parole — become eligible to vote. More than half of U.S. states have amended their policies to expand voter eligibility in the last 20 years, with states including New Jersey and Iowa passing measures to restore voting rights just this year, but there is no binding national policy that ensures voting rights to formerly incarcerated people. And because laws range so widely across various states, most formerly incarcerated people are left confused and without education about their rights.
In the last several decades, national efforts to end voter disenfranchisement have been dismantled or left in waiting, despite the urgency of the situation. In 2002, the Voting Restoration Act — a Senate measure to restore the ballot to all formerly incarcerated people in federal elections — was introduced by Maxine Waters. But it was quickly voted down. Since then, several Democracy Restoration Acts have been introduced, including Cory Booker’s 2015 act to end disenfranchisement, and others in 2017 and 2019 — though they’ve all failed to make it far enough in the House and Senate. At the time the VRA was introduced, Sen. Mitch McConnell stated that providing voting rights to formerly incarcerated people would “dilute the vote of law-abiding citizens.”
But the issue is bigger than just felony disenfranchisement: Among the millions of people who are deemed ineligible to vote, Black people and people of color who have been in the system are the most disenfranchised. According to The Sentencing Project, Black adults who are currently living in America are more than four times as likely to lose their voting rights than other adults because of incarceration rates, with one out of 16 Black adults disenfranchised nationally. In total, across America, 1.3 million Black citizens are rendered ineligible to vote because of discriminatory policies. The organization’s reports from 2020 also estimate that over 560,000 Latinx Americans — or over 2 percent of the voting eligible population — are disenfranchised because of felony convictions.
With a disproportionate impact on these Americans, felony disenfranchisement helps to silence the people who are already most marginalized, Amy Fettig, Executive Director of The Sentencing Project, tells Refinery29. “You can’t look at the history of slavery and Jim Crow and the current fact of felony disenfranchisement without seeing it as a direct legacy of those original systems. It was very deliberate, there’s no question,” Fettig says. “White people in power knew if you wanted to marginalize Black people and people of color and exclude them from political power, you can use the system to ‘legitimize’ reasons to take rights away.”
This shouldn't come as much of a surprise, considering the many systems and traditions in American politics — like the Electoral College — that are rooted in racism and xenophobia. After the Civil War, states passed disenfranchisement policies to bar people with criminal convictions from voting — and then proceeded to incarcerate Black Americans. States then further prevented Black suffrage by adopting laws that would deny people the right to vote based on their status as formerly incarcerated people. A number of Southern states specifically tailored disenfranchisement laws to target Black male voters and prevent them from going to the polls. The president of Alabama’s convention to rewrite the state constitution, John B. Knox, even explicitly stated, “If we should have white supremacy, we must establish it by law — not by force or fraud.”
“You can’t look at the history of slavery and Jim Crow and the current fact of felony disenfranchisement without seeing it as a direct legacy of those original systems. It was very deliberate, there’s no question”
- Amy Fettig
Today, many of these laws, or ones like them, that prevent formerly incarcerated people from voting are still in effect — including in Florida. According to Rosemary McCoy, a formerly incarcerated Black woman in Florida, prison is often positioned as being about rehabilitation, and felony disenfranchisement is completely counterintuitive to societal reentry. McCoy and Sheila Singleton, two of the plaintiffs in a Southern Poverty Law Center case against disenfranchisement laws in Florida, say that if prison were truly about rehabilitation, then formerly incarcerated people must be allowed to vote.
“They don’t consider it rehabilitation, they consider it punishment. Their whole goal is not to rehabilitate. There is no desire to help people be rehabilitated. Once you’re out here spending time working, and contributing to the community, they still say that’s not enough for you to be able to vote, so the question is what is enough?” McCoy tells Refinery29.
"When other people get out of jail, they also have no clue what a felony charge does to a person and how it affects you, your family, your children and your grandchildren," Singleton says. "It amazes me how the system works like this. The system and the people who control it don’t care about people and want people to stay in certain positions."
One of the most pervasive arguments against re-enfranchisement is the idea that those who break the law should not have the right to vote and choose lawmakers the same way others do. These arguments attempt to shift the conversation from blatant racism to protecting the "sanctity" of other citizens’ rights, Fettig explains. This doesn’t hold up when considering how a democracy is supposed to function.
“The punishment for breaking the law is handed out by juries in court. People are serving sentences sometimes in a community, or prison or jail. That doesn’t undermine the fact that they’re still citizens. Disenfranchisement should not be an added punishment. And frankly, we know that staying engaged in the community is actually the best form of rehabilitation and reentry,” Fettig says. “Our country has even decided that people who break the law should still have religious rights, like the right to marry and First Amendment rights. These are fundamental rights and so is voting in a democracy. Why should we take that away?”
Despite these persistent attempts to prevent formerly incarcerated people from reentering society as full citizens, advocates’ fights to restore voting rights rage on, as even voting rights victories wind up coming under attack. Florida, for one, restored voting rights for approximately 1.5 million formerly incarcerated people with the Voting Restoration Amendment in 2018.
Yet shortly after, the state government passed Senate Bill 7066, requiring all formerly incarcerated people in Florida to pay off legal financial obligations — including restitution, fines, fees, and court costs — before they could actually vote. Ultimately, this rendered the newly restored rights dead on arrival, with many formerly incarcerated people unable to pay. In response, the Southern Poverty Law Center (SPLC) waged a felony disenfranchisement suit, alleging that the bill violated the 19th Amendment, the 14th Amendment, and the 24th Amendment.
“We can’t have a true democracy when whole groups of citizens can’t vote and when accessing the right to vote is contingent on how much money you make,” Nancy Abudu, Deputy Legal Director for the SPLC, tells Refinery29. “It’s clear in a state like Florida – where cycle after cycle elections are won at the smallest of margins — that everyone’s voice and vote matters, so to intentionally limit hundreds of thousands from voting undercuts the very legitimacy of those election outcomes.” According to the SPLC, the case is currently stuck in the lower courts and didn’t have a chance to be resolved by the November 2020 election.
The case in Florida could have had an incredible effect on this year’s election, in the same way that restoring voting rights could have turned Florida and other swing states in the 2016 election, as well. According to ProPublica, the correction to the ballot measure may constitute the biggest instance of voter disenfranchisement in history, with 1 million newly disenfranchised people in Florida missing out on their right to choose the next president, as well as other key representatives. In fact, studies have found that disenfranchisement policies have likely affected the outcome of seven Senate races, as well as the 2000 Bush-Gore presidential election — the latter of which was directly affected by Florida’s voters.
“We can’t have a true democracy when whole groups of citizens can’t vote and when accessing the right to vote is contingent on how much money you make”
- Nancy Abudu
In response to disenfranchisement, campaigns like those conducted by Florida RRC (FRRC), a grassroots membership organization run by formerly incarcerated people, have dedicated time and resources to helping citizens pay their fines in order to vote. The League of Women Voters of Florida has also worked to match people with pro bono lawyers to help them find out what they owe the court system. And more recently, other campaigns helping to pay off fines have continued to arise, including efforts from former presidential candidate Michael Bloomberg, in a direct effort to make it possible for people to participate in the 2020 election.
But paying off fees is only a short-term fix rather than a long term solution, which is why the continued efforts of FRRC and other organizations to go straight to the source and fight back against unjust laws at the state and federal level.
According to Fettig and other advocates, the path forward is to fight for equal rights among all voters in the U.S. “I think it's important for all Americans to remember that these laws are being used to target particular groups of people to undermine their voices, but there’s no reason that laws can’t be used to target other groups,” Fettig says. “If we allow disenfranchisement to be used against one group of people, what’s going to stop people in power from targeting anyone else?”
“The public needs to understand that injustice anywhere is injustice everywhere, just like Martin Luther King Jr. said. Just because it’s happening to us doesn’t mean it won’t happen to them in the future,” says McCoy. “Even if it doesn't, we're part of your community. We deserve representation and a say, too.”