NEWSFELON VOTING RIGHTS

When Americans go to the polls Nov. 2, five million among us won't be invited.

The reason is a patchwork of state laws disenfranchising people with criminal records. And although a new report from the Sentencing Project finds progress over the last decade (800,000 people got the vote in 24 states thanks to reforms), there's still work to do. Challenges to felon disenfranchisement laws have had a rough few weeks in the federal courts, and millions of people who have finished their sentences -- many of them poor -- are still without the right to vote.

The New York Times championed voting rights for felons in an editorial this week: "Democracy is strengthened when as many citizens as possible have the right to vote. Fully integrating ex-offenders back into society is also the best way to encourage their lasting rehabilitation."

In 2000, Massachusetts stripped convicted felons of the right to vote. In response, a small group of inmates filed suit against the state, claiming that the new law was a violation of the Voting Rights Act. That case swam about in the waters of the court system for years, until this week when the U.S Supreme Court declined to hear the case and effectively killed it.

It's a sad turn of events, though not entirely unexpected. Federal appeals courts are currently split on the issue of whether the Voting Rights Act can be applied to felon disenfranchisement, but that conflict has not been simmering overly long so it's no great surprise that the high court chose to leave it on the flame a bit longer. When they do take up the issue, we'll revisit.

But in the meantime, I'd like to touch on this case's back story.

It all started in the late nineties. Massachusetts was one of only three states to allow incarcerated felons to vote (the other two were Maine and Vermont) and politically active prisoners decided to take advantage of that right. They formed a Political Action Committee, and set their minds to using the electoral system to reform the criminal justice system.

It was a fascinating turn of events and a laudable commitment to the political system as far as I'm concerned, but the commonwealth's non-incarcerated citizens did not agree. Rather than congratulating the inmates for their civic mindedness, the state held a referendum to strip them of their voting rights. It passed with an overwhelming majority. Thus was born the lawsuit that just died.

We tend to think of the movement to strike felon disenfranchisement laws as a progressive one, a bold strike to carve out new rights for the currently or formerly incarcerated. But in this case the lawsuit in question was a conservative move, a holding action, an attempt to keep things as they were. And it makes opponents to felon enfranchisement in Massachusetts seem that much more unreasonable. After all, opposing a conservative measure requires answering the question, "What's wrong with the way things are?" And it's hard to claim with a straight that Massachusetts' prisons were disrupting the political system before they lost the right to vote only a decade ago.

Photo Credit: A. Strakey

There are 11 states that do not reinstate the voting rights of convicted felons who have served their time. Each needs to pass new laws mandating automatic reinstatement of voting rights. (Or, better yet, pass laws that get rid of disenfranchisement all together.)

Without automatic reinstatement, people are left wondering whether the political winds will blow their way. Will the next governor be inclined to approve applications for reinstatement, or inclined to deny them? And how long will the process take? It is unfair to leave people guessing about the state of their rights like that, and too often they end up waiting for a disappointment.

That's why it's so pleasant to hear that Robert McDonnell, Virginia's Republican governor, is -- to the surprise of almost everyone -- approving 88 percent of the applications he has received from former inmates hoping to have their rights restored. And he's doing it efficiently, within 60 days for the most part. (Read more after the jump.)

We regularly talk about the consequences of incarceration, be they unemployment, homelessness or psychological trauma. But the discussion is almost universally focused on the consequences for the individuals involved, not society. And that makes sense, because the broader picture is poorly understood.

Recently, a study by political scientists Vesla Weaver and Amy Lerman took a stab at teasing out what effect mass incarceration policies have on democracy. They argue that: "encounters with criminal justice institutions can negatively affect perceptions of government, rates of political participation and engagement in civic life. Punitive developments therefore have an important feedback effect for politics."

Their paper “Political Consequences of the Carceral State” is fascinating, and well worth a read. Among the more significant findings:

In April, we wrote about the case Farrakhan v. Gregoire, an important voting rights case originating in Washington. In Farrakhan, the Ninth Circuit Court of Appeals overturned Washington state's felon disenfranchisement law, ruling that it was a violation of the Voting Rights Act—potentially paving the way for that state's estimated 167,000 disenfranchised voters to head to the polls. And, possibly, setting the stage for similar challenges to prevail countrywide. It was a win for inclusive democracy.

But celebration over the court's decision was soon dampened. Only months after their ruling, the court agreed to rehear the case en banc, creating the possibility that the Ninth Circuit could reverse itself.

For months the case was in a sort of limbo, but now the court has chosen a date to rehear it, September 21. At which time the major point of debate will be whether the Voting Rights Act was intended to apply to prisoners.

It's a major issue, with potentially far reaching implication—there are an estimated 5.3 million people prohibited from voting as a result of criminal convictions—and it has only gotten more complicated since we last wrote about it.

Last month, Virginia Gov. McDonnell not only declared that he wanted to celebrate Confederate History Month — he also instituted de facto literacy tests for felons applying for reenfranchisement.

But just as McDonnell earned the uproar that ensued, he now deserves credit for streamlining the process to restore felons' voting rights.

The news comes as a surprise. McDonnell's just-announced improvements on the system, though, include reducing the time that non-violent offenders felons have to wait before petitioning the governor for their voting rights (from three to two years). He also promises executive action on each petition within 60 days of its filing.

These moves should be applauded, but not without reservation.

After all, Virginia remains one of only two states that still require executive action to restore offenders' voting rights. The commonwealth's law to automatically disenfranchise felons was born out of a 1902 plan to — in the words of a lawmaker at the time — "eliminate the darkey as a political factor in this State in less than 5 years, so that in no single county … will there be the least concern felt for the complete supremacy of the white race in the affairs of government." Such law remains impressively effective at silencing black voices, disenfranchising proportionally five times more African-Americans voters than voters in the general population.

There’s no better way to tell released prisoners that they’re not welcome back in free society than by denying them the vote.

But for years, New York has done just that, along with 30 other states. Yet this year, bills before state lawmakers could put this disastrous policy in the past. And you can help make it happen.

Not coincidentally, felon disenfranchisement laws affect almost exclusively minority groups: more than 80% of former prisoners denied the vote in New York are black or Latino.

If New York moves on these proposed reforms, the state would become a leader in the fight to eliminate felon disenfranchisement law. Take action today: write to the New York legislature and tell them to grant voting rights to people on parole.

As Michael Hamden's previously blogged here, and as the Brennan Center for Justice writes in "Jim Crow in New York," the history of such disenfranchisement traces directly to racist policies that began during the Civil War. For example, for a period in the 19th century, New York was the only state that required blacks — and only blacks — to own property in order to vote.

We continue to see that legacy today. Chris Cassidy recently Read More »

Maybe you've had the thought that felon disenfranchisement is something that the Supreme Court should surely weigh in on. After all, plenty of the great blows for racial justice in U.S. history have been struck by its highest court.

But as we noted earlier today, the Supreme Court has just received word of a development that makes it less likely for the moment that it will do so. And as it turns out, that's a good thing — it will leave hope for another day.

The letter the Supreme Court received today from the Massachusetts Attorney General's office alerted the justices to the potential dissolution of a split between appeals courts on whether depriving felons of voting rights violates federal law. The Boston-based First Circuit, New York-based Second Circuit, and Atlanta-based Eleventh Circuit Courts of Appeals have all upheld laws depriving felons of the right to vote. Twice, though — most recently in January — the San Francisco-based Ninth Circuit Court of Appeals has determined that felon disenfranchisement violates the Voting Rights Act, which prohibits laws that disproportionately deprive minorities of the right to vote. When the circuits disagree — called a "circuit split" — it often prompts the Supreme Court to step in and resolve that difference. But that might not be necessary, as the Ninth Circuit may be backing away from upholding felons' constitutional rights.

Earlier this week, the Ninth Circuit decided to get the whole gang together and re-hear the felons' voting rights case, initially considered by only three circuit judges. This kind of re-hearing is fairly common and gives 11 circuit judges the opportunity to reconsider decisions made by three-judge panels. It only occurs, however, when a majority of the circuit's judges vote to re-hear a particular case. So the fact that the Ninth Circuit is reviewing a decision that they have already made twice might signal that they'll reverse that decision — and uphold felon disenfranchisement laws over felons' and civil rights advocates' objections.

That would be a blessing, actually. But it would only benefit reform advocates if the Ninth Circuit moves before the Supreme Court makes its decision on whether to review the case. Why? Let me explain.

This January, the 9th Circuit Court of Appeals overturned Washington's felon disenfranchisement law. It was a huge win for the state's estimated 167,000 disenfranchised voters, to say nothing of the plaintiffs, who had been pursuing their claim since 1996. You could say it was a win for inclusive democracy — it certainly was. And yet all of this was mingled with some trepidation, because from the moment the decision was published, there were murmurs that an appeal was unavoidable.

Now, advocates' fears have come true. The 9th Circuit has agreed to rehear the case, Farrakhan v. Gregoire, before a full panel of judges.

The court's original decision to reject a law that banned felons from voting turned on the plaintiffs' claim that the state's criminal justice system was unfair to blacks, Latinos and other ethnic minorities — which the court agreed with. As the judges concluded their majority decision: “Plaintiffs have demonstrated that the discriminatory impact of Washington’s felon disenfranchisement is attributable to racial discrimination in Washington’s criminal justice system."

Virginia Governor Bob McDonnell (left) appears to be on his heels for the second time in two weeks. On Tuesday, we wrote about the controversial letters his administration sent last week to nonviolent felons who want their voting rights restored. Issued by Director of Rights Restoration Micah Womack — and subsequently defended by Secretary of the Commonwealth Janet Polarek and Deputy Secretary Christie Heath — the letters informed Virginia ex-cons that they would face an additional hurdle when applying for re-enfranchisement: an essay requirement.

Now, though, Gov. McDonnell is back-pedaling away from that move, which looked disturbingly like the old southern-state literacy tests once used to keep African-American voters from the voting booth. The impression wasn't helped by the fact that felon disenfranchisement — a direct vestige of the Jim Crow era — already disproportionately disenfranchises black voters.

After a barrage of critical reports and a call to action answered by numerous Change.org readers, though, Gov. McDonnell says it was all a big understanding. The letters, he says, were sent out in error.

McDonnell's rush to blame "a well-meaning staffer" for the gaffe occurs in the wake of his recent apology for forgetting to mention slavery in his proclamation celebrating "Confederate History Month." So count 'em: that's twice in just over one week that Gov. McDonnell's insensitivity (or even hostility) to black history and communities ignited a firestorm from which he was later forced to retreat.