The Right to Vote

by Alexander Keyssar

  This local episode—largely unnoticed by the national press—was a vivid demonstration of the nonlinear evolution of the right to vote: even at the dawn of the twenty-first century, the franchise could contract as well as expand. Nonetheless, Massachusetts’s rollback in the rights of prisoners—similar to a step taken by Utah in 1998—ran counter to the predominant trend in felon disfranchisement law. During the final decades of the twentieth century, numerous states were loosening, rather than tightening, their restrictions, ending the automatic lifetime disfranchisement of convicted felons or adopting more flexible policies towards those on probation or parole. The impulse to press further in this direction was strengthened by the attention brought to the issue in Florida in 2000. The Sunshine State, which disfranchised convicted felons for life, contained by far the largest number of persons barred from voting because of their criminal records: estimates ranged as high as 800,000 by 2007. Such figures were shocking to many Americans, particularly because they included hundreds of thousands of individuals who had completed serving their sentences.54

  The issue of felon disfranchisement was also gaining visibility because of the extraordinary growth in the size of the nation’s prison population. Between 1972 and 2003, the number of persons in prison or jail increased tenfold, from 200,000 to more than two million; the number of parolees and probationers rose almost as fast. Although crime rates did not rise significantly during this period, arrest and conviction rates did, and those convicted tended to serve longer sentences—giving the United States by far the highest incarceration rate in the world. What this meant, of course, was that the number of persons potentially subject to felon disfranchisement laws was soaring: in 2000, according to the most widely credited estimate, the nation contained 4.7 million persons who were disfranchised because of their criminal records. The figures for African Americans (and especially African-American males) were even more dramatic and disturbing. Almost half of the prison and parole populations were African-American; more than 20 percent of African-American men born between 1965 and 1969 had prison records. In some states more than 15 percent of adult African-American men were disfranchised.55

  Campaigns to promote reform were vigorously pushed forward in different states by voting rights, civil rights, and prisoners’ rights organizations, including the American Civil Liberties Union and the small but effective Washington-based Sentencing Project. The thrust of their efforts was not to enfranchise incarcerated prisoners—although prisoners did vote in many countries around the globe—but to ensure the rapid restoration of political rights once a convicted felon had served his or her term. Doing so meant persuading state legislatures and governors to modify permanent disfranchisement provisions in states where they were still in force, to permit probationers and parolees to vote (they were barred in most states), and to streamline the procedures through which ex-felons could regain their voting rights. In some states, eliminating waiting periods and financial obstacles to enfranchisement (such as the payment of fines) were key issues. With strong support in the African-American community and among progressive Democrats (for whom principle and partisan interests coincided), advocacy groups argued both that it was unfair for political penalties to persist after felons had “served their time” and that reenfranchisement would strengthen the integration of offenders back into the community.56

  These efforts bore considerable fruit: between 2000 and 2008, more than a dozen states liberalized their felon-exclusion laws. Delaware, Maryland, Nebraska, and New Mexico repealed lifetime disenfranchisement provisions, while Iowa Governor Tom Vilsack obviated the need for a constitutional amendment by issuing an executive order creating an automatic restoration process for those who had completed their sentences. In Florida in 2007, Governor Charlie Crist fulfilled a campaign promise by breaking with his predecessor, Jeb Bush, and pushing a rules change through the Clemency Board: it authorized an almost automatic restoration of the franchise to felons who had served their time for nonviolent crimes. The change potentially affected more than 400,000 men and women, 115,000 of whom had formally regained their rights by the late spring of 2008. When “someone has paid their debt to society, it is paid in full,” Crist declared. (Administrative problems, however, prevented many former inmates from being informed that their rights had been restored.) Pennsylvania and Nevada eliminated postprison waiting periods for the restoration of rights, while Connecticut and Rhode Island voted to eliminate the disfranchisement of probationers (and in Rhode Island, parolees as well). In numerous states, the processes through which ex-felons applied to have their rights restored were simplified and expedited. According to one estimate, approximately 760,000 citizens had their rights restored between 1997 and 2008.57

  Still, resistance to liberalization of the laws did not disappear. Kansas tightened its restriction in 2002 by disfranchising probationers, while Mississippi in 2008 considered adding drug-related offenses to the 1890 constitution’s list of offenses that led to disfranchisement. In numerous states, proposals for liberalization lacked sufficient support to win passage through legislatures, while in others—including Alabama and New York—the rules governing the restoration of rights remained so complex and confusing that many ex-felons were deterred from even attempting to regain the franchise. Evidence abounded, in fact, that ex-felons in many states lacked a sure grasp of their legal rights; many election officials too were ill-informed about the details of their own state’s laws.58

  The issue, moreover, was frequently—and perhaps inescapably—embedded in partisan politics. Both Democrats and Republicans assumed, probably correctly, that most ex-felons—coming from poor or working-class backgrounds and being disproportionately African-American—would vote Democratic. Many Republicans were consequently reluctant to support legislation that could hurt their own electoral fortunes, and they regarded Democratic support for liberalization as transparently partisan. A Republican legislator in Tennessee, for example, claimed that Democrats “are desperate to find new voters, and they’ll get them from the prisons if that’s what it takes.” According to news reports, partisan concerns had also been crucial to Governor Jeb Bush’s opposition to reform in Florida, despite the unwelcome attention that the state had garnered for having such a huge number of disfranchised citizens.59

  Resistance to liberalization was also apparent in Congress, in part because of an enduring conviction (or at least an enduring rhetorical stance) that felon disfranchisement laws were a state, rather than federal, matter. In 2002, a proposal that would have prevented states from limiting the voting rights of ex-felons was overwhelmingly defeated in the Senate. Three years later, Senator Hillary Clinton was among those sponsoring a bill that would have guaranteed the voting rights of ex-felons in national elections, but it never came close to passage; in September 2008, Senator Russ Feingold and Congressman John Conyers introduced a similar bill. For the most part, attempts to challenge the exclusion of ex-felons in state and federal courts were also unsuccessful.60

  By November of 2008, thus, advocates of reform could point to a mixed record of successes and failures. Without doubt, the most significant change was the dismantling of many of the lifetime exclusions still in force during the final years of the twentieth century: seven of the states that had had such laws either repealed them or instituted restoration procedures that were far more accommodating to at least some ex-felons. This shift reflected an increasingly broad consensus that a convicted felon should not be deprived of political rights for a period longer than his or her sentence. There was, however, far less agreement about precisely when a felon’s sentence should be considered to have ended. Only in fourteen states (all of them in the North or the West) was the franchise regained automatically when a person was released from prison. Elsewhere, ex-felons had to wait until they were no longer on parole or probation. Inmates themselves remained voteless except in Maine and Vermont.61

  Despite the liberalization of many state laws, moreover, the number of persons subject to di
sfranchisement continued to climb. By 2008, one out of every one hundred adults in the United States (and one out of every fifteen adult African-American men) was behind bars; a total of more than seven million people were in prison, on probation, or on parole. These historically high figures meant that more than 5.3 million Americans were barred from the polls because of their criminal records. Men and women with felony convictions consequently remained the most sizable group of American citizens who lacked the right to vote. That this group consisted so disproportionately of African Americans and other minorities led the United Nations Committee on the Elimination of Racial Discrimination to call on the United States to automatically restore the franchise to those who had completed their criminal sentences.62

  Suppression and Fraud

  Partisan tension over voting rights was not limited to issues involving ex-felons. Indeed, in ways profoundly reminiscent of the late nineteenth and early twentieth centuries, the years between 2000 and 2008 were marked by frequent political disputes and incessant skirmishing over the exercise of the right to vote. Neither the passage of HAVA nor the 2006 reauthorization of the Voting Rights Act (see Chapter 8) tempered the acrid distrust between the two major political parties that had become so visible in 2000. Bitter debates over voting and election issues were commonplace in state legislatures, while lawsuits abounded both before and after elections. Business was brisk for attorneys who specialized in election law.

  In the eyes of many Democrats, voting rights activists, and African Americans, the primary source of conflict was the ongoing Republican strategy—or at least proclivity—to suppress voters, to keep legitimate, law-abiding citizens from registering and casting ballots. Poor and minority communities seemed to be particular targets of suppression efforts since their members (especially African Americans) were regarded as overwhelmingly likely to vote Democratic. The accusation of “voter suppression” was a contentious, even incendiary, one, both because it rubbed the wounds of historical patterns of exclusion and because it implied that Republicans were unwilling to respect a basic tenet of democratic practice.

  Yet, incendiary or not, evidence kept accumulating that at least some Republicans were, in fact, engaged in actions designed to keep citizens from voting. In Florida in 2004, for example, Republican officials again developed a list of felons whose names were to be purged from the voter rolls—despite the problems that had arisen with such lists in 2000. Remarkably the 2004 list also proved to be severely flawed, containing the names of thousands of persons whose rights had already been restored. Even more disturbing, the purge list was racially skewed in a manner that appeared partisan: it included the names of more than twenty-two thousand African Americans yet only sixty-one Latinos, who in Florida tended to vote Republican. After journalists exposed these problems in the summer of 2004, the lists were withdrawn from use.63 During the same election season, Republicans in cities around the country sent poll watchers into predominantly black neighborhoods to challenge prospective voters, leading to complaints about intimidation, while in South Dakota there were well-documented instances of Native-American voters being barred from the polls because they failed to present identification papers, even though the law did not require them to do so. In July 2004, a Republican legislator in Michigan told the Detroit Free Press that “if we do not suppress the Detroit vote, we’re going to have a tough time in this election cycle.” Meanwhile, Colorado’s secretary of state announced that provisional ballots cast at the wrong polling place would not be counted in a senatorial race that was expected to be close.64

  Republican officials, both state and federal, also attempted to block voter registration drives aimed at new voters. In New Mexico, in 2004, rules were adopted prohibiting the registration of new voters at hospitals and clinics managed by the federally run Indian Health Service—although registration activities were permitted at local army bases. In 2008, the Department of Veterans Affairs took a similar step, banning registration drives among veterans at nursing homes, shelters, and rehabilitation facilities across the country. That same year (as well as in 2006), Florida’s state government effectively shut down registration drives conducted by the League of Women Voters when it decided to enforce new laws that imposed heavy fines on groups that lost registration forms or turned them in late. Throughout these years, moreover, the Department of Justice seemed little interested in safeguarding the political rights of minorities: Joseph Rich, the former chief of the voting section of the Civil Rights Division, reported that “from 2001 to 2006, no voting discrimination cases were brought on behalf of African-American or Native-American voters.”65

  For many Democrats and activists, any doubts about the existence of a Republican suppression strategy were dispelled by what transpired in Ohio before and during the 2004 presidential election. Ohio, of course, was a critical swing state, and, as many analysts had predicted, President Bush’s narrow victory in the state proved to be essential to his reelection. Beginning months before the election, Republican officials in Ohio, led by Secretary of State J. Kenneth Blackwell, were taking steps tailored to encourage that outcome—steps that went beyond the normal rough-and-tumble of partisan politics. Faced with a major registration drive that was signing up large numbers of Democratic voters, for example, Blackwell issued a highly unusual directive to county election boards instructing them to reject all registration forms that were not “printed on white, uncoated paper of not less than 80 lb. text weight.” After weeks of protest and ridicule (it turned out that the forms available from Blackwell’s own office were on 60 lb. paper), he withdrew the directive. The secretary had more impact with a set of directives regarding provisional ballots: he, illegally, ordered election officials not to offer provisional ballots to individuals that they did not personally recognize or to people who claimed not to have received absentee ballots. In addition, he instructed county boards not to count provisional ballots cast by voters who had reported to the wrong polling place—a policy technically permitted by HAVA but clearly violating its intent. On election day itself, urban residents—particularly those residing in poor and minority neighborhoods—found themselves further disadvantaged by county-level decisions regarding the allocation of voting machines. Suburban, Republican areas received proportionally more machines than did urban, Democratic ones, leading to extremely long lines at the polls in cities like Columbus and Cleveland. In addition, the state Republican Party engaged in the unusual tactic of sending registered letters to new voters in urban neighborhoods and then challenging the registrations of those for whom they did not receive return receipts. Several investigations conducted in the wake of the election concluded that this assembly of steps likely cost the Democrats tens of thousands of votes.66

  Nonetheless, Republicans emphatically denied that they had any strategy of “voter suppression,” and on occasion they even turned the tables, pointing to instances where Democrats had allegedly tried to prevent Republicans from voting by, for example, slashing the tires of Republican get-out-the-vote vans in Milwaukee. More commonly, Republican analysts, like the Wall Street Journal ’s John Fund, acknowledged that some “dirty tricks” had occasionally been played, yet they insisted that, since the 1980s, there had been no programs aimed at preventing “minorities from voting.” Any steps that Republican activists or strategists had taken were straightforward measures designed to prevent fraud and to ensure that only legal voters were able to cast ballots.67

  Indeed, many Republicans remained convinced that election fraud was a widespread and systemic problem, rooted largely in Democratic efforts to enroll new voters (qualified or not), get them to the polls (sometimes with cash inducements), and remove legal safeguards (like the presentation of identification documents) that could protect the sanctity of the ballot box. Among the most frequently cited instances of such fraud were the Miami mayoral election of 1997, the close Missouri elections of 2000 and 2004, and the high-stakes senatorial election in South Dakota in 2002, where Native-American votes were
critical to the outcome. One Republican activist, attorney Mark F. (Thor) Hearne, testified to Congress that there had also been “massive registration fraud” in Ohio in 2004, including the submission of phony registration forms for Dick Tracy, Mary Poppins, and Michael Jackson.68

  Whether such examples—even if accurately depicted and however colorful the details—amounted to a systemic problem was the question at the heart of an increasingly rancorous partisan debate. Books, reports, and testimony piled up on both sides of the issue, sometimes recycling disputed allegations, sometimes offering point-by-point refutations of opposing claims.69 In 2006, not inappropriately, the Election Assistance Commission stepped into the fray—only to get burned for doing so. The EAC commissioned a study of voter fraud to be carried out by two consultants with different partisan inclinations, Tova Wang from the Century Foundation and Job Serebrov, a Republican election lawyer from Arkansas. A draft report of their study was submitted to the EAC in August 2006; it concluded that apprehensions about voter fraud were often overstated and based on anecdotes rather than systematic evidence. Among experts, they concluded, “there is widespread but not unanimous agreement that there is little polling place fraud.” The EAC, however, declined to release the draft report, and four months later issued a revised document with the far more equivocal conclusion that “there is a great deal of debate on the pervasiveness of fraud.” In 2007, Congressional Democrats demanded the release of the original draft report and excoriated the EAC for having succumbed to Republican pressure by altering the report’s conclusion. Members of the EAC responded that the draft report’s research was not adequate to support its conclusions.70