Felony disenfranchisement

History

In Western countries, felony disenfranchisement can be traced back to ancient Greek and Roman traditions: disenfranchisement was commonly imposed as part of the punishment on those convicted of "infamous" crimes, as part of their "civil death", whereby these persons would lose all rights and claim to property. Most medieval common law jurisdictions developed punishments that provided for some form of exclusion from the community for felons, ranging from execution on sight to exclusion from community processes.

Background

The United States is among the most punitive nations in the world when it comes to denying the vote to those who have been convicted of a felony offence.

In the U.S., the constitution implicitly permits the States to adopt rules about disenfranchisement "for participation in rebellion, or other crime", by the fourteenth amendment, section 2. It is up to the states to decide which crimes could be ground for disenfranchisement, and they are not formally bound to restrict this to felonies; however, in most cases, they do. Felons are allowed to vote in most states of the US. Between 1996 and 2008 twenty-eight states changed their laws on felon voting rights, mostly to restore rights or to simplify the process of restoration. Since 2008 state laws have continued to shift, both curtailing and restoring voter rights, sometimes over short periods of time within the same state.

Current practices

As of 2008 over 5.3 million people in the United States were denied the right to vote due to felony disenfranchisement. Approximately 13% of the United States' population is African American, yet African Americans make up 38% of the American prison population. Slightly more than 15% of the United States population is Hispanic, while 20% of the prison population is Hispanic. People who are felons are disproportionately people of color. In the United States, felony disenfranchisement laws disproportionately affect communities of color as "they are disproportionately arrested, convicted, and subsequently denied the right to vote". Research has shown that as much as 10% of the population in some minority communities in the United States are unable to vote as a result of felony disenfranchisement.

A 2003 study found that states with high non-white prison populations were more likely than others to pass felon disenfranchisement laws, even after controlling for numerous other factors, which supports the racial threat hypothesis.

In the national elections 2012, all the various state felony disenfranchisement laws added together blocked an estimated 5.85 million felons from voting, up from 1.2 million in 1976. This comprised 2.5% of the potential voters in general; and included 8% of the potential African-American voters. The state with the highest number of disenfranchised voters was Florida, with 1.5 million disenfranchised, including more than a fifth of potential African-American voters.

Reform efforts

Felony disenfranchisement was a topic of debate during the 2012 Republican presidential primary. Rick Santorum argued for the restoration of voting rights for convicted felons who had completed sentences and parole/probation. Santorum's position was attacked and distorted by Mitt Romney, who alleged that Santorum supported voting rights for felons while incarcerated rather than Santorum's stated position of restoring voting rights only after the completion of sentence, probation and parole. Former President Barack Obama supports voting rights for ex-offenders.

In the years 1997 to 2008, there was a trend to lift the disenfranchisement restrictions, or simplify the procedures for applying for the restoration of civil rights for people who had fulfilled their punishments for felonies. As a result, in 2008 more than a half million people had the right to vote, who would have been disenfranchised under the older rules. Since then, more severe disenfranchisement rules have been passed in several states.

State reforms

In 2007, Florida's Republican Governor Charlie Crist pushed to make it easier for most convicted felons to regain their voting rights reasonably quickly after serving their sentences and probation terms. In March 2011, however, Republican Governor Rick Scott reversed the 2007 reforms. Felons may not apply to the court for restoration of voting rights until seven years after completion of sentence, probation and parole.

In Iowa in July 2005, Democratic Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who had completed supervision. On October 31, 2005, Iowa's Supreme Court upheld mass re-enfranchisement of convicted felons. But, on his inauguration day, January 14, 2011, Republican Governor Terry Branstad reversed Vilsack's executive order, disenfranchising thousands of people.

Nine other states disenfranchise felons for various lengths of time following their conviction. Except for Maine and Vermont, and as of September 2016 California, every state prohibits felons from voting while in prison.

Constitutionality

Unlike most laws that burden the right of citizens to vote based on some form of social status, felony disenfranchisement laws have been held to be constitutional. In Richardson v. Ramirez (1974), the United States Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. The Court looked to Section 2 of the Fourteenth Amendment to the United States Constitution, which proclaims that States which deny the vote to male citizens, except by "participation in rebellion, or other crime," will suffer a reduction in representation. Based on this language, the Court found that this amounted to an "affirmative sanction" of the practice of felon disenfranchisement, and the 14th Amendment could not prohibit in one section that which is expressly authorized in another.

But, critics of the practice argue that Section 2 of the 14th Amendment allows, but does not represent an endorsement of, felony disenfranchisement statutes as constitutional in light of the equal protection clause and is limited only to the issue of reduced representation. The Court ruled in Hunter v. Underwood 471 U.S. 222, 232 (1985) that a state's crime disenfranchisement provision will violate Equal Protection if it can be demonstrated that the provision, as enacted, had "both [an] impermissible racial motivation and racially discriminatory impact." (The law in question also disenfranchised people convicted of vagrancy, adultery, and any misdemeanor "involving moral turpitude"; the test case involved two individuals who faced disenfranchisement for presenting invalid checks, which the state authorities had found to be morally turpid behavior.) A felony disenfranchisement law, which on its face is indiscriminate in nature, cannot be invalidated by the Supreme Court unless its enforcement is proven to racially discriminate and to have been enacted with racially discriminatory animus.

Classifications

Restoration of voting rights for people who are ex-offenders varies across the United States. Primary classification of voting rights include:

Unrestricted

Maine and Vermont are the only states with unrestricted voting rights for people who are felons. Both states allow the person to vote during incarceration, via absentee ballot and after terms of conviction end.

Ends after release

In fourteen states and the District of Columbia, disenfranchisement ends after incarceration is complete: District of Columbia, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, and Utah.

In February 2016 the Maryland General Assembly restored the right to vote for more than 40,000 released felons, overriding a veto by Governor Larry Hogan. Maryland’s Senate approved the bill on a narrow 29-18 vote, while the state House of Delegates voted 85-56 in favor of it on January 20. Convicted felons under parole or probation had their right to vote restored. The law is to go into effect in late March, one month before the state's April 26 primaries.

Ends after parole

In four states, disenfranchisement ends after incarceration and parole (if any) is complete: California, Colorado, Connecticut, and New York.

Ends after probation

Nineteen states require not only that incarceration/parole if any be complete but also that any probation sentence (which is often an alternative to incarceration) is complete: Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, Nebraska (Completion of probation + 2 years; treason convicts permanently lose the right to vote), New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, West Virginia (The prosecutor can request the court to revoke voting rights if financial obligations are unmet), Wisconsin.

Circumstantial

Ten states have laws that relate disenfranchisement to the detail of the crime. These laws restore voting rights to some offenders on the completion of incarceration, parole, and probation. Other offenders must make an individual petition that could be denied.

Individual petitions required

Three states require individual petition to the court for restoration of voting after all offenses.

Felony conviction thresholds affected by inflation

Various property crimes can have absolute dollar amount thresholds. For example, in Massachusetts under penalties specified in MGL Chap. 266: Sec. 127, a prosecution for malicious destruction of property can result in a felony conviction if the dollar amount of damage exceeds $250.

In Europe

In general, during the recent centuries, the European countries have increasingly made suffrage more accessible. This has included retaining disenfranchisement in fewer and fewer cases, including for criminal offenses. Moreover, most European states, including most of those outside the European Union, have ratified the European Convention on Human Rights, and thereby agreed to respect the decisions of the European Court of Human Rights. In the case Hirst v United Kingdom (No 2) the Court in 2005 found that general rules for automatic disenfranchisements resulting from convictions to be against human rights. This ruling applied equally for prisoners and for ex-convicts. The ruling did not exclude the possibility of disenfranchisement as a consequence of deliberation in individual cases (such as that of Mohammed Bouyeri). The United Kingdom has not respected this Court opinion, although it is a signatory to the Convention (see below).

United Kingdom

In the United Kingdom, prohibitions from voting are codified in section 3 and 3A of the Representation of the People Act 1983. Excluded are incarcerated criminals (including those sentenced by courts-martial, those unlawfully at large from such sentences, and those committed to psychiatric institutions as a result of a criminal court sentencing process). Civil prisoners sentenced (for non-payment of fines, or contempt of court, for example), and those on remand unsentenced retain the right to vote.

The UK is subject to Europe-wide rules due to various treaties and agreements associated with its membership of the European Community. The Act does not apply to elections to the European Parliament. Following Hirst v United Kingdom (No 2) (2005), in which the European Court of Human Rights (ECHR) ruled such a ban to be disproportionate, the policy was reviewed by the UK government. In 2005 the Secretary of State for Constitutional Affairs, Lord Falconer of Thoroton, stated that the review may result in the UK allowing some prisoners to vote. In 2010 the UK was still reviewing the policy, following an "unprecedented warning" from the Council of Europe. The UK government position was then that

"It remains the government's view that the right to vote goes to the essence of the offender's relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. The issue of voting rights for prisoners is one that the government takes very seriously and that remains under careful consideration."

Parliament voted in favor of maintaining disenfranchisement of prisoners in 2011 in response to Government plans to introduce legislation. Since then the Government has repeatedly stated that prisoners will not be given the right to vote in spite of the ECHR ruling.

In response to the ECHR ruling, Lord Chancellor and Secretary of State for Justice Chris Grayling produced a draft Voting Eligibility (Prisoners) Bill for discussion by a Joint Committee, incorporating two clear options for reform and one which would retain the blanket ban.

Ireland

For elections in the Republic of Ireland, there is no disenfranchisement based on criminal conviction, and prisoners remain on the electoral register at their pre-imprisonment address. Prior to 2006, the grounds for postal voting did not include imprisonment, and hence those in prison on election day were in practice unable to vote, although those on temporary release could do so. In 2000 the High Court ruled that this breached the Constitution, and the government drafted a bill extending postal voting to prisoners on remand or serving sentences of less than six months. However, in 2001, the Supreme Court overturned the High Court ruling and the bill was withdrawn. After the 2005 ECHR ruling in the Hirst case, the Electoral (Amendment) Act 2006 was passed to allow postal voting by all prisoners.

Italy

In Italy, the most serious offenses involve the loss of voting rights, while for less serious offenses disqualification the judge can choose if there will be some disenfranchisement. Recently, however, the ‘decree Severino’ added a loss of only the right to stand for an election, against some offenders above a certain threshold of imprisonment: it operates administratively, with fixed duration and without intervention of the court. Many court actions have been presented, but the electoral disputes follows antiquated rules and the danger of causes seamless in terms of eligibility and incompatibility is very high, also at local level.

Other European countries

Several European countries permit disenfranchisement by special court order, including France, Germany (reinstated after 2–5 years) and the Netherlands (such as in the case of Muhammad Bouyeri). In several others, no disenfranchisements due to criminal convictions exist. Moreover, many European countries encourage people to vote, such as by making pre-voting in other places than the respective election locales easily accessible. This often includes possibilities for prisoners to pre-vote from the prison itself. This is the case for example in Finland.

In Germany the law calls on prisons to encourage prisoners to vote. Only those convicted of electoral fraud and crimes undermining the "democratic order", such as treason, are barred from voting while in prison.

In Sweden parliamentary parties have held campaign meetings in prisons.

In Australia

At Federation in Australia the Commonwealth Franchise Act 1902 denied the franchise to vote to anyone 'attainted of treason, or who had been convicted and is under sentence or subject to be sentenced for any offence … punishable by imprisonment for one year or longer’.

In 1983 this disqualification was relaxed and prisoners serving a sentence for a crime punishable under the law for less than a maximum five years were allowed to vote. A further softening occurred in 1995 when the disenfranchisement was limited to those serving a sentence of five years or longer, although earlier that year the Keating Government had been planning legislation to extend voting rights to all prisoners. Disenfranchisement does not continue after release from jail/prison.

The Howard Government legislated in 2006 to ban all prisoners from voting. In 2007, the High Court of Australia in Roach v Electoral Commissioner found that the Constitution enshrined a limited right to vote, which meant that citizens serving relatively short prison sentences (generally less than three years) cannot be barred from voting. The threshold of three years or more sentence will only result in removal of a prisoner's right to vote in the federal election. Depending on the threshold of exclusion which is distinct in each state, a prisoner may be able to vote in either the state election or the federal election. For example, prisoners in NSW serving a sentence of longer than one year is not entitled to vote in the State elections.

In other countries

Most democracies give convicted criminals the same voting rights as other citizens.

In both China and Taiwan, the abrogation of political rights is a form of punishment used in sentencing, available only for some crimes or along with a sentence of death or imprisonment for life. Rights that are suspended in such a sentence include the right to vote and to take public office, as well as the rights to political expression, assembly, association, and protest. In New Zealand, people who are in prison are not entitled to enroll while they are in prison.

Many countries allow inmates to vote, including Canada, Croatia, Czech Republic, Denmark, Finland, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Serbia, Sweden, and Zimbabwe.

On 8 December 2008, Leung Kwok Hung (Long Hair), member of Hong Kong's popularly elected Legislative Council (LegCo), and two prison inmates, successfully challenged disenfranchisement provisions in the LegCo electoral laws. The court found blanket disenfranchisement of prisoners to be in violation of Article 26 of the Basic Law and Article 21 of the Bill of Rights and the denial to persons in custody of access to polling stations as against the law. The government introduced a bill to repeal the provisions of the law disenfranchising persons convicted of crimes (even those against the electoral system) as well as similar ones found in other electoral laws, and it made arrangements for polling stations to be set up at detention centers and prisons. LegCo passed the bill, and it took effect from 31 October 2009, even though no major elections were held until the middle of 2011.