Federal court rules Jim Crow-era felony voting law is constitutional

Felony disenfranchisement

5.2 million voting-age Americans cannot legally vote due to criminal convictions. That’s 2.3%, or 1 in 44 citizens, who have had their right to participate in civil society revoked—often even after serving their time in jail.

Only Maine, Vermont, Washington DC, and the Commonwealth of Puerto Rico do not restrict the voting rights of anyone with a felony conviction, including those in prison.

17 states revoke the voting rights of people while serving time in prison: California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, and Washington.

17 states restrict the voting rights of people with felony convictions until they have served the full duration of prison, parole, and probation: Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin.

11 states do not restore the voting rights for some or all convicted of a felony, even after their sentences are served:

Alabama: Individuals who have completed their sentences (including parole and probation) and paid off all fines/fees, for crimes other than murder, rape, or child pornography, are eligible to apply for their voting rights to be restored.

Arizona: Individuals with one felony conviction will have their voting rights restored after serving their sentence, parole/probation, and repaying all fines, fees, and restitution. People with two or more felonies are permanently barred from voting, unless they seek to have their rights restored through a court process or a pardon. Possession of fewer than 2 pounds of marijuana, theft of property valued between $1,000 and $2,000, and criminal damage that causes between $250 and $2,000 of losses are examples of low-level felonies that can cause the permanent loss of voting rights in Arizona.

An estimated 221,170 people with felony convictions are barred from voting in Arizona. Only 20% of the disfranchised are in prison. Almost 116,717 individuals, about 53% of the disfranchised population, have fully completed their sentences… Arizona has the eighth highest rate of African-American disfranchisement in the United States. African Americans comprise 11.89% of the disfranchised population, even though they comprise only 4% of the state’s voting age population.

Delaware: People who are convicted of certain disqual­i­fy­ing felon­ies – includ­ing murder, bribery, and sexual offenses – are perman­ently disen­fran­chised.

Florida: Individuals with felony convictions can theoretically have their voting rights restored after serving their sentence, including parole and probation, and after paying all fines, fees, and restitution. However, in practice, this is complicated by the fact that many people are unable to find out how much they owe the state. Possession of cocaine, possession with intent to sell marijuana, and theft of property valued greater than $750 but less than $20,000 are examples of low-degree felonies in Florida.

Iowa: Individuals convicted of homicide, manslaughter, or feticide—which includes the voluntary termination of a pregnancy after the second trimester—are permanently disenfranchised.

Kentucky: People convicted of violent crimes are permanently disenfranchised unless the governor intervenes to restore their rights.

Mississippi: People convicted of one of 23 crimes permanently lose their right to vote unless the governor or the state legislature explicitly restores their individual rights. These crimes include violent felonies like murder and rape, but also robbery, receiving stolen goods, forgery, and voter fraud.

Nebraska: Individuals convicted of a felony must wait two years after completing parole or probation before their right to vote is restored.

Tennessee: All individuals convicted of a felony are permanently disenfranchised unless a criminal court clerk or parole/probation officer filled out a restoration form on the felon’s behalf seeking the return of voting rights.

Virginia: People with a felony conviction are permanently disenfranchised unless their voting rights are restored by the governor.

Wyoming: Individuals convicted of more than one felony or a violent felony are permanently disenfranchised. Five years after completing their sentence, including parole/probation, they may apply to the governor to restore voting rights.

Spotlight: Mississippi

The 5th Circuit Court of Appeals voted to uphold a Jim Crow law that was specifically adopted to disenfranchise Black residents for life.

The court’s conservative majority held that the state’s 1890 amendment to the constitution permanently disenfranchising individuals convicted of “black crimes” was undeniably racist. Delegates at the Mississippi capitol in 1890 were not shy about their purpose. The convention’s president, Solomon Saladin Calhoon, explicitly said, “We came here to exclude the Negro. Nothing short of this will answer” Part of this plan included a literacy test and poll tax; the other part included a provision to exclude people convicted of specific crimes from voting.

Every male inhabitant of this State, except idiots, insane persons and Indians not taxed, who is a citizen of the United States…who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy…is declared to be a qualified elector…

You may notice that murder is not on the list. That’s because the white supremacists in power at the time chose crimes that they believed, based on prejudices, Black people were more likely to commit. There is no contention among the conservative majority that the 1890 convention to amend the constitution was “steeped in racism.”

However, the majority reasoned (pdf), because the state has since amended the provision twice—removing burglary from the list of crimes that would result in disenfranchisement in 1950 and adding rape and murder to the list of disenfranchising crimes in 1968—the blatantly racist intent has now been cleansed.

…we remain confident, contrary to plaintiffs’ principal assertion, that the critical issue here is not the intent behind Mississippi’s 1890 Constitution, but whether the reenactment of Section 241 in 1968 was free of intentional racial discrimination…

Not only does the legislative history of the 1968 amendment lack evidence of discriminatory intent in regard to the list of disenfranchising crimes, but if anything, it tends to support the opposite proposition. The legislature was trying to eliminate several objections contained in the recent findings of the Civil Rights Commission. Thus, the amendment of Section 241 included adding supposedly “non-black” crimes to the disenfranchising list, modifying voter residency requirements, and deleting the poll tax.

Justice James Graves wrote a powerful dissent dismantling the majority’s argument:

Today the en banc majority upholds a provision enacted in 1890 that was expressly aimed at preventing Black Mississippians from voting. And it does so by concluding that a virtually all-white electorate and legislature, otherwise engaged in massive and violent resistance to the Civil Rights Movement, “cleansed” that provision in 1968. Handed an opportunity to right a 130-year-old wrong, the majority instead upholds it. I respectfully dissent…

Section 241 has been amended only twice since 1890. In 1950, voters approved an amendment to remove burglary. In 1968, voters approved an amendment to add rape and murder. In both instances, voters voted yes or no on removing burglary or adding rape and murder, respectively. As for the other eight crimes listed in § 241, however, Mississippi voters have not spoken on them since 1890. So those eight crimes, that the 1890 Convention listed with express racist intent, remain on the books entirely unchanged and continue to disenfranchise Mississippians today…

This is particularly important in this case because only the people, through a direct exercise of popular sovereignty, can amend a constitution, and it follows that only the people through the amendment process can cleanse a racist constitutional provision of its discriminatory purpose. Mississippians have not had a say on the eight crimes originally enacted in 1890 since 1890. Those crimes were not on the table in 1968. So there is no basis to conclude Mississippians ratified or reenacted § 241 or the eight crimes from 1890.

As of 2020, 235,150 people—or 10.6% of Mississippi’s voting age population—have lost their right to vote. Even though Black Mississippians comprise about one-third of eligible voters in the state, they account for more than half of those who cannot vote.

Spotlight: Florida

The Florida state constitution has prohibited voting by people with felony convictions since its ratification in 1838. Despite legal challenges (e.g. Johnson v. Bush 2005), the constitutional provision remained unchanged for 180 years.

In one legal challenge, Hand v. Scott (2018), District Judge Mark Walker ruled that the process to restore voting rights was unconstitutional because it relied too much on personal appeal to Governor Rick Scott.

“Florida strips the right to vote from every man and woman who commits a felony,” Walker wrote. “To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration … The question now is whether such a system passes constitutional muster. It does not.”

True to Walker’s concerns, an analysis by the Palm Beach Post found that Gov. Scott regularly “discriminated against black felons” in restoring voting rights and tended to favor Republican applicants.

The 11th Circuit stayed Walker’s ruling and ultimately dismissed the case as moot when Florida voters overwhelmingly adopted Amendment 4, the Voting Rights Restoration for Felons Initiative in the 2018 election. 64% of Floridians voted to restore “the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation,” excluding those convicted of murder or sexual offenses. An estimated 1.4 million people with felony convictions regained the right to vote when the amendment went into effect in January 2019.

Their reprieve was short-lived, however, due to newly-elected Gov. Ron DeSantis and the Republican-controlled state legislature. Senate Bill 7066 was signed into law by DeSantis on June 28, 2019, and changed the definition of “all terms of their sentence” (from Amendment 4) to include the full payment of restitution, or any fines, fees, or costs resulting from the conviction, before they could regain the right to vote. The new law revoked the voting rights of nearly three-quarters of Floridians with a felony conviction.

Numerous lawsuits were filed against SB 7066. In May 2020, U.S. District Court Judge Robert Hinkle ruled that the law was unconstitutional because “the State of Florida has adopted a system under which nearly a million otherwise-eligible citizens can vote only if they pay an amount of money. … Many do not know, and some may not be able to find out, how much they must pay.”

Months later, the 11th Circuit Court of Appeals reversed Hinkle’s ruling, holding that the state was constitutionally allowed to require the full repayment of all legal fines, fees, and restitution before restoring voting rights. Five of the six judges in the majority were appointed by then-president Donald Trump.

The case ultimately reached the U.S. Supreme Court, where the conservative majority declined to hear the case. Justices Sonya Sotomayor, Ruth Bader Ginsburg, and Elena Kagan dissented:

This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor. And it allows the Court of Appeals for the Eleventh Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a Federal District Court had found the State’s pay-to-vote scheme unconstitutional after an 8-day trial. I would grant the application to vacate the Eleventh Circuit’s stay.

As a result, Florida retained its pay-to-vote mechanism for felons. The system to this day remains a labyrinth of confusing rules and questions without answers that deter people from voting who are otherwise eligible.

“It has caused tremendous confusion among the lawyers and pro bono lawyers that have been trying to assist people for over a year. So you can only imagine the confusion of the people that are applying,” Miami-Dade County Public Defender Carlos Martinez told The News Service of Florida…

As he was researching how much he dished out over the years —- his payments included collection-agency fees and interest —-[former felon Angel] Sanchez made a shocking discovery: The clerk’s office showed that he had an outstanding balance. He also uncovered another unwelcome surprise, a Florida Department of Law Enforcement fee of $298 that Sanchez believes was erroneously imposed.

“I said this cannot be real. I panicked. And I really was now afraid … because I thought, if it’s my word against the system, from my experience, people convicted of felonies are always the ones doubted,” Sanchez said in a phone interview. “I always have to be twice as good to hopefully deserve half as much. And when I get half, I need to be happy with that.”

After much digging, Sanchez discovered that one of his balances was referred to a collection agency that never contacted him. Probation officials, the clerk’s office and FDLE all directed him to other agencies during a labyrinthine pursuit to clear up what appeared to be an $800 balance on his record.

This confusion not only prevents people from exercising their civil rights, it is also used to further criminalize them. Gov. DeSantis announced earlier this month that his election police force, called the Office of Election Crimes and Security, arrested 20 former felons for voter fraud. Several of those charged with voting when they were not eligible were reportedly told by government officials that they could legally cast ballots:

Several people who were arrested last week as part of Gov. Ron DeSantis’ voter fraud crackdown were notified by official government entities they were eligible to vote, according to court documents and interviews.

The defendants told authorities they had no intention of committing voter fraud, according to affidavits, and in some cases were baffled by their arrests because counties had sent them voter registration cards and approved them to vote.

…several of those arrested have told media outlets or authorities that they had no idea they were not eligible to vote. In court documents filed in five counties, most say at least one official government body — in most cases a local election supervisor — incorrectly indicated to them they could vote, including allowing them to register and sending them voter cards in the mail.