Restoring Democracy

February 27, 2007 by Maya Harris, Daily Journal

In the 40 years since the Voting Rights Act was passed in 1965, access to the ballot box, especially for communities of color, has been a prominent topic in our national conversation about the vitality of our democracy. Who may or may not participate in the electoral process, and under what circumstances the government may unilaterally deny the vote to some citizens, has become a salient feature of that discussion in recent years.

The issue was spurred in part by Florida election officials - acting under that state's felony disenfranchisement laws - erroneously purging tens of thousands of voters from the rolls just before the 2000 presidential election. Officials eventually acknowledged the error, but only after they had denied these citizens, mostly African-Americans, participation in what became the closest presidential election in American history.

The government's power to bar some citizens from the ballot box stems from felony disenfranchisement laws, which vary from state to state. Two states, Maine and Vermont, do not deny the franchise to people with criminal convictions. However, the remaining 48 states and the District of Columbia range from denying only incarcerated individuals the right to vote to imposing lifetime disenfranchisement, even if the individual has fully completed his or her sentence and is no longer under the supervision of the criminal justice system.

The majority of the people prohibited from voting are not even incarcerated. Three million of the disenfranchised are people living in their home communities, either on probation or parole or having completed their sentences. Many were convicted of a nonviolent crime, such as simple drug possession, shoplifting or writing a bad check.

As more and more citizens are denied democratic participation as a result of felony disenfranchisement laws, both the public and the courts have begun to re-examine the disturbing historical legacy and questionable purposes underlying such disenfranchisement.

Many felony disenfranchisement laws were passed or expanded following passage of the 15th Amendment to the U.S. Constitution in 1870, which extended the right to vote to former slaves. In the decades that followed, a variety of Jim Crow laws were enacted to systematically erect barriers to the democratic participation of the new black electorate. Although poll taxes, literacy tests and other exclusionary policies have long since been abandoned as un-American, felony disenfranchisement laws remain on the books.

Though racially neutral on their face, felony disenfranchisement laws have a racially disparate impact. Five million people were barred from voting in the November 2004 election because of a felony conviction; two million of them were African-Americans. Human Rights Watch has said that three in 10 of the next generation of black men will be disenfranchised at some point in their lifetime, and, in states with the most restrictive laws, 40 percent of black men may lose their right to vote permanently.

Latinos are not far behind. In 2003, the Mexican American Legal Defense and Educational Fund discovered half a million Latino citizens disenfranchised in just the 10 states it surveyed.

The disproportionate impact of these laws, coupled with their historical origins in racial discrimination, leads many to question the purpose and efficacy of felony disenfranchisement. A central tenet of the criminal justice system is rehabilitation. Yet disenfranchisements undermines this goal.

A recent study published in the Columbia Human Rights Law Review demonstrated a relationship between voting and reduced recidivism. The American Correctional Association and the American Bar Association also have noted that collateral consequences such as disenfranchisement impede the successful re-entry of individuals into the community. Put simply, those who vote believe they have a stake in the society of which they are a part and are less likely to re-offend than those who do not vote.

These disenfranchisement laws are also out of step with the international community. The United States is among only a handful of democratic nations that disenfranchises the incarcerated - let alone those who are no longer incarcerated. Most European nations and other mature democracies allow prisoners to vote.

Indeed, the supreme courts of Canada and South Africa recently struck down provisions disenfranchising the incarcerated, and the European Court of Human Rights found the United Kingdom's blanket disenfranchisement of individuals in prison violated the European Convention on Human Rights.

In this state, until an Attorney General Opinion in 2005, California had progressed steadily toward protecting and expanding the right to vote, narrowly limiting felony disenfranchisement to individuals in prison or on parole.

The original 1849 California Constitution included a broad disenfranchisement provision, permanently stripping anyone "convicted of any infamous crime" of the right to vote. However, in 1973, the California Supreme Court struck down the state's lifetime disenfranchisement as a violation of equal protection. Ramirez v. Brown, 9 Cal.3d 199 (1973).

In response, the following year, the Legislature proposed and the voters adopted Proposition 10, which amended the California Constitution to eliminate lifetime disenfranchisement and instead provide for the disenfranchisement of only those people "imprisoned or on parole for the conviction of a felony." The result was, for 30 years, a stable rule on the voting rights of individuals with felony convictions.

More specifically, for three decades, the secretary of state interpreted California's law to preserve the voting rights of individuals on probation for a felony, including those temporarily confined in local facilities as a condition of probation. However, in recent years, through three statewide elections, the situation in California has been in a confused state of flux because conflicting interpretations of the voting laws by two of the state's top constitutional officers.

In 2004, local organizations attempting to register these individuals for the November election were prohibited from doing so at some county detention facilities. As a result, Legal Services for Prisoners with Children requested clarification from Secretary of State Kevin Shelley. The secretary of state confirmed, in a letter issued a few days after the November 2004 election, that this population was, indeed, eligible to vote.

The following year, with another important statewide election looming in November, the new secretary of state, Bruce McPherson, requested an opinion from the attorney general on the question of whether "a person convicted of a felony and incarcerated in a local facility (e.g. county jail) rather than in a state prison [is] eligible to register to vote and vote."

A few weeks after the November 2005 special election, the attorney general issued an opinion concluding that individuals in jail as a condition of probation could not vote. 88 Cal. Op. Atty. Gen. 207 (2005). This resulted in the immediate disenfranchisement of 145,000 citizens, mostly young men of color who committed nonviolent offenses, according to the California Department of Justice.

Therefore, in just the last two years, these individuals were first granted, then denied the right to vote. In each instance, the decision of policymakers came just after a statewide election - too late for those citizens affected either to exercise the franchise extended to them or to challenge its denial.

In the summer, the ACLU of Northern California filed League of Women Voters v. McPherson, along with our co-counsel, the Social Justice Law Project, as an original writ petition in the California Court of Appeal to clarify the scope of California's felony disenfranchisement law. Relying on the plain language and legislative history of Article II, Section 4 of the California Constitution, the Legislature and secretary of state's consistent interpretations of the constitutional provision, and the practical implication of the attorney general's opinion, we argued that felony probationers are clearly entitled to vote under California law.

In December 2006, a unanimous panel of the First District Court of Appeal agreed, restoring the voting rights of the tens of thousands of Californians who were disenfranchised by the attorney general's opinion. League of Women Voters v. McPherson, 145 Cal.App.4th 1469 (2006). With so much disenfranchisement in recent years, a win for democracy was refreshing. However, scores of individuals in California and across the nation do not have the right to vote because of felony disenfranchisement laws that remain on the books.

Voting is one of the most precious rights in our democracy. Felony disenfranchisement makes our nation no safer, no stronger, no greater, no more just. It is time we re-evaluate these policies of exclusion and fully realize our commitment to democratic inclusion.

Maya Harris is the executive director of the ACLU of Northern California and was lead counsel for the organization in League of Women Voters v. McPherson.