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The Wild Illogic of Barring Felons From Voting

And what Attorney General Eric Holder missed in his recent speech on, among other things, the disproportionate burden of voter disenfranchisement of felons felt by minorities.
(Photo: albund/Shutterstock)

(Photo: albund/Shutterstock)

Last month, former Kentucky basketball star Richie Farmer, who had traded on his fame to get himself twice elected as agriculture commissioner, was sentenced to 27 months in prison for misappropriating public funds. A federal investigation had uncovered that Farmer had bought “excessive gifts” for himself and his friends with state cash, hired friends and family without expecting them to work at all, and ordered state personnel to drive him on hunting trips and also build him a personal basketball court.

Farmer is just the most recent notable example of an elected official being caught in a crime; history books are thick with the names of local, state, and federal officials convicted of corruption and other, even less savory deeds. If our elected officials so often turn out to be criminals, isn’t it odd that we won’t let criminals vote?

Farmer’s home state of Kentucky just so happens to be one of four states in the nation (along with Florida, Iowa, and Virginia) with a policy that prohibits felons from voting, for life, unless they receive special clemency from the governor. Maybe Farmer will be one of the lucky few.

"While George W. Bush won Florida by 537 votes in 2000, more than 800,000 Floridians with criminal records were barred from voting."

According to the non-profit research group The Sentencing Project, an estimated 5.8 million Americans are barred from voting because of a felony conviction, nearly half of whom have completed their sentences. This number has increased dramatically over the past four decades or so—not necessarily because the disenfranchisement policies have gotten stricter, but merely because the number of people involved in the criminal justice system has grown.

The group’s research also looked into the impact of these polices on minorities in the U.S., finding that “one of every 40 adults is disenfranchised nationally, but among African Americans the figure is one of every 13.” In three states with the strictest disenfranchisement policies (Florida, Kentucky, and Virginia), more than one in five African Americans are barred from ever voting.

But there is reason to hope that this trend may be reversing. While appearing at a civil rights conference last week, Attorney General Eric Holder gave a speech about, among other things, the disproportionate burden of voter disenfranchisement of felons felt by minorities. He placed the current policies in their proper historical context, starting as they did in post-Reconstruction Southern states that “enacted disenfranchisement schemes to specifically target African Americans and diminish the electoral strength of newly-freed populations.” By 1890, Holder said, 90 percent of the prison population in the South was black. Today, every stage of the criminal justice process in the U.S., from arrest to imprisonment, is disproportionately experienced by people of color.

Although this is an issue legislated on the state level, and Holder can’t force states to change their policies, he succeeded in bringing attention to it. The speech was met with support from newspaper editorialboards, and from some, but not all, state governors. Many commentators picked up on a study mentioned by Holder (which can be downloaded here) conducted by a Florida parole commission that had found that former prisoners who were given the right to vote after they’d served their sentences were less likely to return to prison than those who remained disenfranchised. The New York Times referenced a 2002 study (co-written by one of the authors of the Sentencing Project report) showing that disenfranchisement policies may have decided seven Senate races as well as the 2000 presidential election. “While George W. Bush won Florida by 537 votes in 2000, more than 800,000 Floridians with criminal records were barred from voting,” wrote the Times editors.

Nicole Porter, director of advocacy for The Sentencing Project, stresses that Holder’s remarks were very important, and were well received among her colleagues. But, while not wanting to diminish its significance, she also highlights out a nuanced point that was missing from his speech.

“[Holder] specifically called for the rights restoration for people who have completed their sentence,” Porter says. “In theory, that's a good place to start, but there are hundreds of thousands of individuals who are living in the community, and who may be living in the community under supervision for the rest of their lives, who, depending on where they live, may be disenfranchised for the entire time.... They should have the ability to participate in our democracy.”

Rhode Island is one state that has recently changed its policy, Porter says; it still bars voting for the current prison population, but allows voting while on probation and parole. Vermont and Maine are still the only states without any type of felon disenfranchisement, where people can vote even while serving time in jail.

According to The Sentencing Project’s estimates, there are “hundreds of thousands” of people living under supervision, Porter says, who are technically still serving a sentence, and who therefore would not be allowed to vote even if state legislatures do eventually act on the Attorney General’s statement last week. So Holder’s recommendations, while groundbreaking, need to go even further, she says—especially given the size of the “footprint of the criminal justice system,” which is already large, and growing all the time.