On Monday, the leaders of Virginia's Republican-controlled state House and Senate filed suit against Virginia Gov. Terry McAuliffe, a Democrat, in a bid to stop an executive order that would restore the voting rights of an estimated 20,000 Virginia residents who have been convicted of a felony.
McAuliffe wants to restore voting rights to those who have completed their sentences and any ordered time on probation or parole. These, in short, are the people who have officially paid for their crimes but, under Virginia law, remain barred from the ballot box. And state Republicans insist that their favored list of vaunted Virginians — including Patrick Henry, Thomas Jefferson, former Democratic Virginia governor Timother M. Kaine (now a senator) and former Republican governor Robert F. McDonnell — would agree.
Interestingly, McDonnell is now himself a convicted felon. Early last year, he became the first Virginia governor to be convicted of a felony, after a federal court found McDonnell and his wife guilty of political corruption-related accusations, such as receiving improper gifts and loans. (But we digress.)
The problem that advocates see with felon disenfranchisement laws isn't that they occasionally affect a former state official, of course.
The problem is that this kind of policy remains much more prevalent in the South, that felon disenfranchisement laws were crafted with the intent to disenfranchise as many blacks as possible just after the Civil War and today continue to have largely the same effect. And regardless of the more modern reasons offered today in states with large black populations, such as Alabama, as many as 15 percent of black Americans can't participate in elections because of these laws.
How did we get here?
In the earliest days of America, British colonists came and brought with them the practice of "civil death." People convicted of voting-related crimes or certain so-called moral abominations were effectively rendered dead, unable to vote or engage in other aspects of public life. After the American Revolution, some states expanded these policies to cover most felony convictions.
The idea of civil death was consistent with the philosophy of noted and widely read 17th century English philosopher and physician John Locke. He believed those who break the social contract should be excluded from its benefits and never allowed to shape the mores or laws of the society in which they live. Anything else would imperil an entire society.
But it was not until the period immediately following the Civil War, a time of vast but short-lived political and social gains for African Americans known as Reconstruction, that interest in felon disenfranchisement laws seemed to intensify. Congress and the states ratified the 13th, 14th and 15th Amendments, which respectively outlawed slavery except as punishment for a crime; created birthright U.S. citizenship, which explicitly included freed slaves; gave black men the right to vote; and demanded support from Southern states as a condition to reenter the Union. In short order, black Americans began running for and winning local, state, and federal offices, purchasing or homesteading for property, and voting. It was a sea change that many whites and the Southern white-controlled Democratic Party found alarming and unacceptable.
Between the Civil War's end and the 1890s, states around the country — but particularly in the South — passed laws restricting blacks from entering territories that would eventually become states and implemented laws that mandated hard, unpaid labor for those convicted of crimes that lawmakers believed more likely to be committed by black Americans. And in several Southern states, the most severe, lifetime restrictions on voting were created for the same crimes.
Newspapers published editorials opining about the threat to democracy posed by criminals and African Americans. Some even claimed that civilization itself was at risk. The arguments also often mixed a little Locke with a little Jim Crow, and they warned of the threat of black political domination if the policies were not passed.
Some have argued that felon disenfranchisement laws implemented in 29 states emerged just as requirements that men own property in order to register and vote were repealed, allowing wealthy members of the political establishment to continue to block the political influence of poorer men, both black and white. That may well have been a welcome side effect. But to believe that the full intent of felon disenfranchisement laws had no clear race-related goals, one must ignore the fact that this was the period in which the Ku Klux Klan was also born. And, one must straight-out avoid the language that lawmakers themselves used to describe felon disenfranchisement laws and precisely which criminals they should cover.
South Carolina's state legislature barred people convicted of “thievery, adultery, arson, wife beating, housebreaking, and attempted rape,” from the ballot box but not those convicted of murder or fighting. And, Mississippi lawmakers went back to tailor an earlier policy disenfranchising people convicted of "any crime."
From the Sentencing Project's 2016 policy brief on felon disenfranchisement:
...[Democratic P]arty leaders in Mississippi called for disenfranchisement for offenses such as burglary, theft, and arson, but not for robbery or murder. The author of Alabama’s disenfranchisement provision “estimated the crime of wife-beating alone would disqualify sixty percent of the Negroes,” resulting in a policy that would disenfranchise a man for beating his wife, but not for killing her.
Between 1890 and 1910, five Southern states passed similar laws barring people convicted of crimes that were considered "black" from the ballot box.
And lest anyone take comfort in the idea that this is not the present nature or effect of felon disenfranchisement laws, consider this: A full 75 percent of those who can't vote because of them are not people in prison or jail but people who have completed terms of incarceration, according to that Sentencing Project policy brief. And about 45 percent are people who have also completed post-prison parole or probation requirements or never spent time in jail at all. These are people living in American communities, often working and paying taxes, who have no formal political influence at all.
As a New York Times editorial put it after nearly 6 million people were unable to vote in the 2014 midterm elections due to felon disenfranchisement laws:
Poll taxes, literacy tests, grandfather clauses and cross burnings were effective weapons in this campaign. But statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.
In fact, that same Sentencing Project policy brief issued this year found that African Americans are four times more likely than white Americans to be unable to vote because of the combination of racial patterns in incarceration rates and the fact that several states with large black populations — Alabama, Florida, Mississippi and Virginia, Texas, New York, Georgia, Louisiana and North Carolina among them — all temporarily or permanently disenfranchise felons. Take a close look at the chart below.
While felon disenfranchisement laws have been challenged in state and federal courts, none have been resoundingly successful. Perhaps not surprisingly, this puts the United States at odds with the policies of most industrialized countries with advanced economies. Not only do we imprison more people than almost any country on Earth, but the United States is part of a small group that restrict the voting rights of people convicted of crimes unrelated to voting.
In 2005, the European Court of Human Rights ruled that any blanket limit on voting violates the European Convention on Human Rights. The convention includes a guarantee of free and fair elections and the court described felon disenfranchisement as contrary to that principle. Today, nearly half the countries in Europe actually make it possible for inmates to vote in prison or cast an absentee ballot. And in Canada, Israel and South Africa, courts have declared any restriction of voting rights based on convictions illegal.
Now, for those unconcerned with global patterns, consider this: In 2002 — 13 years ago — researchers at Northwestern University and the University of Minnesota found that felon disenfranchisement in the United States strips so many people of their voting rights that it altered the outcome of at least seven Senate races between 1970 and 1998. And that study, published in the American Sociological Review (a peer reviewed publication), also found that because Florida ranked among the states with the most stringent felon disenfranchisement laws in 2000, had convicted felons been eligible to vote, Florida's popular vote and therefore its electoral ballots would have swung to Al Gore.
People can and will disagree about felon disenfranchisement policies, but few can claim that there's nothing unsettling about laws passed with a discriminatory intent that may continue to alter the course of American history. In that way, Virginia could begin an important discussion.