Felon Disenfranchisement: Is Voting a Right or Luxury?

Felons are the only group of U.S. citizens who are ever explicitly refused the right to vote in local, state, and national elections. The ratification of the U.S. Constitution in 1788 left voter eligibility requirements to the states, and, for the next 60 years, the voting population consisted almost entirely of landowning white men.1 The introduction of the 15th Amendment (1886) and 19th Amendment (1919) would eventually expand those rights to black men and women, respectively.2 Since the vigorous efforts to secure these rights, politicians across states have continued attempts to limit who votes through several discriminatory tactics. While felon disenfranchisement remains a major issue with a long journey ahead, one area in which change can more quickly be afforded is ensuring those eligible to vote are aware of their eligibility. 

Voting policies are an enigmatic part of law that often yields confusion for former and current inmates. As a result of this disorganization, two main parties are affected: those in jails not provided with the proper resources to vote and those living in society post-felony convictions with no effective way to ascertain voter eligibility. Voting is not just a civil right but a fundamental tenet of democracy, providing ordinary individuals with the means to participate in the political process. For citizens, voting is a mode of expression, holding elected officials accountable and affecting desirable change. Therefore, prohibiting any person from participating in this principle exercise of democratic values, intentional or otherwise, must be evaluated with the strictest scrutiny. 

As it stands, whether or not a convicted felon can vote is subject to state law. In two states plus the District of Columbia, the right to vote is never lost. In most, that right is restored automatically after completion of the sentence or probation/parole. In 11 states, however, whether or not a felon can vote post-conviction remains a question.3 These states require further action for civil rights to be fully restored. With such variance in state laws, many incarcerated or formerly incarcerated people do not know their voting eligibility status. For many inmates, the right to vote is not taken away, so long as the individual has no prior felony conviction(s) and is being held for misdemeanors or sitting pretrial.4 While a large portion of the prison population is eligible to vote, the amount of people who cast ballots while in jail is extremely low. This is especially the case in Maine and Vermont, where the right to vote is never lost, in which only six and eight percent of felons vote, respectively.5 Further, civil rights for felons are often automatically restored, but this process is not consistent between states. For some, the former felon has to petition or receive a governor's pardon; for others, all court-related fines and fees have to be paid, and still, others require a waiting period.6 The point is that with such nuanced and varying procedures, there is evident confusion amongst current and former prisoners concerning their eligibility. 

Access to information and resources is an essential first step in the movement towards ensuring voting rights for all. One means of working towards this is instituting a policy requiring individuals to be notified of their eligibility to vote, or as the Florida Rights Restoration Coalition suggests, an accessible system for former felons to assess their eligibility.7 If the right is never lost because the individual was convicted of a misdemeanor, for example, that person should know well in advance of election day of their right to vote. This approach necessitates that correctional departments across all states commit to ensuring inmates have absolute and accurate resources should they wish to vote. Alternatively, if an individual is convicted of a felony and serves their full sentence, that person should likewise have reasonable means to discern their eligibility. Moreover, it should be required that local election officials retain all necessary information concerning voting rights for convicted persons in their state to answer questions effectively. While securing a right to vote for convicted felons is a complicated, controversial, and long-term goal, beginning with policies aimed at these ends is an attainable means of seeing change soon. Each of these active policies is a step forward in America’s historical fight toward universal suffrage and shows a commitment to our long-held democratic values. 

While some states, including New York and Connecticut, are taking positive steps in expanding voting rights post-conviction, there is a noticeable trend in what is not included in these legislative packages—the expansion of rights for eligible voters who remain in jail.8 Access to voter registration and polls while in jail is extremely limited. Many currently incarcerated people are eligible to vote but do not due to misinformation and lack of access to necessary resources. According to the Prison Policy Initiative, over 400,000 inmates on any given day are held pretrial and, therefore, retain their civil rights, including the right to vote.9 However, in the midterm elections of 2018, North Carolina Health News reported that just 20 known people had cast a ballot from across the almost 100 jails in the state.10 With impending deadlines and an emerging political interest in voter ID laws, especially in Republican-led states such as North Carolina, current inmates are disadvantaged when it comes to both voting and registering to vote.11 Being in jail creates an obvious barrier to acquiring basic documentation, like a state-issued ID. In a report on the barriers to voting for inmates in the state of Massachusetts, lack of time was a recurring issue.12 Inmates have to send in absentee ballot applications, wait to receive the ballot, fill it out, and return it. Voting, a fundamental right, becomes a hassle for prisoners leading even those most dedicated to the civil process potentially unable to exercise their right. 

A survey conducted by the League of Women Voters in New York found that many county jails outside of New York City “do little to encourage participation in the electoral process.”13 The researchers concluded that much of this passiveness about the topic is likely due to a lack of funding, staffing, and training for corrections officers and the sheriff's office. With few resources being provided, those in charge of prisons are forced to focus time and money on other things like public safety and sanitation. For prisoners, voting is not just a right but a luxury. As a result of inaction on the part of the state when it comes to funding prisons, come November 2024, there will again be thousands of eligible voters with nowhere to cast their ballot. A policy aimed at increasing funding and expanding voting access in correctional facilities would connect people to the outside world, therefore boosting morale while enhancing the national commitment to the democratic process. 

Despite a decrease of 24 percent since 2016, 4.6 million people are still affected by felony disenfranchisement.14 While laws on disenfranchisement continue to ease in states like New York, which, in 2021, passed provisions permitting people on parole to vote, there continue to be barriers for many individuals.15 Due to a lack of awareness and misinformation, in many states, previously convicted felons are never told that their rights are restored or of the steps it would take to confirm or reconcile this information. In some states, like Tennessee, a person has to petition or receive a pardon from the governor before voting rights can be restored.16 For someone reentering society and busy with other facets of life, determining how to complete the potentially long process of reregistering to vote is reasonably low on the list of priorities. Therefore, it must be an obligation of the state—which has a vested interest in the civil rights of its citizens—to inform formerly convicted felons how to go about securing their rights. This is similar to what is described in the Virginia State Code, which reads, “The Department of Corrections shall provide that any person convicted of a felony is notified of the loss of his civil rights and of the processes to apply for restoration of civil rights and of voting rights.”17

Similarly, many local election officials lack clear information concerning the voter eligibility of convicted persons. Often, eligible voters will reach out with an interest in voting but quickly be turned away due to prior convictions. In Florida, Gov. Ron DeSantis and several other officials were recently sued under claims that they intentionally made it difficult for convicted felons to ascertain voter eligibility.18 In 2018, the state passed an amendment allowing most felons to vote post-conviction, although with some limitations added later for certain crimes and an expectation that the individual has paid all court fees and fines.19 This amendment paved the path towards voter eligibility for 1.4 million people, according to the Florida Rights Restoration Coalition, which championed the amendment.20 The lawsuit against those Florida officials claims the state has no effective system for people to check voter eligibility. Due to this, some individuals believed they paid the necessary fines, registered to vote, and voted with no problem, only to find out later they had inadvertently broken the law once again.21 In August of 2022, the Florida Office of Election Crimes and Security, a group established by Ron DeSantis, charged 20 formerly convicted felons with voter fraud.22 A common thread throughout each of these cases was confusion, as many charged individuals reported being issued a valid voter ID from the state of Florida.23 Encouraged to vote, the people had no reason to believe they were not legally permitted to. A standard policy aimed at accessibility could effectively curve influence from state officials who have a vested political interest in who votes. 

The right to vote is a fundamental pillar of democracy which must be continuously supported and strengthened to preserve its integrity. As is evident here, it is not enough to establish a right if that right is not being effectively exercised. Many states are currently extending voting rights for convicted persons, but without close attention to the effectiveness of these laws, there will continue to be barriers to securing an authentic right to vote. Part of these issues can be mitigated through policies aimed at education, accessibility, and expansion of resources. Those currently in jail must be fully aware of their rights and provided the necessary time and resources to register and vote. Further, there must be an accessible system elucidating eligibility, or steps to secure eligibility, for those whose sentence is complete. A commitment to these basic voter rights on behalf of the state enriches the democratic process by ensuring that all free individuals experience an equal opportunity to influence the society they are a part of.