The Village Voice
October 12, 2004
Minorities struggle to break free of felon voting bans
Political Prisoners
by Chisun Lee
Nearly 5 million citizens-a hugely disproportionate share of them racial
minorities-will not be allowed to vote in next month's presidential election.
Laws in 48 states automatically stripped them of that right when
they were convicted of a felony. Now, in a number of high-stakes lawsuits across
the country, minorities are struggling to end the state felon
disenfranchisement laws they say are slicing down the black and Latino vote. But
first the courts will have to agree that this is a civil rights crisis
worthy of federal attention, not just a jailhouse gripe.
Maddeningly, from the point of view of the plaintiffs, the key legal dispute is
not whether the numbers of disenfranchised racial minorities are as vast as they
claim they are. They are. Nor is the dispute whether voting is a legally
recognized fundamental right, guaranteeing every citizen a say in government and
thereby legitimating the very existence of democracy. It is. And certainly there
is no dispute that U.S. history is replete with local voting procedures that,
sometimes crudely and sometimes subtly, blocked minorities from accessing the
ballot.
This is the sticking point, as summed up by one federal judge in Florida,
where over 10 percent of black adults are disenfranchised for life: "It is
not racial discrimination that deprives felons, black or white, of their
right to vote but their own decision to commit an act for which they assume the
risks of detection and punishment." State officials from Florida governor
Jeb Bush to New York governor George Pataki insist that the voting bans are a
criminal justice matter for the states to manage, not a minority political
access problem warranting the most robust federal protections under civil rights
laws.
If the states are right, then there is virtually no avenue for these
disenfranchised plaintiffs to bring proof of racial inequities into federal
courts, much less demand that the courts invalidate these laws. But,
counters civil rights attorney Jessie Allen of the NYU Brennan Center for
Justice, "The federal Voting Rights Act was created exactly in recognition
that states would come up with a whole host of seemingly neutral but actually
discriminatory measures."
With federal courts around the country differing on whether to hear out the
disenfranchised, the U.S. Supreme Court is expected to announce in the coming
weeks if it will take up the question this term and make the final call.. At
stake: not only millions of potential votes, but also longstanding questions
about racial bias in criminal law enforcement and about the fullness of the
nation's commitment to minority political participation.
The battle over felon disenfranchisement is shaping up to be the greatest
contest over race and democracy since the end of the Jim Crow era.
Even putting race aside, the sheer scale of casualties to felon
disenfranchisement suggests a democratic crisis. Some 4.7 million adult
Americans-one in 43-have been politically erased by laws in 48 states that
automatically strip the right to vote from people convicted of a felony.
(Procedures for regaining the right exist, but the steps vary by state and are
often little-known or extremely difficult to accomplish.) Equivalent to the
population of Alabama, this group is the largest deliberately disenfranchised
class in the nation.
About 3 million of them are not even behind bars, but mingle with society on
parole or probation-safe to live next door but not to vote. Yet in some states
the voting ban sticks not just beyond the cell, but for life, no matter how mild
or long ago a person's crime.
Many social scientists doubt the value of felon disenfranchisement to begin
with, arguing that it serves none of the legitimate purposes of criminal law-not
incapacitation or deterrence, and certainly not rehabilitation. But, civil
rights advocates insist, even if disenfranchisement made sense in theory, its
proven effect of amputating the minority vote makes it an unacceptable racial
constraint in practice.
And the especially heavy impact of felon disenfranchisement on racial
minorities is undeniable. Blacks make up 40 percent of the nation's
disenfranchised, even though they are only 12 percent of the general
population. At least 1.4 million black men-13 percent of all black men-cannot
vote because of state felon disenfranchisement laws. These laws do not, of
course, target particular races by name, but they nevertheless have a provably
drastic effect on black and Latino voter eligibility.
The racial impact is extreme in some states, by latest estimates, with
Alabama and Florida barring nearly a third of all black men from the polls for
their entire lives. A quarter or more of all black men face lifetime
voting bans in Iowa, Mississippi, Virginia, New Mexico, and Wyoming.
It is no wonder that racial minorities are most severely affected, since
they represent an astonishing majority of those Americans sentenced to jail or
prison. More than two-thirds-68 percent-of the nation's incarcerated are people
of color. Black men in the U.S. face a 30 percent likelihood of being locked up
at some point in their lives and Hispanic men 17 percent, while white men's
chances are around 4 percent, according to the U.S. Department of Justice.
Some analysts attribute the race imbalances in felony convictions largely to
politics. Drug enforcement-a major source of convictions-descended on minority
communities beginning in the 1980s, when the infamous crack-versus-powder
cocaine sentencing difference was born. The stiffer
penalties for drugs associated with low-income, minority areas, along with
police strategies prioritizing urban street sweeps over suburban
investigations, have sent floods of blacks and Latinos to prison.
With blacks being incarcerated at a rate seven times higher than whites,
felon disenfranchisement laws threaten a hemorrhaging of minority political
power into the future.
Historians say the racial voting imbalances born of felon disenfranchisement are
hardly a coincidence. It is well-known that white majorities in former slave
states used criminal-law enforcement to retain power following emancipation.
Sociologist Christopher Uggen has mapped today's most restrictive felon voting
bans-those disenfranchising not only during incarceration, but also during
parole, probation, or even for life-to Southern states, which also hold the
highest percentage of nonwhite prisoners.
In Alabama, Florida, Mississippi, and Virginia, for instance, approximately one
in 25 people are disenfranchised. Florida and Texas have disenfranchised the
most people-in each state more than 600,000. Together they have taken away the
right to vote from over 1 million Americans. Alabama, Virginia, and California
disenfranchise around a quarter of a million people each.
The only two states that allow even felony inmates to vote, Maine and
Vermont, house relatively few minority prisoners. The prevalence of felon
disenfranchisement in Northern and Western states, scholars say, illustrates
that racism, or at least indifference to the fate of racial minorities, is
misunderstood to be only a "Southern" problem.
A documented history of state discrimination tends to win the greatest
sympathy from courts. The strongest felon disenfranchisement challenge
today, then, is Johnson v. Bush, in which a class of some 600,000 former felons
from Florida are fighting their lifetime ban from the polls. The Brennan Center,
which will represent the plaintiffs before the 11th Circuit Court of Appeals
later this month, points to racist legislative language it unearthed from the
time of the voting ban's creation. The 1868 lawmakers were determined to
"prevent a negro legislature" and keep Florida from being "niggerized,"
according to documents cited by the plaintiffs.
Lawyers for Governor Bush insist that the voting ban was later re-enacted
without such racist intent. But plaintiff lawyer Jessie Allen points out that
the Supreme Court's own juris-prudence requires governments wishing to continue
once discriminatory policies to demonstrate an entirely new and legitimate
justification. Allen claims there is no reason good enough to overcome a clear
history of racism, especially considering the contemporary data showing the
disenfranchisement rate for blacks to be more than twice as high as for non
blacks.
A panel of the 11th Circuit had ruled for the Florida plaintiffs last year,
reasoning that "although felon disenfranchisement does not apply only to
African Americans, racially discriminatory policies can be deliberately
over inclusive. Poll taxes, for example, surely disenfranchised some whites as
well as blacks even though they were discriminatorily intended to impact
blacks." Jeb Bush's lawyers appealed and were granted the upcoming
rehearing en banc. Some observers wish that Johnson v. Bush, with its historical
evidence and especially stark disenfranchisement numbers, were up for possible
review by the Supreme Court, instead of the ones that are there now.
Yet the Voting Rights Act is intended to prevent not just intentional
racism, but also seemingly neutral voting restrictions that result in racial
discrimination.
Armed with data on racial disparities in law enforcement and voting loss,
but without a historical record of intentional discrimination, felons in
Washington state filed one of the challenges currently appealed to the
Supreme Court. In the early stages of Farrakhan v. Locke, a federal trial
court came to the rather remarkable conclusion that the plaintiffs'
"evidence of discrimination in the criminal justice system, and the
resulting
disproportionate impact on minority voting power, is compelling."
Nevertheless, the court dismissed the case, deciding that proof of
discrimination in law enforcement was not relevant to voting rights-even
though the criminal justice system directly produces the pool of convicts
summarily stripped of the right to vote.
The state, after all, was not disenfranchising only black felons-it was also
disenfranchising white felons. How people were accused and convicted of felonies
in the first place was simply a criminal justice question and not
relevant to voting, the court concluded.
A three-judge panel of the Ninth Circuit Court of Appeals reversed the
district court. Discrimination in law enforcement was part of the "totality
of circumstances" that the Voting Rights Act covers in forbidding
discriminatory voting practices, the panel concluded, law enforcement being a
necessary "circumstance" to disenfranchising people based on felony
convictions. Over the vigorous objection of a widely respected and conservative
judge, the full circuit refused to reconsider the panel's
decision. The state then appealed that decision-from the most notoriously
liberal and most overruled circuit in the nation-to the Supreme Court.
If the Supreme Court declines to review the case, then minority felons in
all nine states within the Ninth Circuit will be able to use evidence of law
enforcement discrimination to challenge felon vote denial. But minority
advocates fear that the court-generally impatient with the Ninth Circuit,
unfriendly to federal interference in state criminal matters, and faced with
a split among the nation's various courts-will not be able to resist. The
conflicting case from New York, Muntaqim v. Coombe, then gives the court an
alternative that is dreaded by the civil rights community.
Originally filed by an inmate without counsel, the New York case lacks the sort
of factual record that civil rights lawyers prefer to build, one that
would fully show the racial disparities in the state. For even in liberal
New York, the figures are grim: Blacks and Latinos compose 80 percent of the
state's prison population, even though they are just 30 percent of the general
population. The state-friendly decision questions whether Congress believed
disenfranchisement laws to be a possible means of racial oppression when it was
deciding how far into state affairs the protections of the federal Voting Rights
Act could be extended. Not far enough to help the plaintiffs, the New York
appeals court concluded.
If that analysis prevails on the national level, then the only recourse for
the felon plaintiffs will be to lobby Congress to pass new legislation or to
mobilize, state by state, for local law change. But not only are felons a
far from popular bunch, they are not-since they cannot vote-a political
constituency.
At its core, the contest over felon disenfranchisement is a debate about
whether and how to reinforce minority voices in American democracy.
The problem is obvious just in the way that felon disenfranchisement
actually works. Voters elected the legislators who enacted the felon voting bans
that have robbed the very groups most affected by the bans of the opportunity to
vote them down one day. It is a vicious cycle of shrinking political
participation, with minority groups pushed to the outside.
If that shrinking circle of decision making makes felon voting bans seem
less than legitimate, it is natural to wonder about the legitimacy of other
policies-education, social services, policing-that heavily affect these
disenfranchised minority groups and their run-ins with the criminal justice
system.
Supporters of felon disenfranchisement cast convicts as calculating, immoral
individuals whose race is beside the point. But the disenfranchised and their
advocates are struggling to show that criminal matters are a creature of the
political system, and that the minority status of the disenfranchised therefore
matters a lot in the context of group politics. (An entire movement has even
cropped up against the policy of counting felon bodies-for allocation of
services and elected government seats-in the rural, white districts where
prisons are typically located, instead of in the convicts' urban hometowns.
Critics claim that the approach adds insult to injury. Not only are minority
communities robbed of voting power by felon disenfranchisement, but they are
further robbed of their share in government attention by this counting method.)
This debate over minority political power is timely, since key provisions of the
Voting Rights Act are set to expire in 2007 unless Congress reauthorizes them.
Many disappointed voices say that the civil rights movement's crowning document
has failed to achieve the racial equality imagined back in 1965. The act has
become just words on a page, they say, while the cultural commitment to breaking
racial restrictions has dissipated.
Whether federal voting rights law can be resurrected to vindicate racial
minorities is the key question in the felon disenfranchisement cases up for
possible review by the Supreme Court. The outcome will depend on whether the
court looks through the lens of minority political access or merely views the
issue as a raceless criminal matter.
The court may avoid jumping into this democracy debate altogether this
term.. But everyone knows that it is not a question of if, but when.
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