The right to vote is among the most fundamental of those protected by the U.S. Constitution and federal and state laws. The right is not absolute, however, and the great majority of states have laws providing for the forfeiture or suspension of the voting rights of those convicted of felonies. According to a study by The Sentencing Project, in 2016 more than six million Americans were prohibited from voting because of a felony conviction.
The practice of felony disenfranchisement traces its roots to ancient Greek and Roman traditions. Those societies considered the loss of voting privileges to be an appropriate part of the so-called “civil death” penalty imposed upon those guilty of certain serious crimes. Many medieval societies also imposed punishments that included some form of exclusion from community affairs. The penalty may also be descended from the practice in old England of confiscating the estate of one convicted of any of the numerous crimes punishable by death.
Unlike those convicted in earlier times, felons in the United States do not lose property or other rights. However, felony disenfranchisement remains alive and well. In all but two states, a felony conviction still results in at least the suspension of the right to vote.
As with most issues concerning voting rights, whether and how to impose a disenfranchisement penalty is primarily a matter of state law, and a constitutional due process challenge to this power was rejected by the U.S. Supreme Court in 1974. Many states imposed a lifetime voting penalty, albeit subject to termination in rare and limited circumstances.
Attitudes and laws began to change in the late 1990s. Disenfranchisement even became newsworthy during the disputed 2000 presidential election, with many analysts contending that if even some of Florida’s 1.6 million disenfranchised felons could have voted, the result might have been different.
As of 2017, while specific details vary from state to state, only two (Maine and Vermont) impose no limits on a convicted felon’s right to vote. There, voting even while incarcerated via absentee ballot is allowed. .
All other states revoke or suspend a convicted felon’s right to vote. Only a handful still enforce lifetime revocation, albeit all do require reinstatement upon court order or gubernatorial pardon. Several also limit lifetime disenfranchisement to those convicted of certain violent crimes.
In the remaining states, the right to vote is automatically restored upon:
Release. In fourteen states and the District of Columbia, a convicted felon’s disenfranchisement ends upon his or her release from incarceration. A recent effort to repeal a two-year waiting period to which this right is subject in Nebraska was unsuccessful.
Release and Successful Completion of Parole (and, in some cases, probation) – This is the rule California and twenty-one other states.
In Florida, an effort is underway to gather sufficient signatures to put before voters in 2018 a constitutional amendment requiring automatic restoration upon completion of incarceration and, if any, parole and probation. At present, restoration is possible only after a 5-7 year wait and approval by the Florida Board of Executive Clemency.
Reform Efforts Continue
Groups such as The Sentencing Project, Fair Vote, and the American Civil Liberties Union continue to press for reform. Many advocates contend that disenfranchisement is an anachronism which has a racially disproportionate impact and should be eliminated. While this sort of wholesale elimination appears unlikely, some smaller changes continue to occur. For example:
2016 legislation in California restored the right of inmates in county jails (but not state or federal prisons) to vote.
In 2017, the Alabama legislature amended its laws to list specific crimes that are the basis for disenfranchisement. The law had previously provided that undefined crimes of “moral turpitude” were covered; the provision was widely used as a means of disenfranchising African-American citizens.