Respond to this Article January/February 2001

Locking Up The Vote

Disenfranchisement of former felons was the real crime in Florida

By Nicholas Thompson

Rosetta Meeks lives in Florida's Miami-Dade County, but she didn't get to vote in the presidential election. Nobody scrutinized her ballot for hanging chads or screamed himself hoarse trying to prevent officials from counting it. An African-American woman who has devoted her last six years to teaching computer skills to low-income people, Meeks wanted to vote and knew whom she wanted to vote for. But she was locked out of the mayhem.

Rosetta Meeks was convicted of a drug felony seven and a half years ago and, under Florida law, every felon is permanently barred from the voting booth unless the governor and at least three of his cabinet members decide to restore her civil rights. Thirteen other states have similar laws: If you commit any felony--be it murder or lying on a customs form--you never again get to have a say in the election of the president or the town selectman. According to the best available estimates, this law kept 525,000 people in Florida, most of them poor and a great many of them black, away from the polls in a presidential election decided by just a few hundred votes.

Like most ex-felons, Meeks didn't meet all 23 of the qualifications for Florida's process of fast-track enfranchisement. The qualifications range from the type of crime you committed (you can't, for example, have been found guilty of battery of a public transit official) to your financial status (you can't owe the state more than $1,000, not uncommon for poor ex-felons who are often subjected to large fines and restitution payments, or required by judges to pay the fees of their state-appointed attorneys.)

So, to start her application for clemency, Meeks had to fill out a convoluted 16-page form with questions ranging from the invasive, like the date of birth of any person with whom she had a child out of wedlock, to the irrelevant, like the cause of death of her parents, to the potentially invidious, like the name and purpose of any organization she belongs to. Then on page 14 it asks "Have you ever been a defendant in civil litigation? Y/N____. If Yes, please describe in details." Directly below, it repeats the exact same question without the "please."

The state clemency board uses the form to conduct an investigation into the applicant's past. It then makes a recommendation on whether clemency should be granted and forwards the investigative report, which the applicant is never allowed to see, to Governor Jeb Bush. The governor, according to Florida law, has "unfettered discretion to deny clemency at any time for any reason."

According to Meeks, "They wanted to know my mother and father's names. They wanted to know what my parents died of. Does that really matter?" Apparently it does because the Florida Parole Commission recommended against her. "I made a mistake. I'm sorry. I abused the system by using drugs. When you are young, you do things that you shouldn't do. Do I have to pay for this for the rest of my life?" Meeks asks before adding: "I'm very proud of myself now. If I don't get the right to vote this time, I'm going to continue to try."

Meeks was persistent, and her story has a happy ending. She paid off her fines, and a local civil-rights organization lent her a car so she was able to drive nine hours north to appeal directly to the governor. Finally, the day after Al Gore conceded the election and more than two and a half years after she began her quest, Jeb Bush waved his hand and magically returned Meeks her right to vote.

But most other ex-felons are shut out. The Sunshine State restored civil rights to only 1,832 ex-felons last year, about 1 out of every 300 in the state. Florida officials say that they do not have this data broken down by race or class, but, pre-election at least, it didn't seem to hurt to be a white Republican. Chuck Colson, who had proposed that the Nixon administration firebomb the Brookings Institution and went to prison for his role in the Watergate scandal, was pardoned by Bush and, unlike Meeks, allowed to vote in November. A supporter of the governor's brother, Colson now runs a ministry to bring Christianity to inmates. "He's a great American," said Gov. Bush.

Extended Sentence

The United States is virtually the only industrialized country that denies former prisoners the vote, though the rules vary by state. In Maine and Vermont, convicts can vote even when behind bars. In 34 states, felons are not allowed to vote until they leave parole. Maryland and Arizona permanently disqualify two-time felons; Washington bans felons convicted before 1984, and Tennessee bans felons convicted before 1986. And in 10 states, if you commit a single felony you are essentially walled off on Election Day until you die.

The result is that about one million Americans who have completed their sentences are disenfranchised. Nationally, one out of seven adult black men will never again get to vote. In Alabama, which permanently denies felons the right to vote, about one out of every three adult black men is barred for life. In an extensive study of two poor and mostly black communities in Tallahassee, Florida, criminal justice professor Todd Clear was unable to find a single family without at least one disenfranchised man--making it unlikely that the community will be able to band together when, for example, a state senator proposes locating a toxic waste dump nearby.

Felons, of course, aren't just murderers and muggers. Three out of every five felony convictions don't lead to jail time, and there's no clear line you have to cross to earn one. Being convicted for driving while intoxicated three times bans you from voting for life in numerous states. Stopping payment on a check of more than $150 with intent to defraud makes you a felon in Florida. Being caught with one-fifth of an ounce of crack earns you a federal felony, but being caught with one-fifth of an ounce of cocaine only earns a misdemeanor.

Having a good lawyer can get you off the hook or at least knock the charges down to a misdemeanor. But most poor people get stuck with overworked public defenders who don't make the grade. Last year, for example, the four public attorneys in Hernando County, Florida had to handle 1,568 felony cases. That's slightly better than the even more appalling numbers from years past, but Governor Bush has proposed a funding cut that threatens the promising trend, according to Florida Public Defender Association President Howard Babb, Jr..

Ball and Chain

Felon disenfranchisement doesn't fit any of the standard justifications for criminal punishment. It doesn't rehabilitate, no one has ever argued or found evidence that it deters crime, and it's an odd form of retribution. Unlike, say, taking someone's license away when he's caught driving drunk, there's no clear link between the punishment and the crime.

Advocates usually argue from moral grounds, beginning that voting is actually a privilege not a right. Next, they argue that people who have broken the laws shouldn't be involved in making them, and that ex-felons will vote in ways that harm society and influence criminal justice policy for the worse. But only the most rehabilitated felons are likely to choose to exercise their right and there is no evidence that they choose harmful policies, even in states that allow convicts to vote while in prison.

There's also a case that restoring voting rights helps ex-felons in at least a small way to restore dignity and sense of community. According to ex-felon Heywood Fennell, such denial is "a way of preparing the guillotine of despair and hopelessness for people coming out of prison into community. If you don't vote, you don't have any say on when the trash man is going to pick up the garbage. A vote is power, a way to be involved in the process and it helps give you the opportunity to rebuild your life."

To put it another way, denying the right to vote is just one more slap in the face to the 95 percent of prisoners who complete their sentences and eventually return to their communities. Despite our nation's skyrocketing prison population, investment in rehabilitation has dropped. Numerous prisoners now finish their sentences without parole and are released with just a bus ticket home and about $150--no skills and no assistance finding employment. Giving them the right to vote alone won't save them from returning to crime, but it's free and it can't hurt. According to Alex Friedmann, recently released from jail in Tennessee: "If society doesn't care enough about former prisoners to treat them as citizens, with the voting rights of citizens, then why should former prisoners care enough about society to act like law-abiding citizens?"

Reconstruction Never Ended

As with so much of this country's past, a large part of the history of felon disenfranchisement hangs on the issue of race. It's no coincidence that blacks are harmed the most by felon disenfranchisement; many of the laws seem to have been drawn up for that purpose.

Many states disenfranchised criminals even before the Civil War. But in the South, after the Civil War and Reconstruction, legal codes were crafted to countermand the 14th and 15th amendments, which gave blacks equal protection under the law and gave black men the right to vote. In Mississippi, the convention of 1890 replaced laws disenfranchising all convicts with laws disenfranchising only people convicted of the crimes blacks were supposedly more likely to commit. For almost a century thereafter you couldn't lose your right to vote in Mississippi if you committed murder or rape, but you could if you married someone of another race.

In Virginia, U.S. Senator Carter Glass worked to expand the disenfranchisement laws along with poll taxes and literacy tests. He described the state's 1901 convention as follows: "Discrimination! Why that is precisely what we propose. That, exactly, is what this Convention was elected for--to discriminate to the very extremity of permissible action under the limits of the Federal Constitution, with a view to the elimination of every Negro voter who can be gotten rid of legally, without materially impairing the numerical strength of the white electorate."

In Alabama, the criminal code in the constitution of 1901 was, according to the chair of the convention, designed to "ensure white supremacy," and crimes worthy of disenfranchisement were classified depending in large part by whether delegates thought blacks were likely to commit them. The state though was additionally focused on excluding poor whites. Delegates "wished to disfranchise most of the Negroes and the uneducated and propertyless whites in order to legally create a conservative electorate," wrote historian Malcolm McMillan.

In Florida, the constitution drafted in 1868 disenfranchised ex-felons as well as anyone convicted of larceny, a crime that courts were given special jurisdiction over in 1865 because of "the great increase in minor offenses, which may be reasonably anticipated from the emancipation of former slaves." The 1868 constitution only passed when conservatives took over the convention and annulled a constitution passed by blacks and radical Republicans which did not include a disenfranchisement clause.

The provisions that came out of those conventions, from poll taxes to grandfather clauses to literacy tests were almost all struck down by the Warren Court and the Civil Rights Act of 1965. The only one still standing is the felony provision--which isn't surprising since, as historian Morgan Kousser testified before the Supreme Court in 1985, the disenfranchisement laws provided Southern states with "insurance if courts struck down the more blatantly unconstitutional clauses." Of course, the literacy test resembles Rosetta Meeks' 16-page form, and the poll tax isn't a great deal different from Florida's requirement that felons pay off money owed to the state--potentially including the cost of a public defender provided them because of their poverty.

Of course, not all felon disenfranchisement laws originate in clearly racist movements, but the impact always falls disproportionately on blacks. Even in Iowa and Wyoming, for example, one in four black men is permanently disenfranchised. Blacks do commit a disproportionate share of the crime in this country. But they also suffer disproportionately from incompetent public defenders and discriminatory sentencing practices, such as the disparate penalties given to crack and cocaine possessors. Cocaine is the drug of choice in corporate bathrooms and blacks and whites are convicted of possession at about the same rate. Crack is the drug of choice in inner cities and blacks are about 25 times more likely to be arrested for possession, and thus to receive felony convictions and be barred from voting--a legal oddity which would undoubtedly have delighted Carter Glass.

Votes They Really Don't Want to Count

Regardless of intent, the disenfranchisement of felons seems to be successfully keeping politicians disliked by a majority of blacks in office. According to Jeff Manza and Christopher Uggen, sociologists who have done the most thorough studies available of ex-felon voting patterns based on class, income, geography, race, and scores of other factors, giving ex-felons the right to vote would have swung several races away from conservative Republicans over the past two decades. Conservative Senator John Warner (R-Va.) would never have entered office; Mitch McConnell (R-Ky.) wouldn't have been elected in 1988; Connie Mack (R-Fla.) would have been defeated in 1988. Phil Gramm (R-Tex.) and Craig Thomas (R-Wyo.) might also never have been elected since their Republican predecessors would have lost. These five Senators received an average grade of 25 percent out of 100 on the NAACP's most recent voting scorecard.

Manza and Uggen also estimate that Al Gore would have defeated George W. Bush by between 10,000 and 85,000 votes in Florida--unsurprising since Bush only earned six percent of the black vote in that state. The ironic result is that a man who ran partly on the theme of redemption, and turned his life around at age 40, may well be president because civil redemption wasn't offered to more than 500,000 ex-felons in the state his brother governs.

Not surprisingly, in a number of states, legislators are working to restore voting rights to ex-felons. But potential supporters always run into the same political problems: By definition, the people who stand to benefit the most can't vote, and no politician wants to be called soft on crime. Also, the advantage for Democrats of enfranchisement has pushed the issue into the coarse partisan realm.

The only way that state legislatures have been able to progress has been through bipartisan deals. In Alabama for example, Republicans and Democrats drafted a compromise bill that combined felon enfranchisement with a voter ID bill which Republicans supported. The bill sailed through the Alabama House of Representatives and was only derailed in the Senate when one powerful supporter tried to pile on a five-year death penalty moratorium. Another possibility for coalition building could occur by linking the restoration of voting rights to the restoration of the right to own guns. Just as the punishment doesn't fit the crime to deny the right to vote to felons who haven't been convicted of election fraud, it doesn't fit to deny the right to own a gun to felons, such as devious accountants, who have not committed violent crimes.

Closed Chambers

The easiest way to change the law would be for Congress to wipe the slate clean and standardize state rules. This would be particularly useful because the confusion over who can and cannot vote is a deterrent itself. At the Louisiana prison where he is incarcerated, Norris Henderson has started a civic engagement program because most ex-felons just don't know that they actually can vote in that state. "They don't even know that they can be part of the decision making that is governing their lives," he says. A woman currently bringing suit against Florida, on disability for blindness caused by diabetes and hepatitis, voted regularly in Florida for 25 years before being informed that she was disqualified because of a felony committed when she was 19. Worst of all, in Florida this year, Secretary of State Katherine Harris contracted out the job of scrubbing Florida's voting lists of all previously convicted felons to a Texas company called ChoicePoint. It apparently did a little too good a job and scrubbed out 8,000 people convicted of misdemeanors, blocking legitimate voters during the presidential election.

Unfortunately, however, the one effort to pass a federal initiative, proposed by John Conyers (D-Mich.) has both lacked bipartisan support and been scuttled by constitutional issues. At the convention in 1787, surprisingly little attention was given to the question of who determines the right to vote. The Articles of Confederation had left complete control of franchise to the states and the Constitutional Convention only considered the issue late in the drafting process, in a committee that met while George Washington went fishing. The result was a confusing mandate that gives states the authority to determine who votes while giving Congress the authority to make law regarding the "Times, Places, and Manner" of elections. Subsequently, issues such as the right of women to vote have only been resolved with constitutional amendments. That same result seems likely today, particularly as the Rehnquist Court devolves more and more power to states and whittles down the authority granted the federal government.

But it is possible that constitutional justification for Conyers' bill could be found in the 14th and 15th Amendments which give Congress the power to enforce the equal protection and suffrage provisions by "appropriate legislation." Recent case law has given Congress the power to use this justification to supersede state law only when it can prove that there was racist intent in the original drafting of the laws in question. A disparate racial impact is not sufficient--which is why the Supreme Court recently ruled that the disparate sentences given to crack and cocaine offenders are constitutional.

Felon disenfranchisement laws, however, were clearly structured with racist motives in the post-Reconstruction conventions of Virginia, Mississippi, Florida, and Alabama. Congress and then the courts will have to determine however whether racist intent in some states is enough to justify a law superseding state laws nationally. Again the odds are limited by the Rehnquist Court which has not been particularly friendly to issues of civil rights.

Democracy in America

Since the nation's founding, we've moved forward, enfranchising more and more groups: from people who didn't own property and immigrants in the mid-19th century, to blacks after the Civil War, to women in 1920, to 18-year olds and blacks in a real sense again in the 1960s. In the past three decades, 15 states have restored voting rights to felons. But none of that progress has come without blood and years of work.

The arguments against enfranchisement are always the same: Voting is a privilege; the people who can't vote aren't competent or independent enough to make fair voting decisions; chaos will result if everyone gets to vote. But those arguments rest on very thin ice which eventually breaks. Alexis de Tocqueville wrote in 1835: "The further the limit of voting rights is extended, the stronger is the need felt to spread them still wider; for after each new concession the forces of democracy are strengthened ... Finally, the exception becomes the rule; concessions follow one another without interruption and there is no halting place until universal suffrage has been attained."

There have obviously been bumps on the road since de Tocqueville. But felons are now the only people over the age of 18 still denied the right to vote, with the exception of the insane. As prominent neoconservative social theorist James Q. Wilson says, "A perpetual loss of the right to vote serves no practical or philosophical purpose."

Denying felons the right to vote after they have served their sentences and done their time runs against both the idea that people can redeem themselves and one of the nation's most important principles, the right to choose who governs you. The laws are anachronistic remnants of the hideous post-Civil War Reconstruction. As Faulkner described the protagonist of Absalom! Absalom! living in Mississippi after the Civil War: "He was a barracks filled with stubborn back-looking ghosts still recovering ... from the fever which had cured the disease."

There are politicians today who know that their power depends on keeping these back-looking ghosts alive. And that runs turns what it should mean to be American upside down.

Research assistance provided by Joe Dempsey and Corine Hegland.

Nicholas Thompson is a contributing editor of The Washington Monthly. You can email him by clicking here or read his other articles by clicking here

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