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.
