Felony disenfranchisement is the exclusion from voting of people otherwise eligible to vote (known as disfranchisement) due to conviction of a criminal offense, usually restricted to the more serious class of crimes: felonies (crimes of incarceration for a duration of more than a year). Jurisdictions vary as to whether they make such disfranchisement permanent, or restore suffrage after a person has served a sentence, or completed parole or probation. Felony disenfranchisement is one among the collateral consequences of criminal conviction and the loss of rights due to conviction for criminal offense.
Proponents have argued that persons who commit felonies have 'broken' the social contract, and have thereby given up their right to participate in a civil society. Some argue that felons have shown poor judgment, and that they should therefore not have a voice in the political decision-making process. Opponents have argued that such disfranchisement restricts and conflicts with principles of universal suffrage. It can affect civic and communal participation in general. Opponents argue that felony disenfranchisement can create dangerous political incentives to skew criminal law in favor of disproportionately targeting groups who are political opponents of those who hold power.
In Western countries, felony disenfranchisement can be traced back to ancient Greek and Roman traditions: disenfranchisement was commonly imposed as part of the punishment on those convicted of "infamous" crimes, as part of their "civil death", whereby these persons would lose all rights and claim to property. Most medieval common law jurisdictions developed punishments that provided for some form of exclusion from the community for felons, ranging from execution on sight to exclusion from community processes.
In the United StatesEdit
In the U.S., the Constitution implicitly permits the states to adopt rules about disenfranchisement "for participation in rebellion, or other crime", by the Fourteenth Amendment, section 2. It is up to the states to decide which crimes could be grounds for disenfranchisement, and they are not formally bound to restrict this to felonies; however, in most cases, they do. Felons are allowed to vote in most U.S. states. Between 1996 and 2008 twenty-eight states changed their laws on felon voting rights, mostly to restore rights or to simplify the process of restoration. Since 2008 state laws have continued to shift, both curtailing and restoring voter rights, sometimes over short periods of time within the same state.
As of 2008 over 5.3 million people in the United States were denied the right to vote due to felony disenfranchisement. In the national elections in 2012, the various state felony disenfranchisement laws together blocked an estimated 5.85 million felons from voting, up from 1.2 million in 1976. This comprised 2.5% of the potential voters in general. The state with the highest number of disenfranchised voters was Florida, with 1.5 million disenfranchised.
Felony disenfranchisement was a topic of debate during the 2012 Republican presidential primary. Primary candidate Rick Santorum from Pennsylvania argued for the restoration of voting rights for convicted felons who had completed sentences and parole/probation. Santorum's position was attacked and distorted by Mitt Romney, who alleged that Santorum supported voting rights for felons while incarcerated. Former President Barack Obama supports voting rights for ex-offenders.
In the years 1997 to 2008, there was a trend to lift the disenfranchisement restrictions, or simplify the procedures for applying for the restoration of civil rights for persons who had fulfilled their punishments for felonies. As a result, in 2008 more than a half million people had the right to vote who would have been disenfranchised under the older rules. Since then, more severe disenfranchisement rules have been passed in several states.
In 2007, Florida's Republican Governor Charlie Crist pushed to make it easier for most convicted felons to regain their voting rights reasonably quickly after serving their sentences and probation terms. In March 2011, however, Republican Governor Rick Scott reversed the 2007 reforms. Felons may not apply to the court for restoration of voting rights until seven years after completion of sentence, probation and parole.
In Iowa in July 2005, Democratic Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who had completed supervision. On October 31, 2005, Iowa's Supreme Court upheld mass re-enfranchisement of convicted felons. But, on his inauguration day, January 14, 2011, Republican Governor Terry Branstad reversed Vilsack's executive order, disenfranchising thousands of people.
Nine other states disenfranchise felons for various lengths of time following their conviction. Except for Maine and Vermont, and as of September 2016, California, every state prohibits felons from voting while in prison.
Unlike most laws that burden the right of citizens to vote based on some form of social status, felony disenfranchisement laws have been held to be constitutional. In Richardson v. Ramirez (1974), the United States Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. The Court looked to Section 2 of the Fourteenth Amendment to the United States Constitution, which proclaims that States which deny the vote to male citizens, except by "participation in rebellion, or other crime," will suffer a reduction in representation. Based on this language, the Court found that this amounted to an "affirmative sanction" of the practice of felon disenfranchisement, and the 14th Amendment could not prohibit in one section that which is expressly authorized in another.
But, critics of the practice argue that Section 2 of the 14th Amendment allows, but does not represent an endorsement of, felony disenfranchisement statutes as constitutional in light of the equal protection clause and is limited only to the issue of reduced representation. The Court ruled in Hunter v. Underwood 471 U.S. 222, 232 (1985) that a state's crime disenfranchisement provision will violate Equal Protection if it can be demonstrated that the provision, as enacted, had "both [an] impermissible racial motivation and racially discriminatory impact." (The law in question also disenfranchised people convicted of vagrancy, adultery, and any misdemeanor "involving moral turpitude"; the test case involved two individuals who faced disenfranchisement for presenting invalid checks, which the state authorities had found to be morally turpid behavior.) A felony disenfranchisement law, which on its face is indiscriminate in nature, cannot be invalidated by the Supreme Court unless its enforcement is proven to racially discriminate and to have been enacted with racially discriminatory animus.
Restoration of voting rights for people who are ex-offenders varies across the United States. Primary classification of voting rights include:
Maine and Vermont are the only states with unrestricted voting rights for people who are felons. Both states allow the person to vote during incarceration, via absentee ballot and after terms of conviction end.
Ends after releaseEdit
In fourteen states and the District of Columbia, disenfranchisement ends after incarceration is complete: District of Columbia,Hawaii,Illinois,Indiana,Maryland,Massachusetts,Michigan,Montana,New Hampshire,North Dakota,Ohio,Oregon,Pennsylvania,Rhode Island, and Utah.
In February 2016 the Maryland General Assembly restored the right to vote for more than 40,000 released felons, overriding a veto by Governor Larry Hogan. Maryland's Senate approved the bill on a narrow 29-18 vote, while the state House of Delegates voted 85-56 in favor of it on January 20. Convicted felons under parole or probation had their right to vote restored. The law is to go into effect in late March, one month before the state's April 26 primaries.
Ends after paroleEdit
Ends after probationEdit
Nineteen states require not only that incarceration/parole if any be complete but also that any probation sentence (which is often an alternative to incarceration) is complete: Alaska,Arkansas,Georgia,Idaho,Kansas,Louisiana, Minnesota,Missouri,Nebraska (Completion of probation + 2 years; treason convicts permanently lose the right to vote),New Jersey,New Mexico,North Carolina,Oklahoma,South Carolina,South Dakota,Texas,Washington,West Virginia (the prosecutor can request the court to revoke voting rights if financial obligations are unmet), and Wisconsin.
Seven states have laws that relate disenfranchisement to the detail of the crime. These laws restore voting rights to some offenders on the completion of incarceration, parole, and probation. Other offenders must make an individual petition that could be denied.
- Alabama – A person convicted of a felony loses the ability to vote if the felony involves moral turpitude. Prior to 2017, the state Attorney General and courts have decided this for individual crimes; however, in 2017, moral turpitude was defined by House Bill 282 of 2017, signed into law by Kay Ivey on May 24, to constitute 47 specific offenses. If a convicted person loses the ability to vote based on having committed a defined act of moral turpitude, he can petition to have it restored by a pardon or by a certificate of eligibility; if the loss of elective franchise was based on a crime not under moral turpitude, eligibility to vote is automatically restored once all sentence conditions have been satisifed. Prior to 2017, a certificate of eligibility could be issued to a person convicted of a number of crimes having to do with sexual assault or abuse, including sodomy; today, only impeachment and treason remain ineligible for a certificate of eligibility.
- Arizona – Rights are restored to first-time felony offenders. Others must petition.
- Delaware – The following crimes require a pardon: murder or manslaughter (except vehicular homicide), an offense against public administration involving bribery or improper influence or abuse of office anywhere in the USA, or a felony sexual offense (anywhere in the USA). All other convicted felons regain the right to vote after completion of the full sentence.
- Mississippi – A convicted person loses suffrage for numerous crimes identified in the state constitution, Section 241 (see note). The list is given below. Suffrage can be restored to an individual by a two-thirds vote of both houses of the legislature. The crimes that disqualify a person from voting are given in Section 241 of the state constitution as: murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.
- Nevada – First time and non-violent offenders all others may, "petition a court of competent jurisdiction for an order granting the restoration of his or her civil rights".
- Tennessee – A person who is convicted of certain felonies may not regain voting rights except through pardon. These include: murder, rape, treason, and voting fraud. For a person convicted of a lesser felony, disenfranchisement ends after terms of incarceration, completion of parole, and completion of probation. In addition, the person must pay "Any court order restitution paid; current in the payment of any child support obligations; and/or Any court ordered court costs paid". The ex-offender must either obtain a court order restoring their right to vote or complete the certificate of restoration of voting rights.
- Wyoming – A person convicted of a felony can, after serving the full sentence including any probation and parole, apply to the state governor to have suffrage restored. Since July 1, 2003, first-time, non-violent offenders have to wait 5 years before applying to the state parole board for restoration of suffrage. The parole board has the discretion to decide whether to reinstate rights on an individual basis.
Individual petitions requiredEdit
Four states require individual petition to the court for restoration of voting after all offenses.
- Florida – Voting rights are restored by the Florida Board of Executive Clemency. Less serious crimes do not require a hearing with the clemency board. In those cases, disenfranchisement ends after it has been 5 years after completion of terms of incarceration, completion of parole and completion of probation. An application must be submitted to the court. For those with serious crimes, after 7 years, the Florida Executive Clemency Board will decide whether or not to restore voting rights after receiving an application from the ex-offender. The effect of Florida's law is such that in 2014 "[m]ore than one in ten Floridians – and nearly one in four African-American Floridians – are shut out of the polls because of felony convictions."
- Kentucky – Only the governor can reinstate Civil Rights. The ex-offender must complete "Application for Restoration of Civil Rights". The governor has discretion to restore voting rights. Every year since 2007, the Kentucky House of Representatives has passed a bill that would amend the state constitution to restore voting rights to some non-violent offenders, but as of 2016, the bill has not passed the state Senate.
- Virginia – Only the governor can reinstate civil rights. Governor Terry McAuliffe restored rights to "individuals who have been convicted of a felony and are no longer incarcerated or under active supervision . . . In addition to confirming completion of incarceration and supervised release, the Secretary of the Commonwealth of Virginia considers factors such as active warrants, pre-trial hold, and other concerns that may be flagged by law enforcement. . . . The Governor will review SOC's analysis of each individual's record and will make the final decision on proposed candidates for restoration of rights."
In general, during the recent centuries, the European countries have increasingly made suffrage more accessible. This has included retaining disenfranchisement in fewer and fewer cases, including for criminal offenses. Moreover, most European states, including most of those outside the European Union, have ratified the European Convention on Human Rights, and thereby agreed to respect the decisions of the European Court of Human Rights. In the case Hirst v United Kingdom (No 2) the Court in 2005 found that general rules for automatic disenfranchisements resulting from convictions to be against human rights. This ruling applied equally for prisoners and for ex-convicts. The ruling did not exclude the possibility of disenfranchisement as a consequence of deliberation in individual cases (such as that of Mohammed Bouyeri). The United Kingdom has not respected this Court opinion, although it is a signatory to the Convention (see below).
In the United Kingdom, prohibitions from voting are codified in section 3 and 3A of the Representation of the People Act 1983. Excluded are incarcerated criminals (including those sentenced by courts-martial, those unlawfully at large from such sentences, and those committed to psychiatric institutions as a result of a criminal court sentencing process). Civil prisoners sentenced (for non-payment of fines, or contempt of court, for example), and those on remand unsentenced retain the right to vote.
The UK is subject to Europe-wide rules due to various treaties and agreements associated with its membership of the European Community. The Act does not apply to elections to the European Parliament. Following Hirst v United Kingdom (No 2) (2005), in which the European Court of Human Rights (ECHR) ruled such a ban to be disproportionate, the policy was reviewed by the UK government. In 2005 the Secretary of State for Constitutional Affairs, Lord Falconer of Thoroton, stated that the review may result in the UK allowing some prisoners to vote. In 2010 the UK was still reviewing the policy, following an "unprecedented warning" from the Council of Europe. The UK government position was then that
It remains the government's view that the right to vote goes to the essence of the offender's relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. The issue of voting rights for prisoners is one that the government takes very seriously and that remains under careful consideration.
Parliament voted in favor of maintaining disenfranchisement of prisoners in 2011 in response to Government plans to introduce legislation. Since then the Government has repeatedly stated that prisoners will not be given the right to vote in spite of the ECHR ruling.
In response to the ECHR ruling, Lord Chancellor and Secretary of State for Justice Chris Grayling produced a draft Voting Eligibility (Prisoners) Bill for discussion by a Joint Committee, incorporating two clear options for reform and one which would retain the blanket ban.
For elections in the Republic of Ireland, there is no disenfranchisement based on criminal conviction, and prisoners remain on the electoral register at their pre-imprisonment address. Prior to 2006, the grounds for postal voting did not include imprisonment, and hence those in prison on election day were in practice unable to vote, although those on temporary release could do so. In 2000 the High Court ruled that this breached the Constitution, and the government drafted a bill extending postal voting to prisoners on remand or serving sentences of less than six months. However, in 2001, the Supreme Court overturned the High Court ruling and the bill was withdrawn. After the 2005 ECHR ruling in the Hirst case, the Electoral (Amendment) Act 2006 was passed to allow postal voting by all prisoners.
In Italy, the most serious offenses involve the loss of voting rights, while for less serious offenses disqualification the judge can choose if there will be some disenfranchisement. Recently, however, the 'decree Severino' added a loss of only the right to stand for an election, against some offenders above a certain threshold of imprisonment: it operates administratively, with fixed duration and without intervention of the court. Many court actions have been presented, but the electoral disputes follows antiquated rules and the danger of causes seamless in terms of eligibility and incompatibility is very high, also at local level.
Other European countriesEdit
Several European countries permit disenfranchisement by special court order, including France, Germany (reinstated after 2–5 years) and the Netherlands (such as in the case of Muhammad Bouyeri). In several others, no disenfranchisements due to criminal convictions exist. Moreover, many European countries encourage people to vote, such as by making pre-voting in other places than the respective election locales easily accessible. This often includes possibilities for prisoners to pre-vote from the prison itself. This is the case for example in Finland.
In Germany the law calls on prisons to encourage prisoners to vote. Only those convicted of electoral fraud and crimes undermining the "democratic order", such as treason, are barred from voting while in prison.
In Sweden parliamentary parties have held campaign meetings in prisons.
At Federation in Australia the Commonwealth Franchise Act 1902 denied the franchise to vote to anyone 'attainted of treason, or who had been convicted and is under sentence or subject to be sentenced for any offence … punishable by imprisonment for one year or longer'.
In 1983 this disqualification was relaxed and prisoners serving a sentence for a crime punishable under the law for less than a maximum five years were allowed to vote. A further softening occurred in 1995 when the disenfranchisement was limited to those serving a sentence of five years or longer, although earlier that year the Keating Government had been planning legislation to extend voting rights to all prisoners. Disenfranchisement does not continue after release from jail/prison.
The Howard Government legislated in 2006 to ban all prisoners from voting. In 2007, the High Court of Australia in Roach v Electoral Commissioner found that the Australian constitution enshrined a limited right to vote, which meant that citizens serving relatively short prison sentences (generally less than three years) cannot be barred from voting. The threshold of three years or more sentence will only result in removal of a prisoner's right to vote in the federal election. Depending on the threshold of exclusion which is distinct in each state, a prisoner may be able to vote in either the state election or the federal election. For example, prisoners in New South Wales serving a sentence of longer than one year are not entitled to vote in the state's elections.
In other countriesEdit
Most democracies give convicted criminals the same voting rights as other citizens.
In both China and Taiwan, the abrogation of political rights is a form of punishment used in sentencing, available only for some crimes or along with a sentence of death or imprisonment for life. Rights that are suspended in such a sentence include the right to vote and to take public office, as well as the rights to political expression, assembly, association, and protest. In New Zealand, people who are in prison are not entitled to enroll while they are in prison.
Many countries allow inmates to vote, including Canada, Croatia, Czech Republic, Denmark, Finland, France, Germany, Israel, Kenya, Netherlands, Norway, Peru, Poland, Romania, Serbia, Sweden, and Zimbabwe.
On 8 December 2008, Leung Kwok Hung (Long Hair), member of Hong Kong's popularly elected Legislative Council (LegCo), and two prison inmates, successfully challenged disenfranchisement provisions in the LegCo electoral laws. The court found blanket disenfranchisement of prisoners to be in violation of Article 26 of the Basic Law and Article 21 of the Bill of Rights and the denial to persons in custody of access to polling stations as against the law. The government introduced a bill to repeal the provisions of the law disenfranchising persons convicted of crimes (even those against the electoral system) as well as similar ones found in other electoral laws, and it made arrangements for polling stations to be set up at detention centers and prisons. LegCo passed the bill, and it took effect from 31 October 2009, even though no major elections were held until the middle of 2011.
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