Seeing Double: America’s Sub-Citizens

More than six million Americans could not vote in the 2016 elections because of felony convictions. In other words, about 4.5 percent of eligible voters were prohibited from casting ballots simply because they had been convicted of a felony at some point. Of these disenfranchised voters, 77 percent were on parole or probation, or had already completed their sentences — they had ostensibly rejoined society, but couldn’t participate fully in our democracy.

Felony disenfranchisement hasn’t always been so egregious. The practice originated in ancient Greece and Rome, then was adopted by the English into the concept of “civil disabilities,” which stripped criminals of all rights. In early America, it was used as a punishment for election tampering or other heinous crimes, but after the Civil War, U.S. states widely adopted the punishment to oppress freed black people. In 12 states today, convicted felons will never regain their right to vote. In another 18 states, felons are allowed to vote only after they have completed their prison sentence, parole and probation. In only two states can imprisoned felons vote.

Almost no other democracies restrict felon voting as much as the U.S. because voting is the fundamental exercise of citizenship. Voting is such a crucial part of our democracy that four amendments to our Constitution read, “the right of citizens of the United States … to vote … shall not be denied or abridged.” Democracy defines our national identity. In the words of former Chief Justice Earl Warren, the franchise is the “essence of a democratic society.”

The ability to vote denotes full acceptance into the realm of rational, modern personhood. When we restrict a citizen’s right to vote, we mark them as a pariah and degrade their status as a human being. Not only does this inhibit rehabilitation, but to label someone as less than a person is abhorrent and leads to violence, discrimination and oppression.

Beyond its symbolic meaning, voting is also fundamental to our exercise of political power. Without the threat of the ballot box, we can’t ensure that our elected officials will protect any of our rights. Our votes give us the formal power to determine our representatives and change our government. Taking away the franchise from any group is a sure sign of oppression, silencing and bigotry.

Contrary to the tangible and symbolic effects of disenfranchisement, supporters commonly claim that the practice isn’t intended to be punitive. Instead, they say it’s necessary to prevent convicts from electing officials who would decriminalize bad behavior. This is absurd.

First of all, as a category, felonies are utterly arbitrary, differ across political boundaries and often are the result of “three strikes” or similar laws that upgrade minor crimes. To assume that felons are both universally morally inept and incapable of change betrays the underlying purpose behind felony disenfranchisement: differentiation of the “good” citizens from the “bad” citizens. Second, in no state will felons, once given the right to vote, hold an electoral majority. If their intent is to rid society of law and order, they’ll need substantial support from people never convicted of a crime. And third, to exclude a legitimate group of voters because of their politics is the antithesis of democratic principles. Felony disenfranchisement’s only goal is to degrade, marginalize and subjugate felons.

Ultimately, felony disenfranchisement still serves the same purpose it did when it was widely implemented post-Civil War: targeted oppression. According to The Sentencing Project, African Americans are disenfranchised by the criminal justice system at a rate four times higher than other groups. In Kentucky, Tennessee and Virginia — and until recently, Florida — more than 20 percent of black people are barred from voting. Florida’s case is particularly illustrative. In 2018, a ballot measure passed that gave the right to vote back to felons who had served their time. However, Florida’s conservative state government ruled that felons couldn’t vote until they had paid all fines and court fees, effectively instituting an unconstitutional poll tax. Whenever implemented, felony disenfranchisement targets poor and black Americans under the guise of the rule of law.

The case against disenfranchisement can be made even without moral judgement: it’s unconstitutional. The Eighth Amendment protects against cruel and unusual punishment. As Justice William Brennan Jr. wrote in Furman v. Georgia, punishments that “treat members of the human race as nonhumans” are “inconsistent with the fundamental premise of the [Eighth Amendment] that even the vilest criminal remains a human being possessed of common human dignity.” When we strip the right to vote from felons, we deny their personhood — voting is a fundamental human right. It’s cruel to restrict anyone, even the “vilest criminal,” from participation in civil society.

Our system of felony disenfranchisement interacts especially heinously with another function of our government: the Census. Incarcerated people are counted by the Census as willing residents of the districts where they are incarcerated instead of their home districts. Since the vast majority of black and Hispanic convicts are incarcerated in majority white and rural areas, and since almost no felon can vote while incarcerated, the political power of felons instead flows to white, rural Americans.

The Census doesn’t only determine representation — it also decides where federal money goes. Through mass incarceration and felony disenfranchisement, white America appropriates the political power and federal money that should be flowing to marginalized communities.

Felony disenfranchisement is an effective tool for oppression: it silences those it affects, it targets specific groups and it increases the power of the privileged. It’s impossible to say that it is un-American, because racism and classism permeate our history. However, it is anti-democratic.

Our criminal justice system is deeply flawed, and restoring the right to vote to all felons, incarcerated or otherwise, won’t solve that. But when we systematically silence those who have actually gone through our justice system, we ignore the real problems in our prisons, courts and communities. For racist, illegitimate and harmful reasons, we continue to exclude millions of Americans from political participation. If we are to uphold our values, every citizen of the United States should have the right to vote — felon or otherwise.