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Locked OutFelon Disenfranchisement and American Democracy$

Jeff Manza and Christopher Uggen

Print publication date: 2006

Print ISBN-13: 9780195149326

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780195149326.001.0001

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Unlocking the Vote

Unlocking the Vote

Chapter:
(p.221) 10 Unlocking the Vote
Source:
Locked Out
Author(s):

Jeff Manza

Christopher Uggen

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195149326.003.0055

Abstract and Keywords

This chapter considers a range of policy and political proposals for reenfranchisement. It suggests that the key long-term reforms require reconsideration of all voting restrictions on disenfranchised felons. The issue can be broken down into three separate questions: restoring voting rights for people who have completed their entire sentence (ex-felons); restoring voting rights for people who remain under supervision of the criminal justice system on probation or parole, but live in their communities (nonincarcerated felons); and restoring voting rights for currently incarcerated felons.

Keywords:   reenfranchisement, felon disenfranchisement, disenfranchised felons, right to vote, voting restrictions, voting rights

Consider an illiterate, homeless, propertyless, African American woman who is on government assistance, has unpaid debts, and just moved to a new state three months ago. As political scientist Alec Ewald has pointed out, each of those attributes would once have been sufficient to deny her the right to vote in one or more states.1 Times have changed, however. Over the past 200 years, virtually all restrictions on the right to vote have melted away. No state would be legally entitled, or normatively justified, in using any of those criteria to deny the right to vote. Only felon status remains as a legal means to bar participation.

The logic of disenfranchising ex-felons and current but nonincarcerated felons appears to be slowly giving way to modern democratic norms. Over the past 40 years, voting rights for felons have been steadily and significantly liberalized. But there is still a long way to go. Over 5 million felons and ex-felons remain disenfranchised. It is time to change America’s felon disenfranchisement laws, once and for all.

(p.222) The Political Moment

Felon Disenfranchisement Laws during the “Second” Reconstruction

Taking the long view, it is clear that the tide has begun to turn against felon disenfranchisement. Over the past four decades, restrictions on the voting rights of disenfranchised felons have loosened quite a bit. As we showed in chapter 2, a major wave of liberalizing changes began in the early 1960s and stretched through the mid-1970s. Although momentum for civil rights legislation has eroded since the mid-1970s, the pattern of liberalization in the states has continued, albeit at a slower pace.

Appendix table A10.1 lists the changes to felon disenfranchisement law in the past three decades. While a handful of states have adopted more conservative laws, far more have amended their laws to expand voting rights for felons. For example, in 2001 Connecticut, New Mexico, and Nevada all liberalized their felon voting laws. Connecticut changed its law to allow probationers to vote, New Mexico restored voting rights for all ex-felons upon completion of their sentences, and Nevada eliminated its five-year waiting period for ex-felons to apply for voting rights. In 2002, Maryland automatically restored voting rights for first-time ex-felons (and for non-violent recidivists after a three-year waiting period), and Nebraska automatically restored voting rights for all ex-felons after a two-year waiting period in 2005. Finally, in July 2005, Iowa governor Tom Vilsack signed an executive order granting immediate clemency to all ex-felons who had completed their sentences.2

One way of understanding the cumulative impact of these changes is illustrated in figure 10.1. Here we compare rates of felon disenfranchisement from 1960 to 2000 under two different scenarios, one counterfactual and the other the actual trend. The counterfactual case asks what would have happened if none of the liberalizing changes since the 1960s had occurred. We estimate that if the laws were frozen in their 1960 state, the rate of felon disenfranchisement would have doubled from 1.8 percent in 1976 to 3.6 percent by 1992, and risen to almost 5 percent of the electorate by 2000 (corresponding to approximately 10 million people). In other words, legal liberalization has reduced the number of disenfranchised by about half. We (p.223)

                   Unlocking the Vote

Figure 10.1.Estimated disenfranchised felon population, 1960–2000, if 1960 laws remained in place. (p.234)

have already shown the marked political consequences of felon disenfranchisement based on the actual rates in the bottom of figure 10.1. Imagine how much greater such consequences would be at disenfranchisement rates approximately double those of today.

The Campaign against Felon Disenfranchisement

Reenfranchisement initiatives have gathered steam at the national level as well as in various states. A measure banning the states from placing any restrictions on the voting rights of ex-felons reached the floor of the Senate in February 2002, where it was defeated 63 to 31. In March 2005, Hillary Clinton and Barbara Boxer introduced election reform legislation that would restore ex-felon voting rights in national elections, renewing national discussion of the issue. A national civil rights campaign on behalf of disenfranchised felons is also under way, spearheaded by a coalition of policy organizations (notably the Sentencing Project in Washington, D.C.), foundations with interests in criminal justice issues or democracy (such as the Open Society Institute, the Ford Foundation, and Demos), and a variety (p.224) of religious and civil rights groups (including the ACLU and NAACP).3 A coalition called the National Right to Vote Campaign provides a focal point for state campaigns, giving expert advice on framing issues, launching a media campaign, getting different state-level organizations behind initiatives, and offering a “legal clearinghouse” to provide background information for campaigns challenging state laws.4

At the center of the national network has been a small but vibrant Washington D.C. policy advocacy organization, the Sentencing Project, under the leadership of Marc Mauer.5 The first wave of media publicity surrounding the issue of felon disenfranchisement came from a report prepared by Mauer and Jamie Fellner in 1998, which we described in chapter 3. Mauer and the Sentencing Project have since played a crucial role in coordinating the various parts of the broader movement, sparking growing interest among social scientists, journalists, and civil libertarians.6 The conflation of voting rights and criminal justice issues, and their ties to racial discrimination past and present, make felon disenfranchisement a front-burner issue in the African American community. Of special note has been the participation of African American religious organizations and ministers, as well as African American political leaders.

The primary effort of these campaigns has been in individual states, especially those states with ex-felon restrictions.7 Although the dynamics are different in each state, the goals are the same: to force state legislatures to confront the issue in open debate. Friendly legislators have willingly introduced legislation to restore voting rights to ex-and nonincarcerated felons. An increasingly partisan environment in many states has meant that reform efforts usually move furthest where Democrats have power.8 But the issues raised by disenfranchisement have, at their core, questions of citizenship and democracy that often find receptive audiences across normal political divides. (See the chapter appendix at pages 285–88 for more details of recent state campaigns.)

In addition to their legislative reform efforts, the national campaign and its state and local allies have focused considerable energy on jail-based get-out-the-vote campaigns.9 As we noted in chapter 3, there were approximately 600,000 individuals held in jail on Election Day. Activists attempt to gain access to jails to conduct voter registration drives. In some jails, (p.225) officials are supportive and willing to aid these efforts, although such responses are by no means universal. In some cases, inmates are recruited and trained to register other inmates. In others, the jail chaplain’s office has proven a helpful ally. Jail inmates vote via absentee ballots, which frequently must be requested well in advance of the election (in some cases after registration is approved). Such technical complications have made jail-based campaigns difficult, but the biggest problem is that voluntary efforts at a few jails around the country cannot possibly make ballot access a reality for otherwise eligible jail inmates.

Another important effort has gone into informational campaigns targeted at helping eligible former felons registered to vote. We noted earlier that felons, including our own Minnesota respondents, often lack accurate information about when their right to vote will be restored. Accounts from around the country confirm the impression that many newly eligible former offenders or former inmates simply do not know that they may now register to vote.10 The problem is magnified by fears that registering improperly will constitute a further criminal act, possibly resulting in incarceration. Civil rights organizations and other groups have launched campaigns to make such individuals aware of their rights. While voluntary efforts are important, however, they can only reach a limited number of people in a pool of millions who may not understand their rights.

Is There a Legal Road to Reenfranchisement?

Felon disenfranchisement has been as much a legal controversy as a political one, especially in the post-1960s era. Fully one-third of the states have been subject to a legal challenge at some point.11 With few exceptions, the states have prevailed in these battles. A recent outpouring of legal scholarship and challenges, however, has launched a new struggle over disenfranchisement in the courts. While the Supreme Court’s ruling in Richardson v. Ramirez in 1974 presents a formidable roadblock to litigation, the recent round of challenges advances new legal theories and empirical facts.

The current wave of legal challenges emerged in the late 1990s. Although these challenges have offered numerous constitutional arguments, (p.226) few have been successful.12 For claims under the Fourteenth Amendment, courts continue to rely on the Ramirez decision and consider the issue settled. But as new evidence has become increasingly available—and the racial impact of these laws becomes better understood—lawsuits have argued that felon disenfranchisement violates the Voting Rights Act of 1965 (VRA), as amended in 1982. The VRA uses a “result-based” test that bans any electoral practice that has the effect of denying the right to vote based on race.13 Thus, challenges to felon disenfranchisement under the VRA root themselves in the racial impact of the laws, based on theories of vote dilution.

The reception of challenges under the VRA has been more varied than that of those under the Fourteenth Amendment. Federal courts have differed on whether, and how, the VRA applies to felon disenfranchisement. The Ninth and Sixth Circuit Courts have held that the act applies, while the Second and Eleventh Circuits have recently held that it does not. Although splits among federal appellate courts provide a strong context for the Supreme Court to step in and settle the issue, it has thus far declined to do so.

For those courts that have applied the VRA, the debate focuses on the meaning of the racial disparity that results from disenfranchisement. For example, the Sixth Circuit held that the disparity did not “result from the state’s qualification.”14 In 2003, the Ninth Circuit provided a different perspective on how the act should apply. In Farrakhan v. Washington, the plaintiffs argued that racial disparities within the state’s criminal justice system meant that its failure to restore voting rights upon completion of sentence violated the VRA.15 The district court recognized evidence of racial bias, but found no violation of the act, noting that the law applied equally to all convicted of a felony without regard to race. By itself, the law was not discriminatory.16 On appeal, the Ninth Circuit reversed, finding that proper application of the VRA requires consideration of “how a challenged voting practice interacts with external factors such as ‘social and historical conditions’ to result in denial of the right to vote on account of race or color.”17

Whether a conservative Supreme Court will one day overturn the practice of felon, or ex-felon, disenfranchisement remains unclear. Given the (p.227) failure of the numerous legal challenges and the uncertainty of theories based on the VRA, however, proponents of reenfranchisement have had far less success in the courts than they have had in state legislatures. Yet electoral law is clearly not isolated from politics, and legal challenges can have other important consequences. For example, states such as Florida and Alabama have revised some of their restoration procedures in the face of litigation (both actual and threatened). When plaintiffs in Florida litigation showed that African American ex-felons were far more likely to have a restoration claim rejected for failure to pay outstanding financial obligations, the state relaxed the rules regarding outstanding court costs (though not for victim restitution or pecuniary penalties or liabilities exceeding $1,000).18 Legal challenges also keep the issue before the public, obliging defenders of disenfranchisement laws to articulate justifications in open legal proceedings. While these outcomes of litigation strategy are far from negligible, we suspect that, ultimately, a political strategy is likely to be most fruitful for proponents of reform.

Thinking about Policy Change

In closing our examination of felon disenfranchisement, we see legislative change as the most likely source of policy change in the forseeable future. As policymakers think about disenfranchisement, both short-term and long-term policy changes can be considered in response to the issues we have raised. In the short term, we would urge legislation—which might be called the Civic Reintegration Act—that would require states to make eligibility rules clear and transparent to former felons, and to encourage them to register to vote. Informational problems relating to voting eligibility are widespread, but entirely fixable. Evidence of misinformation—on the part of state, county, and local voting officials, current and former inmates, and criminal justice officials—is so widespread at present that clear communication about voting eligibility and the mechanisms for restoration is of fundamental importance.

The best way to ensure clear communication is to require state governments to provide all parties with accurate information about when individuals (p.228) regain the right to vote. Fortunately, requirements are already in place to facilitate the necessary recordkeeping. The recent federal election reform legislation (the Help America Vote Act) requires the states to maintain accurate lists of ineligible felons beginning in 2006.19 A Civic Reintegration Act would merely add a formal notification step, requiring states to inform formerly disenfranchised felons of their eligibility as soon as their right to vote is restored.

Beyond that, however, we would also suggest that a Civic Reintegration Act include the requirement that states also assist newly eligible individual felons in registering to vote. This can best be accomplished by supplying them with registration materials at the same time they receive written documentation of their eligibility to vote. A single mailing could include both an official confirmation of voting eligibility, and a voter registration pamphlet (at least in those states where mail-in registration is allowed). For those states that do not provide mail-based registration, clear instructions as to what the potential registrant needs to do in order to register might be substituted.

Including voter registration materials or instructions alongside official notice of eligibility would not require formerly ineligible felons to register to vote. Rather, it would merely alert them of their eligibility and offer them the forms or advice that would help them do so. The bundling of these two requirements—timely and accurate notification and distribution of voter registration materials—would immediately improve felons’ knowledge of their voting rights and their capacity to exercise them.

Restoring Voting Rights

The key longer-term reforms, however, require reconsideration of all voting restrictions on disenfranchised felons. We can break the issue into three separate questions: (1) restoring voting rights for people who have completed their entire sentence (ex-felons); (2) restoring voting rights for people who remain under supervision of the criminal justice system on probation or parole, but live in their communities (nonincarcerated felons); and (3) restoring voting rights for currently incarcerated felons. The distinctions between the three categories of punishment are significant, although it is (p.229) possible to overstate them as well. While ex-felons present the most difficult case for supporters of disenfranchisement to defend, current inmates present the most difficult case for supporters of reenfranchisement.

We begin with the case of ex-felons. It was once true that permanent ex-felon disenfranchisement—lifetime bans on the right to vote for criminal offenders—was standard practice in most states. As we have shown, over the past 40 years many states have done away with their ex-felon bans. Nevertheless, 13 states disenfranchise some or all ex-felons, and no other country in the world disenfranchises ex-felons to the extent that the United States does today. Campaigns to eliminate ex-felon restrictions in the remaining states have become increasingly active and sometimes successful. Supporters of ex-felons’ restrictions are clearly on the defensive. They must make arguments with very strong assumptions about the incorrigibility of ex-offenders to even begin to build a plausible case. Either ex-felons must have the capacity to corrupt or taint the political system, restoration procedures must be easily available and costless to those ex-felons who should have their rights restored, or permanent denial of voting rights must serve one of the established purposes of criminal punishment. As we have shown, none of these conditions hold true.

Procedures requiring application for restoration of ex-felon voting rights in states with lengthy or permanent disqualifications are especially problematic and hard to justify. Testing the worthiness of voters has no logic place in a modern polity. For example, we allow drunkards and people with psychological problems to vote—and indeed, it is impossible to imagine not allowing them to vote because of those behaviors. Yet when the governor of a major state asks applicants for restoration whether they have been drinking or dealing with their anger management issues (as we showed in chapter 3), we are moving dangerously close to making virtue a condition of participation.

While states have legitimate reasons to compel felons to make restitution to their victims, and to punish recidivists or violent offenders more harshly than others, there are no logical reasons for imposing disenfranchisement in such cases. Requiring payment of financial obligations as a prerequisite to voting imposes a kind of poll tax on ex-felons. Such penalties can be enforced in other ways. Some states impose ex-felon disenfranchisement (p.230) for only some types of criminal convictions, such as violent offenses. Yet singling out violent ex-offenders who have completed their sentences is illogical, as they are no more likely to commit electoral fraud or use the ballot improperly than any other category of offender. Moreover, the greater severity of their crimes is already addressed in the length of their sentences. The same point applies to multiple offenders: they are already punished more severely by the criminal court for their repeat offenses. Restricting their voting rights after their sentence has no compelling justification for the same reason. Finally, the logic of imposing a waiting period is also puzzling. In most states with waiting periods, restoration is automatic after that period unless a further offense is committed. The logic of requiring a waiting period in order to learn whether former felons “go straight” results merely in the removal of a large group of citizens from the electorate.

The case for restoring voting rights to nonincarcerated felons occupies the middle ground between ex-felon disenfranchisement and the disenfranchisement of current inmates. Nonincarcerated felons are like inmates, in that they are still serving a felony conviction and remain subject to certain conditions of probation or parole. But they are also like ex-felons, in that both groups are encouraged to work, pay taxes, raise families, and assume other responsibilities of citizenship. Just as ex-felons, they are free to make choices that inmates cannot make and are generally subject to the same laws as nonfelons. The two groups are also similar in that there are virtually no foreign examples of disenfranchisement of either former offenders or current, but not incarcerated, offenders.

Nonincarcerated felons are living in their communities so that they may retain (in the case of probationers) or rebuild (in the case of parolees) their ties to their families, employers, and their communities. If they are politically disenfranchised, nonincarcerated felons are denied participation in the political process that governs them in their daily lives. Allowing them to reestablish ties as stakeholders in political life provides an analogous and important reintegrative purpose, as suggested by the evidence in chapters 5 and 6. We therefore favor reenfranchising probationers and parolees.

The strongest case for continuing disenfranchisement is for currently incarcerated inmates, who cannot vote in 48 states. These restrictions are (p.231) the least anomalous in the international context, as many other nations disenfranchise prison inmates. Current public opinion clearly supports the continuing disenfranchisement of prison inmates. The wave of democratization since the 1960s has swept past inmates, without so much as a single state expanding their voting rights. Should this group remain locked out?

There are a number of reasons why even the disenfranchisement of current inmates is problematic. To be sure, prisoners are denied many freedoms. Inmates are not free to choose whom they want to work for, to travel, to have their choice of goods and services, and so forth. But these restrictions arise simply because of their incapacitation in prison. In other words, they do not lose these rights as part of their criminal sentence under state or federal law, but they are deprived of these things by virtue of their confinement and the necessary limitations on freedom of movement it imposes.

Prison administrators have a responsibility to maintain a safe and orderly environment in prison, and they have great discretion in determining which individual deprivations are necessary to meet these goals. But a long series of court rulings has established that restrictions on fundamental rights must be justified, rather than imposed arbitrarily on inmates. For example, in Cutter v. Wilkinson (2005) the Supreme Court unanimously upheld the constitutionality of a federal law requiring states to allow prisoners to practice their religious beliefs, unless prison officials can show that such accommodation would be disruptive.20 Similarly, the First Amendment protects the right of prisoners to send and receive mail, although officials may censor letters or withhold delivery for rational security reasons.21 Courts thus strike a balance between prisoners’ rights and the objectives of security, order, and rehabilitation. Where rights such as access to the courts or to free expression are not clearly part of the punishment or necessary for prison administration, they are generally retained by inmates.

The right to vote is potentially one such right. Limited information about prisoner voting (by absentee ballot) in Maine and Vermont, and in many other countries around the world, provides no evidence that it would create significant problems for prison officials.22 Voting by inmates in other countries, sometimes even facilitated by the use of polling booths in prison, does not appear to have created security or other problems.23 Because voting (p.232) presents few security concerns and could be facilitated by either absentee ballots or polling places inside prisons, the question of restoring voting rights to inmates becomes a matter of choice, not necessity. From there, it is not a leap to suggest that the same logic in favor of voting rights for ex-felons and nonincarcerated felons might be extended to current inmates as well. Allowing voting provides a costless way of allowing them to practice citizenship.

It is noteworthy that supreme courts in Israel, Canada, and South Africa have all recently restored inmate voting, as has the European Court of Human Rights. In each case, and despite invoking different legal and political traditions, all three national courts noted that the right to vote is fundamental to democracy, outweighing other considerations.24 In Israel, the Supreme Court, remarkably, restored the voting rights of Yigal Amir, the assassin of Yitzhak Rabin. It declared that “we must separate contempt for his act from respect for his right,” and that if the right to vote was denied, “the base of all fundamental rights is shaken.”25 In striking down the disenfranchisement of prisoners, the Supreme Court of Canada similarly noted that the practice has “no place in a democracy built upon the principles of inclusiveness, equality, and citizen participation.”26

The South African Constitutional Court applied similar logic to the Canadian and Israeli courts, but offered an especially elegant and forceful ruling that is worth quoting at length:

The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Right may not be limited without justification and legislation dealing with the franchise must be interpreted in favor of enfranchisement rather than disenfranchisement.27

Following this ruling, there have been several twists and turns, as the South African government formally adopted new legislation disenfranchising felons (p.233) in 2000, but another ruling in 2004 once again restored inmate voting rights.28

The irony of the South African case is striking. The high court in a new democracy, throwing off the yoke of undemocratic apartheid rule, concludes that voting is a fundamental right of all citizens, and one in which “our destinies are intertwined in a single interactive polity.” No clearer statement of the argument of this book can be found. Democracy rests on universal participation, even among those citizens who have committed criminal offenses. Their exclusion affects everyone and diminishes the democratic polity as a consequence.

Notes:

(1.) Alec Ewald, Punishing at the Polls: The Case against Disenfranchising Citizens with Felony Convictions (New York: Demos Foundation, 2003), 34. See also Alex Keyssar, The Right to Vote (New York: Basic Books, 2000).

(2.) The executive order immediately reinstated voting rights for all current ex-felons (98,000 by our estimate in chapter 3) and will automatically restore rights for people released from supervision from now on. The state Department of Corrections will forward a list of names to the governor’s office on a monthly basis. Nevertheless, Govenor Vilsack’s successor could sign another executive order overturning the first, which would apply to future ex-felons but not those who have just regained their rights. We thank Marc Mauer for clarifying these details. (p.346)

(3.) In the interests of full disclosure, we should note that we received a grant from the Open Society Institute to support part of the research reported in this book.

(4.) See the Right to Vote website, at www.righttovote.org.

(5.) Mauer is the author of a widely cited work on the incarceration boom, Race to Incarcerate (New York: New Press, 1999), and coeditor, with Meda Chesney-Lind, of Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: New Press, 2002).

(6.) In social network theory, the Sentencing Project (and Marc Mauer) would be classified as a hub of the network. A network diagram of the movement and its participants would look something like a hub and spokes, with the Sentencing Project in the key center position.

(7.) The Sentencing Project website (www.sentencingproject.org/) and the national Right to Vote website (www.righttovote.org/) provide further details and information.

(8.) For discussion of the role of partisan politics in legislative debates over felon disenfranchisement, see Jason Belmont Conn, “The Partisan Politics of Ex-felon Disenfranchisement Laws” (undergraduate honors thesis, Department of Government, Cornell University, 2003).

(9.) For a survey of some campaigns, see Steven Kalogeras, Jail-Based Voter Registration Campaigns (Washington, D.C.: Sentencing Project, 2003).

(10.) See, e.g., Sherri Williams, “Many Felons Surprised to Learn They Can Vote,” Columbus Dispatch, October 3, 2004.

(11.) These states are Alabama, California, Florida, Georgia, Illinois, Mississippi, Montana, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Tennessee, Texas, Virginia, Washington, and Wyoming. See Angela Behrens, “Voting—Not Quite a Fundamental Right? A Look at Legal and Legislative Challenges to Felon Disenfranchisement Laws,” Minnesota Law Review 89 (November 2004): 231–75, 250.

(12.) Among the successful challenges to felon disenfranchisement laws have been Hunter v. Underwood, 471 U.S. 222, 233 (1985) (which ruled disenfranchisement unconstitutional if based on an intent to discriminate racially); Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003); McLaughlin, 947 F. Supp. at 973 (which held that disenfranchisement for a misdemeanor violates equal protection); Stephens v. Yeomans, 327 F. Supp. 1182, 1188 (D.N.J. 1970) (holding New Jersey’s law violated equal protection); and Mixon v. Commonwealth, 759 A.2d 442, 451–52 (Pa. Commw. Ct. 2000) (precluding Pennsylvania from disenfranchising beyond sentence only those who were not registered to vote prior to incarceration), aff ’d mem. 783 A.2d 763 (Pa. 2001). For further discussion, see Behrens, “Voting—Not Quite a Fundamental Right?” (p.347)

(13.) The VRA is codified at 42 U.S.C. § 1973. As amended, it reads:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied…in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color….(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

42 U.S.C. § 1973 (2000) (emphasis added). Prior to the 1982 amendments, the VRA required proof of a discriminatory intent, rather than effect, to show a violation of the Act. See, e.g., City of Mobile v. Bolden, 446 U.S. 55 (1980).

(14.) Wesley v. Collins, 605 F. Supp. 802 (1985), at 1261–62. For a useful discussion of Wesley, see Alice Harvey, “Ex-felon Disenfranchisement and Its Influence on the Black Vote: The Need for a Second Look,” University of Pennsylvania Law Review 142 (1994): 1145–89.

(15.) Farrakhan, at 1011. The court concluded that “Plaintiffs presented statistical evidence of the [racial] disparities in arrest, bail and pre-trial release rates, charging decisions, and sentencing outcomes in certain aspects of Washington’s criminal justice system.”

(16.) Farrakhan, 2000 U.S. Dist. LEXIS 22212, at 9–10, 14. The court noted that “at most, [evidence of discrimination in the criminal justice system] establishes a flaw with the criminal justice system, not with the disenfranchisement provision.”

(17.) Farrakhan, 338 F.3d at 1011–12 (citing Thornburg v. Gingles, 478 U.S. 30, 47 [1986]). The Ninth Circuit’s standard holds promise, and a panel of the Eleventh Circuit recently agreed, but that decision was reversed by the entire court. See Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir. 2003), vacated en banc by 377 F.3d 1163 (11th Cir. 2004). In applying the Act, the district court had looked to Wesley and agreed that “there must be a nexus between the discriminatory exclusion of blacks…and the disenfranchisement of felons.” Johnson v. Bush, 214 F. Supp. 2d 1331, 1341 (S.D. Fla. 2002) aff ’d in part, rev’d in part sub nom. Johnson v. Governor of Florida, 353 F.3d 1287, 1308 (11th Cir. 2003), vacated en banc by 377 F.3d 1163 (11th Cir. 2004). The Eleventh Circuit panel held that the court erred by failing to consider how felon disenfranchisement laws interacted with social and historical circumstances. Johnson, 353 F.3d at 1305. The full court reversed. Johnson v. Bush, no. 02–14469, 2005 U.S. App. LEXIS 5945 (11th Cir. Apr. 12, 2005). The Johnson case is examined in a documentary film by Laurel Greenberg, Trouble in Paradise (Magic Couch Pictures, 2003). (p.348)

(18.) See Florida Rules of Executive Clemency, as revised December 9, 2004. For a critical dissection of a similar practice in the state of Washington, see Jill Simmons, “Beggars Can’t Be Voters: Why Washington’s Felon Disenfranchisement Law Violates the Equal Protection Clause,” Washington Law Review 78 (2003): 297–333.

(19.) The Help America Vote Act requires that the states “coordinate the computerized list with State agency records on felony status,” for purposes of determining who to remove. 42 U.S.C. 15483 (a)(2)(a).

(20.) Cutter v. Wilkinson, 544 U.S. 00 (2005).

(21.) Hudson v. Palmer, 468 U.S. 517, 547 (1984).

(22.) See Pam Belluck, “When the Voting Bloc Lives inside a Cellblock,” New York Times, November 1, 2004.

(23.) See Debra Parkes, “Ballot Boxes behind Bars: Toward the Repeal of Prisoner Disenfranchisement Laws,” Temple Political and Civil Rights Law Review 13 (2003): 71–110.

(24.) Our discussion of these cases in this paragraph is indebted to Alec Ewald. See his “An ‘Agenda for Demolition’: The Fallacy and the Danger of the ‘Subversive Voting’ Argument for Felony Disenfranchisement,” Columbia Human Rights Law Review 36 (2004): 109–43, at 134–39.

(25.) Quoted in Ewald, “An ‘Agenda for Demolition,’ ” 134.

(26.) Suave v. Canada 3 S.C.R. 519 [2002], cited in Ewald, “An ‘Agenda for Demolition,’ ” 137.

(27.) August v. Electoral Commission, 1999 (8) SA at 23. This is quoted in Ewald, “An ‘Agenda for Demolition,’ ” 135.

(28.) Minister of Home Affairs v. Nicro CCt ¾ (2004), available at: http://sentencingproject.org/pdfs/southafrica-decision.pdf. (p.349)