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There is growing energy across the country to re-enfranchise people with criminal records. Just last year, California reinstated voting rights for people on probation and people convicted of felonies who are incarcerated in county jails. Many credit Democrat Doug Jones’ win over Republican Roy Moore last year for Jeff Sessions’ former U.S. Senate seat to a change in Alabama law that re-enfranchised thousands of people with criminal convictions. Most recently, a ballot initiative qualified for the 2018 Florida election that will ask voters to decide whether to amend their state constitution to allow more than 1.5 million of their fellow Floridians with felony criminal records to have their right to vote returned.
People in prison have the most insight into how the criminal justice system works and what needs to change due to their lived experiences; however, their ability to engage in this conversation is extremely limited because they are denied their voice—their vote—in our democracy. We can do better.
The grassroots effort in Florida is led by formerly incarcerated people, and would re-enfranchise people who have completed their sentences for felony offenses—that is, excluding people convicted of sexual offenses and murder. It will need 60% of the vote in November to become law in Florida. This is a huge step, but the voting restoration in Florida doesn't go far enough: activists in states across the country are demanding that all Americans be allowed to have a say in their governance.
A brief primer on criminal disenfranchisement: In the United States, each state sets its own requirements for determining who is eligible to vote in local, state and federal elections. Considering the United States’ history as a white supremacist, patriarchal and classist country, it comes as no surprise that many states’ laws reflect these prejudices in defining the eligible voting populace. While in the past, many states wrote their constitutions to explicitly exclude non-white people (as well as women, poor people, and other marginalized groups) from voting and citizenship, with ratification of the 15th Amendment to the United States Constitution, states were required to remove these explicitly racist voter restrictions. In their place, states began adopting laws and amendments which disenfranchised people who were convicted of certain crimes from voting, and tailoring those laws such that the crimes people of color were most often arrested for were the ones people most often lost voting rights for committing. In this way, states sought to restrict the right to vote from the people who arguably needed it the most: communities of color resisting oppression.
Florida’s criminal disenfranchisement law dates to 1868, and was explicitly adopted to maintain white supremacy. Currently, Florida prevents people convicted of felonies from voting in any election in the state for the rest of their lives—even after they’ve completed probation, parole, and paid restitution—unless they apply for and receive clemency from a board composed of the Governor and members of his Cabinet. Because Florida’s criminal justice system also targets people of color, this law prevents 1 in 5 black Floridians from ever voting again. On February 1, a federal judge ruled that Florida’s system of returning the right to vote was unconstitutional due to its arbitrariness, writing “disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s governor has absolute veto authority.” Florida now has two weeks to put in place a new process for restoring voting rights; however, this ruling does not impact the ballot initiative, which would automatically restore people’s right to vote upon completion of their sentence. If this ballot initiative passes, it would mark a huge victory for democracy, leaving only two states—Iowa and Kentucky—with lifetime bans on voting for people with felony convictions.
It is time we as a society acknowledge the basic right of all residents to vote, particularly groups subject to heightened levels of oppression such as people convicted of crimes. As more formerly incarcerated people take on leadership roles in criminal justice reform advocacy, it has become increasingly clear that those closest to the problem are also closest to the solution. And this truth lives on behind prison walls. Prisoners are uniquely and directly impacted by policies created by elected officials, but in 48 states—all except Vermont and Maine, which are the two whitest states in the country—people serving felony sentences in prison are not allowed to exercise their right to vote.
However, despite the numerous ways currently incarcerated people are singularly impacted by policymaking (given that they are at the mercy of the state on a daily basis), the majority of campaigns to repeal criminal disenfranchisement laws—including Florida’s current initiative—do not extend to currently incarcerated people, and exclude certain categories of people based on the severity of crimes they committed. Campaigns likely make this decision to exclude “the worst of the worst” and people currently under some level of supervision (be it incarcerated, or on parole or probation) because they fear the voting public, and legislators, will not get on board. Instead, campaigns rely on narratives that people who have “served their time” and completed their sentences, and people convicted of nonviolent offenses, can be trusted with the right to vote, while other, more “serious” offenders cannot.
While we acknowledge the reasoning behind this choice, we at Ballots Over Bars, a campaign to return the right to vote to prisoners, oppose this reasoning, and recently, organizers in various states have launched campaigns that reject the exclusionary impulse. In California, Initiate Justice, a grassroots organization that engages people directly impacted by incarceration to bring about criminal justice reform via that state’s ballot initiative process, is gathering signatures to get the Voting Restoration and Democracy Act of 2018 on the ballot. The Act would abolish criminal disenfranchisement laws in that state, which currently disenfranchise around 180,000 people in prison or on state parole. In order to get on the ballot, advocates need to gather 585,407 signatures by April 25, 2018.
To gather these necessary signatures, Initiate Justice has been mailing copies of the signature collection forms to their “3,500 incarcerated members—and … asking them to find someone on the outside who can sign it since only registered voters are allowed to sign. That has been the key strategy of our inside-outside organizing model for this campaign,” co-founder Taina Vargas-Edmond explains. Vargas-Edmond co-founded the organization with her husband, Richard Edmond-Vargas, who is currently incarcerated and scheduled for release later this year. Initiate Justice took on the campaign to abolish criminal disenfranchisement laws at the urging of their incarcerated members because the organization’s “goal is to ensure that people impacted by incarceration are civically engaged [and so] the first thing that we need to do is restore their right to vote.”
On the East Coast, New Jersey legislators have committed to introducing legislation to re-enfranchise people in prison. The New Jersey Institute for Social Justice recently released a report detailing the white supremacist origins of their state’s criminal disenfranchisement law. In 1844, the state amended their constitution to restrict the right to vote exclusively to white men and that same year also amended it to exclude anyone with a criminal conviction from voting. Following the ratification of the 15th Amendment, the former was repealed, while the latter has remained on the books until today. Currently, New Jersey is the only state in the Northeast that disenfranchises both people who are on parole as well as those on probation. New Jersey’s state prison system also has the country’s worst racial disparities. In total, New Jersey’s criminal disenfranchisement laws leave about 94,000 people without a voice, including over 5 percent of the black voting age population.
Scott Novakowski, associate counsel and Debevoise legal fellow at the New Jersey Institute for Social Justice, lays it out like this: “People just assume it’s the thing you do: if you’ve been convicted of a crime, of course you lose the right to vote. Well, why?” Novakowski points out the absurdity of treating the right to vote as less fundamental than other guaranteed rights by saying, “We don’t—as a country, unless there’s some overriding public safety concern—we don’t deny a person their fundamental rights because they are incarcerated. We don’t take away medical care. We don’t take away the right to practice one’s religion. These fundamental rights are regulated, for sure. And there can definitely be restrictions, based on public safety concerns. But there’s no flat-out denial, as there is with the right to vote. Similarly, we’re not talking here about people in prison going to vote at the polling place in their home communities. They would be restricted to voting by mail-in ballot. We’re just asking that the right to vote be treated like every other fundamental right.”
Novakowski says that people will sometimes come back with the argument that people in prison are “‘going to elect the soft-on-crime, or the pro-crime, candidate.’ Which, one, is just a red-herring. The idea that someone somehow is going to ride their way into office as a crime advocate is just not realistic. And, second, even assuming that was the case, you cannot decide who can and cannot vote based on your perception of who they are going to vote for.”
Vargas-Edmond explains why Initiate Justice is working to re-enfranchise everyone, no matter their conviction nor whether they’re currently or formerly incarcerated, in a similar manner: “The reason that we don’t want to exclude anybody is because the right to vote is an inalienable right ensured to all citizens of the United States, regardless of the mistakes that people have made, regardless of their status as incarcerated or formerly incarcerated—that really should not weigh at all. Incarcerated people are still required to pay taxes and they maintain their status as citizens, but nevertheless are prohibited from having a say in elections that determine the outcomes for their loved ones and their communities. So, we see the right to vote as something that has been stripped away as a means of restricting people’s power, and it actually doesn’t have anything to do with public safety.” As both Novakowski and Vargas-Edmond have spoken to, other basic rights do not disappear when someone is incarcerated, so the right to vote shouldn’t either.
This country loses when we take away the right to vote from people whom the state has chosen to criminalize. Much like the current criminal justice reform debate that centers around the “non-non-nons”—people convicted of non-violent, non-serious and non-sexual offenses—returning the right to vote to only people who are no longer incarcerated or who have only committed certain offenses leaves a large percentage of the people out of the conversation. Most of this country’s prisoners are incarcerated at the state level, and around 50 percent are serving time for violent crimes. Most, but not all, incarcerated people will eventually leave prison. It is widely known that the stronger community ties you have while incarcerated, the greater your chances are upon release. Voting can be one of those ties.
Massachusetts was the most recent state to take away the right to vote for prisoners, in 2000, and its motivation for doing so speaks to the ugly truths of a state lauded for its liberal policies. The state took this drastic step after a group of people serving life sentences started exercising their political power and formed the Massachusetts Prisoners Association Political Action Committee. In response, the state amended its constitution so that prisoners could never again attempt to have a say in government.
There are currently about 8,000 people in Massachusetts who are barred from voting because they are incarcerated in prison on a felony conviction. One in four people in Massachusetts’ state prison system is incarcerated for life, meaning that their ability to participate in civic life is extremely limited. In addition to having the potential to reduce recidivism amongst among people following their release from prison, returning the right to vote to people in prison could have positive community effects, such as the ability to activate greater levels of civic engagement in communities that are heavily impacted by incarceration, and encouraging people in prison and their loved ones to stay informed and involved in their communities. Additionally, one of my motivations for starting this campaign was hearing from people serving life sentences how passionate they felt about making their voices heard, and particularly, how much hope voting brings them, which then informs the entire prison atmosphere.
The right to vote is a fundamental right in a democracy. The United States does not strip someone of their citizenship when they are convicted of a crime, and thus their right to representation should not vanish either. While re-enfranchising formerly incarcerated people is necessary and laudable, campaigns that only focus on the rights of people who have been released, let alone categorizing people into voting-eligible and ineligible buckets based on the crimes they committed, only furthers a false dichotomy between worthy and unworthy citizens. If we as a society are sincere about our desire to engage in criminal justice reform, and change the architecture of our racist, classist, sexist criminal justice system—not just the surface—we must broadly question what we have to fear from allowing all constituents to have a say in their governance.