Electoral laws are a common and necessary component of democratic regimes. However, these laws can undermine the democratic voting process through legal means. Restricting the voting rights of certain groups of people, such as those with felony convictions, is a constitutionally sound government practice that may significantly impact election results.
Felony disenfranchisement is rooted in the practice of othering those with felony convictions and relies on a the belief that those with felony convictions should not be allowed to participate in the political process. Creating a cultural norm of disenfranchisement as a valid punishment for a felony conviction allows this practice to go largely unquestioned. Additionally, due to systemic racism in legal institutions, voting restrictions for those with felony convictions disproportionately affect people of color, particularly Black people. Felony disenfranchisement is an act of stealth authoritarianism in the United States.
Exclusion from the Political Community
Felony disenfranchisement poses a threat to democracy through its conflict about who belongs as a member of the political community. Historically, portions of the population have been included in the political community by being granted their right to vote. Disenfranchisement can thus be seen as a government practice that excludes an individual from the political community.
Prisons are usually built in majority white towns and bring substantial money into these communities. Because incarcerated individuals are counted in the population of these communities, the towns also gain electoral power from prisons in their communities. Incarcerated individuals also perform labor and contribute to the economy, but they cannot vote for their own rights or on any political issues, often even after they are no longer incarcerated.
In all but two states in the United States, a felony conviction will lead to the disenfranchisement of an individual for at least their period of incarceration. In eleven states, this individual’s right to vote is not restored until some period after they have served their sentence, is never restored for some crimes, or requires additional action to restore, separate from voter registration. In two states, all individuals with felony convictions are permanently disenfranchised. The law explains under what conditions society and the government accepts incarcerated people as members of the political community, even though their population contributes to the political representation each community gets and participates in the economy for little to no pay through prison labor.
Political Culture of Disenfranchisement
Furthermore, felony disenfranchisement is upheld by the political culture stating that those with felony convictions should not have the right to vote. Research suggests that granting voting rights to formerly incarcerated people aids in their transition back into society when they are released. The United States is one of only four countries in a study of 45 major democratic countries in which convicted felons are banned from voting after they have been released from prison. In 21 of these 45 major democratic countries, individuals with a felony conviction can vote even while incarcerated. The idea of restricting the voting rights of those with felony convictions is not necessarily widespread across the world.
This political culture of disenfranchising convicted felons impacts political outcomes. The rate of disenfranchisement for Black people with felony convictions is nearly four times higher than their white counterparts. One in every sixteen Black adults are disenfranchised due to a felony conviction, and in seven states, the rate is over twice as high as the national average. Women make up over one-fifth of the disenfranchised population nationally. Disenfranchisement due to felony conviction specifically bars many already marginalized people from political participation.
There are over two million people in the United States who are post-sentence, through prison, parole, and probation, and are still denied the right to vote. These people constitute a 43% of people who are disenfranchised due to a felony conviction. The number of people serving sentences of life without parole has also increased substantially in the last twenty years. This significant portion of the population with clear racial and ethnic disparities is consistently disenfranchised due to a political culture that values criminalization over rehabilitation.
Violation of Legal Integrity
Lastly, felony disenfranchisement undermines an essential element of democracy—integrity of law and legal institutions—as it disproportionately affects people of color due to the history of and current racial disparities in the law and legal institutions in the United States. Many states began implementing felony disenfranchisement laws during the Civil War. Southern states created their disenfranchisement laws by targeting crimes believed to be most frequently committed by Black people.
Laws and practices in legal institutions that lead to greater incarceration of people of color are still constructed today. For example, drugs more likely to be used by people of color have lower thresholds of possession and distribution to constitute a felony. Black and Latinx people are also statistically overpoliced and overcharged for their crimes. They receive longer sentences for similar crimes committed by white people. Black men are six times more likely to be incarcerated than white men, and Black women are twice as likely to be incarcerated than white women. Black and Indigenous youth are also significantly more likely to be imprisoned than their white counterparts. For people of color with felony convictions, their right to vote hinges on the systemically racist institutions of their states.
Additionally, even when formerly incarcerated convicted felons have their right to vote restored, there is often a restoration process in addition to a registration process. Access to these legal processes may also be restricted as they often require fines, repayment of all legal financial obligations, court costs, restitution, and the time and resources to complete these processes. The restoration of their right to vote does not guarantee them the ability to vote. Felony disenfranchisement is both a product and a tool to maintain race and class disparities in the law and legal institutions of the United States.