In 1958, the Supreme Court ruled that revoking someone’s citizenship as punishment for committing a crime is unconstitutional. “Citizenship is not a right that expires upon misbehavior,” Chief Justice Earl Warren wrote for the majority. Other rights, however, do, including a bedrock element of citizenship in a democracy: the right to vote.
Felons have long been disenfranchised in the United States, unable to vote while they serve their sentence, and, in some states, losing the right to vote permanently. But in the last few years, public support for restoring voting rights for ex-felons has been growing. In 2018, 63 percent of Americans favored granting voting rights to people who have committed a felony after they serve their sentence. Less popular, however, is giving prisoners the right to vote. In 2019, nearly 70 percent of Americans were against it. But the best way to reenfranchise felons is to not take away the right to vote in the first place, and allow people to continue voting through their prison sentence.
In reality, felon disenfranchisement has disproportionately impacted people of color, reducing the political power of Black people in particular. “Many of these policies, especially the ones that permanently disenfranchise voters, are not just incidentally racially discriminatory, but actually by design were implemented in some states to exclude Black people from the ballot box,” said Jennifer A. Holmes, an assistant counsel at the NAACP Legal Defense and Education Fund.
Many felon disenfranchisement laws cropped up around the time of Reconstruction, specifically to diminish the political power of Black people and the formerly enslaved population. They were part of the Black Codes, a series of laws restricting Black people’s freedom, and allowed authorities to arrest freed people for things like loitering and homelessness by codifying as crimes or felonies any activities that white lawmakers associated with Black people.
“It had the purpose and effect of disenfranchising Black citizens,” Holmes said. “Unfortunately, it’s been very successful. And it has only been exacerbated by modern-day mass incarceration, in which the prison populations exploded, so you have from just a numbers point of view even more and more people losing the right to vote because of a felony conviction.”
That these laws are rooted in slavery isn’t a recent discovery. A Virginia court, in 1879, admitted as much itself, stating that the Bill of Rights should not apply to convicted felons, who are “slaves of the state.” And when it comes to barring prisoners from voting, there is another parallel to slavery: Just as the Constitution’s three-fifths compromise counted slaves in the census — giving slave states more political power — while denying them the right to vote, prisoners are also often counted in voting districts while being unable to vote in them. That has led to what some call prison gerrymandering, where local governments can bolster the political power of white rural areas by drawing their district lines to include disproportionately Black and brown prison populations that can’t vote.
Another reason prisoners should have the right to vote is to ease the difficulty in reenfranchising felons. Upon release, many felons may be confused about what rights they have, and are forced to navigate a complicated bureaucracy in order to have their voting rights restored. In effect, taking away the right to vote, even temporarily, could lead to permanent civic disengagement.
In a country with a prison problem, from its massive incarcerated population to the cruel and abusive conditions of prisons, granting prisoners the right to vote could also lead to a more humane system. Prisoners would then be voting constituents, and their elected officials might feel forced to answer to them, especially in areas with competitive races.
“Stripping people of the right to vote because of a conviction is part of dehumanizing or delegitimizing them as a citizen of this country,” Holmes said.
It is inherently undemocratic to revoke the right to vote, especially in a heavily incarcerated society like the United States. Only two states, Maine and Vermont, allow prisoners to vote unconditionally, while most democracies in the European Union, as well as Canada, let prisoners vote. That raises the question: Is it merely a coincidence that American prisoners are only able to vote in the two whitest states in the union? (Both states have a white population of over 94 percent.)
Ultimately, if voting and civic engagement are a key part of citizenship — and if citizenship does not, in fact, expire upon misbehavior — then the United States must let all of its prisoners vote.