Experts have already raised a number of problems with the Trump administration’s voter fraud commission and its request for voter registration information from the states. At the outset, the commission's request may have violated the law by failing to follow federal regulations relating to requests for information. Rick Hasen has raised concerns relating to privacy and federalism, among other issues, and Josh Douglas has argued persuasively that the commission is designed to make "the public think[ ] there is a problem where none exists"—while distracting from real and serious problems infringing on the right to vote.
One of many such problems is that of felony disenfranchisement. More than six million Americans are unable to cast ballots due to laws that prevent those who have committed felonies from voting. The precise terms of the laws vary from state to state: 12 states disenfranchise at least some felons permanently; 22 disenfranchise during prison and parole; 15 during prison. Only two states—Maine and Vermont—do not disenfranchise felons at all, even while they are in prison.
State laws disenfranchising people who have committed felonies can have national consequences. In the 2000 presidential election, for example, George W. Bush ultimately won Florida by just 537 votes, yet almost 950,000 people were unable to vote due to felony convictions. Florida's laws literally could have determined the result of the election. Indeed, demographic data suggest that they probably did. At the time of the election, nearly twenty percent of black men in Florida—a demographic that votes strongly democratic—were unable to vote due to a felony conviction.
Diluting the power of the black vote was in fact the original purpose of many felony disenfranchisement laws. During the Jim Crow era, at the same time that legislatures enacted poll tax laws with the purpose of preventing black people from voting, they also developed laws disenfranchising people who had committed felonies. Such laws were often targeted at felonies for which black people were more likely (or were believed to be more likely) to be convicted.
The authors of the felon disenfranchisement laws would have been pleased with those laws' consequences today. Given the racial disparities throughout the criminal justice system, it is unsurprising that the racial disparity in felon disenfranchisement persists. The numbers are sobering. Nationwide, one in 13 black people has lost the right to vote as a result of a felony conviction, while the same is true of only one in 56 white people. In four states, more than 20% of black people cannot vote due to a past felony conviction: Kentucky (26.2%), Virginia, (21.9%), Florida (21.3%), and Tennessee (21.3%). The trend is particularly consequential given that both Virginia and Florida are often important swing states.
At a time when civil rights advocates are struggling to avoid losing ground to restrictive voting laws, reenfranchising those who have committed felonies may seem like a fantasy. But resisting interference with voting rights and fighting to restore rights wrongly curtailed are two sides of the same coin. Moreover, recent measures at the state level show that incremental progress toward felon reenfranchisement can be a bipartisan issue.
In Alabama, one of the twelve states that disenfranchises at least some felons permanently, recent legislation clarified the offenses that trigger such disenfranchisement. Previously, only felonies demonstrating "moral turpitude" triggered lifetime disenfranchisement, and individual county clerks had broad discretion to determine what those offenses were. In practice, this meant that a particular felony might lead to lifetime disenfranchisement in one county but not in another, which in turn discouraged many people who had been convicted of felonies from even attempting to have their voting rights restored.
The Alabama statute passed both houses unanimously and was signed into law by Alabama's Republican governor, Kay Ivey. Although Alabama still disenfranchises people for more than forty different felonies, it has provided much-needed clarity about who can and cannot vote, which in turn may encourage people to apply for reenfranchisement. Both state and national civil rights advocates have hailed this development as a significant victory that could affect thousands of people convicted of felonies.
At a time when Trump-administration-led efforts raise concerns about interference with voting rights, advocates cannot afford to overlook avenues to preserve the integrity of the franchise. Thinking creatively at the state level about how to address felon disenfranchisement is one way to help ensure free and fair elections for all of us.