People in the United States love to vote.
We vote for dancing celebrities and vocalists in search of stardom. We vote for pageant contestants chasing sashes and scholarships, and we vote in community forums to prioritize public investments.
We hold more elections than other democratic nations to fill an array of public offices for justices of the peace, school board members, voter registrars, and prosecutors. We’ve created a bizarre maze of registration requirements to determine when and how people can participate in political elections.
And yet, the U.S. still manages to elicit relatively low rates of voter participation.
Invariably, some election analyst or Facebook prophet will pronounce, “If you don’t vote, you don’t have the right to complain.” I despise that phrase.
In spite of our professed love of voting as one of the most precious and fundamental features of American democracy, the framers crafted a Constitution that doesn’t include an affirmative right to vote. The Constitution, 230 years after its ratification, still grants states the authority to set the time, place and manner of elections – and, by extension, voter eligibility requirements. America is exceptional in her professed commitment to democracy and the limits she places on voting.
Today, millions of Americans are denied access to the franchise because of a criminal conviction. Felon disenfranchisement laws prohibit currently and, in many states, formerly incarcerated individuals from voting. According to the nonpartisan think tank Prison Policy Initiative, there are 2.3 million people behind bars in the U.S. in facilities ranging from local jails to federal immigrant detention facilities. In every state except Maine and Vermont, people behind bars are prohibited from voting. In 13 states and the District of Columbia, voting rights are automatically restored upon release from prison.
However, nine states, including Delaware, Alabama, and Iowa, require the formerly incarcerated to petition for restoration with acceptance contingent upon the type of crime committed and the level of government oversight. African-Americans and Latinos are highly overrepresented within the criminal justice system. It’s no surprise, then, that people of color comprise the overwhelmingly majority of America’s disenfranchised population.
Disenfranchisement laws are a vestige of the medieval practice of banishing criminals from the community. Though some form of criminal disenfranchisement has always existed in the U.S., the end of the 19th century marked an important era for the expansion and strict enforcement of criminal statutes.
As the 13th, 14th and 15th Amendments carved out a fragile sense of citizenship for formerly enslaved Africans, states began devising elaborate disenfranchising schemes that allowed them to penalize Blacks without any explicit reference to Blacks as a racial group. By crafting laws to limit the political presence of “criminals” rather than “Blacks,” state legislators could uphold the Constitution while still protecting their local interests and, in effect, preserving the status quo. The lynchpin of the laws’ effectiveness rested on the selective and targeted enforcement of laws Blacks were thought to commit more frequently.
We may be far removed from the days of breaking a water pipe, stealing edible meat or being a vagrant as a felony punishable by lifetime disenfranchisement. Yet, decades of a failed War on Drugs combined with ongoing challenges to fairness in policing and enforcement leave us with a racially segregated polity. One in 13 African-Americans age 18 and above is disenfranchised due to a past conviction. According to the Sentencing Project, more than 6 million Americans are barred from voting because of a felony conviction, including 4 million people who have already served their time and repaid their proverbial debt to society.
Last week at the National Action Network Convention, New York Governor Andrew Cuomo announced an executive order to restore the vote to 35,000 people on parole; 71 percent of whom identify as Black or Latino.
But the devil lies in the details of disenfranchisement. Cuomo’s order creates the possibility that individuals on parole (now and in the future) may be considered for a conditional pardon that would allow restoration based on a host of factors, including whether law enforcement had “special concerns” about the person submitting the request.
Simply put, Cuomo’s executive order doesn’t change New York state law and is subject to the political will of the person holding that office. The last 16 months of the Trump presidency and efforts to cancel out Obama-era orders illustrate the willingness of new officeholders to overturn prior mandates.
Regardless of the political motivations, and there are many, for this latest move, its effectiveness will fall short unless we begin to address the generational consequences of disenfranchisement. Not just for individuals convicted and disenfranchisement, but for the families and communities to which they belong.
The ability to access the ballot has never just been about voting. It’s always been about a sense of belonging. A sense of kinship and connection to a process and a polity with the ability to decide where and how we belong. It’s generational and it’s instructive.
Reginald Dwayne Betts is a 2018 Guggenheim Fellow who was sentenced to nine years in prison at the age of 16. He recently shared this reflection with me: “The first time I voted, I held my oldest son in my arms, wore a Nat Turner t-shirt and checked my box for President Barack Obama. I had three felonies and lived in a state that realized that the ballot is also about creating a generational narrative of belonging and responsibility for the politics of the day. Had I lived in a different state – had I lived in New York, it wouldn’t have happened.”
We can’t restore the vote because we never fully secured it. It’s time to secure the vote. Not just for the currently incarcerated and the formerly punished, but for the more than 5 million young people in the United States who have at least one incarcerated parent. Young people whose own sense of purpose and standing within the political system is conditioned by what they learn from their parents.
It’s time to secure the vote to honor people like Maggie Bozeman, who was sentenced to prison in 1979 and later barred from voting for helping her illiterate, elderly neighbors fill out absentee ballots.
It’s time to secure the vote for millions of Americans living in urban areas whose political strength is diluted by the twin practices of incarceration and disenfranchisement that allow elected officials to overlook their interests.
It’s time to secure the vote.
Dr. Khalilah L. Brown-Dean is an associate professor of Political Science at Quinnipiac University, where she writes about American politics, political psychology and public policy. You can follow her on Twitter @KBDPHD.