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Felons and the Right to Vote

by Juan Cartagena, Janai Nelson and Joan Gibbs, Feb 17, 2003
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One of the greatest achievements of the civil rights struggle was the passage of the Voting Rights Act of 1965, which removed most of the obstacles that kept African Americans away from the ballot box and enabled Americans who did not speak English to vote. But the voting rights movement never reached the last excluded segment of our democracy: our prisoners.

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A legal action filed last month seeks to fill that gap in voting rights law. It argues that New York State's laws that take the right to vote away from many people convicted of felonies disproportionately harms black and Latino communities. As a result, these laws violate the Constitution, the Voting Rights Act and international law.

Currently, 1.4 million African American men in the country - 13 percent of all black men - are disenfranchised because of a felony conviction. This is seven times the rate for all Americans.

While laws vary from state to state, in New York only convicted felons who serve time in prison lose their right to participate in the democratic process. They cannot vote for the entire time they remain behind bars and for any time they are out of jail on parole, when they are required to check in regularly with an officer and meet various other requirements. People convicted of felonies but sentenced to alternatives to prison such as probation retain their right to vote.

In New York, race and ethnicity have a lot to do with whether a convicted felon gets sent to prison. Blacks found guilty of felonies are twice as likely as their white counterparts to be sentenced to prison as opposed to probation. Blacks comprise less than 16 percent of New York State's population but account for almost 51 percent of the 71,000 people in prison and 50 percent of those on parole. Latinos, about 15 percent of the state population, are almost 30 percent of the prison population and 32 percent of those on parole.

The disproportionate arrest, conviction, and imprisonment of African Americans and Latinos has diluted minority voting strength in New York State since only incarceration triggers the denial of voting rights.

Our three organizations seek to change this. The NAACP Legal Defense and Educational Fund, the Community Service Society of New York and the Center for Law and Social Justice at Medgar Evers College have filed a class action lawsuit charging that New York State laws denying the vote to individuals who are incarcerated or on parole are unconstitutional and discriminatory. They argue that these laws were originally intended to deny full rights to African Americans, and their continued application today disproportionately harms black and Latino communities.

The suit, Hayden v. Pataki, was initially filed in September, 2001, by Joseph Hayden while he was a prisoner in New York. Hayden, who is now on parole, was to represent all black and Latino prisoners denied the right to vote.

Now the three organizations want to add three groups to the original complaint: blacks and Latinos incarcerated on a felony conviction, blacks and Latinos on parole for a felony conviction, and black and Latino voters from specific communities in New York City who are collectively denied an equal opportunity in the political process because of the disproportionate disfranchisement of African Americans and Latinos. These communities include East Harlem, Washington Heights, the Lower East Side, Hunts Point, Morrisania, Soundview, Central Brooklyn, East New York, Jamaica and St. Albans.

The request to expand the Hayden case was made to the U.S. District Court for the Southern District of New York last month. The court is awaiting a response from the governor's office and the New York State Board of Elections, the defendants in the case. Then it will decide whether to allow the expansion.

New York State has a long history of racial discrimination in its voting laws. Like so many other states, New York enacted these laws when racial discrimination against African Americans was legal and commonplace. As far back as 1777, the framers of the state's first constitution gave only free men and property holders the right to vote.

In 1821, as a limited number of blacks became free men and property holders, the state constitution was changed to explicitly apply higher property requirements only to men of color. That same year, the state constitution was amended to deny the vote to anyone convicted of what it called "any infamous crime." By the mid-1800's, the "infamous crime" disqualification was renewed in New York State with the full understanding that blacks were 13 times more likely than whites to commit an "infamous crime."

It took the Civil War and the passage of the 15th Amendment to the U.S. Constitution to nullify these laws. Nevertheless, New York State re-enacted the "infamous crime" provision in 1894. This antiquated provision still remains in our State Constitution and is interpreted today to include all felonies, i.e., crimes that may result in jail sentences of one year or more.

Official discrimination against African American and Latino citizens in New York continued throughout the 20th century with literacy tests, English-only election procedures and discriminatory purging of voter rolls. It took the Voting Rights Act to restore a fair election structure in New York. The act targeted three counties in New York City - Bronx, Kings, and New York - requiring special measures to guard against discriminatory voting laws and policies. These provisions remain in force today.

Disproportionate disenfranchisement is made even worse by the fact that the U.S. Census counts prisoners as residents of the communities in which they are incarcerated, not as residents of the communities from which they come. The state uses these Census numbers to shape redistricting decisions that determine state and federal representation. Since all prisons built in New York State since 1982 are upstate, the voting strength of communities of color - mostly located in New York City - is further weakened.

Some argue that people who violate the law should not have a say in determining what the laws should be. Others fear that including convicted felons in the body politic would weaken law enforcement institutions. Senator Mitch McConnell of Kentucky has remarked that allowing convicted felons to vote would mean that "rapists, murderers, robbers and even terrorists or spies" could vote.

These arguments reflect the typical knee-jerk reaction against anything that appears, however minimally, to benefit persons convicted of crimes. In fact, allowing persons who are convicted of crimes to vote may make it less likely a person will break the law again. After all, voting gives people a stake in society and reflects the basic truth about what it means to be a citizen of the United States.

Prisoners and parolees are merely seeking a voice in society. They ask rightfully: What is America afraid of? What legitimate penal interest is served by taking away our vote, our badge of citizenship?

The United States incarcerates more people per capita than any other country in the world. Eighteen European democracies permit incarcerated prisoners to vote, as do Canada and Puerto Rico. In the U.S., only the states of Maine and Vermont do so. No democracy other than the United States bars parolees from voting.

Martin Luther King once wrote, "No nation can long continue to flourish or to find its way to a better society while it allows any one of its citizens to be denied the right to participate in the most fundamental of all privileges of democracy -- the right to vote." At the time - 1965 - King was referring to the need for a law that would ensure the right of all African Americans to vote. But his words apply today to the effects of New York State's discriminatory disenfranchisement laws.

Juan Cartagena is General Counsel for the Community Service Society of New York. Janai Nelson is Associate Counsel at the NAACP Legal Defense and Educational Fund. Joan Gibbs is General Counsel at the Center for Law and Social Justice at Medgar Evers College. The three organizations represent the plaintiffs in Hayden v. Pataki.




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