Four Years Later, More Convicted Felons Have the Right to Vote
On the eve of the last presidential election in 2016 I wrote about which states allowed convicted felons to vote. At the time it was estimated that 6.1 million U.S. citizens – 2.5% of all potentially eligible voter -- could not vote due to a felony conviction.
At the time, I was surprised to discover which states refused to automatically reinstate voting rights or had erected so many obstacles to regaining those rights that most people probably never bothered to try.
Much to my surprise, in the four years since writing that article I can at least report that a few states have since changed course -- making it easier for ex-felons to regain their right to vote.
Because 2020 is once again a presidential election year, it’s a good time to revisit the patchwork of U.S. laws regulating the disenfranchisement of felony offenders.
Restoring Voting Rights: A Primer
The loss and reinstatement of one’s voting rights following a felony conviction falls into one of five categories:
Voting privileges never lost due to a felony conviction,
Voting privileges lost only if subject to a period of incarceration,
Voting privileges lost for duration of felony sentence (e.g., probation, jail or prison, parole or mandatory supervised release),
Voting privileges reinstated contingent on filing a petition for restoration of rights or pardon, and
Voting privileges never reinstated (due to seriousness of crime).
States where Voting Privileges are Never Lost
Currently, there are only two states where a convicted felon never loses their right to vote: Maine and Vermont.
States where Voting Privileges are Reinstated Once Released from Prison
In 2016, there were 14 states (plus District of Columbia) that took away someone’s right to vote if two things occurred: 1) they were convicted of a felony; and 2) sentenced to prison or jail time. In other words, if someone is not sentenced to a period of incarceration they never lose their right to vote following a felony conviction.
Today, there are 16 states who automatically reinstate voting privileges once someone is released from jail or prison. These states include: Colorado, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, and Utah.
In 2019, Illinois enacted additional legislation ensuring that individuals who are in custody while their case is pending be informed that they have a right to vote by mail.
States where Voting Privileges are Reinstated After Entire Sentence Completed
Under this category, any criminal sentence due to a felony conviction will result in the loss of someone’s voting rights. In other words, one does not have to be incarcerated to lose their voting rights.
Additionally, voting rights are not automatically reinstated until the individual has completed his or her sentence in its entirety – being released from parole or mandatory supervised release.
The following states fall into this category: Alaska, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Minnesota, Missouri, New Jersey, New Mexico, New York North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, West Virginia, and Wisconsin. Nebraska is slightly different from the rest in that it imposes an additional two-year waiting period following completion of sentence before voting rights are restored.
Florida and Iowa are the most recent additions to this category.
Florida’s Voter Reinstatement Rights Remain Mired in Partisan Litigation
In 2018, voters in Florida passed an amendment automatically restoring voting rights to individuals once they complete their sentence. In 2019, the Republican-led legislature and Governor Ron DeSantis enacted a subsequent requirement that payment of all outstanding court fines, fees and costs must be made before voting rights can be restored.
This requirement, according to one expert report, would prevent upwards of 775,000 candidates for relief from getting their voting rights restored – with African American being the largest group to be adversely impacted by this requirement.
Since then, the provision has been challenged on constitutional grounds. Although opponents of the payment requirement won the most recent court battle, the federal court of appeals agreed to hear the case a second time.
On August 18, the appeals court heard argument on the case. There is no indication if the appeals will issue a ruling before the November election. In the meantime, the lower court’s decision has been stayed. The deadline to register to vote in Florida is October 5.
Will Iowa’s Executive Order Face Similar Court Challenges?
Earlier this month, on August 5, Iowa became the most recent state to join this category when Governor Kim Reynolds issued an executive order, allowing for the automatic reinstatement of voting rights to most convicted felons. Voting rights still are not automatically reinstated for those convicted of felony homicide offenses.
Like the disputed Florida law, Governor Kim Reynold’s executive order mandates that court costs, restitution, and fines be paid but further provides that current payments under a payment plan will make someone eligible for restoration.
Voting Privileges Reinstated Following Pardon or Petition for Restoration of Rights
There are a handful of states that only reinstate voting rights if those rights are restored through a state pardon process or analogous restoration of rights process. The states: Alabama, Arizona, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming.
Depending on the state and the process (pardon versus restoration of rights), the governor, judge (Arizona only), or state legislature (Mississippi only) are responsible for making that decision.
Voting Privileges Never Restored
Currently, Delaware is the only state that permanently denies reinstatement of voting privileges to a subset of criminal offenses: murder, bribery, and sexual offenses. In all other states, even the most serious of crimes are subject to consideration under via pardon or restoration of rights procedures.
Conclusion
Why is it that in the U.S. we have a habit of taking our basic rights for granted? Why is it that we get more exercised over possible infringements to our Second Amendment rights than whether our right to vote is secured?
I can continue asking such questions but, I suspect, you get my drift. I know there are many people who stayed home in 2016, believing that it didn’t matter whether they cast a vote. In 2020, I hope nobody still believes voting is a meaningless act.
If you don’t vote, nobody can hear what you have to say.