The state of ex-felons’ voting rights, explained (2023)

Just four years ago, Florida, Iowa, Kentucky, and Virginia all blocked people convicted of felonies from ever voting again — even after they had fully completed their sentences for prison, parole, or probation.

Today, every one of these states — most recently, Iowa — has allowed at least some people who’ve finished their sentences to vote, potentially reenfranchising hundreds of thousands of Americans.

It hasn’t been an easy shift. In Florida, voters approved an amendment to their state constitution in 2018 that lets people who’ve completed their sentences vote again, excluding those convicted of murder or felony sex offenses. But the Republican-controlled state legislature passed a law requiring ex-felons to pay all outstanding court fees before they’re allowed to vote — blocking possibly hundreds of thousands of Floridians who can’t afford the fees from voting.

The law is now tied up in legal battles, with a recent federal appeals court ruling in its favor.

But the trend has been toward enfranchising more people as they get out of prison or after they serve other sentences.

Some activists want to go further, with a goal of giving everyone the right to vote even if they’re currently incarcerated. Only two states — Maine and Vermont — currently let people vote even from prison, regardless of their crimes.

The rest of the states impose some kinds of restrictions, including barring people from voting permanently if they committed worse crimes (like murder), or only letting them vote after they complete prison, parole, probation, or all of the above.

Supporters of loosening the restrictions further argue that voting should be a universal right — one not affected by even a felony record. They point out that these laws have a racially disproportionate impact, particularly on Black people, due to the systemic racism that runs through the criminal justice system. And in some cases, they note, that may be intentional: Some of these disenfranchisement laws have roots in the Jim Crow era, in which lawmakers around the country replaced the system of slavery with another system of legal oppression.

As Florida’s experience shows, though, there’s still resistance to allowing everyone to vote. Some of that is strictly political: Republicans in particular worry that allowing ex-felons to vote could boost turnout for Democrats. Others simply object to the idea of letting people vote while they’re in prison or due to their felony records — seeing their loss of the right to vote as part of the punishment for their crimes.

That latter point of contention has led to debate not just between Republicans and Democrats but also within the Democratic Party. Sen. Bernie Sanders (I-VT) argued during the 2020 presidential primaries that people should be allowed to vote within prison, and more moderate candidates in the race pushed back.

A lot is potentially at stake: More than 6 million Americans in 2016 were prohibited from voting due to a felony conviction, according to the Sentencing Project. That included more than 20 percent of all potential Black voters in Florida, Kentucky, Tennessee, and Virginia at the time.

While the research suggests not all of those people would end up voting, many likely would, and that could disproportionately benefit Democrats — who have much more support from minority communities — in states with very close votes, including Florida.

Where the debate lands, then, could determine not just who has the right to vote in America but which political directions the country goes in the future.

Some felony disenfranchisement laws have roots in Jim Crow

Preventing people with criminal records from voting in the US goes back to the colonial era and the concept of “civil death” — the notion that some bad actions effectively left a person dead in terms of civic engagement. But there’s also a uniquely American, racist twist to this story, rooted in Jim Crow.

Felony disenfranchisement laws were part of the push after the Civil War, particularly in the South, to limit civil rights gains following the end of slavery and ratification of the 13th, 14th, and 15th constitutional amendments protecting minority rights. This resistance also included the Jim Crow laws that legally enforced racial segregation, as well as other limits on Black voting power. Undoing all of this has been a decades-long project for civil rights activists.

For example, after the South lost the Civil War, state lawmakers in Florida enacted laws — the Black Codes — to constrain Black rights. They created crimes, such as disobedience and “disrespect to the employer,” that could be enforced in a way that would target and criminalize Black people in particular, according to a 2016 report by the Brennan Center for Justice, an advocacy group.

Then, when Florida was forced to write voting rights protections for men of all races into its state constitution, lawmakers added an exception that would exempt victims of the Black Codes:

Article XIV, Section 2, imposed a lifetime voting ban for people with felony convictions. Section 4 of this same suffrage article directed the legislature to “enact the necessary laws to exclude from … the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime” — the same crimes the legislature had recently recognized and expanded through the Black Code.

Since then, Florida has changed its constitution and laws, Brennan noted. The felony disenfranchisement law was reformed again after the report, in the 2018 elections and the following year. But the roots of its post–Civil War disenfranchisement laws linger.

Florida was not alone. Journalists and historians have documented similar efforts in Virginia and other Southern states. And, of course, the federal government had to enact the (now-weakened) Voting Rights Act of 1965 to shield Black voters from state-level discrimination, as well as other civil rights laws to prohibit other forms of systemic racism.

But the criminal justice system remains one path toward disenfranchising voters, with a criminal or felony record often costing people various legal rights and protections even after they get out of jail or prison. And this system is rife with racial disparities, as Radley Balko explained for the Washington Post in his thorough breakdown of the research.

“We use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind,” Michelle Alexander argued in her influential (and at times criticized) book The New Jim Crow. “Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans.”

Still, felony disenfranchisement laws have survived legal challenges. Courts, including the US Supreme Court, have generally upheld such voting restrictions under the US Constitution’s 14th Amendment, which suggests the government may abridge the right to vote due to “participation in rebellion, or other crime.”

Without the courts, the only real hope for these efforts is to turn influential politicians and public opinion around on the issue. This might have to trickle down to the state level, too, because there’s some scholarly debate about whether Congress even has the power to end felony disenfranchisement at the federal level.

There’s a push to end felony disenfranchisement

Given this racist history and the continued disproportionate disenfranchisement of Black voters through this system, activists have called for an end to these laws. Some have said that every US citizen should have the right to vote, no matter the circumstances.

In 2019, Sen. Sanders, whose home state of Vermont lets people vote from within prison, made the issue a part of his platform in the presidential primary. He argued that voting is a right that should never be taken away from anyone in a democracy. And that means people, no matter how terrible they prove to be, should keep their right to vote.

“Even if Trump’s former campaign manager and personal lawyer end up in jail, they should still be able to vote — regardless of who they cast their vote for,” he wrote in USA Today. He later added, “In my view, the crooks on Wall Street who caused the great recession of 2008 that hurt millions of Americans are not ‘good’ people. But they have the right to vote, and it should never be taken away.”

This led to some Democratic opposition. Former South Bend, Indiana, Mayor Pete Buttigieg led the charge, arguing, “I do believe that when you are out, when you have served your sentence, then part of being restored to society is that you are part of the political life of this nation again — and one of the things that needs to be restored is your right to vote. … But part of the punishment when you’re convicted of a crime and you’re incarcerated is you lose certain rights, you lose your freedom. And I think during that period it does not make sense to have an exception for the right to vote.”

More conservative politicians, particularly Republicans, have resisted even more moderate efforts to restore people’s right to vote after they’ve completed their sentences. That’s occurred in Florida, where state legislators and Gov. Ron DeSantis (R) passed a law to force ex-felons to pay back court fees, fines, and restitution, or get an exemption from a judge, before they can vote. Activists have called this a poll tax, invoking Jim Crow restrictions on voting, but the courts are still deciding the issue.

Just as there’s significant debate within the Democratic Party about the issue, there are some exceptions to the Republican opposition. Iowa’s Republican governor, Kim Reynolds, in August restored voting rights for people who’ve completed their felony sentences, with exceptions for homicide offenses. “The right to vote is the cornerstone of society and the free republic in which we live,” Reynolds said in a statement. “When someone serves their sentence, they should have their right to vote restored automatically.”

Part of this is a genuine philosophical question: Can someone at some point do something so terrible that they lose their right to vote? For Sanders, and many activists, the answer is no. For others, the answer is yes, though views on just how terrible the act has to be before that right is lost, and how long the right is lost for, varies from person to person.

But for Republicans, there are also clear political motivations. While the evidence on this topic is far from perfect, there’s some research indicating that restoring the right to vote for those with felony records could have a political impact. Experts Marc Meredith at the University of Pennsylvania and Michael Morse at Yale wrote for Vox:

Had all ex-felons been eligible to vote in Florida in 2016, we estimate that this would have generated about 102,000 additional votes for Democrats and about 54,000 additional votes for Republicans, with about an additional 40,000 votes that could be cast on behalf of either party.

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That added up to about 48,000 votes on net for Democrats. In a state where recent Senate and gubernatorial races came down to as little as 10,000 to 30,000 votes, that could swing the whole thing.

It’s for similar reasons that Republicans have repeatedly resisted other efforts to expand voting rights in the US, particularly if they benefit minority voters who are more likely to vote for Democrats. Some Republicans have outright admitted to their political motivations. As William Wan reported for the Washington Post, regarding a Republican-backed law in North Carolina:

Longtime Republican consultant Carter Wrenn, a fixture in North Carolina politics, said the GOP’s voter fraud argument is nothing more than an excuse.

“Of course it’s political. Why else would you do it?” he said, explaining that Republicans, like any political party, want to protect their majority. While GOP lawmakers might have passed the law to suppress some voters, Wrenn said, that does not mean it was racist.

“Look, if African Americans voted overwhelmingly Republican, they would have kept early voting right where it was,” Wrenn said. “It wasn’t about discriminating against African Americans. They just ended up in the middle of it because they vote Democrat.”

The flip side is that while Republicans have generally succeeded in passing more and more voting restrictions across the country in the past decade, the trend has moved in the other direction for criminal disenfranchisement laws.

That makes these laws one of the few areas in the US in which there’s been genuine movement toward expanded voting right over the past several years.