The Future of Restoring Voting Rights for Ex-Felons: The Surprising Facts

Peter C. Kiefer, Court Consultant, Arizona

Should ex-felons have their right to vote restored? If so, will this have any effect on court workloads?

Traditionally, defendants convicted of a felony lost their right to vote, sit on a jury, and (in most states) possess a firearm. It was commonly thought that losing the right to vote was permanent. This perception can be seen even now in a recent New York Times article that focuses on the 6.2 million citizens with felony convictions who are barred from voting.[1]

A 2018 Future of the Courts survey scenario asked if courts would be involved in restoring voting rights to convicted felons within the next ten years. Of the 293 respondents, 37 thought the scenario was highly likely, 116 thought it was likely, 95 thought it had a 50-50 chance, and 45 thought it was either unlikely or improbable. Most of the respondents (the mode) thought it was likely, but the mean tipped just slightly to the category of the scenario having a 50-50 chance of becoming a reality.[2]

The landscape on allowing convicted felons to vote has been changing. Many states now allow ex-felons who have completed their sentences to vote. Most notably, in this recent election, Florida voters decided to allow ex-felons to have their voting rights restored upon completion of their sentence, which reverses the previous law that imposed a lifetime ban on ex-felons voting.[3] Asking a court to reduce a felony conviction to a misdemeanor, or expunge a conviction, would be another way an ex-felon could become eligible to vote.

Depending on what ex-felons must do to have voting rights restored, this trend could affect the courts.

  • Courts could be involved in certifying that sentences have been completed and that no charges remain active and pending.
  • Courts could also be involved in petitions to restore civil rights or to retroactively reduce felonies to misdemeanors.
  • In states where judges run for contested elections, the prospect of ex-felons voting could influence election strategies. “Tough-on-crime” judicial campaigns might not appeal to ex-felons who have had their voting rights restored.

Ex-Felons and Voting: The Changing Landscape

Maine and Vermont allow ex-felons to vote without restrictions. Fourteen states and the District of Columbia automatically allow ex-felons to register to vote after being released from jail or prison.[4]

Hawaii

Maryland

Montana

Ohio

Rhode Island

Illinois

Massachusetts

New Hampshire

Oregon

Utah

Indiana

Michigan

North Dakota

Pennsylvania

District of Columbia

 

Twenty-two states automatically allow ex-felons to register to vote after they have completed their entire sentence, including incarceration, probation, and parole.

Alaska

Connecticut

Kansas

New Jersey

Oklahoma

Washington

Arkansas

Florida

Louisiana

New Mexico

South Carolina

West Virginia

California

Georgia

Minnesota

New York

South Dakota

 

Colorado

Idaho

Missouri

North Carolina

Texas

 

 

That still leaves twelve states where ex-felons must wait well after their sentence is over to request restoration. Usually, defendants must either petition a court or request a pardon from the governor. Kentucky and Iowa have lifetime bans.

Alabama

Iowa

Nebraska

Virginia

Arizona

Kentucky

Nevada

Wisconsin

Delaware

Mississippi

Tennessee

Wyoming

 

Arguments For and Against Granting Ex-Felons Voting Rights

  • Ex-Felons Should Be Allowed to Vote
    The right to vote is fundamental to our nation’s democracy and should be guaranteed to every citizen. Preventing ex-felons from voting contributes to the racial divide polarizing our country. More than two million African-Americans (almost 8 percent of black adults) are prevented from voting because of felony convictions, compared to just under 2 percent of non-African-American citizens.[5The process of restoring voting rights to ex-felons differs from state to state, which causes frustration and distrust of the system. Punishment needs to fit the offense, and lifetime disenfranchisement is simply out of proportion for all but the most serious crimes. Although, to date, courts have dismissed challenges to ex-felon re-enfranchisement based on the 8th Amendment of the U.S. Constitution prohibiting excessive punishment, groups still contend that a valid argument can be made that lifetime ex-felon disenfranchisement is unconstitutional.[6] Permitting ex-felons to vote is an important step toward reintegrating people who have paid their debt back to society.[7]

  • Ex-Felons Should Not Be Allowed to Vote
    Convicted felons have committed serious crimes. Since they have committed serious crimes, they are deemed to be dishonest, disreputable, and undeserving of the right to vote. This argument was bolstered by the recent revelation that the confessed Parkland High School shooter, Nikolas Cruz, recently registered to vote while still in the Broward County Jail. While, technically, this incident does not relate to the issue at hand (Cruz has not yet been convicted), one can hardly ignore the relevance.[8]

  • Other Arguments
    A political driver in this conversation is the perception that ex-felons are inclined to vote Democratic, hence conservative groups have tended to oppose voting-rights initiatives.[9] More research needs to be conducted regarding this perception. For example, one study looked at ex-felons who were granted their voting rights by Florida’s governor Charlie Crist between 2007 and 2011. Of the 150,000 ex-felons whose voting rights were restored, only 32,000 (21 percent) registered and voted. Of those, African-Americans overwhelmingly registered Democratic (87 percent), but non-African-Americans registered 40 percent Republican and 34 percent Democratic.[10]  Remember that although African-Americans make up a disproportionate percentage of the country’s prison population (approx. 38 percent), in sheer numbers, Caucasian prisoners still make up the largest percentage. [11]

 

Race

Number

Percentage

Caucasians

105,297

58.2

African-Americans

68,764

38.0

Native-Americans

4,076

2.3

Asians

2,695

1.5

 

The Respondents

To assess the status and future of ex-felon re-enfranchisement are Alan Carlson, a veteran court executive officer with 40 years of experience at the superior courts in San Francisco and Orange County, California, as well as the Justice Management Institute; Jeff Amram, court administrator for the Clark County Superior Court, Vancouver, Washington; Andra Motyka, retired court administrator, Pierce County Superior Court, Tacoma, Washington, Erie County, Pennsylvania, and the U.S. District Court for the Western District of Michigan; Sarah Brown-Clark, clerk of court for the municipal court in Youngstown, Ohio; Jeff Barlow, court professional from the Oregon Judicial Department; and Alan Slater, retired court executive officer (36 years), Orange County Superior Court, California, and advisor to the California Administrative Office of the Courts.

 

The Questions

How will extending voting rights to ex-felons affect court operations and workload?

Restoration of voting rights to ex-felons will have minimal effect on courts in the opinion of both Alan Slater and Jeff Amram. Alan remarked, “Registrars of voters will have additional work to do, but once individuals have been registered to vote, courts should not be greatly impacted. One sticking point may be those who must register as sex offenders for life in some states (e.g., California). It could be argued that they never fully ‘complete’ their sentences and become eligible.” Jeff did not see a significant workload issue for courts unless a state legislature imposes one. Washington State changed the law a few years ago, and the effect on workload was imperceptible.

Sarah Brown-Clark did not see that it would impact the actual judge-court process; the bulk of the additional work will be taken up by the clerks of courts. “Clerks will be the ones to research and validate the records for prospective reentry voters. However, in cases where felons are seeking reduced charges, there may well be an increase in courtroom activity.”

Jeff Barlow agreed that this issue will not have as much effect as expungements and programs to clear one’s criminal record. “The bigger problem for courts, I think, is going to be records and data-access-control questions.”

Andra Motyka estimated that how the laws are written and passed by the legislatures will determine the workload effect on courts. “I think most of the workload will fall on election offices. If the ex-felon must petition the court for reinstatement of their rights or to certify that a sentence has been discharged, there would be a court workload issue, but that workload would not be substantial. While some ex-felons are determined to vote, the vast majority, I suspect, are not and unfortunately won’t bother.”

Alan Carlson pointed out that if the law takes effect “automatically” when an ex-felon finishes the sentence, with no need to go to court to get a ruling to this effect, it will probably not have much effect. “But if the law reads that a person must go to court to get voting rights reestablished, someone (i.e., victim?) could challenge the return of rights, or that a court must certify that all aspects of the sentence have been completed, it could have an impact. It might be a ‘bump’ initially to deal with the accumulated ‘backlog,’ but it would taper off quickly. California went through this a few years ago with laws changing the definition of a felony in less serious cases and allowing defendants to come to court and get charges reduced. In San Diego, the public defender filed between 5,000 and 6,000 petitions in the first couple of weeks, but it tapered off in a few months.”

Is extending voting rights to ex-felons a preferred future?

Sarah Brown-Clark, Andra Motyka, and Alan Slater all agreed that restoring voting rights to ex-felons is a preferred future. Andra thought states could choose from several options: allow prisoners to vote while incarcerated, allow ex-felons to vote upon release, or allow ex-felons to vote after completion of their sentences. States can choose the option least objectionable to voters in that state. Alan Slater saw restoring voting rights to those who have completed their “debt to society” as a good and appropriate policy. “I think it provides at least some incentive to continue to participate as a good citizen and not return to a life of crime and back to prison.”

Alan Carlson said that it is his preferred future, but he is not convinced that most of the public agrees. Since so few people vote anyway, those who do not will see little harm in preventing others from being allowed to vote. There are also people who establish barriers to voting, relying on the threat of voter fraud. They will not be in favor of ex-felons having voting rights restored.

If enough Americans believe in reducing the impact of past systemic racism in the justice system, then Alan Carlson thinks there will be a trend toward restoring voting rights. “There also needs to be a sense that when someone has served their time and complied with all sentencing terms, then society needs to accept them back and consider them rehabilitated, at least as to voting.” Continuing to prevent a person from being able to vote when they have “done their time” really says they have not yet done their time and makes them less committed to a society that “won’t let go.”

Although Jeff Amram said he thought it likely that the percentage of felons voting will be small, it should still be a preferred future.

In Conclusion

Thanks to Alan Carlson, Sarah Brown-Clark, Jeff Amram, Alan Slater, Andra Motyka, and Jeff Barlow for helping to analyze this dynamic trend that is touching the nation. The effect it will have on the courts seems still to be decided depending on how new laws are written, but there is agreement that it is a preferred future.  


 

[1] Michael Wines, “Why So Many Kentuckians Are Barred from Voting on Tuesday, and for Life,” New York Times, November 4, 2018.

[2] Phillip Knox and Peter C. Kiefer, 2018 Combined Future of the Courts Survey Results, August 27, 2018.

[3] Lindsay Schnell, “Florida Votes to Restore Felon Voting Rights; Missouri, Michigan Legalize Marijuana,” USA Today, November 7, 2018.

[4] The basic information for this section comes from “Felony Voting Rights,” National Conference of State Legislatures, Denver, April 30, 2017. Here is some supplemental information.
Arizona—defendants with a single felony conviction can have their voting rights restored once the Department of Corrections issues an absolute discharge of the sentence, including probation and parole. Defendants with more than one felony conviction must petition the court to have their civil rights restored. (See www.jobforfelonshub.com.)

California—legislation passed in 2016 allows defendants in county jails to vote while incarcerated, but not those in state or federal prisons.
Delaware—
five-year waiting period after completion of the sentence. (See Christopher Uggen, Sarah Shannon, and Jeff Manza, “State-Level Estimates of Felon Disenfranchisement in the United States, 2010,” Sentencing Project: Research and Advocacy for Reform, Washington, D.C., July 2012.)
Florida—
constituents voted in 2018 to allow felons who have served their sentence, including parole and probation, to vote. The new law does not apply to those convicted of murder or sexual offenses. (See Schnell, supra n. 3.)

Maryland—defendants convicted of buying or selling votes can only have their voting rights restored through pardon.
Nebraska—two-year waiting period. (See Uggen, Shannon, and Manza.)
Nevada—recidivists and those convicted of violent felonies are excluded from voting. (See Uggen, Shannon, and Manza.)
Tennessee—defendants convicted of murder, rape, treason, or voting fraud must request a pardon from the governor. (See “Felony Disenfranchisement State by State: Felon Voting Rights,” at https://exoffenders.net/felon-voting-rights.)
Wyoming—d
efendants must apply to the governor to have their rights restored. This can be done after the sentence, including prison, parole, and probation, is completed. First-time and nonviolent offenders must wait five years. (See https://exoffenders.net/felon-voting-rights.)

[5] Uggen, Shannon, and Manza, ibid.

[6] In the past, courts have rejected ex-felon disenfranchisement arguments, stating that prohibiting voting is not a punishment. Amy Heath, “Cruel and Unusual Punishment: Denying Ex-Felons the Right to Vote,” American University Journal of Gender, Social Policy and the Law 25 (2017).

[7] Jerry Shaw, “Voting Rights: 6 Reasons Ex-Felons Should Vote,” Newsmax, April 15, 2015.

[8] Alex Johnson, “Confessed Parkland High School Shooter Nikolas Cruz Registered to Vote from Jail,” NBC News, November 11, 2018.

[9] An example is Kentucky’s outgoing Democratic governor Steve Beshear, who issued an executive order restoring the right to vote to defendants convicted of nonviolent felonies upon completion of their sentence. The order was reversed by incoming Republican governor Matt Bevin. Chris Kenning, “Locked Out: Critics Say It’s Time to End Kentucky’s Ban on Felon Voting,” Louisville Courier-Journal, November 11, 2018.

[10] Marc Meredith and Michael Morse, “Why Letting Ex-Felons Vote Probably Won’t Swing Florida,” Vox, November 2, 2018.

[11] Federal Bureau of Prisons, October 27, 2018.

 



 


Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.