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Felony disenfranchisement is the practice of prohibiting people from voting (known as disenfranchisement) based on the fact that they have been convicted of a felony or any other kind of criminal offence. Opponents have argued that it restricts and conflicts with principles of universal suffrage; the legitimacy of this practice is a matter of some controversy.
The roots of felony disenfranchisement laws can be traced back to ancient Greek and Roman traditions. Disenfranchisement was commonly imposed on individuals convicted of "infamous" crimes as part of their "civil death", whereby these persons would lose all rights and claim to property. Most medieval common law jurisdictions developed some form of exclusion from the democratic process, ranging from execution on sight to rejection from community processes.
As of 2011, only two states, Kentucky and Virginia, continue to impose a lifelong denial of the right to vote to all citizens with a felony record, absent some extraordinary intervention by the Governor or state legislature. However, in Kentucky, a felon's rights can now be restored after the completion of a restoration process to regain civil rights. In 2007, Florida moved to restore voting rights to convicted felons. In March 2011, however, Republican Governor Rick Scott reversed the 2007 reforms, making Florida the state with the most punitive law in terms of disenfranchising citizens with past felony convictions. In July 2005, Democratic Iowa Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who have completed supervision. On October 31, 2005, Iowa's Supreme Court upheld mass re-enfranchisement of convicted felons. Nine other states disenfranchise felons for various lengths of time following their conviction. Except Maine and Vermont, every state prohibits felons from voting while in prison.
Unlike most other laws that burden the right of citizens to vote based on some form of social status, felony disenfranchisement laws have been held to be constitutional. In Richardson v. Ramirez, the United States Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. The Court looked to Section 2 of the Fourteenth Amendment to the United States Constitution, which proclaims that States which deny the vote to male citizens, except on the basis of "participation of rebellion, or other crime", will suffer a reduction in representation. Based on this language, the Court found that this amounted to an "affirmative sanction" of the practice of felon disenfranchisement, and the 14th Amendment could not prohibit in one section that which is expressly authorized in another. However, many critics argue that Section 2 of the 14th Amendment merely allows, but does not represent an endorsement of, felony disenfranchisement statutes as constitutional in light of the equal protection clause and is limited only to the issue of reduced representation. The Court did rule, however, in Hunter v. Underwood 471 U.S. 222, 232 (1985) that a state's felony disenfranchisement provision will violate Equal Protection if it can be demonstrated that the provision, as enacted, had "both [an] impermissible racial motivation and racially discriminatory impact." A felony disenfranchisement law, which on its face is indiscriminate in nature, cannot be invalidated by the Supreme Court unless its enforcement is proven to racially discriminate and to have been enacted with racially discriminatory animus.
Currently, over 5.3 million people in the United States are denied the right to vote because of felony disenfranchisement.
Advancement Project is at the forefront of this issue, working with felons to help the restore their rights and working with state leaders across the country informing them about the disfranchisement laws and process.
In the United Kingdom, prohibitions from voting are codified in section 3 and 3A of the Representation of the People Act 1983. Excluded are incarcerated criminals (including those sentenced by courts-martial, those unlawfully at large from such sentences, and those committed to psychiatric institutions as a result of legal process). Civil prisoners sentenced (for non-payment of fines, or contempt of court, for example), and those on remand unsentenced retain the right to vote. The Act does not apply to elections to the European Parliament. Following Hirst v United Kingdom (No 2) (2006), in which the European Court of Human Rights ruled such a ban to be disproportionate, the policy was reviewed by the UK government. In 2005 the Secretary of State for Constitutional Affairs, Lord Falconer of Thoroton, stated that it may result in some prisoners being able to vote, and the review was still under way in 2010 following an "unprecedented warning" from the Council of Europe. The UK government position was then that
"It remains the government's view that the right to vote goes to the essence of the offender's relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. The issue of voting rights for prisoners is one that the government takes very seriously and that remains under careful consideration."
Parliament voted in favour of maintaining disenfranchisement of prisoners in 2011 in response to Government plans to introduce legislation. Since then the Government has repeatedly stated that prisoners will not be given the right to vote in spite of the ECHR ruling.
In response to the ECHR ruling, Lord Chancellor and Secretary of State for Justice Chris Grayling has produced a draft Voting Eligibility (Prisoners) Bill for discussion by a Joint Committee. The Bill incorporates two clear options for reform and one which would retain the blanket ban.
For elections in the Republic of Ireland, there is no disenfranchisement based on criminal conviction, and prisoners remain on the electoral register at their pre-imprisonment address. Prior to 2006, the grounds for postal voting did not include imprisonment, and hence those in prison on election day were in practice unable to vote, although those on temporary release could do so. In 2000, the High Court ruled that this breached the Constitution, and the government drafted a bill extending postal voting to prisoners on remand or serving sentences of less than six months. However, in 2001, the Supreme Court overturned the High Court ruling and the bill was withdrawn. After the 2005 ECHR ruling in the Hirst case, the Electoral (Amendment) Act 2006 was passed to allow postal voting by all prisoners.
Most democracies give convicted criminals the same voting rights as other citizens. In New Zealand, only persons convicted of electoral fraud or corruption lose their vote for up to several years after release from prison. Several European countries, e.g. France, Germany and the Netherlands, permit disenfranchisment by special court order, such as in the case of Muhammad Bouyeri.
In both China and Taiwan, the abrogation of political rights is a form of punishment used in sentencing, available only for some crimes or along with a sentence of death or imprisonment for life. Rights that are suspended in such a sentence include the right to vote and to take public office, as well as the rights to political expression, assembly, association, and protest.
Many countries allow inmates to vote. Examples include Australia, Canada, the Czech Republic, Denmark, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Serbia, Sweden, and Zimbabwe. In Germany, the law even calls on prisons to encourage prisoners to vote. Only those convicted of electoral fraud and crimes undermining the "democratic order", such as treason are barred from voting, while in prison. In Australia, where compulsory voting is practised, the High Court of Australia in 2007 found that the Constitution enshrined a limited right to vote, which meant that citizens serving relatively short prison sentences[clarification needed] cannot be barred from voting.
On 8 December 2008, Leung Kwok Hung (Long Hair), member of Hong Kong's popularly-elected Legislative Council (LegCo), and two prison inmates, successfully challenged disfranchisement provisions in the LegCo electoral laws. The court found blanket disfranchisement of prisoners to be in violation of Article 26 of the Basic Law and Article 21 of the Bill of Rights and the denial to persons in custody of access to polling stations as against the law. The government introduced a bill to repeal the provisions of the law disfranchising persons convicted of crimes (even those against the electoral system) as well as similar ones found in other electoral laws, and it made arrangements for polling stations to be set up at detention centres and prisons. LegCo passed the bill, and it took effect from 31 October 2009, even though no major elections were held until the middle of 2011.
Proponents[who?] of felony disenfranchisement contend that felonies are, by definition, serious crimes, and that persons who commit felonies have 'broken' the social contract and have thereby given up their right to participate in a civil society. Proponents[who?] may view disenfranchisement as simply being another form of punishment for the crime committed, or as a deterrent to future crime. Some[who?] think debates about felony disenfranchisement should also include the issues of participation in juror pools and reinstatement of the right to own firearms, but these are much less popular notions.
Opponents[who?] note that felony disenfranchisement is often accompanied by other deprivations of civil rights, such as the ability to work in certain professions, which make it harder for former convicts to lead productive lives. Some[who?] also contend that it can be classified as a cruel and unusual punishment, making it inappropriate in some jurisdictions such as the United States, where it would be a violation of the Eighth Amendment to sentence someone to a lifelong prohibition from voting based on a single felony conviction. It wouldn't be fair to take away a right after they have already served their time in prison. Opponents[who?] also point to instances of teenagers being convicted of relatively minor crimes that can still be classified as felonies, like trespassing on a construction site or stealing a stop sign. They argue that the law should not operate to deprive them of fundamental rights that they might not appreciate until many years later. Some[who?] contend that the right to vote is such a fundamental protection against potential government tyranny that it should never be deprived, no matter the circumstances. It has also been argued that felony disenfranchisement in some states, especially Florida in the 2000 Presidential election, de facto amounts to racism. Research by sociologists Jeff Manza and Chris Uggen shows the impact of disenfranchisement on the outcome of elections. Their research also suggests that persons involved in the criminal justice system who vote may have lower rates of recidivism.
One aspect of this issue is the fact that various property crimes can have absolute dollar amount thresholds that, if exceeded, turn a misdemeanor into a felony. For example, in Massachusetts under penalties specified in MGL Chap. 266: Sec. 127, a prosecution for malicious destruction of property can result in a felony conviction if the dollar amount of damage exceeds $250. Some people would argue that $250 is excessively low and that since this dollar amount has not risen for many years, even damaging another's radio or cell phone could result in losing one's right to vote. If the dollar thresholds are not increased by law (or indexed to inflation), a conviction for what is effectively very little money could result in losing one's right to vote.
In losing one's right to vote from being a felon, Massachusetts joined 47 other states that bar prison inmates from voting. Only two states, Maine and Vermont, permit inmates to vote while serving felony prison terms. Three inmates, an African-American, an Hispanic-American, and a Caucasian-American, filed a lawsuit claiming that the action violated the Voting Rights Act. They also claimed that the measure amounted to illegal extra punishment in violation of the U.S.Constitution prohibition on ex post facto laws. A federal judge threw out the ex post facto claim but ruled that the voting rights challenge should proceed to trial. A three-judge panel of the first U.S. Court of Appeals in Boston disagreed and threw out the entire lawsuit. In their appeal to the U.S. Supreme Court, the inmates argued that federal appeals courts are split on the issue of whether the Voting Rights Act supports lawsuits challenging felon disenfranchisement measures.