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Felony disenfranchisement is excluding people otherwise eligible to vote from voting (known as disfranchisement) due to conviction of a criminal offence. Jurisdictions vary in whether they make such disfranchisement permanent, or restore suffrage after a person has served a sentence, or completed parole or probation. Affected individuals suffer "collateral consequences" including loss of access to jobs, housing, and other facilities.
In Western countries, felony disfranchisement can be traced back to ancient Greek and Roman traditions: disfranchisement was commonly imposed as part of the punishment on those 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 punishments that provided for some form of exclusion from the community for felons, ranging from execution on sight to exclusion from community processes.
In the US, the constitution implicitly permits the states to adopt rules about disenfranchisement "for participation in rebellion, or other crime", by the fourteenth amendment, section 2. It is up to the states to decide which crimes could be ground for disenfranchisement, and they are not formally bound to restrict this to felonies; however, in most cases, they do.
In 2008 over 5.3 million people in the United States were denied the right to vote because of felony disenfranchisement. Approximately thirteen percent of the United States' population is African American, yet African Americans make up thirty-eight percent of the American prison population. Slightly more than fifteen percent of the United States population is Hispanic, while twenty percent of the prison population is Hispanic. People who are felons are disproportionately people of color. In the United States, felony disenfranchisement laws disproportionately affect communities of color as "they are disproportionately arrested, convicted, and subsequently denied the right to vote". Research has shown that as much as 10 percent of the population in some minority communities in the USA is unable to vote, as a result of felon disenfranchisement.
In the national elections 2012, all the various state felony disenfranchisement laws added together blocked an estimated record number of 5.85 million Americans from voting, up from 1.2 million in 1976. This comprised 2.5% of the potential voters in general; and included 8% of the potential African American voters. The state with the highest amount of disenfranchised people were Florida, with 1.5 million disenfranchised, including more than a fifth of potential African American voters.
Felony disenfranchisement was a topic of debate during the 2012 Republican presidential primary. Rick Santorum argued for the restoration of voting rights for ex-offenders. Santorum's position was attacked and distorted by Mitt Romney, who alleged that Santorum supported voting rights for offenders while incarcerated rather than Santorum's stated position of restoring voting rights only after the completion of sentence, probation and parole. President Barack Obama supports voting rights for ex-offenders.
In the years 1997 to 2008, there was a trend to lift the disenfranchisement restrictions, or simplify the procedures for applying for the restoration of civil rights for people who had fulfilled their punishments for felonies; and as a consequence, in 2008, more than a half million people had the right to vote, but would have been disenfranchised under the older rules. As of 2010, only Kentucky and Virginia continued 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 be restored after the completion of a restoration process to regain civil rights. Since then, more severe disenfranchise rules have came into effect in several states.
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. However, on his inauguration day, January 14, 2011, Republican Iowa Governor Terry Branstad reversed Vilsack's executive order. Nine other states disenfranchise felons for various lengths of time following their conviction. Except for Maine and Vermont, every state prohibits felons from voting while in prison.
Unlike most 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 (1974), 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.
But, critics of the practice argue that Section 2 of the 14th Amendment 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 ruled in Hunter v. Underwood 471 U.S. 222, 232 (1985) that a state's crime 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." (The law in question also disenfranchised people convicted of vagrancy, adultery, and any misdemeanor "involving moral turpitude"; the test case were two people being disenfranchised for presenting invalid checks, which the state authorities had found to be morally turpit behavior.) 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.
Restoration of voting rights for people who are ex-offenders varies across the United States. Primary classification of voting rights include:
Maine and Vermont are the only states with unrestricted voting rights for people who are felons. Both states allow the person to vote during incarceration, via absentee ballot and after terms of conviction end.
In thirteen states and the District of Columbia, disenfranchisement ends after incarceration is complete.
In four states, disenfranchisement ends after incarceration and parole (if any) is complete.
Twenty states require not only that incarceration/parole if any are complete but also that any probation sentence (which is often an alternative to incarceration) is complete.
Eight states have laws that vary with the detail of the crime. These laws restore voting rights to some offenders on the completion of incarceration, parole, and probation. Other offenders must make an individual petition that could be denied.
Three states require individual petition for all offenses.
Various property crimes can have absolute dollar amount thresholds. 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.
In general, the European countries have increasingly made suffrage more and more accessible during the last couple hundred years. This has included retaining disenfranchisement in fewer and fewer cases, including for criminal offenses. Moreover, most European states, including most of those outside the European Union, have ratified the European declaration of human rights, and thereby agreed to respect the decisions of the European Court of Human Rights, which in its ruling in the case Hirst v United Kingdom (No 2) in 2005 found general rules for automatic disenfranchisements as a consequence of convictions to be against human rights. This ruling applied equally for prisoners and for ex-convicts. The ruling did not exclude the possibility of disenfranchisement as a consequence of deliberation in individual cases. However, the court decision has not been implemented in the United Kingdom; vide infra.
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 UK is subject to Europe-wide rules due to various treaties and agreements associated with their membership of the European Community. 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 (ECHR) 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 favor 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 produced a draft Voting Eligibility (Prisoners) Bill for discussion by a Joint Committee, incorporating 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.
Several European countries, including France, Germany (reinstated after for two to five years) and the Netherlands, permit disenfranchisement by special court order, such as in the case of Muhammad Bouyeri. In several others, no disenfranchisements due to criminal convictions exist. Moreover, many European countries encourage people to vote, inter alia by making pre-voting in other places than the respective election locales easily accessible. This often includes possibilities for prisoners to pre-vote from the prison itself.
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 Sweden, sometimes, parliamentary parties have held campaign meetings in prisons.
At Federation in Australia the Commonwealth Franchise Act 1902 denied the franchise to vote to anyone 'attainted of treason, or who had been convicted and is under sentence or subject to be sentenced for any offence … punishable by imprisonment for one year or longer’.
In 1983 this disqualification was relaxed and prisoners serving a sentence for a crime punishable under the law for less than a maximum five years were allowed to vote. A further softening occurred in 1995 when the disenfranchisement was limited to those serving a sentence of five years or longer, although earlier that year the Keating Government had been planning legislation to extend voting rights to all prisoners.
In 2007, the High Court of Australia in Roach v Electoral Commissioner found that the Constitution enshrined a limited right to vote, which meant that citizens serving relatively short prison sentences (generally less than three years) cannot be barred from voting.
Most democracies give convicted criminals the same voting rights as other citizens.
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. In New Zealand, people who are in prison are not entitled to enroll while they are in prison.<Elections NZ website>
Many countries allow inmates to vote. Examples include Canada, Croatia, Czech Republic, Denmark, Finland, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Serbia, Sweden, and Zimbabwe.
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 disenfranchisement provisions in the LegCo electoral laws. The court found blanket disenfranchisement 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 disenfranchising 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 centers 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.
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Goldman, D. S. (2004). The Modern-Day Literacy Test?: Felon Disenfranchisement and Race Discrimination. Stanford Law Review, (2), 611.
Hinchcliff, A. M. (2011). The "Other" Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement. Yale Law Journal, 121(1), 194–236.
Manza, J., Brooks, C., & Uggen, C. (2004). Public Attitudes toward Felon Disenfranchisement in the United States. The Public Opinion Quarterly, (2), 275.
Miles, T. J. (2004). Felon Disenfranchisement and Voter Turnout. The Journal Of Legal Studies, (1), 85.
Miller, B., & Spillane, J. (n.d). Civil death: An examination of ex-felon disenfranchisement and reintegration. Punishment & Society-International Journal Of Penology, 14(4), 402–428.
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