Correcting a Centuries-Old Injustice

April 9, 2010
Guest Post

By Deborah J. Vagins & Erika Wood. Vagins is Legislative Counsel for the Washington Legislative Office of the American Civil Liberties Union; Wood is Deputy Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.

In our recent Issue Brief for the American Constitution Society, The Democracy Restoration Act: Addressing a Centuries-Old Injustice, we examine an ongoing and deeply problematic barrier to the fundamental right to vote for millions of Americans. Currently, 5.3 million American citizens are denied this right because of a criminal conviction in their past. Nearly 4 million of those who are disfranchised are out of prison, working, paying taxes, and raising families, yet they are without a political voice.

With their roots in the Jim Crow era, many of these laws were originally enacted as a way to prevent African Americans from exercising their newly-won rights under the Fourteenth and Fifteenth Amendments. Their intended effects continue today. While 2.5% of the total U.S. voting age population is currently disfranchised, over 13% of African-American men are denied the right to vote on account of past criminal convictions -- this rate is seven times the national average.

Although in the past decade there have been significant reforms of these laws in the states, there is a compelling need for a federal standard. Some states disfranchise persons on parole or probation while others permanently disfranchise some or all who have completed their sentences. Several states even deny voting rights to persons who have incurred legal financial obligations or have only been convicted of misdemeanors.

This patchwork of laws governing voter qualifications often leads to confusion among both election and criminal justice officials about who is eligible to vote. As a result, countless individuals with convictions who are eligible to vote have been misinformed that they cannot vote, making the number of Americans impacted by criminal disfranchisement even greater. As we discuss in our Issue Brief, a federal standard is the only way to prevent future instances of this de facto disfranchisement and to ensure that all qualified Americans are able exercise their right to vote.

On March 16, 2010, the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties heard testimony from a broad group of experts, election officials, and advocates in support of such federal standard -- the Democracy Restoration Act (DRA). This legislation would restore voting rights in federal elections to the nearly 4 million Americans who have been released from prison; ensure that people on probation never lose their right to vote in federal elections; and notify people coming out of prison about their right to vote in federal elections. By establishing a federal standard for voter qualifications, the DRA would ensure that all citizens have a say in their communities, while at the same time, providing a bright line for government officials who provide voter registration information.

There has been incredible momentum behind reforming criminal disfranchisement laws in recent years. Law enforcement officials, members of the faith community, civil rights and legal organizations, and governors of both political parties have all advocated for the restoration of voting rights. Recently, The New York Times editorialized in favor of the DRA, writing that "it goes against one of democracy's most fundamental principles: that governments should rule with the consent of the governed."

However, without a national standard, the United States remains one of the only industrialized democracies where significant portions of its voting-age population are denied the ability to participate in civic life. International covenants and declarations recognize the right to vote as a fundamental human right and many countries' have determined that denying citizens with criminal convictions their fundamental rights is incompatible with the principle of equality in the protection of civil and political rights.

As we conclude in our Issue Brief, if passed, the Democracy Restoration Act would not just restore voting rights to millions of Americans; it would finally correct a centuries-old injustice.

[Image via Samuel Huron.]