The Racist Roots of Denying Incarcerated People Their Right to Vote

Do you want the Boston marathon bomber to vote?” is a provocative question that acts as a smokescreen concealing the real issue — why and when did America decide that people convicted of a crime should not vote?

The historical context for this comes from old English common law which justified the concept of “civil death” as punishment for conviction of treason or a felony because a person committing a crime had “corrupt blood,” making the person “dead in the law.” America did not immediately adopt this position because the Constitution was silent on voting rights — it neither granted nor denied anyone the right to vote.

Before the Civil War, as a Brennan Center report shows, voting rights and the loss of those rights weren’t linked to convictions. America did not incarcerate in large numbers, and states that adopted broad felony disenfranchisement did so after establishing full white male suffrage by eliminating property tests. After the Civil War, places like Louisiana granted poor illiterate whites the right to vote while denying poor illiterate Blacks the right to vote by basing the right on whether your grandfather could vote, hence the term “grandfathered in”.

In 1787, the Constitution considered Black people as three-fifths of a human being. Blacks voting was not an issue. Then came the Civil War and the 13th, 14th, and 15th Amendments. Enslaving people, except as punishment for a crime, was illegal. Birthright U.S. citizenship was established, explicitly including freed enslaved people. Black men got the right to vote. Over 2,000 Black men were elected to government offices, and they began purchasing or homesteading property and voting.

America responded. The exception in the 13th Amendment allowing slavery as punishment for a crime was paired with “Black Codes,” which basically criminalized Black life. Blacks convicted under Black Code laws were leased out to do work, providing cheap labor to boost the South’s faltering economy. In 1850, 2% of prisoners in Alabama were non-white. By 1870, it was 74%. At least 90% of the “leased” prison laborers were Black.  

In the 15 years between 1865 and 1880, at least 13 states — more than a third of the country’s 38 states — enacted broad felony disenfranchisement laws. The theory was simple — convict them of crimes, strip away the right to vote, imprison them, and lease them out as convict labor and Blacks would be returned to a condition as close to slavery as possible.

No one tried to hide the intent of these laws.

In 1894, a white South Carolina newspaper argued that amendments to the voting laws were necessary to avoid whites being swept away at the polls by the Black vote. In 1901, Alabama amended its Constitution to expand disenfranchisement to all crimes involving “moral turpitude” — a vague term that was applied to felonies and misdemeanors. The president of that constitutional convention argued that manipulating the ballot to exclude Blacks was justified because of the need to avoid the “menace of Negro domination,” especially since Blacks were inferior to whites.

It wasn’t just the South. In 1874, New York was the only state that required property ownership for Blacks to vote. This law clearly violated the 15th Amendment prohibition on race-based voting restrictions. A governor-appointed “Constitutional Commission” finally struck down the property law while, simultaneously, quietly amending the New York Constitution to impose felony disenfranchisement. New York could not prevent Blacks from voting because of poverty, so it found a solution in the criminal legal system.

What is the result of this history? Black Americans of voting age are more than four times as likely to lose their voting rights than the rest of the adult population. One of every 13 Black adults is disenfranchised. In some states like Virginia, Kentucky, Tennessee, and, until recently, Florida, one in five Blacks have been disenfranchised. In total, 2.2 million Black citizens are banned from voting. Thirty-eight percent of the disenfranchised population in America is Black.

The two states that allow people in prison to vote are Vermont and Maine, the two whitest states in the country. In many other states, incarcerated people are stripped of their vote but remain counted as part of the populations of the (often very white and rural) districts where they are locked up, boosting the electoral advantage of those districts. A 2003 study found that the larger the state’s Black population, the more likely the state was to pass the most stringent laws that permanently denied people convicted of crimes the right to vote.

America is isolated on this issue — and not in a good way. South Africa, Canada, Ireland, and Spain allow everyone in prison to vote. Germany disenfranchises for certain offenses like treason, but only for a maximum of five years. Finland and New Zealand disenfranchise only for election offenses and only for a few years beyond completion of a sentence. In France, only election offenses and abuse of public power warrant disenfranchisement. When we compare America to the other heirs of the English legal tradition, one thing becomes clear: The only reason our practice resulted in racial disparity is that we designed it that way.

Why aren’t we asking why countries around the world handle this issue so differently? Doesn’t revoking voting rights of people in prison unnecessarily strip them of dignity and make rehabilitation that much more difficult? Justifications offered now regarding disenfranchisement ignore the undeniable fact that the practice in America is clearly connected to an attempt to deny Blacks full rights as citizens. We cannot change what happened in the past, but we are better than that now — we can fix it now. Restoration of voting rights to people in prison is a concept we should all support. It is consistent with whom we claim to be.

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Ms. Gloria Anasyrma

Let prisoners vote. Let them vote for who is going to be the top dog in their prison.

J Justin Knoop

Sorry, folks! A person convicted of a crime should lose some his or her civil rights, at least while they are imprisoned. Never for the rest of their lives but for a reasonable time after they have served their time.

James Gale

Doesn't it occur to you that 'after they have served their time' means, in fact, after they have BEEN punished? In the USA, exceptional in bad way (as is so often the case), civil rights seems to be a dirty phrase, depending on who you are. Don't you think being in prison (particularly, from what I have read, a US prison, and very particularly a privately run-for-profit US prison!) in itself represents quite a large scale loss of civil rights? That's not enough for you?

Brien

What is wrong with you people??

Everything is a race issue to you??!!
(when it is NOT!)

Anonymous

Very thoughtful article. I support restoring voting rights after a person has completed their sentence, including parole. I think you may be surprised when some felons support less taxes, more jobs, & higher wages. Ex-felons are getting a second chance by getting hired now. That work history is easy to build on after the first job.

Just my opinion, but ppl are happier with a job than a handout. We need leaders who can create the economy where even parolees can get a job

Anonymous

People that are incarcerated are there because they were TAKEN OUT OF SOCIETY, a society that votes because of the political influence on social policies. If someone is INCARCERATED, they are outside of society and thus can achieve no benefit from actions normally taken in society for political purposes. .... and don't NEED to be voting in the first place. SKIN COLOR has NOTHING to do with this.

Anonymous

These people may be taken out of society but they continue to have family members in their communities they care about who DO benefit from their vote. Why shouldn't they have the right to vote to fully fund the schools their kids attend so that the cycle of incarceration may be broken by access to education, or vote to ensure that their grandmothers and grandfathers who are on fixed income have access to medical care?

John Smith

I live in a Louisiana Parish with a population of 15,000 but 5,000 of these are inmates. I really don't think it is a good idea to have them vote. Do you?

Anonymous

yes

Anonymous

Those 5,000 are keeping the other 10,000 employed. Sure they should be able to vote.

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