ACLU Policy Activities and Legislative Accomplishments: 2007
An estimated 5.3 million Americans are prohibited from voting because of a felony conviction, and in 10 states a felony conviction can result in a lifetime ban from voting. Through a strategic combination of litigation, advocacy and public education, the ACLU challenges these restrictions and sparks reforms to facilitate restoration of the right to vote to persons with criminal convictions.
The following text summarizes legislative and policy-related work carried out at the state level by various affiliates and other units of the ACLU, including the Racial Justice and Voting Rights Projects of the National Office.
While there was no legislative progress on felon enfranchisement in Alabama during the 2007 session, the state affiliate continues to assist eligible formerly incarcerated persons who request help in obtaining official state Certificates of Eligibility to restore their right to vote. The affiliate also is exploring strategies to advance legislation and/or bring litigation in 2008.
Currently ex-felons in Alaska can vote only upon completion of sentence, including probation and parole. A bill, SB 7, was introduced last session, which, in its original form, would have benefited some 6,000 formerly incarcerated persons by granting them the right to vote following their release from prison. The ACLU testified and lobbied in support of SB 7, which was passed by the Republican-controlled Senate State Affairs Committee early in the session. The measure then stalled in the Senate Judiciary Committee where the committee chair – a Democrat and former prosecutor – sought to redraft the bill to withhold the right to vote from certain groups of offenders. Efforts will be made to cultivate additional support in preparation for the 2008 session.
Arizona has an especially complex scheme to withhold the right to vote from ex-felons, resulting in the eighth highest disfranchisement rate in the nation. Currently an estimated 176,103 persons are disfranchised in the state as a result of a felony conviction, of whom 44% have completed their sentence. Although legislation did not pass in 2007, it nonetheless advanced through the Senate and survived a committee vote in the House.
Originally introduced as SB 1109, the measure would have created a more uniform process for rights restoration following completion of sentence and eliminated permanent disfranchisement for some offenders. The measure was blocked several times in the GOP-dominated Senate before advocates regrouped and secured the support of a conservative Republican, Sen. Karen Johnson, who agreed to add felon enfranchisement language to SB 1623, an omnibus election reform bill she had sponsored. The language was added by a vote of 16-14 and the bill then passed out of the Senate 16 to 12, with bipartisan support. Although the bill made it through the House Government Committee, it was blocked in the House Rules Committee and the felon enfranchisement provisions were stripped from the bill before final passage. The affiliate will resume its bi-partisan legislative efforts in 2008.
The ACLU’s legislative work this year was complemented by the filing of a lawsuit seeking to restore the voting rights of former felons in Arizona who have served their prison terms but are denied the right to vote because they owe money to the state or because they committed certain types of felonies in the past. The lawsuit, Coronado et al. v. Napolitano et al., was filed in federal district court in Phoenix on May 3 1, by both the state affiliate and the Voting Rights Project in Atlanta.
Colorado is one of five states where probationers (but not parolees) may vote – the other states are California, Connecticut, New York and South Dakota. In an effort to expand the right to vote to approximately 7,000 parolees, the state affiliate filed a class action lawsuit in November 2005 (Danielson v. Dennis, 139 P.3d 688 (Colo. 2006)), asserting that the state constitution required that Colorado restore a convicted person’s voting rights upon release from prison, even if the person is on parole. The lower court dismissed the case for failure to state a claim and on July 31,2006, the Colorado Supreme Court affirmed the dismissal, holding that “full term of imprisonment,” as set forth in the Constitution, includes the time a person serves on parole. In light of this ruling the state affiliate drafted parolee enfranchisement language that was incorporated into SB 83, an omnibus election reform measure introduced during the 2007 session.
Efforts within the legislature fractured early along partisan lines, and despite the fact that Democrats controlled both houses of the General Assembly and the governorship, weaknesses within the Democratic leadership eventually doomed the measure, but not before the affiliate successfully maneuvered the bill through numerous hearings and separate votes. Ultimately, the House sponsor stripped parolee voting from the bill and the governor then threatened a veto if the language was added back in during Conference Committee.
As was the case in Washington State, the ultimate fate of the Colorado bill was decided not by GOP opposition, but by a refusal by Democratic leaders to push the measure forward. The affiliate will resume its efforts in 2008.
Prior to 2007, Florida was one of three states (along with Kentucky and Virginia) that permanently disfranchised all convicted felons, and was the state with the largest number of disfranchised citizens (nearly one million).’ African Americans were particularly impacted by Florida’s draconian policies, which disfranchised fully 18.8% of the black voting age population in the state. Legislation to advance felon enfranchisement reform was introduced in 2007, but did not receive meaningful attention from the legislature given the focus placed on the actions the governor and the clemency board were taking to revise the rules of executive clemency, discussed below.
On April 5, Florida’s Republican Governor Charlie Crist and the state clemency board (composed of the governor and the elected three cabinet members, currently two Republicans and one Democrat) adopted a new policy aimed at reforming Florida’s antiquated and discriminatory felon disfranchisement procedures. The board revised the Rules of Executive Clemency that govern their decisions as to who gets their civil right restored in Florida Now, certain people with felony convictions will be restored to the rolls without an application or hearing by the clemency board while others remain subject to these procedures. Those who will be restored are people convicted of several non-violent felony offenses who have fully completed their sentences, paid any restitution owed, have no charges pending against them, and are not habitual violent offenders, violent career criminals or sexual predators. And they must wait until they receive a certificate from the board before they may vote again. The rights restored are not only voting rights, but also the right to serve on a jury and the right to hold public office. Individuals must have these civil rights restored before applying for many stateissued occupational licenses.
Although Governor Crist had repeatedly declared his commitment to significant reform of Florida’s system of felon disfranchisement, these rules fall short of this goal by enfranchising too few ex-felons and still subjecting them to process. Staunch opposition from cabinet member State Attorney General Bill McCollum, and more moderate opposition from cabinet member Commissioner of Agriculture and Consumer Services Charles Bronson, contributed to the adoption of a compromise proposal that establishes a set of unnecessarily complex and burdensome procedures.
The Department of Corrections recently reviewed the files of 80,000 individuals who were awaiting rights restoration and discovered that close to 40% of them would not be eligible due to unpaid restitution. Unlike court-imposed fines, restitution cannot be waived or reduced by the Cabinet or clemency board, and will thus be an impediment to thousands of otherwise eligible individuals having their civil rights restored.
The Department of Corrections and the Florida Parole Commission have set themselves the goal of assessing all eligible individuals and classifying them in time for the 2008 presidential election. However, they have to notify the 600,000 -950,000 ex-felons since a good number of them may now be eligible for restoration, and they have a 20% error rate in identifying and contacting these individuals. (The state goes by the lower figure; social scientists have calculated the higher figure.) The state is approaching a voter registration deadline of December 31, 2007 for the January primaries. According to the Parole Commission, under the old rules, 45,000 applications were processed each year, and of them 12,000 were granted RCR per year.
(Because the recent change in Florida represents a change of rules, rather than law, some argue that Florida should still be considered a permanent disfranchisement state.) Under the new rules, in the first 3 months of their issuance, 22,000 RCR applications were granted.
The Georgia General Assembly introduced two pieces of felon voting rights restoration legislation in the 2007 session. The first bill, HR 123 (Thomas-Morgan) would allow formerly incarcerated persons to vote while on parole or probation and a secondary bill, HR 128 (Holmes), was similar in scope. The bills had limited movement, but will remain active in the coming 2008 session. The affiliate will continue to work with coalition partners and members to gain bipartisan support during the upcoming session. Although the GOP controls the state legislature and determines the outcome of all key legislation, these bills continue to be meaningful vehicles for civic engagement.
The affiliate launched a multi-faceted approach to restoring felon voting rights including education campaigns targeting institutions, the incarcerated, the formerly incarcerated, and the general public, as well as coalition building.
The affiliate, cooperating with the VRP, published an educational brochure and fact sheet to be disseminated by the Georgia Department of Corrections (GDOC) to nearly 20,000 formerly incarcerated persons annually upon release. The felon voting rights restoration fact sheet will be placed in the GDOC’s Re-Entry Handbook given to every incarcerated person. The affiliate through participation in GDOC job fairs provides in-facility felon voting rights education.
The affiliate provided public education across the state through several community-based reentry programs and the Georgia Vote Connection Center, a newly formed statewide voting rights coalition. Through these organizations, the affiliate has trained several formerly incarcerated persons to serve as community leaders in providing ongoing felon voting rights education to the incarcerated and formerly incarcerated populations.
The affiliate successfully convened a successful workshop at the inaugural United States Social Forum, in collaboration with the Voting Rights Project entitled “Voting Rights in America: Current Challenges, Considerations and Opportunities” focusing on felon voting disfranchisement across the United States with specific emphasis on organizing efforts within Georgia.
Kentucky and Virginia are now the only two states that permanently disfranchise all felony offenders, with the exception of those who make special application to the governor to have their right to vote restored. In Kentucky, disfranchisement is by virtue of the state constitution and more than 186,000 adults are disfranchised, including 128,775 who have served their sentences and are living in the community. Introduced this year, HB 70 would have given the citizens of Kentucky an opportunity to vote on amending the state constitution to provide for automatic restoration of voting rights after a person completes his/her sentence with several exceptions for certain felony offenders. Following a major lobby day in February, the bill was passed out of the Democrat-dominated House with bipartisan support on a vote of 70 to 28. The bill did not advance in the GOP-controlled Senate, however, and the affiliate and its allies in the KY Restoration of Voting Rights Coalition are regrouping for 2008.
Maine and Vermont are the only states which allow voting by persons with felony convictions who are still in prison. Voting rights opponents try annually to amend the state constitution to end the practice but are unsuccessful. Things were no different in 2007, when the state affiliate testified in opposition to LD 300 and in favor of existing policy, as did the State Department of Corrections, which has long defended the practice of felon voting as consistent with its mission to rehabilitate ex-offenders. After hearing testimony from the affiliate and the DOC, the legislature’s Joint Standing Committee on Legal and Veterans Affairs voted unanimously not to pass the measure.
In 2007, the affiliate lobbied vigorously in support of legislation to streamline Maryland’s complicated felon disfranchisement regime and establish a more uniform process for the gi restoration of voting rights to formerly incarcerated persons upon completion of their sentence. The measure also repealed a three-year waiting period for rights restoration after completion of sentence and the lifetime voting ban for some offenses. In a major victory for felon enfranchisement advocates, SB 488 became law. Approximately 50,000 of Maryland’s estimated 11 1,000 disfranchised persons stand to immediately benefit from the measure, in addition to the thousands of ex-offenders who will complete their sentences each year.
The ACLU of Mississippi has been the leading organization behind lobbying efforts to promote felon enfranchisement in the state, working closely with the NAACP and a broad-based coalition of groups.
More than a half-dozen progressive measures were introduced during the 2007 legislative session and all failed, including HB 1440, the most comprehensive enfranchisement bill which would have amended the state constitution, as well as HB 777, a bill to restore the right of suffrage to honorably discharged veterans since WWII. The latter bill did pass the House 74 to 41 before dying in the Senate Judiciary Committee. More than a half-dozen regressive measures also were introduced but none even survived the committee process.
In addition to its legislative efforts, the affiliate continues to work in communities to counter the widespread myth that any criminal conviction is permanently disfranchising.
Also complementing its legislative efforts, the affiliate continues to pursue litigation filed in October 2006, challenging the state’s denial of voting rights to citizens with felony convictions.
Strickland v. Clark, filed against the Secretary of State’s Office and the State Attomey General’s Office, specifically challenges the denial of voting privileges to two Hinds County residents convicted of a crime not specifically listed in the State’s Constitution as a crime that would take away an individual’s right to vote.
Section 241 of the Mississippi Constitution denies the right to vote to anyone convicted of one of the following ten crimes: murder, rape, forgery, bribery, obtaining money or goods under false pretense, bigamy, embezzlement, perjury, theft and arson. However, the provision allows individuals convicted of one of the ten crimes to vote in U.S. Presidential elections. In 2004, the Attomey General issued an advisory opinion expanding the list of disfranchising crimes, without constitutional amendment, to include eleven additional offenses. The Secretary of State then amended the voter registration form to include all 21 crimes and the form does not allow someone to register to vote only in federal elections.
Despite repeated requests, the Secretary of State refused to revise the registration form to list only the ten crimes enumerated in the constitution or to allow individuals to register to vote only for President and Vice President. Therefore, the ACLU of Mississippi and the VRP filed Strickland v. Clark challenging the Defendants’ actions as violating state and federal law. So far the suit has survived a motion to dismiss.
There was no legislative movement toward felon enfranchisement reform in 2007, although the state affiliate has made progress this year laying the groundwork for future legislation and building a coalition of groups in support of reform. Overall, the goal will be to move New Jersey from a post-sentence enfranchisement state to one that restores the right to vote to formerly incarcerated persons upon their release from prison and/or while on probation or parole. If passed into law, approximately 99,136 New Jersey citizens would have their right to vote restored.
In May, HB 1020, Rights of Ex-Offenders, passed the House, 99 to 12. The bill, which was drafted and supported by the state affiliate, requires the State Board of Elections, the Department of Correction, and the Administrative Office of the Courts to “jointly develop and implement educational programs and procedures for persons to apply to register to vote at the time they are restored to citizenship.” More specifically, the procedures require written notice be given to formerly incarcerated persons to inform them about their right to vote upon completion of sentence and provide them with a voter registration form.
In the State Senate, the measure was rolled into an omnibus bill of amendments to the state’s election laws, HB 1743, Election Amendments. The Senate has passed the omnibus bill, and the bill went to conference to hammer out some small differences unrelated to the ex-felon enfranchisement section. Both chambers adopted the conference report which includes this section. The Governor signed the bill into law on August 19,2007.
A 2005 survey of all 100 boards of election in the state to determine the level of knowledge among election officials about North Carolina felon enfranchisement law resulted in a response from 94 of the state’s 100 counties. Forty-eight responded correctly, but 46 counties got it wrong.
Approximately 49,541 felons are disfranchised in Oklahoma, with nearly half that number (21,962) on felony probation, and 4,067 on parole. The remainder – some 22,844 felons – is imprisoned. Oklahoma also has a relatively high percentage of African Americans who are disfranchised: The rate is 7.34%, which is nearly four times the overall disfranchisement rate of 1.88% for all voting age citizens in the state.
SB 625, which was introduced but did not advance this session, would have slashed the number of disfranchised felons in half by moving Oklahoma to a post-incarceration enfranchisement policy. The bill also provides for an expansive notification and voter registration regime by designating the Department of Corrections as an NVRA (“Motor Voter”) state agency.
Previously, the affiliate had conducted a survey of election boards in 77 counties to determine what individuals were being told about their rights as formerly incarcerated persons. Not surprisingly, the study found that approximately 20-25% of county election boards were disbursing incorrect information.
In a major victory for felon enfranchisement advocates last year, Rhode Island voters approved a state constitutional amendment in November 2006, enfranchising the state’s parolee and probationer population. Last year, the state legislature also enacted a statute to implement the new constitutional provision. The statute requires that people with felony convictions be notified of the loss and restoration of their voting rights, that criminal justice agencies provide assistance with voter registration and voting by absentee ballot, and that corrections and elections agencies share the data necessary to verify voter eligibility. Rhode Island now joins New England states such as Massachusetts and New Hampshire in automatically restoring voting rights upon release from prison. The National and State ACLU were closely involved in the effort and helped draft the comprehensive legislation to implement the constitutional amendment.
In July 2007, the state affiliate testified before the Secretary of State’s office on proposed regulations to implement the relevant legislation. The Secretary of State then revised the regulations consistent with the suggestions offered by the National and State ACLU.
Prior to 1983 a felony conviction resulted in lifetime disfranchisement in Texas. In 1983, the state amended its law to restore the right to vote five years after completion of sentence. In 1985, the post-sentence waiting period was reduced from five years to two years. Finally, in 1997, the post-sentence waiting period was repealed entirely. The elimination of the two-year waiting period resulted in the restoration of voting rights to 317,000 persons who would otherwise have remained disfranchised.
Under current Texas law, ex-felons now regain their right to vote immediately upon completion of their sentence. Unfortunately, many ex- felons do not know that they regain this important right. Currently there are an estimated 101,000 parolees and 243,000 felony probationers in the state.
On May 9,2007, by a vote of 26 to 5, the Texas State Senate approved HB 770, a measure requiring the Texas Department of Criminal Justice to provide written notice to a person “who is released from the custody or supervision of the department that the person may be eligible to vote if the person is no longer subject to the disability referred to in Section 11.002(4).” The bill passed the House Corrections Committee on a vote of 6 to 0 and passed the full House with only two dissenting votes. The ACLU of Texas and a variety of allied organizations supported the measure, but it was unfortunately vetoed by the govemor.
A similar measure, HB 429, had been introduced in 2005 but never even received a hearing in the highly charged and partisan atmosphere of the House Elections Committee. However, over the past six to seven years there has been a major shift in the debate over criminal justice reform and many interim studies about how to reform the state’s broken criminal justice system. HB 770 fared better this year because it was heard in House Corrections which voted it out unanimously.
The ACLU affiliate coordinated the hearing, identified formerly incarcerated persons to testify and worked closely with the Texas Criminal Justice Coalition, MALDEF and other advocacy groups.
In vetoing the measure, Governor Rick Perry asserted that “registering former inmates to vote is not within the mission of [Texas Department of Criminal Justice].” The governor also stated that he found it “unseemly that the state would make a greater effort to register former inmates to vote than we would any other group of citizens in this state.” He also declared that “when an individual is released from prison and their rights are restored, it is imperative that they take personal responsibility for all aspects of their life, including their right to vote.. .government should not make it a greater priority to register to vote those who broke our laws than those who have abided by them.” One bill filed in the 2007 Texas legislative session would have rolled back ex-offender voting rights in Texas. HB 21 10, by Rep. Zedler, would have amended the Texas Election Code to prohibit all registered sex offenders from voting until they complete their period of registration.
Since many ex-offenders are required to register as sex offenders for life, this bill would have created a new lifetime ban for some ex-offenders. The bill was left pending in committee and never received a vote of the full House of Representatives.
Virginia and Kentucky are now the only two states that permanently disfranchise all felony offenders unless the governor personally approves an individual application for restoration of rights or grants a pardon. Alternatively, in Virginia an individual can petition the local circuit court to restore the right to vote (unless convicted of a violent felony, drug-trafficking, or election fraud). The court holds a hearing on demonstrated “civil responsibility” and then makes a recommendation to the governor.
In 2007, the Virginia Senate passed SJ 307, a constitutional amendment to authorize the General Assembly to restore voting rights for non-violent felons. The bill was successfully amended to restrict the legislative authority for rights restoration to non-violent offenders, however. Despite significant and bi-partisan support in the Senate, it did not advance in the House of Delegates. The final vote of 29 “yeas” and 10 “nays” included 14 Republicans voting in favor of the resolution. Currently both Houses of the Virginia General Assembly are controlled by Republicans, while Gov. Tim Kaine is a Democrat.
A constitutional amendment to restore the voting rights of non-violent felons has reached the House floor only once in the last ten years, in 2003. The bill, HJ 635, passed 70-29.
As of December 3 1,2004, a total of 377,847 persons were disfranchised in the Commonwealth of Virginia, or 6.76% of the state’s voting age population (VAP). Approximately 297,901 were ex-felons, permanently barred from voting, while 35,172 were prisoners, 5,158 were parolees, 37,463 were on felony probation and 2,153 were inmates in local jails. These figures compare unfavorably with every surrounding state: 73,113 persons and 1.16% of the state VAP in North Carolina; 94,258 persons and 2.12% of the state VAP in Tennessee; 186,348 persons and 5.97% of the state VAP in Kentucky; 10,800 persons and .76% of the state VAP in West Virginia; and approximately 60,000 persons and less than 1.5% of the state VAP in Maryland.
Virginia’s practice disproportionately impacts African Americans to a very significant degree.
As of 2006, African Americans made up 19.9% of the state population of 7.6 million, but the state’s 208,343 disfranchised African Americans (in December 2004) comprised more than half (55.1%) of the total disfranchised population. And while 6.76% of the total voting age population is disfranchised, the corresponding figure for African Americans is almost three times higher at 19.76%. Sixteen percent of all adult African Americans in the Commonwealth (including 25% of black men) cannot vote because of a felony conviction.
The affiliate is working in coalition with the State NAACP and other groups to explore various avenues for reform including both a possible gubernatorial executive order and a state constitutional amendment.
In 2007, the affiliate worked in coalition and lobbied vigorously for SB 5530, which would have automatically enfranchised approximately 120,000 formerly incarcerated persons who have completed sewing their time in prison. The bill won widespread backing, including support from the League of Women Voters, the Paralyzed Veterans of America, and the Coalition of Sexual Assault Programs, but did not pass.
Unfortunately, on July 26,2007, the Washington Supreme Court overturned a lower court ruling which had found that the state’s policy of conditioning the right to vote on payment of courtimposed fines violated the state and federal constitutions.
The 6-3 ruling came in a case brought by the ACLU in 2005 on behalf of three citizens who had served their prison terms but were denied the right to vote solely because they owed money. Under current state law, even though individuals have finished terms, they are not allowed to vote until they completely pay a variety of monetary debts to the legal system that are imposed at sentencing. Interest on these legal system debts accrues at the exorbitant rate of 12 percent a year.
According to Washington’s own statistics, more than 90 percent of felony defendants are indigent at the time of charging. It is no surprise that many ex-felons find it difficult to pay these financial assessments upon release.
The problem is widespread and impacts people of color especially hard. In 2002, according to the Department of Corrections, 46,500 ex-felons in Washington were unable to vote just because of outstanding “legal financial obligations.” Disfranchisement affects about 3.7% of eligible voters in Washington – almost double the national average. And, given the racial disparity in Washington’s incarceration rate, the state disfranchises almost 25% of all adult African American males.
The affiliate will continue to press for legislative reform.
Wisconsin law currently bans individuals from voting until parole and probation are completed. With an estimated 13,000 parolees and 25,000 probationers, moving the state from post-sentence to post-incarceration enfranchisement could potentially restore the franchise to some 38,000 citizens. Wisconsin law disproportionately impacts African Americans to a significant degree:
- An estimated 24,293 black felons who have been released from prison but are still on probation or parole have been disfranchised, or about 39% of all of those not allowed to vote.
- One of nine voting-age blacks in the state is currently not allowed to vote.
- Wisconsin has 13th-highest rate of total black disfranchisement in the nation, counting both those in and out of prison.
On June 7, AB390 was introduced in the State Assembly. The measure would restore the right to vote upon release from incarceration. In July, the state affiliate held a successful summit meeting with the NAACP and other allies to discuss how to advance felon enfranchisement reform. As a result a statewide coalition is being formed to further educate the public and the State Senate is working on companion legislation to AB390.
Wyoming is one of only seven states that permanently disfranchise at least some felony offenders unless government approves individual rights restoration. In sharp contrast, fully 38 other states automatically restore voting rights at differing points in the process (i.e. completion of sentence, probation or parole, or release from incarceration).
With regard to its seven neighboring states (ID, MT, ND, SD, NE, CO, UT), Wyoming is alone in requiring an application process and government approval to regain the right to vote. Every one of Wyoming’s neighbors has automatic restoration of the right to vote following satisfactory completion of one or more criteria.
In 2003, new legislation enacted in Wyoming enabled first time, non-violent felony offenders to apply to the Wyoming Board of Parole for a certificate restoring their voting rights but that application can be made only five years after successful completion of sentence. With the exception of Nebraska, no neighboring state has any waiting period prior to rights restoration (which is automatic), and in Nebraska the waiting period is two years, compared to five years in Wyoming.
In 2007, the ACLU testified and lobbied in support of HB 235, a bill to shorten the waiting period for first-time, non-violent offenders from five years to one year. An amendment to the bill, which was adopted in Committee, provided for written notification, to wit:
- “The department of corrections, upon expiration of all of the terms of sentence of a person who will be eligible for restoration of rights under this section, shall notify the person in writing of his eligibility to apply for restoration of his rights pursuant to this section.”
The state Department of Corrections did speak in favor of the bill although the department is precluded from lobbying in favor of legislation. The amended bill received bi-partisan support and a “do pass” recommendation by a vote of 7 to 2 in Committee but then died on the Calendar, having never been called up for a floor vote.
Although it may be possible to bring legislation up in 2008, it is unlikely to come up again until 2009 because 2008 is a short session (only 20 days long) and is usually designed only for budget matters.
The current focus of the affiliate is now on designing public education materials that can be displayed throughout the state, including probation and parole offices.
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