Voting Rights for People with Criminal Records: 2008 State Legislative and Policy Changes
(2007 State Legislative and Policy Changes)
Key State Legislative And Policy Changes | National Trends
A patchwork of state felony disfranchisement laws, varying in severity from state to state, prevent approximately 5.3 million Americans with felony (and in several states misdemeanor) convictions from voting. Confusion about and misapplication of these laws de facto disenfranchise countless other Americans.
KEY STATE LEGISLATIVE AND POLICY CHANGES
During the 2008 legislative sessions, approximately 75 felony disfranchisement-related bills were in play in 22 states. Below is a discussion of some of the recent state legislative trends with respect to this issue, as well as a list of key legislation and executive orders debated, passed and signed across the country this year. This list is not exhaustive, but does include all enacted legislation and policy change as well as legislation representative of broader trends.
Note: Impact relates to felony disfranchisement-related provisions only. Many of the bills listed herein address multiple topics and may contain progressive as well as regressive provisions; aspects not related to felony disfranchisement are not analyzed.
FLORIDA
Disfranchisement Law: Florida disfranchises all individuals convicted of felonies; rights restoration is possible only through pardons or restorations of civil rights (RCR), both of which are controlled by the Governor upon recommendation of the Clemency Board. In 2007, Florida revised its executive clemency rules to allow for the restoration of rights without an application to or hearing by the clemency board to people convicted of most non-violent offenses who have completed their full sentences, have no pending charges against them, and have paid all court-ordered restitution. Individuals convicted of other crimes, including violent offenses, still face a possible lifetime voting ban.
Order info: On August 27, 2008, Governor Charlie Crist issued an executive order (EO 08-179), which directs the Florida Parole Commission and the Florida Office of Executive Clemency to facilitate the rights restoration and voter registration of people with past criminal records. i
Impact: Progressive. Per the order, the Parole Commission and Office of Executive Clemency must: (1) include a voter registration form with all RCR certificates mailed to individuals whose rights have been restored; (2) "use all available resources to notify those whose rights have been restored," (3) make the RCR database available on the Parole Commission website; and (4) allow people to print their RCR certificates from the Parole Commission website.
GEORGIA
Disfranchisement Law: In Georgia, individuals convicted of felonies "involving moral turpitude" are disfranchised until they complete their sentences. The term "moral turpitude," however, remains ill-defined in the state Constitution and statutes; as a matter of practice, the law is currently interpreted to refer to all felonies.
Bill info: HB 1112 was signed into law by Governor Sonny Perdue on May 14, 2008 as Act 706. It became effective July 1, 2008. Section 9 of the bill pertains to felony disfranchisement. ii
Impact: Neutral. The bill authorizes the Secretary of State (SOS) to obtain from the Department of Corrections "criminal information relating to the conviction, sentencing, and completion of sentencing requirements of felonies involving moral turpitude." It also authorizes the Secretary of State to obtain this information from other states, where possible.
On its face, this is a neutral bill; it has the potential to be either progressive or regressive, however, depending on how it is implemented by the SOS. If, for instance, the SOS uses its new authority to more quickly process voter registration forms for people with previous felony convictions, the bill may end up providing for greater enfranchisement. If, however, the SOS requests information in order to purge voters from the rolls—which, as we've seen in the past, often results in the accidental disfranchisement of eligible voters—it may have a regressive impact on democracy in the state.
KENTUCKY
Disfranchisement Law: Individuals convicted of felonies, treason and election bribery lose the right to vote, and can be re-enfranchised only by personal action of the Governor. In addition, individuals convicted of misdemeanors and incarcerated at the time of an election are disfranchised.
Order info: On March 4, 2008, Governor Steve Beshear issued a policy directive to eliminate the hurdles imposed by his predecessor on people with felony convictions seeking to have their voting rights restored. The policy change became effective immediately and applies retroactively.iii
Impact: Progressive. Per Beshear's directive, people with felony convictions who have completed their sentences are no longer required to pay filing fees, write essays or submit letters of recommendation in order to have their rights restored. Prosecutors are still permitted to object to a rights restoration application, but, under the new process, will receive one formal notification rather than two. Beshear also directed the Department of Corrections to revise its manuals in accordance with this process and to assist people with applications prior to their release.
Bill info: HB 70 passed the house on April 1, 2008 with a vote of 80 to 14. The bill was not called in time for a vote in the Senate.iv
Impact: Progressive. If passed, the bill would automatically restore voting rights to disfranchised individuals upon full completion of sentence, including incarceration and any term of parole or probation. Individuals convicted of murder, first-degree manslaughter and some sex crimes are excepted, and must still regain their voting rights via executive pardon.
LOUISIANA
Disfranchisement Law: An individual currently "under an order of imprisonment for conviction of a felony" is disfranchised, even in the case of a suspended sentence. Once an individual has completed his/her sentence, including probation and/or parole, voting rights are restored. Individuals must show proof of eligibility when registering or re-registering to vote.
Bill info: HB 1011 was signed into law by Governor Bobby Jindal on June 30, 2008 as Act No. 604. It becomes effective August 15, 2008.v
Impact: Progressive. The bill requires the Department of Public Safety and Corrections to notify people leaving its supervision about how to regain their voting rights and to provide these individuals with voter registration applications.
Bill info: HB 1017 was signed into law by Governor Bobby Jindal on June 6, 2008 as Act No. 136. It became effective upon signature by the Governor. Section 171 of the bill pertains to felony disfranchisement.vi
Impact: Regressive. The bill changes the requirements for the voter roll removal list sent by the Department of Public Safety and Corrections (DOC) to the Department of State, and also allows the information to be sent more often. Now, instead of sending a list of everyone with a "definitive felony conviction," the DOC will simply send a list of anyone with a "felony conviction" on "no less than a quarterly basis." As a result, voters can be removed from the rolls upon initial conviction for a felony, whether or not a sentence has been rendered or appeals have been exhausted.
MISSISSIPPI
Disfranchisement Law: 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 pretenses, bigamy, embezzlement, perjury, theft and arson. Disfranchised individuals are, however, permitted to vote in U.S. Presidential elections if they are otherwise eligible. In 2004, the Attorney General, without constitutional amendment, issued an advisory opinion expanding the list of disfranchising crimes to include eleven additional offenses. The Secretary of State then amended the voter registration form to list all 21 crimes as disfranchising. In addition, the revised form does not allow disfranchised individuals to register to vote in federal elections. Rights can be restored only through an executive pardon or legislation introduced in the individual's name and passed by 2/3 of the legislature.
Bill info: HB 969 passed the House, was reconsidered and passed again with amendments, and was transmitted to the Senate, where it died in committee.vii
Impact: As originally introduced, the bill was progressive; it proposed to automatically restore voting rights to people convicted of disfranchising crimes (as enumerated in the Constitution) following completion of sentence and a two-year waiting period (during which the person must remain "crime and arrest free"). It also required that notice of loss of voting rights be given to people prior to conviction, and that attorneys, judges, election officials, corrections officials, and members of the public be educated about voter revocation and restoration.
At the last minute, however, a series of amendments were introduced that transformed the bill into a very regressive one. The amended bill expanded the list of disfranchising crimes to include all Mississippi felonies, not just those enumerated in the Constitution, as well as all out-of-state and federal felonies. It also required that all of these individuals be subject to the restoration process outlined in the original bill (post-sentence restoration after a two-year waiting period, during which time the person must remain "crime and arrest free"), but excluded from the restoration process people convicted of murder and rape and those with multiple felony convictions.
Though the bill died, there was an attempt to revive its felony disfranchisement provisions as part of a House resolution that would have, among other things, instituted voter ID provisions. The resolution failed and the bill was not ultimately drafted, though it is likely that, if it had been, the felony disfranchisement provisions would have been very similar to those in the regressive bill discussed above.
MISSOURI
Disfranchisement Law: Individuals convicted of felonies are disfranchised until completion of sentence, including any terms of incarceration, parole and/or probation, at which time rights are automatically restored. Individuals convicted of misdemeanors are disfranchised while incarcerated. Those convicted of election-related crimes (both felonies and misdemeanors) permanently lose the right to vote unless pardoned.
Bill info: HB 2321, which initially contained no felony disfranchisement-related provisions, passed the House on April 10, 2008 and was transmitted to the Senate; on May 12, the Senate committee substitute—which introduced a section on voter registration for people with criminal records—was reported "do pass." Section 115.164 (2) relates to felony disfranchisement. After voter ID was upheld in Indiana, however, all election-related legislation in Missouri focused on this issue, and the bill died.
Impact: Progressive. If passed, the bill would have required the Board of Probation and Parole to transmit a yearly list to the Secretary of State of everyone released from probation and parole that year. The Secretary of State would then be required to send each eligible but unregistered individual a voter registration application.
OHIO
Disfranchisement Law: Individuals with felony convictions are disfranchised during incarceration, but have their voting rights restored upon release. Individuals on felony parole and probation are permitted to vote.
Bill info: HB 195 was signed into law by Governor Ted Strickland on June 27, 2008. It becomes effective September 30, 2008. Sections 2961.01 (A)(1) and (2) pertain to felony disfranchisement.ix
Impact: Mildly regressive. This bill specifies that an individual is disfranchised when the court accepts his/her guilty plea or returns a guilty verdict for commission of a felony. Previously, the statute disfranchised an individual when he/she was "convicted of a felony." Though this bill appears to simply clarify the point at which disfranchisement is imposed, it indicates a legislative interest in promoting the broadest possible interpretation of the state's disfranchisement law.
OREGON
Disfranchisement Law (prior to passage of HB 3638): Individuals sentenced to prison terms for conviction of felonies lose the right to vote while incarcerated. Individuals on felony parole or probation are permitted to vote, as are individuals sentenced to jail (rather than prison).
Bill info: HB 3638 was signed into law by Governor Ted Kulongoski on March 11, 2008 as Chapter 35 of the 2008 Laws. It became effective on March 11, 2008. Section 6 pertains to felony disfranchisement.x
Impact: Regressive. This bill clarifies that voting rights are revoked when an individual is incarcerated for a felony, whether the incarceration is a result of a conviction or a violation of probation, parole or post-prison supervision. It also extends disfranchisement to those with felony convictions incarcerated in county jails, a population that was not, as a matter of law, disfranchised previously (though these individuals may have been de facto disfranchised).
i Available at http://www.flgov.com/pdfs/orders/08-179-extension.pdf.
ii Available at http://www.legis.state.ga.us/legis/2007_08/sum/hb1112.htm.
iii Governor's press release available at http://governor.ky.gov/pressrelease.htm?PostingGUID={00A7F84B-EE36-4F5A-8386-D184C68324FF}.
iv Available at http://www.lrc.ky.gov/record/08RS/HB70.htm.
v Available at http://www.legis.state.la.us/billdata/streamdocument.asp?did=503660.
vi Available at http://www.legis.state.la.us/billdata/byinst.asp?sessionid=08RS&billtype=HB&billno=1017.
vii Available at http://billstatus.ls.state.ms.us/2008/pdf/history/HB/HB0969.xml.
ix Available at http://www.legislature.state.oh.us/bills.cfm?ID=127_HB_195.
x Available at http://www.leg.state.or.us/08ssorlaws/0035.html.
NATIONAL TRENDS
As in years past, legislatures across the country saw the introduction of numerous bills seeking to reform state felony disfranchisement laws and practices in 2008. Some were progressive and sought to expand voter eligibility or knowledge of voting rights, while others attempted to restrict the ability of people with criminal records to participate in the electoral process.
Between 1997 and 2007, 18 states made progressive changes to their felony disfranchisement laws, enfranchising over 700,000 individuals. Three progressive measures passed in 2008, one legislative and two executive. On the legislative side, Louisiana enacted a bill requiring the Department of Public Safety and Corrections to notify people leaving its supervision about how to regain their voting rights and to provide them with voter registration applications. On the executive side, Kentucky Governor Steve Beshear amended state policy to eliminate the hurdles imposed by his predecessor on people with felony convictions seeking to have their voting rights restored. In addition, Florida Governor Charlie Crist issued an executive order directing the Florida Parole Commission and the Florida Office of Executive Clemency to implement a variety of measures to facilitate the rights restoration and voter registration of people with past felony convictions.
Despite these successes, this legislative session saw very few enfranchising bills become law. Introducing pro-enfranchisement legislation is always risky; felony disfranchisement is a controversial and volatile topic, and the introduction of progressive legislation can open the door to reactionary amendments that quickly transform an enfranchising bill into a disfranchising one (as was the case in Mississippi). Additionally, legislators are often wary of being perceived as "soft on crime" (despite the fact that enfranchisement is in the interest of public safety), and may be particularly cautious during campaign season. The dearth of enacted legislation in 2008 is thus not surprising, particularly given the significance of the upcoming elections.
This session also saw movement on a handful of bills that tinkered around the edges of states' voter eligibility laws. During election years, election laws come under special scrutiny, so it is not surprising that several legislatures took steps to ensure strict interpretations of their states' voter eligibility provisions. Louisiana, for instance, passed an omnibus election reform bill that (among other things) disfranchises voters at the point of initial conviction of a felony, rather than when the conviction has become "definitive" (i.e., the individual is sentenced and/or exhausts all appeals). Similarly, a bill passed in Ohio specifying that an individual is disfranchised when the court accepts his/her guilty plea or returns a guilty verdict, rather than at the point when he/she is sentenced. And Oregon passed legislation clarifying that voting rights are revoked when an individual is incarcerated for a felony, whether the incarceration is a result of a conviction or a violation of probation, parole or post-prison supervision, and regardless of whether the individual is incarcerated in prison or a county jail.
It is also no surprise that felony disfranchisement was implicated in the ongoing, heated debate around voter ID. In Mississippi, for example, legislators attempted to pass a resolution to revive two matters that had previously died—voter ID and felony disfranchisement. Though a bill was not ultimately drafted, local sources suggest that it would have instituted voter ID requirements and expanded the class of individuals with criminal records disfranchised in the state. And in Missouri, a bill that would have (among other things) required the Secretary of State to send voter registration forms to individuals completing parole and probation passed the House and advanced through the Senate but died when, following the United States Supreme Court's validation of Indiana's voter ID law, the Missouri legislature became consumed by the battle over voter ID.
This is not the first time felony disfranchisement has been coupled with voter ID legislation in one way or another. In 2007, legislators in Mississippi attempted to barter progress on enfranchisement for the institution of voter ID, and similar trade-offs may have been proposed in more subtle ways in other states. In any event, the relationship between felony disfranchisement and voter ID is certainly one that bears watching.