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Millions of Americans Are Cut Out of Our Democracy

Julie Ebenstein,
Senior Staff Attorney,
Voting Rights Project, ACLU
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February 14, 2014

On Tuesday, Attorney General Eric Holder expressed his support for restoring voting rights to citizens who have committed a felony, once they have served their prison term, completed parole or probation, and paid any restitution fines. While the ACLU believes rights should be restored automatically upon release from prison and being too poor to pay fines shouldn’t leave you without a voice in our democracy, this is an important step in the right direction.

The federal government has rightfully acknowledged how post-Civil War era criminal disfranchisement laws intended to suppress the voting rights of African Americans “defy the principles of accountability and rehabilitation that guide our criminal justice policies.”

This isn’t a problem that only affects a few people. If the more than 5.8 million disenfranchised Americans lived in a state of their own, that state would have 10 votes in the electoral college.

Criminal disfranchisement laws vary by state. In Florida, for example, a lifetime ban on voting for those who have committed a felony has disenfranchised over 1.5 million citizens. That means that more than 10 percent of the voting age population in the state, and more than one in five African Americans, are deprived of their voting rights.

Those numbers only scratch the surface of the problem. Once a Florida resident is convicted of a felony, the only way to regain his or her voting rights is through the clemency process. And the Governor’s Clemency Board has total discretion to simply amend the clemency rules at will. For example, in 2011-12, leading up to the general election, the Board imposed a five to seven year ineligibility period following release from prison, singlehandedly rendering ineligible over 40,000 applicants who were in the system waiting to have their rights restored. Permanent disfranchisement coupled with Florida’s exceedingly restrictive clemency process leaves Floridians susceptible to racial discrimination and political manipulation.

Criminal disfranchisement violates not only basic principles of democracy, but also international treaty obligations. The Unites States has ratified the International Covenant on Civil and Political Rights (ICCPR), which requires federal and state governments to protect the right to vote, protects equality before the law without racial discrimination, and mandates reformation and social rehabilitation as the essential aim of criminal justice policies. Permanent disfranchisement not only violates human rights commitments but also makes the United States an outlier among western democracies.

We have a long way to go for the U.S. to meet its obligations under international law. For example, many states still exclude citizens from the political process after they are released from prison if they cannot meet all restitution obligations. Linking the period of disfranchisement to a restitution payment violates the ICCPR requirement that any suspension of voting rights for commission of a crime must be “objective and reasonable” and limited to a period “proportionate to the offense.”

Next month, the United States will appear before the U.N. Human Rights Committee in Geneva to update the Committee on U.S. compliance with ICCPR obligations. The ACLU and other groups have provided an alternative report and will testify before the Committee on criminal disfranchisement, among other issues.

And there is work being done in Congress. We support the Democracy Restoration Act – a federal bill that would automatically restore voting rights in federal elections to all citizens with past convictions living in our communities, but denied a political voice.

Millions of Americans should not be cut out our democracy. Those who have returned to our communities should have full and equal rights of citizenship.

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