Voting With A Criminal Record - Executive Summary

October 1, 2008

Report: Voting With A Criminal Record
> Appendix: Voter Registration Forms
> News: Reports Show Widespread Confusion About The Voting Rights Of People With Criminal Records

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> Felon Disenfranchisement
> Voting Rights

The right to vote is the cornerstone of American democracy. For many Americans, the primary source of information about voter eligibility is the voter registration form. Consequently, the availability of clear, accurate registration forms is critical to ensuring this fundamental right.

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For the 47 million Americans with criminal records, however, it may be risky to rely on voter registration forms to determine whether they may register to vote.The findings that follow reveal that the vast majority of U.S. states - 33 plus the District of Columbia - currently use registration forms that provide inaccurate, incomplete or misleading information about whether individuals with criminal records are eligible to vote.

The back-story to this problem is the patchwork of state disfranchisement laws that prevent over 5.3 million Americans with criminal records from voting. In 48 states (all but Maine and Vermont) and in the District of Columbia, citizens lose the right to vote upon conviction of a felony; in at least a handful of states, the right is also lost upon conviction of a misdemeanor. All 48 states (and the District of Columbia) also provide mechanisms by which these citizens may seek to regain their voting rights, though some processes are much more viable than others. These mechanisms range from automatic restoration (upon completion of incarceration or sentence) to restoration only after satisfaction of an extensive, onerous and sometimes costly individual application process.

The variety and complexity of these disfranchisement policies has led to considerable confusion and misapplication of the laws, effectively barring countless eligible Americans from the ballot box. Research has shown that many people with past criminal records mistakenly believe they are ineligible to vote, a problem compounded by the prevalence of similar confusion among elections officials, who often dispense incorrect eligibility information to potential voters.

This confusion is exacerbated by voter registration forms that, in too many states, fail to properly communicate state disfranchisement policy. In the absence of clear eligibility guidelines, many Americans, unsure if they are permitted to vote, will choose not to register for fear of registering improperly (itself a crime); others are left vulnerable to improper registration. The result is the practical - or de facto - disfranchisement of countless eligible voters, and the possibility that ineligible voters will mistakenly register.

Particularly vulnerable are voters with limited literacy, those who do not speak English as a first language, new voters, and even seasoned voters who rush through registration forms assuming they are already familiar with their content. As such, these problems have the potential to impact a large segment of the voting population: in addition to the 47 million Americans with criminal records, 3.5 million Americans registered to vote for the first time in the first quarter of 2008, and more than 29 million voting-age individuals move annually (and must re-register if they wish to vote).

As a result of the omissions, mistakes and inconsistencies identified in the findings, eligible voters may be kept from the polls and ineligible voters are vulnerable to registering improperly.8 Voters without criminal records may also be affected by problematic language or formats.

Improved administration of disfranchisement policies, including better registration forms, would ensure that all eligible voters have unfettered access to the polls. Amending the forms at issue is an attainable goal that will benefit untold numbers of voters and strengthen our democracy.

Following this report's findings are a series of concrete recommendations all states can implement to promote greater voter access, including guidelines for amending voter registration forms.Though only some states are discussed in the findings, all states can take similar steps to promote smooth and fair elections.

We also encourage states to statutorily expand voting rights for people with criminal records.The flaws identified in this report are evidence of the difficulty of effectively administering felony and misdemeanor disfranchisement laws, particularly complex ones. Simplifying and streamlining these laws - in favor of automatic post-incarceration enfranchisement, which is easy to administer and gives people living in our communities the voice they deserve - would greatly reduce confusion about voter eligibility and eliminate the need for complex rights restoration schemes and administrative procedures. Voter participation actually increases public safety, and people who vote are far less likely to be re-arrested than those who do not.9 Enfranchising people with criminal records is good for our communities and for our democracy.

The right to vote is a core principle of American democracy. The ACLU welcomes the opportunity to partner with state officials to safeguard this fundamental right.

The voter registration forms analyzed in this report suffer from four primary types of flaws with respect to felony and misdemeanor disfranchisement:

(1)Twenty-two states' and the District of Columbia's registration forms provide inaccurate, incomplete or misleading explanations of who is ineligible to vote and for how long.

Delaware's registration application, for example, unreasonably requires voters to display familiarity with the state's election code. It instructs potential voters as follows: "You may register to vote if you are...an ex-felon who meets the requirements as specified by law according to 15 Del C. Chapter 61." In the absence of further explanation, it is unreasonable to expect the average person to know this statute's content; as such, these instructions actually obscure, rather than demystify, the state's complicated eligibility laws.

(2) Eleven states' registration forms contain incorrect or misleading references to how voting rights are restored.

Virginia - which, along with Kentucky, has the harshest felony disfranchisement law in the nation - poorly communicates its cumbersome and discretionary rights restoration process on the state's voter registration form.The form reads as follows:

Have you ever been convicted of a felony? 
YES  NO
State where convicted _______________

If YES, have your voting rights been restored? 
YES  NO
If YES, when restored MM/DD/YYYY _______________

The problems with this language are manifold: first, voters whose rights have been restored may not be able to recall the exact day, month and year of their restoration or easily access documentation of such restoration. Second,Virginia residents convicted in states where rights are restored automatically may also be unsure of how to answer the above questions. Unlike Virginia, many states restore voting rights automatically upon release from incarceration or completion of sentence, so people convicted in these states may be unsure whether to check "yes" to certify that their voting rights have "been restored." These individuals will be even less likely to know that they are required to demonstrate such restoration; even if they were aware of this requirement, the form gives no indication as to how this demonstration can be achieved. Finally, people who check "yes" to indicate that they have been convicted of a felony but "no" to the question about rights restoration are not at that point instructed to stop completing the form, and so could register improperly by mistake.

(3) Four states' registration forms use confusing or misleading formats to present state disfranchisement policy.

Tennessee's registration form, for example, employs both a complex sentence structure and a problematic format.The form's instructions contain a lengthy sentence about voting with a criminal record that could be difficult for some voters to follow:"To register to vote...you must not have been convicted of a felony, or if you have, your full rights of citizenship must have been restored (or you must have received a pardon)."

The voter declaration then requires that applicants check "yes" or "no" in response to the following series of questions: Yes No

1. I am a U.S. citizen. ___ ___
2. I am a resident of the State of Tennessee. ___ ___
3. I will be at least 18 years old on/or before the next election. ___ ___
4. I have been convicted of a felony. ___ ___

The final question does not give applicants the opportunity to explain whether, if convicted of felonies, they have had their rights restored. As a result, voters whose rights have been restored may be confused about which box to check (fearing that, if they check "yes," their registrations will be automatically rejected or believing incorrectly that, since their rights have been restored, they should check "no"). Additionally, because all but the last question require an affirmative answer from voters seeking to successfully register, voters without felony convictions may accidentally check "yes" to all questions, thereby disqualifying their applications accidentally. These problems are particularly worrisome because research has shown that elections officials in the state often give out incorrect information about voting with a criminal record.

(4) Four states' registration forms contain no guidance on registering to vote with a criminal record, despite the existence of state disfranchisement policies.

Colorado's registration form, for example, contains no information at all about registering to vote with a felony conviction, despite the fact that those convicted of felonies and sentenced to incarceration lose the right to vote until they complete their prison sentences and any accompanying terms of parole. (Individuals sentenced only to probation, however, as well as those convicted of misdemeanors, retain the right to vote.) Some eligible voters with past criminal records, as a result of this omission, may incorrectly assume that they are ineligible, and those who are ineligible could register improperly.

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