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Felon Re-enfranchisement and the Political Future

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I don’t have a ton of hot takeaways from Doug Jones’ victory last night that would strike anyone as especially original. (Although, man — Roy and Kayla Moore’s imaginary Jewish friends must have had a terrible imaginary first night of Hanukkah.) One thing I do want to draw attention to, however, is the possibly significant role that the restoration of voting rights to Alabamians convicted of felonies played in it.

First things first: the most important argument to be made for felon re-enfranchisement is an ethical one, not a political one. In many states, especially southern states like Alabama and Virginia (which also recently restored the rights of some 168,000 felons, and where the Democrats logged their other major state-level electoral victory of 2017), felon disenfranchisement dates back to the aftermath of Reconstruction and the intentional redefinition of the body politic as for and by whites only. The Sentencing Project (an invaluable resource) explains:

In the post-Reconstruction period, several Southern states tailored their disenfranchisement laws in order to bar black male voters, targeting those offenses believed to be committed most frequently by the black population.11) For example, party leaders in Mississippi called for disenfranchisement for offenses such as burglary, theft, and arson, but not for robbery or murder.12) The author of Alabama’s disenfranchisement provision “estimated the crime of wife-beating alone would disqualify sixty percent of the Negroes,” resulting in a policy that would disenfranchise a man for beating his wife, but not for killing her.13) Such policies would endure for over a century. While it is debatable whether felony disenfranchisement laws today are intended to reduce the political clout of communities of color, this is their undeniable effect.

It is thus impossible in many cases to separate the political project of voter disenfranchisement from its racist context. It isn’t a coincidence that (via the same Sentencing Project source) 1 in 13 black Americans has lost their right to vote.

And just generally, even absent its racist underpinnings and effects, stripping someone’s right to vote has no ethically explainable logic. Saying that a citizen who has violated a society’s legal frameworks shouldn’t have any say in determining the boundaries of the political and social (and thus also legal) frameworks that they have been said to have violated is, in my eyes at least, a deeply suspect argument. This is especially the case for nonviolent offenses, but I’m not convinced that even people who have committed violent crimes should lose their right to vote. Moreover, criminal codes at the local, state, and federal level are inherently elastic and subject to change — meaning, for example, that what costs me my right to vote in one place would not cost me my right to vote elsewhere. (Think of the difference in risk to one’s voting rights between, say, a black man selling weed in Alabama and a white man doing the same in Colorado.) And, as icing on the cake, more than three-quarters of the more than 6 million Americans who are barred from voting because of a felony conviction are no longer even incarcerated, which amplifies the basic and terrible truth that the purpose of the American criminal justice system is not about justice (or rehabilitation) at all, but simply about punishment.

Hopefully you’re still with me. There is also a political component to why this matters, however, which brings me to last night. Earlier this year, Alabama Governor Kay Ivey (a Republican) signed into law the Definition of Moral Turpitude Act. What the hell is the Definition of Moral Turpitude Act (DMTA), you ask? The short answer is that it was an effort by the Alabama legislature to clarify a section of the state’s early-Jim-Crow-era Constitution that called for anyone who had committed “a crime of moral turpitude” to have their voting rights stripped, permanently. The definition of what constituted “a crime of moral turpitude” varied by county, however, muddying questions of who had access to the ballot and discouraging some legitimately qualified voters with felony convictions from even trying to vote because they wrongly thought they were ineligible. The DMTA brought state-level uniformity, narrowed the range of what was considered a disqualifying offense, gave some clarity to the 250,000 Alabamians who have been convicted of felonies as to their eligibility, and thus expanded the franchise to thousands of people who either were ineligible to vote or who thought themselves the same.

Alabama, of course, is at the vanguard of voter suppression efforts generally, so it should come as no surprise that Secretary of State Jon Merrill did little to publicize the change, prompting a lawsuit from the Campaign Legal Center. And it’s hard to know with great precision how felony restoration impacted last night’s special election.

Nevertheless, there is at least anecdotal evidence that dedicated grassroots voter education and get-out-the-vote campaigns specifically targeting the felon-disenfranchised brought as many as ten thousand new voters onto the rolls in the last month alone. How many more people have registered since DMTA passed in May is hard to determine, but suffice to say that in a state-wide election last night that was decided by about 21,000 votes, it isn’t hard to see the potential significance.

Of course, not everyone who has lost their voting rights by way of a felony conviction would a) choose to vote anyway, or b) vote Democratic. But it’s logical to assume, in keeping with general election turnout, that at least half of the six million currently felon-disenfranchised Americans would vote, and it’s also logical to assume, given felon disenfranchisement’s disproportionate burden on traditionally Democratic-voting communities of color, that these are mostly Democratic voters who are being shut out of the political process.

So think of the possibilities. Let’s look at 2016. Hillary Clinton famously lost Wisconsin, Michigan, and Pennsylvania by razor margins. In Wisconsin, she lost by 22,748 votes. 65,606 Wisconsinites (more than 1/3 of them black, in an election in which HRC won the black vote nationwide by 80 points) are disenfranchised because of a felony conviction. In Michigan, she lost by 11,612 votes. 44,221 Michiganders (more than half of them black) are disenfranchised because of a felony conviction. Pennsylvania is significantly closer, but even there, Trump’s margin of victory (44,292) is eclipsed by the number of people who are felon-disenfranchised (52,974).

You can keep doing the same sort of math for a lot of close states, and it isn’t hard to understand how the electoral map changes. (Source for all those felon-disenfranchisement numbers HERE.) There’s a reason why Republican politicians like Donald Trump, failed Virginia gubernatorial candidate Ed Gillespie, and credibly accused child molester and failed Alabama Senate candidate Roy Moore hate the idea of felony voting rights — they know it portends bad things for them politically.

The upshot? The left in general and the Democratic Party in particular needs to make the reversal of felon disenfranchisement a priority, now. It’s the smart thing to do politically, and it’s the right thing to do ethically.

Relatedly, here’s a petition to restore voting rights for 1.6 million Floridians, including half a million black Floridians: https://florida.ourstates.org/(Note: must live in Florida to sign; please circulate to friends/fam there.)

 

 

 

 

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