Last updated on: 6/29/2023 | Author:

History of Felon Voting

While felony crimes differ from U.S. state to state, these serious, often violent crimes include arson, assault, battery, burglary, child endangerment, domestic assault, drug dealing, fraud, kidnapping, manslaughter, murder, rape, robbery, and stalking. In the United States, as Encyclopaedia Britannica explains, a felony is typically “punishable by a term of imprisonment of one year or more. Misdemeanors are often defined as offenses punishable only by fines or by short terms of imprisonment in local jails.” Further, for a felony conviction, “the offender may lose some civil rights. These vary from state to state, but they usually include the right to own or possess firearms, the right to vote, and the right to hold public office.” [1] [2] [3]

American felony disenfranchisement—meaning laws that ban people with felony convictions from voting—date back to the British colonies in America, which in turn date to Ancient Athens, Ancient Rome, and Medieval Europe. “Criminal disenfranchisement has its roots in the punishment of ‘civil death,’ imposed for criminal offences under Greek, Roman, Germanic and later Anglo-Saxon law,” explains Professor of Law Debra Parkes. “English law developed the related punishment of attainder which resulted in forfeiture of all property, inability to inherit or devise property, and loss of all civil rights. These principles were transplanted to the British colonies which later became Canada and the United States.” [4]

When the U.S. was established as an independent country in 1776, the U.S. Constitution gave the states control of suffrage (voting rights). Individual states then began codifying disenfranchisement laws in their constitutions. For example, Kentucky’s first constitution (1792) provided the right to vote to all free male citizens, de facto disenfranchising all others including women and enslaved people. Upon revision in 1799, the constitution specifically disenfranchised free “negroes, mulattoes, and Indians.” The 1850 revision stipulated that only free white male citizens could vote. Then, in the 1891 revision of the Kentucky constitution, people with felony convictions were disenfranchised. Kentucky remains a state in which felony disenfranchisement may be permanent at the discretion of the state government. [5] [6]

“It wasn’t until the end of the Civil War and the expansion of suffrage to Black men that felony disenfranchisement became a significant barrier to U.S. ballot boxes. At that point, two interconnected trends combined to make disenfranchisement a major obstacle for newly enfranchised Black voters. First, lawmakers — especially in the South — implemented a slew of criminal laws designed to target Black citizens. And nearly simultaneously, many states enacted broad disenfranchisement laws that revoked voting rights from anyone convicted of any felony. These two trends laid the foundation for the form of mass disenfranchisement seen in this country today,” explains lawyer Erin Kelley. [5]

While most of these early felony disenfranchisement laws were broad, the trend quickly moved toward disenfranchising citizens for only certain felonies, specifically those believed by lawmakers to be mostly committed by Black men. For example, Mississippi disenfranchised those convicted of “bigamy, forgery, burglary, arson, and perjury” in 1890. The Mississippi Supreme Court upheld the law in 1896, while noting the racial discrepancy: “Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker member were prone….Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications [from voting], while robbery and murders, and other crimes in which violence was the principal ingredient, were not.” [5] [7]

42 states adopted felony disenfranchisement laws by 1912; another six would adopt laws later in the 20th century. [7]

The U.S. Supreme Court first weighed in on felony disenfranchisement in 1974. Per the case summary, “three individual respondents, who had been convicted of felonies and had completed their sentences and paroles, were refused registration to vote in three different California counties respectively because of their felony convictions, they brought a class petition, on behalf of themselves and all other ex-felons similarly situated.” The disenfranchisement was challenged as a violation of the California Constitution and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, which states, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Although the California Supreme Court ruled in favor of the individuals, the U.S. Supreme Court reversed the decision, ruling that Section 2 of the 14th Amendment allows disenfranchisement “for participation in rebellion, or other crime.” [7] [8] [9]

In 1985, the U.S. Supreme Court once again tackled felony disenfranchisement laws in Hunter v. Underwood, this time considering Alabama’s law that stripped the right to vote from people who committed a “crime involving moral turpitude.” In this case, the Supreme Court ruled the law had both discriminatory intent and discriminatory impact, thus overturning the law. [7] [10]

The Supreme Court ruling marked a turning point in felony disenfranchisement laws. Despite the “tough on crime” trends of the 1990s, 25 states and Washington, D.C., “expanded eligibility [for voting], streamlined the restoration process [i.e., the process by which to regain the right to vote] or improved voter education” for people convicted of felonies between 1997 and 2017. [7]

As a result, as of Apr. 2023, the felony disenfranchisement landscape looks much different than a century ago. Only nine U.S. states have laws that allow the state to disenfranchise people with felony convictions permanently (though the state may also choose to allow those with felony convictions to vote), while 15 states allow re-enfranchisement after prison, parole, and probation are complete. One state allows re-enfranchisement after prison and parole are complete. And 23 states re-enfranchise people with felony convictions after completion of their prison terms. Two states and Washington, D.C., even allow voting from prison, meaning they do not disenfranchise based on conviction. [11]

Internationally, the United States is an outlier. The Sentencing Project and Human Rights Watch state that the organizations “know of no other democracy besides the United States in which convicted offenders who have served their sentences are nonetheless disenfranchised for life.” Only a few countries allow disenfranchisement after prison, but most of these laws are narrow, only allowing for a few years of disenfranchisement or denying the right to vote for election crimes (such as election rigging or fraud). [12]

On the other end of the spectrum, many countries allow and even encourage voting from prison, including: Czech Republic, Denmark, France, Germany, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Sweden and Zimbabwe. [4]

For more information on disenfranchisement, see: U.S. History of Felony Disenfranchisement