Voting & Incarceration: “The More Things Change, The More They Remain The Same.”

Last week, I wrote about Husted v. A. Philip Randolph Institute, et al., a voting rights case the U. S. Supreme Court has agreed to hear. They will decide whether federal law allows Ohio to penalize infrequent voters by purging them from the voter rolls.

In a comment to that post, Melanie from Grab the Lapels wrote: “I would love to read a blog post from you about voting and the prison population. I’m not sure I understand what rights inmates have/don’t have and why.”

So, Melanie, this post is for you!

The voting rights of felons and ex-felons varies by state, so I turned to The National Conference of State Legislatures (NCSL) for their summary of state laws. They said:

State approaches to felon disenfranchisement vary tremendously. In Maine and Vermont, felons never lose their right to vote, even while they are incarcerated. In Florida, Iowa and Virginia, felons and ex-felons permanently lose their right to vote. Virginia and Florida have supplementary programs which facilitate gubernatorial pardons. The remaining states each have their own approaches to the issue.

[Check out NCSL’s chart for more information, linked above]

About six million Americans are not allowed to vote because of a felony conviction. This type of disenfranchisement stems from an archaic concept we inherited from Europe known as “civil death,” the idea that the government should punish people for their crimes by denying them the right to ever fully participate in society again.

Our modern laws have largely departed from this overly harsh concept of punishment, except in certain circumstances, such as the voting rights of felons and ex-felons.

The states that treat individuals convicted of felonies the worst when it comes to voting have more racial diversity than the states that treat them the best. The only two states that do not disenfranchise felons are Vermont and Maine, racially homogeneous places where well over 90% of the population is white. Racial and ethnic minorities are overrepresented in the prison populations in these states, but the vast majority of inmates are white (see VT’s prison profile here, and see ME’s prison profile here).

When I saw these demographics, I thought about the recently released Urban Institute Study that found that “States with larger African American populations, all else equal, have less generous and more restrictive TANF [Welfare] policies.” As the authors explained:

If voters or policymakers perceive people receiving welfare as different from themselves, they may believe that welfare dependency is caused more by personal shortcomings than by circumstances beyond one’s control.

A similar bias may be at work when it comes to voting rights. In racially homogeneous states, the general population and lawmakers are more likely to identify with prison inmates, making them both less likely to see individuals with criminal histories as unredeemable and less likely to feel threatened by maintaining their right to vote.

Laws prohibiting felons from voting have a discriminatory effect on racial minorities, whose right to vote, once finally guaranteed by the Constitution, has been long subjected to discriminatory suppression efforts. [And let’s not forget the ways our criminal justice system is biased against racial minorities; see the comments below]

In The New Jim Crow,* in which Michelle Alexander argues that we have redesigned America’s Jim Crow racial caste system through mass incarceration, we meet Jarvious Cotton, a man who cannot vote:

Like his father, grandfather, great-grandfather, and great-great-grandfather, he has been denied the right to participate in our electoral democracy. Cotton’s family tree tells the story of several generations of black men who were born in the United States but who were denied the most basic freedom that democracy promises–the freedom to vote for those who will make the rules and laws that govern one’s life. Cotton’s great-great-grandfather could not vote as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy tests. Today, Jarvious Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole.

Mr. Cotton was one of the plaintiffs in Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998),** which held that:

Although it appears that the constitutional disqualifying provision [prohibiting the vote] originally intended to discriminate against black felons, its recent re-enactment by the people of Mississippi has not been shown to bear that taint.

The opinion, written by Judge Edith H. Jones (who is still on the Court), is truly incomprehensible. Not only is it hard to believe the court would describe a reenactment from 1968 as ‘“recent” in a 1998 opinion, but its reasoning is also hard to accept:

The state defendants do not dispute that § 241 was enacted in a [sic] era when southern states discriminated against blacks by disenfranchising convicts for crimes that, it was thought, were committed primarily by blacks…

[However,] Section 241, as enacted in 1890, was amended in 1950, removing ‘burglary’ from the list of disenfranchising crimes. Then, in 1968, the state broadened the provision by adding ‘murder’ and ‘rape’–crimes historically excluded from the list because they were not considered “black” crimes. Amending § 241 was a deliberative process.

…Because Mississippi’s procedure resulted both in 1950 and in 1968 in a re-enactment of § 241, each amendment superseded the previous provision and removed the discriminatory taint associated with the original version.

(Emphasis added).

So, basically, in the court’s opinion, 1950s and ‘60s Mississippi was a post-racial utopia, despite the countless murders of African Americans and civil rights workers in that state, including Medgar Evers in 1963 and James Chaney, Andrew Goodman, and Michael Schwerner in 1964. I’m also shocked the court would believe that racists in 1950 and 1968 didn’t wrongly consider rape a crime committed predominately by black people. So-called “protection” of white women from black men was the stated reason for numerous lynchings and prosecutions in the south, such as the murder of Emmett Till in Mississippi in 1955 and the prosecution of the Scottsboro Boys in 1930s Alabama. It’s also the basis of the fictional legal case at the heart of the 1961 Pulitzer Prize winning novel, To Kill a Mockingbird.

The Cotton opinion is now two decades old, but it still stands, as does Richardson v. Ramirez, 418 U.S. 24 (1974), in which the United States Supreme Court upheld the constitutionality of laws prohibiting felons from voting.

It’s time for our courts to revisit this issue, though I’m not so sure they would come to a different conclusion. As Michelle Alexander says in The New Jim Crow, the disenfranchisement of felons exemplifies the old saying that “The more things change, the more they remain the same.”


*See also, Confronting My Own Bias About The New Jim Crow.

**Mr. Cotton’s appeal was dismissed before reaching the appellate court, so the Cotton opinion is about another plaintiff in that case, Keith Brown, who was serving a sentence for armed robbery in Mississippi and wanted to vote.


  1. This is a fascinating (and disheartening) article. I was encouraged to see the last presidential administration begin to address the issue of not incarcerating nonviolent offenders, along with the trend toward legalizing or decriminalizing marijuana. Of course, that’s all likely to be reversed now. I am adding The New Jim Crow to my reading list.

  2. Interesting analysis of the insidious reach of racial discrimination. My view from Canada: every now and again, the government of the day removes voting rights from inmates; time and again, our Supreme Court stops it. The rationale: denying inmates the right to vote undermines respect for the law and democracy. The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility.

    1. You have more faith in the criminal justice system than I do. A number of felonies are due to the War on Drugs, which has targeted African Americans and Latinos, even though white people do drugs at comparable rates. Racial minorities are more likely to be stopped, frisked, arrested, incarcerated, and then finally, disenfranchised. So yes, I can feel compassion for them.

      Besides, even if you do not believe inmates should have the right to vote, what about once they are released? Haven’t they paid their debt to society? Well, in some states, they are disenfranchised well beyond their prison terms.

  3. I feel so angry about this. My state, Louisiana, incarcerates people at the highest volume in the world, so voting rights for felons weighs heavy on my mind. it seems like such a clearly unjust thing, but we let it keep happening. I don’t know.

  4. I have never understood or agreed with this policy of disenfranchising ex-convicts, but I had to nod my head and say “Of course” when you wrote that the states with the harshest laws also have the most racial diversity. It all fits in perfectly with our racist society. I keep meaning to read The New Jim Crow and I haven’t gotten around to it yet.

  5. I can’t believe the right to vote as a felon or ex-felon varies from state to state! I was under the impression that no felon or ex-felon could vote anywhere, but I want sure, and I’m glad I asked. I’ve it said before on other blog posts, but I want to say it again: if we in the United States truly believe jail and prison time is paying a debt to society, then we can’t also agree that someone released from prison should continue to be punished. Society will shun former convicts, and it’s easy: on every application will fill out, we must mark whether or not we have been convicted of a felony. I’m not sure how that’s legal. But denying ex-felons AND felons of the right to vote has the potential to change their very lives in a facility. I would also argue that it’s important to engage everyone in civic duties to encourage them to see themselves as part of change, part of a society. I know enough people working in prisons to know that a prison mentality sets in, and they start seeing everyone though suspicious eyes. There are ways to do prison better.

    1. “if we in the United States truly believe jail and prison time is paying a debt to society, then we can’t also agree that someone released from prison should continue to be punished.” Agreed! The concept of “civil death” is recalcitrant, and considering how it supports biased views about certain people, it will take a lot of effort to rid our country of it completely. Thank you for giving me the idea for this post!

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