This document summarizes a paper on the social and legal implications of felony disenfranchisement in 2016. It discusses how felony disenfranchisement laws have disproportionately impacted African Americans since the Civil Rights era. Over 6 million Americans are currently disenfranchised, including a disproportionate number of African Americans. The author argues that reforms are needed to restore voting rights upon completion of sentences to reintegrate ex-felons into their communities. However, finding a balanced solution that satisfies all parties will be challenging given the conflicting interests around state sovereignty, punishment, and civil rights.

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Felony Disenfranchisement:
Social and Legal Implications in 2016
Dennis Ellis
University of Missouri- St. Louis

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Abstract
A review of the relevant literature and opinions on felony disenfranchisement. Social and legal
scholars battle on a topic that effects about six million Americans who fall under disenfranchised
status. Constitutional law and case law are used to build a framework for discussion of the
collateral effects disenfranchisement has on the American electorate especially for minorities.
Finally, some suggestions and opinions on the future are discussed as an attempt to satisfy
multiple parties is considered.

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Introduction
Felony disenfranchisement or the loss of voting rights due to a felonious conviction has
significant implications not only for those convicted but for all three tiers of government –
municipal, state, and federal. The passing of the Civil Rights Act of 1964 and more importantly
The Voting Rights Act of 1965 was the beginning of universal suffrage in the United States as it
was at this point that impediments to African-American votes were deemed unconstitutional
(Department of Justice, 2015). These acts specifically sought to extend the voting rights
guaranteed in the Fourteenth and Fifteenth Amendments that were not being afforded to African-
Americans due to state regulations on disenfranchisement and Jim Crow laws from the
Reconstruction and Segregation periods (Department of Justice, 2015). Key language of the
Fourteenth and Fifteenth Amendments were the basis for this act including (U.S. Const. Amend,
XIV, § 2; U.S. Const. Amend. XV, § 1):
“Representatives shall be apportioned among the several States according to their respective numbers,
counting the whole number of persons in each State, excluding Indians not taxed. But when the right to
vote at any election for the choice of electors for President and Vice-President of the United States,
Representatives in Congress,the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,*
and citizens of the United States, or in any way abridged, except for participation in rebellion, or other
crime, the basis of representation therein shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
the right of citizens of the United States to vote shall not be denied or abridged by the United States or by
any State on account of race, color, or previous condition of servitude”
This language written between 1866-1870 allowed for disenfranchisement due to criminal acts
but not due to race or ethnicity. States would spend the next 95 years continuing to deny voting
rights to African Americans through the use of Jim Crow and vagrancy laws which
discriminately focused on offenses for which whites could target blacks (Tonry, 2011). While
these laws deemed it illegal to disenfranchise based directly on race, they did not prevent
governments from criminalizing various activities and developing sentencing mechanisms that
disproportionally effected blacks and by extension have disenfranchised a substantial portion of
the black male population (Alexander, 2012; Tonry, 2011). The implications here are vast but
most importantly two questions become important: what would America look like if (1) pre-1965
blacks would have been equally protected according to federal law and (2) tough crime control
policies and the War on Drugs had not targeted blacks?
Disenfranchisement does not strictly effect blacks of course, but a look at 2010 correctional
statistics courtesy of Uggen, Shannon, & Manza (2012) shows that of (1) 30,623 prisoners,
11,969 are African American, (2) of 19,421 parolees, 6,602 are African American, (3) of 54,916
felony probationers, 16,367 are African American, and (4) of 106,024 total persons under
correctional management, 35,172 are African American. Missouri’s total disenfranchisement rate
is 2.32% while the black population of Missouri is disenfranchised at 6.88% offering another
indication of the disproportionate effects on African Americans who make up 11.8% of the total
Missouri population (Uggen, Shannon, & Manza 2012; United States Census Bureau, 2015).
Felony disenfranchisement of any race limits our political system by removing a substantial

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number of potential votes from the total voting pool and is an infringement Eighth Amendment
rights regarding cruel and unusual punishment. Furthermore, the extended absence of these rights
after sentence completion is reflective of dictatorial control of the populous and inhibits
appropriate democratic procedures.
Literature Review
Arguments in favor of restricting the voting rights (disenfranchising) those under correctional
supervision and in some cases those whose actual supervision has ended but who are still
recognized as criminal violators seem to fall under conservative ideology regarding social
control and punishment. To a degree this is accurate, but disenfranchisement has been the
practice of 48 states since 1792 beginning in Kentucky; Maine and Vermont are currently the
only states who do not disenfranchise (Hull, 2006). The Fourteenth Amendment explicitly allows
for criminal disenfranchisement with the Fifteenth Amendment’s clause regarding race as a
factor and some further case law acting as restrictions making it difficult to attribute these laws
simply to conservatives; various practices such as the War on Drugs and its effect on the prison
population and by extension the voting population are more applicable to the conservative
ideology. There are two categories in the disenfranchisement debate: legal and social, and each
has five main points of contention. These are interrelated but each looks at the issue from a
slightly different angle.
From a legal standpoint those in favor of disenfranchisement refer the constitutionality regarding
the Fourteenth Amendment saying that it explicitly allows for disenfranchisement outside of
relevant case law (Farrakhan v. State of Washington, 2004). Karlan (2004) argues that the Eighth
Amendment does not allow for permanent disenfranchisement due to it excessive punishment
clause. Another caveat of constitutionality comes to question in regards to federal elections in
which some argue that the Fourteenth Amendment bars the federal government from legislating
here due to sovereignty but others argue that Congress does have this right in federal elections
(Hansen, 2005; Metzger, 1999). In Hayden v Pataki (2006) the U.S. court of Appeals ruled 8-5
in favor of the Voting Rights Act of 1965 not including felony disenfranchisement. In her dissent
Judge Sotomayer (2006) argued that the Section 2 of the Fourteenth Amendment and the Voting
Rights Acts of 1965 were contradictory but left that to Congress to review. Voting while
incarcerated is another topic with some arguing for the deterrent effects and disenfranchisement
as a form of punishment and others arguing that allowing felons to vote in prison may in fact
help them to develop a civil social tie which could help upon reentry (Aitken, 2006; Manza &
Uggen, 2006). This final legal issue is that of automatic restoration with arguments ranging from
being a more individualized process similar to clemency and others arguing that once the debt
has been paid to society, the offender should regain certain rights (McDonnell, 2013; Scott,
2011).
Social arguments revolve around the topics of race, mental capacity, restitution, social contracts,
and party affiliation and these arguments tend to come more from opinion pieces than legal
scholarship or decisions. At a Legal Affairs Debate Club event in 2004 one of the proposed
questions pertained to felons losing their voting rights due to societies inability to trust their
judgement; Roger Clegg compares felon judgement to that of children and those with mental

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illness noting a lack of trustworthiness in their opinions while Marc Mauer of the Sentencing
Project notes that barring felon votes on trustworthiness is no different than barring those with
prejudices and that a democratic society is hurt overall by not allowing this vote. The question of
race is discussed by both men separately with Clegg (2006) saying that between the Fourteenth
Amendment’s explicit language and further state legislation, disenfranchisement laws are not
racially motivated and serve the interest of justice; Mauer (2004) argues that the context of
restrictions on literacy and poll taxes are inherently racially motivated and that states used these
along with the War on Drugs as controls on the black vote. Social contract theory is the third
contention here as was initially the works of Locke and Hobbes in the 1600s and is based on the
idea that humanity has given up an anarchic nature to form societies which calls for certain levels
of respect and responsibility. The argument here relating to felon disenfranchisement is that by
virtue of their crimes they have broken the social contract. Brooks (2005) argues in favor of the
broken contract citing the nature of crimes being against the state (society) as well as questioning
why the loss of voting rights would not act as a deterrent for criminal activity; Ewald (2004)
argues the spuriousness of voting rights and incarceration and implies that the state must find
more valid reasons to disenfranchise than simply the conviction of a crime. The fourth argument
here pertains to restitution with Reed and McKenna (2006) proposing that withholding voting
rights until restitution is completed makes sense in terms of keeping all facets of a criminal
sentence together; a 2004 lawsuit by the American Civil Liberties Union (ACLU) points out that
the impoverished nature of those correctional management and implies that restitution
requirements are simply another “poll tax” (LaCorte, 2006) Finally, in regards to party
affiliation, Will (2005) argues that Democratic focus on “root causes of crime” attract most felon
votes yet Berendt (2005) argues that the blue collar and non-union nature of work available for
felons would attract them to the Republican party.
Loss of Voting Rights: Collateral Effects on African Americans and the Electoral Process
Missouri has three voting restrictions for those convicted of crime including: while under
confinement, during the duration of probation or parole for a felony, and after a felony of
misdemeanor conviction “connected with the right of suffrage” (Missouri Revised Statutes,
2016). This is consistent with 19 other states and only slightly more restrictive than an additional
18 states and Washington D.C. (ProCon.org, 2016). 10 states maintain the right the permanently
disenfranchise voters and 2 do not restrict at all; this implies some legitimacy to correctional
voting restrictions as 96% of U.S. states disenfranchise at least for a period of time (ProCon.org,
2016). However, this legitimacy has complications and challenges not the least of which is the
impact disenfranchisement has on minorities, especially African Americans who are
disenfranchised at a rate four times greater than other races (The Sentencing Project, 2016). The
same Sentencing Project (2016) report also indicates that in four states – Florida, Kentucky,
Tennessee, and Virginia – at least 20% of the African American population is disenfranchised.
Three of those states had their electoral votes go to Donald Trump, the Republican nominee, in
the recent election – a strong indication of potential bias in those states criminal justice systems
(CNN.com, 2016). Had one-fifth of the electorate in those states been able to vote in this
election, we might have seen 57 electoral votes switch sides to elect Hillary Clinton (CNN.com,
2016; The Sentencing Project, 2016). The social and legal implications of this alone should place

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felony disenfranchisement as one the top issues for the upcoming administration and should the
6.1 million voters currently disenfranchised be allowed to vote in 2018 or 2020, we may see
some interesting changes in the electoral college (The Sentencing Project, 2016). This would
seem to need either a Constitutional Amendment or a Supreme Court ruling, each of which
would conflict with the Tenth Amendment and its state sovereignty provisions.
Discussion
Voting is a special right in this country that cannot be disrespected or unappreciated and while
disenfranchisement has its issues, I find no reason to abolish the practice. I do see room for
reform and I see where a Supreme Court decision or more specifically a Constitutional
Amendment could remedy the situation by requiring voting rights be reinstated upon release
from incarceration. Maine and Vermont could still allow prisoners to vote but the other 48 states
could not restrict the vote for probationers and parolees unless they were found to be in violation
or convicted of a further crime. Unfortunately, even this provision could and likely would be
abused by states looking for some control of the voting population. Abuses such as these are
difficult to define and fight in the courts due to our complicated legal codes. State rights are
highly valued in this country and they should be but so should human rights and once someone
has served their sentence and is at least trying to reintegrate into the community, they should be
given the benefit of voting rights. I highly doubt this would satisfy many factions in our country
but it would be a step in the right direction and we could continue to study disenfranchisement in
terms of its effects on the individual and society as a whole in terms of the electorate.
Conclusions
In studying felony disenfranchisement there seems to be yet another disparity for African
Americans in the criminal justice system and one that has had perhaps generational effects. If
blacks had not been the victim of Jim Crow laws after the Civil War, we may be looking at a
substantially different social landscape. Votes lost at that time could have elected different
representatives and leaders and now, 150 years later we are perhaps seeing the long-term effects
of such laws. The vote is a sacred type of right much akin to gun possession and to remove that
right from minority communities has perhaps left them civilly defenseless to long-term
government control both criminally and socially.
The future seems bleak here as the recently gained Republican control of our government likely
means stricter measures for the next few years but perhaps the earlier mentioned argument
regarding blue-collar worker’s tendencies towards the Republican Party with prompt the
branches to review these laws. My speculation is that it will come up considering that 57
electoral votes might have changed sides had one-fifth of the African American population in
Florida, Tennessee, and Kentucky not been disenfranchised (The Sentencing Project, 2016).
Furthermore, as correctional reform has been deemed as pressing in our society, I would expect
re-enfranchisement to evolve as a subsequent movement rather than a concurrent one as there is
some risk to automatic restoration in an era of blanket reform.

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