The Sentencing Project
The 11th U.S. Circuit Court of Appeals blocked U.S. District Judge Walker’s order requiring Governor Rick Scott and the other members of the Board of Executive Clemency to revamp the state’s voter restoration process. Judge Walker had ruled that Florida’s system of restoring voting rights to people with felony convictions is arbitrary and violates First Amendment rights to free expression and equal protection rights under the 14th Amendment. He gave the state until April 26th to create a new system.
The state appealed and the court ruled in a 2-1 decision to put Judge Walker’s decision on hold. “The Fourteenth Amendment expressly empowers the states to abridge a convicted felon’s right to vote,” appellate Judge Stanley Marcus wrote in a majority opinion. “Binding precedent holds that the governor has broad discretion to grant and deny clemency, even when the applicable regime lacks any standards.” In a dissent, Judge Beverly Martin wrote, “This unbridled discretion is not just concerning when it confronts expressive and associational freedoms traditionally protected by the First Amendment, but also when it threatens the right to vote.”
Two of the three Republicans running to replace term-limited Attorney General Pam Bondi have said that they support Bondi and Gov. Scott’s legal approach to defending the state’s rights restoration process. Democrats running for the position oppose the legal battle and support the November voting rights amendment, which would automatically restore voting rights to some people with felony convictions upon completion of their sentence.
A class-action lawsuit was filed on behalf of 150 people who were denied the right to vote in the November 2016 election while they were incarcerated in Allen County Jail. Indiana prohibits individuals serving a felony sentence from voting, but the majority of people in the Allen County Jail were held pre-trial or were serving misdemeanor sentences. The suit claims that Sheriff David Gladieux refused to offer absentee ballots or any other avenue for voting to the eligible incarcerated voters. Attorneys for the plaintiffs said they believe this is the first class-action lawsuit that is seeking monetary damages for incarcerated people being denied the right to vote.
The Legislature recently passed a bill to restore voting rights to people on probation and parole after a five year waiting period. According to The Sentencing Project, there are 70,000 people on felony probation and parole in Louisiana. Currently, the state restores voting rights once individuals fully complete their probation and parole sentence. Because the bill requires individuals to wait five years before their rights can be restored, not all individuals on supervision will immediately have their right to vote restored. The average time on parole supervision is 6.9 years.
It took three tries for Rep. Patricia Smith, the sponsor of House Bill 265, to get the original bill out of the House. Lawmakers told Smith they had received calls from district attorneys asking them to vote against the bill. The bill earned bipartisan support in the Senate and was approved on a 24-13 vote. Governor John Bel Edwards said he intends to sign the bill into law. Once signed, the change will take effect on March 1, 2019.
Governor Andrew Cuomo issued an executive order to grant voting rights to 35,000 people in New York State under parole supervision. The current state law bars people in prison and on parole supervision from voting. The Sentencing Project estimates that 45% of the beneficiaries of Gov. Cuomo’s order are African Americans who are disproportionately impacted by felony disenfranchisement laws. The executive order offers conditional pardons to people on parole, but the pardons will not erase their conviction or any other conditions of their parole. Gov. Cuomo said that he will continue to issue conditional pardons to new people who enter the parole system.
Progressive Democrats have pushed to restore voting rights to people on parole but have been blocked by Senate Republicans and conservative Democrats, according to The Nation. Gov. Cuomo’s order is a temporary solution that could be halted when a new governor enters office. “Restricting voting rights is deeply problematic for a democratic society and compounds the social isolation of formerly incarcerated persons from their communities,” The Sentencing Project’s Marc Mauer said in a statement regarding the announcement. “I urge the legislature to affirm the governor’s executive order by enacting legislation to expand voting.”
Disenfranchisement policies in the U.S. are far more restrictive than in comparable nations, according to a recent People’s Policy Project article by Emmitt Sanders, a researcher and community activist who spent more than 22 years in Illinois prisons. And of the countries that do impose a voting ban, this is almost always solely limited to the period of incarceration with automatic restoration upon release.
“Today, 26 European nations at least partially protect their incarcerated citizens’ right to vote, while 18 countries grant prisoners the vote regardless of the offense,” writes Sanders. Germany, Norway, and Portugal remove voting rights only from people convicted of crimes that target the “integrity of the state” or “constitutionally protected democratic order.” Both Canada and South Africa allow people in prison to vote. Britain had a blanket ban on voting for people in prison, but the European Court of Human Rights ruled that it was a violation of human rights. After 12 years of fighting with the Court’s decision, the UK changed its ban to allow voting rights for incarcerated people on temporary release and at home under curfew.
Despite growing international support for the idea that voting should not be abridged due to a criminal conviction, only two states—Maine and Vermont—allow people in prison to participate in elections. However, there is a growing momentum for states to view incarcerated people as “full human beings,” writes Sanders. “As someone who spent over 22 years of my life denied the right to vote because of my incarceration, this would be a most welcome development.”