Retired Judge John Wilson discusses the legal issues involved in giving convicted felons the right to vote.
Recently, Democratic Presidential candidate Bernie Sanders brought a good deal of attention to his campaign. The Vermont Senator proposed giving the right to vote to people with felony convictions – even while those people were still incarcerated for their crimes. Sanders makes no apologies, and does not equivocate on this position – “If we are serious about calling ourselves a democracy, we must firmly establish that the right to vote is an inalienable and universal principle that applies to all American citizens.”
This position is so extreme, other Democratic candidates for President have criticized allowing incarcerated persons the right to vote. US Senator Cory Booker (D-NJ), stated that “if Bernie Sanders wants to get involved in a conversation about whether…the (Boston) Marathon bomber should have the right to vote, my focus is liberating black and brown people and low-income people from prison.” In other words, vote for Cory Booker, and “black and brown people” won’t lose their voting rights, since they won’t go to jail in the first place? Maybe that’s not exactly what Booker meant…and maybe the lack of clarity in his position is one reason why he is having difficulty polling higher than 2.2 percent.
Another candidate having trouble with this issue is US Senator Kamala Harris (D-CA). At first, she thought we all should “have a conversation” about the Sanders’ proposal. A day later, she said “Do I think that people who commit murder, people who are terrorists, should be deprived of their rights? Yeah, I do…I’m a prosecutor…there has to be serious consequence for the most extreme types of crimes.” Her quick pivot might explain why Harris is doing better in the polls than Booker.
Disenfranchisement for those convicted of serious crimes is an ancient idea, going as far back as Greek and Roman times. “In Athens and other Greek city-states [approximately 1100 BC – 400 BC], the status of atimia [literally without honor, a form of disenfranchisement] was imposed upon criminal offenders. This status carried the loss of many citizenship rights, including the right to participate in the polis (polity)… In ancient Rome, the related punishment of infamia could be imposed on criminal offenders.”
46 states and the District of Columbia, all bar incarcerated persons from voting. Of those, 32 states do not allow persons on parole to vote, and 29 extend that prohibition to those on probation. But the loss of voting rights is not a direct consequence of a criminal conviction – it is a collateral result. Much like a criminal conviction leading to the deportation of an illegal immigrant, disenfranchisement is a civil penalty.
This is an important distinction to understand. When a person is convicted of a crime, their sentence is the direct consequence – incarceration, parole, probation, a fine, restitution and other penalties imposed by the Court at the time of sentence. But there are also a host of indirect consequences as a result of a criminal conviction – loss of professional licensing, deportation, ineligibility for security clearance, and loss of voting rights are just some of these collateral results.
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There is reference made in the Constitution to “the electors in each state” (Article 1, Sec II, Clause I), however, the general right to vote appears to be more properly covered under the 10th Amendment to the Constitution – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As such, States have more of an ability to limit voting rights than is generally assumed, and as stated, 46 states have legally limited the rights of those convicted of crimes to vote – particularly while incarcerated.
This does not mean that the right to vote is lost forever to a convict. Several states provide for what is known as a “Certificate of Relief from Civil Disabilities” (CRD). In New York, for instance, the website for the New York Courts states that a CRD “is a way to remove certain Collateral Consequences of a criminal conviction. Having the CRD can remove bars to applying for jobs, licenses, public housing and more. If you apply for and receive a CRD, you will have the right to apply just like someone without a conviction.” In fact, if you are in danger of losing an employment license or public housing as a result of a conviction, at sentencing, you can ask the New York Court for a CRD.
This same remedy is available in Florida, Texas, Virginia, Illinois, and many other states.
Surely, someone as educated and experienced as Senator Bernie Sanders must realize that any right reserved to the States and the people is subject to reasonable limitations imposed by each States’ elected representatives. Obviously, Candidate Sanders isn’t interested in these sort of details. Give him credit for standing his ground when challenged – but don’t be fooled.
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