Voting Rights Behind Bars

A Loss for Voting Rights

New York Times Editorial

August 5, 2009

Voting rights advocates have had little success challenging felon disenfranchisement laws in court. Last week, the United States Court of Appeals for the First Circuit, in Boston, became the latest federal court to uphold a ban on voting by convicted felons. Despite these setbacks, the cause is important. Voting rights advocates should keep fighting in the courts, state legislatures and Congress.

In 2000, Massachusetts changed its laws to prohibit felons in prison from voting. Until then, it was one of only three states that let felons vote from behind bars. Even with the change, Massachusetts remains one of just 13 jurisdictions that disenfranchise felons while they are incarcerated but not after they are freed.

A group of prisoners sued, arguing that their disenfranchisement violated the Voting Rights Act. The felons whose right to vote was taken away in Massachusetts are disproportionately black and Hispanic, the prisoners said, partly because of a bias in the justice system.

The appeals court, voting 2 to 1, threw out the suit at an early stage. When it passed the Voting Rights Act, the majority said, Congress did not intend to prohibit states from disenfranchising incarcerated felons.

In dissent, Judge Juan Torruella argued that the ban violated the Voting Rights Act’s plain language, which refers to adding voting qualifications in a manner that results in the denial of the right to vote on account of race. He would have allowed the case to proceed further so the plaintiffs could try to prove their claim.

Judge Torruella was right. The United States Court of Appeals for the Ninth Circuit, in San Francisco, reached a similar conclusion in another case, ruling that the plaintiffs should be able to try to prove their case. In a New York suit, Judge Sonia Sotomayor — in a dissent that has gotten considerable attention — also argued that the Voting Rights Act applies to felon disenfranchisement laws.

Letting the case go forward would not have meant the prisoners would have won. But it would have recognized that the law could violate the Voting Rights Act, depending on the facts that emerged about it in court.

The United States aspires to be a nation in which the government rules by the consent of the governed people. Prisoners do not cease to be people.

Felon disenfranchisement is also bad prison policy. In recent years, the prison system has all but given up on trying to rehabilitate prisoners. Allowing felons to vote is good preparation for making them free, law-abiding citizens.

(This article was discovered by the Colorado Criminal Justice Reform Coalition and recently featured on their excellent blog "Think Outside the Cage".)