Behind Bars: Voting Requirements Disenfranchise Released Prisoners

By Hailie Goldsmith
​Hailie Goldsmith is a freshman in the College of Arts and Sciences at the University of Pennsylvania.

With a presidential election on the horizon in November, each state’s current voting laws and what those laws mean for who can vote become increasingly important.

​As of 2016, 6.1 million people could not vote due to a felony conviction and accompanying voting restrictions on released felons; however advocacy groups such as the Sentencing Project hope to reduce this number. Voting restrictions on released felons disproportionately impact black voters, since systemic injustices within the prison system contribute to a higher likelihood of black Americans facing incarceration and felony convictions [1].

Recently, Florida reevaluated its voting requirements and made headlines in overturning a poll tax that had been placed on former felons. The recent history of changes made to Florida’s voting requirements begins with the passage of a ballot initiative known as Amendment 4 that returned voting rights to over one million released Florida felons who had already served their sentences, excluding felons convicted of murder or sexual offenses [2]. Besides opening voting rights to a significant portion of Florida’s voting-age population, the ballot initiative importantly aimed to bring more African-Americans into the sphere of active political participation, given the fact that the original restrictions on former felons barred more than 20% of African-American adults in Florida from voting in elections [2].

In practice, though, this never happened. Immediately following the passage of Amendment 4, Florida’s Republican-controlled legislature retaliated by implementing a restriction that required former felons to pay any outstanding fines or fees tied to their past criminal cases prior to lawfully registering to vote. As a result, Florida continued to bar felons who had already served their time from registering to vote [3]. Poll taxes and voter identification laws have disenfranchised minority voters since the time of the Voting Rights Act of 1965 [1]. Recently, though, the 11th U.S. Circuit Court of Appeals overturned this unjust and harsh poll tax that effectively disenfranchised a large number of released felons. The court explained that a poll tax of this nature violates the Equal Protection Clause of the Fourteenth Amendment, and the judges reasoned that the financial obstacle “punishes those who cannot pay more harshly than those who can” [3]. This court ruling is significant considering that 80% of Florida’s released felons possess remaining fees that would otherwise impair their ability to vote [3]. Though some would argue that these released felons have not yet fulfilled their obligations or duties to society, the court clearly sees this financial hurdle as an unconstitutional mechanism that limits the voting rights of released felons.

Based upon Florida’s historically tight and competitive presidential election results, especially in 2000 when George W. Bush won by a slight margin, Florida is considered an important swing state. An introduction of over one million more eligible voters holds a lot of power in influencing future presidential elections [2]. It is important that presidential elections most accurately reflect the political wishes of this nation’s constituents. Because released felons comprise a unique sector of the American populace with specific needs and demands, their particular political choices should be taken into consideration. After former felons complete all of the terms of imprisonment and parole, a financial burden should not prevent them from fully engaging with their community and socio-political systems if they are to be expected to properly reenter society in a holistic manner.

In order to examine the current state of voting rights in the United States, it is useful to first look at the provisions contained within the U.S. Constitution that explicitly deal with the topic of voting rights. There exist three main components of the Constitution that clearly allocate the law-making powers regarding voting rights to the states: the Tenth Amendment, the Seventeenth Amendment, and Article I, Section 2 [4].

Ratified in 1791, the Tenth Amendment states that 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” [5]. The Tenth Amendment gives all powers not explicitly reserved for the federal government to the states, so state legislatures possess decision-making powers on matters related to voting requirements. Because, for the most part, states constitutionally receive the power and responsibility in determining which residents of the states can vote, each state’s voting laws differ, sometimes considerably, from another’s state’s set of voting laws.

Though these particular sections of the Constitution and Bill of Rights support the authority of state legislatures in determining who can and cannot vote in local, state-wide, and national elections, past Supreme Court rulings illustrate that Congress possesses the ultimate authority for regulating or invalidating certain voting requirements. A 1993 Supreme Court ruling Arizona v. Inter Tribal Council demonstrates the superiority of Congress over the state legislatures with regards to matters of voting requirements [6]. A federal agency denied Arizona’s request to implement an additional voting requirement—a proof-of-citizenship component on federal voting registration forms—and undermined the states in this realm.

Moreover, the Elections Clause—Article I, Section 4—within the Constitution specifically outlines Congress’s authority to regulate elections for the United States House of Representatives and Senate despite pre-existing state regulations [7]. This clause enables states to enact their own regulations concerning voting procedures and voting registration processes; however, these decisions are subject to change and moderation by Congress. This check-and-balance format stems from the constitutional framers’ concerns with states rampantly implementing unfair and unchecked voting procedures.

Despite the improvements in including more U.S. citizens in the sphere of active political participation, limits clearly still exist throughout various states, particularly in Florida, that restrict certain demographics from fully participating in our nation’s political scene. State legislatures should continue to examine their voting registration processes and restrictions in order to encourage everyone to become more involved in electing political representatives. Though states should ensure released felons achieve the ability to vote in elections, it is especially important that Florida’s voting requirements be re-analyzed and scrutinized because of Florida’s integral role in determining the outcomes of presidential elections.

Another controversial question remains: should felons and prisoners currently serving sentences retain their voting rights? Bernie Sanders believes the answer to be yes, claiming that “the right to vote is an inalienable and universal principle that applies to all American citizens 18 years and older” [1]. However, many Democrats, including Elizabeth Warren, oppose this particular level of expanding voting rights, and this idea is wildly unpopular among voters. As of May 2019, only Maine and Vermont permitted current prisoners to vote. This conversation prompts further thinking on decisions regarding who can vote, which comes down to determining the definition of the “right to vote” and in what particular exceptional cases do U.S. citizens no longer deserve this right to vote.

​​​​​​​​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
1. Lopez, German. “The Democratic debate over letting people in prison vote, explained.” Vox. May 13, 2019. https://www.vox.com/policy-and-politics/2019/5/13/18535423/prisoner-felon-voting-rights-bernie-sanders-2020
2. Mak, Tim. “Over 1 Million Florida Felons Win Right To Vote With Amendment 4.” NPR. November 7, 2018. https://www.npr.org/2018/11/07/665031366/over-a-million-florida-ex-felons-win-right-to-vote-with-amendment-4
3. The Associated Press. “Court: Florida Can't Bar Felons From Vote Over Fines, Fees.” The New York Times. February 19, 2020. https://www.nytimes.com/aponline/2020/02/19/us/ap-us-felons-voting-florida.html?searchResultPosition=10
4. Denniston, Lyle. “Constitution Check: Who decides who gets to vote?” National Constitution Center. August 28, 2014. https://constitutioncenter.org/blog/constitution-check-who-decides-who-gets-to-vote/
5. “Rights Reserved to States or People.” National Constitution Center. https://constitutioncenter.org/interactive-constitution/amendment/amendment-x
6. “Arizona v. Inter Tribal Council of Arizona.” ACLU. June 17, 2013. https://www.aclu.org/cases/arizona-v-inter-tribal-council-arizona
7. Morley, Michael T. and Tolson, Franita. “Elections Clause.” National Constitution Center. https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/750

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