In the weeks since President Bush nominated John Roberts to succeed Sandra Day
O'Connor on the U.S. Supreme Court, civil rights groups have sounded alarm bells
about the vulnerability of laws protecting legal abortion, affirmative action
and environmental regulation.
There is another crucial American right that has, however, received scant attention:
fair, universal access to the ballot box. Sure, a smattering of articles have
looked at memos the young Roberts wrote back in the early 1980's urging a limited
interpretation of the 1965 Voting Rights Act. Civil rights organizations, progressives
and Democratic politicians have questioned this. But they haven't addressed
what is arguably a central challenge to participation in modern America's democracy.
The main challenge is no longer the straightforward, racial disempowerment engineered
by supremacist state politicians and terror groups such as the KKK—the
Voting Rights Act has indeed relegated those abuses to history. Today, one of
the chief threats to minority voting rights comes from the practice of disfranchising
individuals with felony convictions, and it is a threat that the legal system—all
the way up to the Supreme Court—has conspicuously failed to recognize.
As more and more crimes, especially drug offenses, have been defined as felonies
during decades of "tough on crime" rhetoric and populist politicking,
the number of felony convictions is increasing. Until this year, a half-dozen
states—mainly in the South-permanently disenfranchised people with felony
convictions. There have been some victories-like when Nebraska and Iowa jettisoned
their permanent disenfranchisement laws earlier this year. But in the United
States today, 48 out of 50 states still deny voting rights to people based on
conviction status. Maine and Vermont stand alone as never denying ballot access
based on felony status.
The result is that in 2005, in a country that considers itself the world's
preeminent democracy, almost 5 million Americans—those in prison, on parole
or probation, or living in states where voting restrictions extend beyond the
end of one's criminal sentence—are now legally without a vote and politically
voiceless. Millions more, not familiar with the intricacies of recent law changes,
likely think they cannot vote. Quite simply, the combination of the "War
On Crime" and felon disenfranchisement codes has resulted in the biggest
contraction of the franchise since the South adopted Jim Crow at the end of
the nineteenth century.
In states such as Alabama—where a single felony conviction is enough
to result in lifelong disenfranchisement— teenagers, many of them African
American, routinely lose their right to vote before they have even had a chance
to exercise it. Regaining the vote is so onerous a process in Alabama that vast
numbers simply drop out of political participation altogether, living the remainder
of their lives as political invisibles.
Numbers compiled by the D.C.-based Sentencing Project and other researchers
suggest that in many areas of the South, up to one-third of African American
men have lost their right to vote because of a criminal conviction. The expansion
of the criminal justice system has had such an extreme impact on voting rights
that elections from the local, all the way up to the presidential levels are
now affected as much by who cannot vote as by who does cast a ballot.
Roberts argued in the 1980's that the Voting Rights Act should be restricted
to "intentionality." To prove a violation of the Act, under the definitions
he set forth, plaintiffs would have to demonstrate not simply that policies
and social structures had the effect of restricting minority populations' ability
to vote and otherwise politically participate, but that there were individuals
in positions of authority who specifically intended their laws and regulations
to produce this outcome.
For people schooled in understanding how social, cultural, economic and political
structures can create vastly unfair racial divides and perpetuate inequalities
generated over centuries of previous intentional discrimination, such an argument
cannot help but be cause for concern.
Yet, with or without Roberts' accession to the Supreme Court, this issue should
have already been a publicly debated topic. After all, judicial reluctance to
bar practices of felon disenfranchisement in an era of mass, and racially-skewed,
incarceration has, over the past three decades, resulted in backdoor disenfranchisement
of mammoth proportions. While the Voting Rights Act has been used to destroy
most vestiges of Jim Crow, advocates in states as far flung as Washington and
Florida have been unable to convince courts to apply it in the one area where
America's ongoing racial divides are most clearly, and depressingly, on display-the
criminal justice arena.
For many years now, state and federal courts hearing challenges to permanent
felon disenfranchisement laws have ruled that felons' political rights are not
protected under the Voting Rights Act. Such rulings essentially apply Roberts'
intent criteria and arguing that states aren't intentionally convicting and
incarcerating people simply because of the color of their skin. This, despite
the fact that social circumstance and the peculiarities of U.S. history have
combined to produce intense racial disparities throughout the criminal justice
system, and, by extension, have disenfranchised legions of impoverished Black
Filling the void left by the courts, several states have modified or abandoned
their disenfranchisement laws in the past few years. Most recently, Iowa Governor
Tom Vilsack dramatically re-enfranchised somewhere in the region of 50,000 Iowans
who have completed their sentences. Yet many other states, including Florida—where
the 2000 presidential election was decided by a mere few hundred votes, and
where between half- and three-quarters of a million citizens are denied a vote—have
opted to keep their disenfranchisement laws intact.
Mass, and permanent disenfranchisement in a democracy is simply unacceptable.
Whether John Roberts is confirmed or not, it is time for the courts to step
in and say so loud and clear.