by Peter Wagner, November 30, 2000
[For an analysis of the size of the disenfranchised population and its large racial disparity, see my October 2004 report Jim Crow in Massachusetts? Prisoner disenfranchisement.]
On November 7, 2000, by a 2 to 1 margin, Massachusetts disenfranchised its prisoners with a constitutional amendment called Question 2. Question 2 marked the first time that the Massachusetts constitution has been amended to take away rights from a group of people.
Maine and Vermont are the only states that allow prisoners to vote. Thirteen states bar felons for life, and many other states also restrict voting rights of those on parole or probation.
Prior to November, one in eight Black adult men were denied the vote in the United States. Massachusetts’ Black prisoners will now add to this number. Unfortunately, Massachusetts is not alone in the reactionary movement to disenfranchise prisoners. In 1998, Utah voters stripped prisoners of the right to vote. In March, the New Hampshire Supreme Court reinstated that state’s ban on prisoner voting after a lower court decided that the ban violated the New Hampshire constitution.
Disenfranchising prisoners and ex-felons is not without impact to the electoral system. The permanent disenfranchisement of felons in Florida may have given the election to George Bush. When the Supreme Court ended the Florida recount, Bush won that state by only 537 votes. In Florida, Bush won the white vote, 57% to 40%, but Gore won the black vote, 93% to 7%. Blacks make up one-third of all disenfranchised people in Florida. Even a small turnout by prisoners and ex-felons could have changed the balance of Florida and therefore the national election.
More importantly than changing outcomes, at least in terms of legal strategy, is the effect of felon disenfranchisement laws on Blacks. In the United States, 2% of the adult population is disenfranchised, but for Black men the rate is 13.1%. In Florida and Alabama the Black adult male rate is over 31%. Prior to a 1982 Voting Rights Act amendment, proof of discriminatory intent was necessary to strike down a state law disenfranchising voters. The 1982 amendment clarified the law to hold discriminatory effects to be adequate proof. This avenue has not been completely litigated.
However, in the political sphere, more use can be made of public policy arguments. Disenfranchising prisoners serves no purpose under any theory of criminology and serves negative purposes under some theories. Under deterrence theory, prison itself is the deterrent, and denial of the vote pales in comparison to denial of physical freedom. Crimes are not prevented under threat of losing the vote. Felon disenfranchisement can’t be called a form of retribution because it’s universally given to felons regardless of their sentence, and in some states continues after the sentence until death. The last defense of the disenfranchisers is often an argument to defend the “purity of the ballot box” against fraud. But most prisoners are not in prison for election offenses, and there is no evidence to suggest that prisoners would commit electoral fraud more than non-prisoners. Rather, these defenders hint that prisoner’s could vote in blocs or overturn criminal laws. These reactionary arguments fail given the historically low voter turnout of Massachusetts and Maine prisoners. In addition, it is blatantly unconstitutional to deny people the vote based on what they may vote for.
Disenfranchising prisoners works against any efforts at rehabilitation. Studies have shown that allowing prisoners to gain an education and increase family visits reduces recidivism. Participation in the political process similarly increases the prisoner’s integration with the outside society.
“Getting tough on criminals” may be politically popular in Massachusetts, but if the citizens of Massachusetts want to actually do something about crime, they are going to need to stop demonizing prisoners and start looking at why crime happens in the first place.
1 “A key non-voting bloc: felons” Gannett News Service November 17, 2000
2 Fischer v. Governor, 749 A2D 321
3 The San Francisco Chronicle November 15, 2000, Pg. A23.
4 “Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States” (1998) Sentencing Project, 514 Tenth Street NW Suite 1000, Washington DC 20004, p. 9.
6 Alice E Harvey, Ex-felon disenfranchisement and its influence on the Black vote: The need for a second look. University of Pennsylvania Law Review, January 1994, 142 U. Pa. L. Rev. 114
7 The Nation April 30, 2001, p. 11
[An earlier version of this article was published in Mass Dissent, a publication of the Massachusetts National Lawyers Guild.]