Black Voters Matter — Black Incarceration and Voting Suppression
Article I, section 4, of the Constitution grants Congress ultimate supervisory power over Federal elections, an authority which has repeatedly been upheld by the United States Supreme Court. There are basic Constitutional principles of fairness and equal opportunity for all citizens to participate in Federal elections that may not be abridged or denied at the Federal or State level based upon race, color, gender, or previous condition of servitude. These rights are protected under the 13th, 14th, 15th, 19th, 24th, 26th Amendments to the U.S. Constitution. However, according to the Freedom to Vote Act just voted down in Congress, there are three areas of discrepancies in State law resulting in unfair treatment of the criminally convicted in their voting rights for Federal elections including:
A. The lack of a uniform standard for voting in Federal elections leads to an unfair disparity and unequal participation in Federal elections based solely on where a person lives.
B. Laws governing the restoration of voting rights after a criminal conviction vary throughout the country and persons in some States can easily regain their voting rights while in other States persons effectively lose their right to vote permanently.
C. State disenfranchisement laws disproportionately impact racial and ethnic minorities.
State disenfranchisement laws vary widely with twenty-eight states disenfranchising certain individuals on felony probation or parole. In some states, certain convictions can result in a lifetime of voter disenfranchisement. Several states revoke voter rights for certain misdemeanor convictions.
“In 2020, an estimated 5,200,000 citizens of the United States, or about 1 in 44 adults in the United States, could not vote as a result of a felony conviction. Of the 5,200,000 citizens barred from voting then, only 24 percent were in prison. By contrast, 75 percent of persons disenfranchised then resided in their communities while on probation or parole or after having completed their sentences. Approximately 2,200,000 citizens who had completed their sentences were disenfranchised due to restrictive State laws.” 2022 U.S. Senate Freedom to Vote Act
There is a direct correlation between the felony disenfranchisement laws of today and the post-Civil War efforts to obstruct the implementation of the 14th and 15th Amendments empowering Blacks citizens with the right to vote. Felony disenfranchisement included at least 14 states between 1865 and 1880, in the North and the South. These states were Alabama, Arkansas, Colorado, Florida, Georgia, Illinois, Mississippi, Missouri, Nebraska, New York, North Carolina, South Carolina, Tennessee, and Texas. Eleven of these laws extending into the loss of voting rights while under parole or probation. The United States is one of the only Western democracies that permits the permanent denial of voting rights for individuals with felony convictions.
The 24th Amendment states the right to vote ‘‘shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.’’ Section 2 of the 24th Amendment gives Congress the power to enforce this article through appropriate legislation. At least five states ignore this protection by imposing court fines and fees on felons before their voting rights can be restored thus constituting an ‘‘other tax.’’ More than 20 other states require individuals to complete their probation or parole before their rights are restored. This can constitute an additional tax as the non-payment of fines and fees is a basis on for probation or parole to be extended. Many of these states do not document the reason for parole or probation extension. This makes it difficult to determine if action taken was due to a fee violation or something else making continued voting disenfranchisement excessive and unfair.
The general practice in the United States has been to retract voting rights from the convicted. Although the last 25 years has seen a movement to reinstate voting rights and Congress has the power to regulate elections, it is not exclusive power. Because Congress has not acted in this area, individual states have been left to regulate voting which subjects this decision to nonuniform, and very partisan determination from state to state. The National Council of State Legislatures (NCLS) posits even when states have adopted “automatic restoration” of voting rights to prisoners post release, it does not mean that the process of restoration automatically occurs. This process typically requires prison officials to notify election officials to restore convict’s voting rights and then, that person must re-register to vote. The breakdown of felon voting rights across the country is currently as follows:
- The District of Columbia, Maine and Vermont do not remove voting rights, even while incarcerated.
- Felons lose their voting rights only while incarcerated and receive “automatic restoration” upon release in 21 states.
- Felons lose their voting rights during incarceration in 16 states and for a period of time after incarceration, typically while on parole and/or probation and then they are eligible for “automatic restoration.” However, they may be subject to paying any outstanding fines, fees or restitution before their rights are restored.
- Felons lose their voting rights indefinitely in 11 states for some crimes or: require a governor’s pardon for voting rights to be restored, face an additional waiting period after completion of sentence (including parole and probation), or require additional action.
Even with these recent reforms for felon voting rights, The Sentencing Project says as of 2020, there are nearly 5.2 million disenfranchised Americans, or 2.3% of the voting age population. This number is up from 1.17 million in 1976 but down from the peak of 6.11 million in 2016. In Alabama, Mississippi, and Tennessee, more than 8% of the adult population or one of thirteen people is disenfranchised. Individuals who have completed their sentences from eleven states are 43% of the entire disenfranchised population (2.23 million people).
Nationally, African Americans are incarcerated almost 5 times the rate of whites. Voting age African Americans are disenfranchised at a rate 3.7 times higher than non-Blacks with one in sixteen voting age Blacks disenfranchised. More than 6% of the voting-age African-American population, or 1,800,000 African Americans, are disenfranchised due to a felony conviction.
1. Black voter disenfranchisement varies across states but more than one in seven African Americans is disenfranchised in Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming, twice the national average for African Americans.
2. More than half the prison population is Black in Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.
3. There is a Black/white disparity larger than 9 to 1in California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin.
4. Although Florida passed a 2018 referendum ballot to reinstate voting rights for felons, over 1.1 million people remain disenfranchised due to the inability to “pay court-ordered monetary sanctions or because the state is not obligated to tell them the amount of their sanction.”
Some people may take the position that Black imprisonment rates are high because Blacks are statistically more likely to commit a crime. However, the NAACP provides statistics to counter this position:
- 5% of illicit drug users are African American, yet African Americans represent 29% of those arrested and 33% of those incarcerated for drug offenses.
- In the 2015 National Survey on Drug Use and Health, about 17 million white people and 4 million African Americans reported having used an illicit drug within the last month.
- African Americans and whites use drugs at similar rates, but the imprisonment rate of African Americans for drug charges is almost 6 times that of whites.
- As of October 2016, there have been 1900 exonerations of the wrongfully accused, 47% of the exonerated were African American.
- African American defendants are 22% more likely to have convictions involving police misconduct that eventually result in exoneration.
The NAACP states African Americans represent 12.7% of the U.S. population but 41.3% of the prison population According to The Sentencing Project, the U.S. has almost 2 million people in prisons and jails, a 500% increase in 40 years. Statistically, this translates to 1 in 17 white men are likely to be imprisoned while 1 in 3 Black men are likely to be imprisoned. For women, the numbers are 1 out 111 white women versus 1 in 18 Black women are likely to be imprisoned.
The increase of Black voting in the past century and the disproportionate presence of Black individuals in the prison system correlate to a systemic system of prisoner voting suppression. In a partisan Congress, parts of the Voting Rights bill passed by the House specifically address the restoration of prisoner voting and automatic return to voting rolls after imprisonment. Republicans have successfully prevented the passing of the Freedom to Vote Act in the Senate (where Democrats have a practical majority with the tie-breaking vote of the Vice President). Republicans are committed to preventing these reforms from ever being enacted because they know Blacks vote when given the opportunity.
Systemic Black suppression is often achieved in more nefarious ways than overtly taking away their right to vote. Voter suppression comes in one form by disenfranchising felons from voting while behind bars and most often after their release due to laws or administrative obstacles for reinstatement of voting rights. On the lesser-known side of suppression, reminiscent of the three-fifths compromise in the Constitution, the incarcerated cannot vote but their imprisoned body numbers are counted in the census for districting and representation. Specifically, their body count is used for boosting population numbers in white-dominated districts to increase representation and to craft to gerrymandered districts that favor white conservative representatives. This tactic of disenfranchisement through incarceration is a form of insidious doubled suppression by design that suppresses Black voting while increasing white political power through the census. This voter suppression is arguably in clear violation of the 8th Amendment to the Constitution which “guarantees individuals the right not to be subjected to excessive sanctions.’’ (Roper v.Simmons, 543 U.S. 551, 560).
According to NPR (2019), the federal government has included transitory people in the population counts based on where they are at the time of the census since 1790. This rule was originally applied primarily to the enslaved and to those involved in militias or other organized moving engagements. In more modern times, this rule has been applied to the imprisoned whose population has exploded over the past fifty years.
The Foundation of Law and Society explains that Congress ratified the Census Act in 1790 (also known as the Enumeration Act) and applied the “usual residence rule” to establish residency guidelines and representation. ‘Usual residency’ is defined as where one physically sleeps and resides, rather than a “legal” residency. This is not a legislative or Constitutional definition, rather a determination by the Census Bureau. This definition has been applied to prisons, military bases, colleges, and other residential facilities when it had minimum or no political impact on representation appropriation, districting, or funding. The impact of this applied definition radically changed with a Federal war on crime and drugs in the 1970s and 1980s with severe punishment and incarceration. Both ‘wars’ targeted predominately people of color and the poor with a 600% increase of incarceration rates from 1970 to 2005 and leading to the proliferation of publicly funded and for-profit prisons. A once in ten-year census is a snapshot of residency with no regards to temporary addresses. Public Law 94–17 regulates states and municipalities and does not differentiate prisons from other “group quarters.” Therefore, the census can legally apply this definition to inflate local populations based on a temporary and transient population.
This technical detail of a little-known rule interpretation has had an outsized impact on prison towns across the U.S. for decades. Rural and predominately white towns can legally boost their population census by including their prisoner count, even though these people do not have voting rights. This concentration of non-voting citizens in certain areas has led to what is called “prison gerrymandering” One example of how this gerrymandering impacts political representation is documented by a Villanova University research project which found that there is a “substantial likelihood” that the city of Philadelphia would gain an additional majority-minority district if prisoners were counted in the census with their last known address and not the prison’s address.
While rural areas comprise only 20% of the general population, they host 40% of the prison system giving predominately white communities predominately Black bodies to count for representation even though they cannot vote. An extreme example of this prison gerrymandering can be found in Wisconsin. The state of Wisconsin presents the highest incarceration rate of Black men in the country with 1 in 8 black men age 64 and younger, in jail or prison. Drilling down further, a rural, predominately white town located northwest of Milwaukee hosts three state prisons including a processing facility. The town’s total population is 12,000, of whom 3000 are felons. These prisoners have no right to vote but they represent the majority of the census population in two of the town’s voting districts. The town’s elected officials told the researchers that they had never visited the prisons in their districts. One of the alderpeople was re-elected in his district with a total of 43 votes, with 61% of his non-voting constituents behind bars. In another district, 76% of the constituents are in prison.
The Foundation of Law and Society offers an example of how this census counting definition has a negative impact on large communities of color. The New York state prison population is made up of 66% of New York City resident inmates (roughly 43,000 adults), but 91% of these prisoners are held outside of the city. This provides an artificial boost of bodies to the host prison communities equaling a 30% increase in their population. One New York State Senator confessed the only reason his community met the minimum population requirement was due to the prison count inclusion.
Prison gerrymandering is a national phenomenon. According to the Foundation of Law and Society, in ten California counties, the majority of the census counted population is imprisoned. In one community of 1400 counted persons, 1300 are prisoners with no voting rights. This prison gerrymandering system challenges the Supreme Court’s principle of “one person, one vote” decided in Reynolds v. Sims 377 U.S. 533 (1963) that specifically ruled states must make an “honest and good faith effort” to correctly identify residency in the census count. The Supreme Court in Franklin v. Massachusetts 505 U.S. 788 (1992) decision ruled that overseas federal employees need not change their address in the census. Still, this ruling has not been applied to prisoners by the Census Bureau even a physical presence at the declared home residence is not required. The most recent 2020 census follows these same archaic policies.
There are strong parallels in this political strategy of disenfranchising felons from voting that can be made between the Constitution’s three-fifths body count of the non-voting slaves and congressional and electoral college representation. Prisoners are being used as body counts in a census specifically to gerrymander and increase representation for elected officials. The Federal law does not require that the census be utilized in determining districting lines and yet when convenient for gerrymandering, this systemic form of racism is utilized to suppress representation of Black communities.
Incarceration serves to disenfranchise Black voters while using their body count to support white supremacy. Systemic white supremacy is right in front of us but, we too often fail to see it either by our blindness or our unwillingness. When we are not all equal on the law, we are not a democracy. We must all push for a Federal voting rights bill until one is passed, our democracy depends on it.
Please click here for Part 1 of Black Voters Matter - A History of Voter Suppression
Cited References:
https://www.americanprogress.org/article/women-color-collective-powerhouse-u-s-electorate/
Anderson, Carol. One Person, No Vote: How Not All Voters Are Treated Equally. Bloomsbury YA, 2018.
https://www.census.gov/newsroom/press-releases/2021/population-changes-nations-diversity.html
https://www.cnn.com/2021/05/08/politics/black-voter-suppression/index.html
https://www.congress.gov/bill/117th-congress/senate-bill/2747/text
https://www.justice.gov/crt/about-section-5-voting-rights-act
https://naacp.org/resources/criminal-justice-fact-sheet
https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx
https://www.sentencingproject.org/criminal-justice-facts/
https://supreme.justia.com/cases/federal/us/377/533/
https://supreme.justia.com/cases/federal/us/505/788/
https://supreme.justia.com/cases/federal/us/543/551/
https://twitter.com/SenatorWarnock/status/1372230275330101251?s=20
https://www.washingtonpost.com/outlook/2019/07/26/what-we-get-wrong-about-southern-strategy/
