A type of law first created after the end of slavery to prohibit Black men from voting prevented more than 4.6 million Americans from participating in the 2022 midterm elections.
Forty-eight states strip voting rights from people convicted of felonies, no small decision in the country with the highest incarceration rate in the world. A third of those affected, despite representing less than 15% of the population, are Black.
Those figures are from a new report by academic researchers working with The Sentencing Project, which is leading a movement by formerly incarcerated people seeking to end disenfranchisement of voters with felony convictions.
University of Minnesota professor Christopher Uggen, a co-author of the report, said in an online discussion of its findings that the number of people shut out of voting because of a felony conviction “often exceeds the vote margins in key elections,” including close 2022 races for the U.S. Senate.
Despite as many as 1 in 5 Black voters being disenfranchised in states such as Tennessee, advocates see a turning tide: Reforms adopted in eight states in the past two years and a COVID-19 pandemic-related dip in prison populations led to a 10% reduction in people stripped of their voting rights since 2020.
“By my calculations, this is the most intense period of change since 1850 on this issue,” Uggen said. “From my perspective, the door barring access to voting is barely hanging on its hinges.”
Advocates also see momentum in broader reforms related to the treatment of incarcerated people. Stephanie Jeffcoat of California’s A New Way of Life Reentry Project cited the decision by voters in Alabama, Oregon, Tennessee and Vermont this fall to remove language from their state constitutions allowing forced and uncompensated prison labor as an “exception” to the country’s ban on slavery.
“We will start chipping away at laws that depend on the inherent otherness of someone who has committed a certain crime,” said Jorge Renaud, national criminal justice director at Latino Justice. “There’s a willingness I think for folks on the state level to look at issues of folks who are incarcerated … If you can do it in Alabama, you can do it almost anywhere.”
Like states’ “slavery exception” for prison inmates, which allowed white plantation owners to steal the labor of Black men after slavery had been abolished, stripping incarcerated people of their voting rights was a post-Reconstruction tactic. It helped prevent the formerly enslaved from wielding political power over the white men they outnumbered in the South.
After the Federal Voting Rights Act of 1965 ended a range of tactics used to keep Black people from voting, the Nixon and Reagan eras ushered in a wave of mass incarceration policies that continued under both Democratic and Republican successors.
Mass incarceration led to mass disenfranchisement, as originally designed. The number of people stripped of their voting rights due to felony convictions went from 1.2 million in 1976 to a high of 6.1 million in 2016, the same year Donald Trump defeated Hillary Clinton with an Electoral College victory hinging on a margin of 80,000 total votes in a handful of swing states.
Leigh Owens of the PENNfranchise Project is among a growing number of formerly incarcerated people working to turn that trend around by organizing at the state level. Advocates want an easier path to restoring voting rights after release from prison. Owens sees the right to vote as a key part of re-entering the community after serving time.
“I see that I have collective power with my fellow community members and it makes me part of a community,” Owens said.
Said Neal Volz of the Florida Rights Restoration Coalition: “In all these cases, the movement to expand democracy is actually being led by people who lost their right to vote.”
When his voting rights were restored, “it made me feel like a part of my community and a full citizen in my society.”
Voting rights are about “basic human dignity,” Volz said, and should never be taken away in the first place.
Some states offer a faster return to full citizenship
Seven states have restored voting rights for people with felony convictions at the time of their release, removing parole or probation stipulations and driving the drop in disenfranchisement rates. An estimated 300,000 people in California, Connecticut, New Jersey, New York, North Carolina, Virginia and Washington had their voting rights restored in large part because of these reforms, about half the nationwide total since 2020.
They’re now among 22 states that allow voting rights to be restored after prison. Fifteen states require people to complete probation and parole in addition to their prison sentence.
Eleven states either take away voting rights for life for some crimes, or make the process for restoring rights after release nearly impossible. In many of those states, the number of disenfranchised people goes up every year because there’s little recourse for those who’ve been convicted.
And in Tennessee, that rate is estimated at 21%, with more than 174,000 Black residents banned from participating in elections.
But advocates see broad public support for reforms that would prohibit lifetime disenfranchisement policies.
Nearly half of the country lives in states restricting voting access. A similar share is in states expanding it. Democracy hangs in the balance, experts warn.
In 2018, Florida residents voted overwhelmingly to end that policy in the state before Gov. Ron DeSantis and a Republican-controlled legislature put up additional barriers to voting rights restoration.
And one of the eight states to adopt some kind of reform in the past two years — Iowa — ended lifetime disenfranchisement for all but homicide convictions with a 2020 executive order by Republican Gov. Kim Reynolds.
Advocates hope awareness of the racist origins of laws that take away voting rights will prompt more of the reform seen over the past two years.
The message they’d really like to get across is that voting rights should never be taken away in the first place because that was a racist invention of the Jim Crow era.
“The 1860s and 1870s is when we saw a lot of the restrictions placed on the books,” Uggen said.
But not everywhere.
In two states — Maine and Vermont — every citizen has the right to vote, regardless of conviction or incarceration.
Maine and Vermont have also long been two of the whitest states in the country. It’s likely not a coincidence that a Jim Crow tactic to keep Black people from voting was never introduced in two states without a significant Black population.
In addition to pressing lawmakers for reform, advocates are testing a legal theory in Minnesota in hopes that the courts will declare the very concept of felony disenfranchisement unconstitutional.
Disenfranchisement by intimidation
Despite some bipartisan support for reforming felony disenfranchisement laws, Republican operatives who play on the fear of crime to accelerate mass incarceration are standing in opposition. Politicians who support reform risk being demonized for “allowing murderers to sway elections.”
But Uggen worries about a more insidious tactic that has emerged since former President Donald Trump lost re-election two years ago — criminalizing the voting process itself.
Because of the lifetime voting ban residents voted to strike down in 2018, Florida has long been home to the largest total number of people disenfranchised due to felony convictions. The Sentencing Project estimates that more than a million Florida residents were unable to cast a ballot in the midterm elections because of it.
Despite the successful ballot measure in 2018, the number of people affected by felony disenfranchisement in Florida is still growing. Republican legislators quickly adopted their own law requiring that formerly incarcerated people pay all fines, fees and related financial obligations associated with their conviction before voting rights will be restored. Because there is no mechanism to determine the extent of those obligations or when they are satisfied, it is nearly impossible for most formerly incarcerated people to buy back the right to vote.
And DeSantis took it a step further this year by establishing an “election police” unit that made a very public show of arresting formerly incarcerated people for “fraudulently” voting because they don’t meet the new conditions.
Those cases are unraveling as the people arrested present evidence of the confusion around the law and the fact that state election officials told them they were authorized to vote.
“Here in Florida, four years later, you still can’t be told on the front end of the voter registration process whether you’re eligible,” Volz said.
Republicans’ real goal, advocates say, has likely already been accomplished by the stunt. What person who faced trouble with the law in the past, advocates ask, would risk going back to prison just by attempting to vote?
Police in Texas and Tennessee have also arrested people for voting under similar circumstances.
Participation in voting shows a formerly incarcerated person is engaging as an active and responsible citizen, Uggen said, and finding gray areas in the process to file criminal charges is an intimidation tactic that will prevent others from voting.
It also serves another Republican strategy — conjuring unfounded fears of “voter fraud” as justification for placing additional barriers in front of voters of color.
A Public Integrity investigation earlier this year found that a key trend among voter suppression laws adopted in 26 Republican-controlled states since 2020 was “criminalization” of certain types of elections participation. As lawmakers made voting more complicated, violations of the process in state after state were upgraded from misdemeanors to felonies.
In Kansas, volunteers with the League of Women Voters and other groups have stopped conducting voter registration drives for fear of being arrested under a new state law that broadly interprets a ban on “impersonating an election official.” In other states, part-time poll workers face felony prosecution if they mistakenly let an ineligible person vote.
Rights restored, one voter at a time
Advocates stress that policy changes alone won’t bring formerly incarcerated people back into the democratic process.
That includes people in jail or prison on misdemeanor charges or awaiting sentencing. A September investigation by Public Integrity reporter Aaron Mendelson found voting while incarcerated to be nearly impossible except in isolated places where local governments are making an intentional effort to make sure it happens. That means hundreds of thousands face “de facto disenfranchisement.”
Over the past two years, the COVID-19 pandemic helped reduce the number of disenfranchised people as some were released early. But it also offered an excuse for local jail and prison officials to refuse to facilitate voting by eligible inmates.
Owens said most counties in Pennsylvania don’t have any kind of process to allow such voting. Pressing local officials to make it happen and helping inmates advocate for their rights will take a lot of work, Owens said.
“We cannot depend on the same system that’s complicit in our incarceration to be the agency responsible for saying, ‘Oh look at you, you can vote, you can’t vote,’” Renaud said.
Attorneys, hotlines and paid organizers to help individuals reclaim their voting rights are among the resources needed, he said.
“Figuring out eligibility in some states is very complex,” Uggen said.
That’s why he stresses that The Sentencing Project’s new report on felony disenfranchisement is only the best estimate that researchers from the University of Minnesota, the University of Georgia, the University of Maryland and Hamline University could make based on a differing and sometimes opaque set of state policies.
Misinformation is another obstacle. Some states that now allow people on parole to vote are still using materials in local election offices that say it’s prohibited. In the absence of effective action by the states, the burden has fallen on organizers to contact local registrars to make sure they’re using updated information.
“These forms stick around forever,” Uggen said. “There’s a difference between the law on the books and the law in action.”
That’s why the focus of so many working on the issue — and especially for those who know firsthand what it was like to have voting rights taken away — is ensuring that individual people have their full citizenship rights restored.
“That feeling you get that ‘I am accepted, I am part of society’ … is something that is unimaginable to someone who hasn’t had that taken away,” Renaud said.