Felon voting rights and prison gerrymandering (redistricting)


Two separate stories this week about criminal justice and the right to vote offer a sharp microcosm of the difference between the major U.S. political parties. While Democrats debate social justice policy, Republicans are enacting voter suppression measures.

Today’s op-ed in the Washington Post, Missouri Republicans want to undo voters’ redistricting wishes. The Supreme Court should take note.

Their cynical maneuver represents another new low in the steady Republican undermining of democracy through false claims of voter fraud, restrictions on voting and other tactics.

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Meanwhile, as Missouri lawmakers debate their rollback, Texas Republicans are moving to treat mistakes on voter-registration forms as felony offenses that could bring jail time and to discourage people from casting provisional ballots, NPR reported. Tennessee Republicans want to heavily fine groups that turn in improperly filled-in voter-registration forms. Arizona Republicans would cut voters from the mail-in ballot rolls if they do not vote in two successive elections. All of these will help dampen the vote in a country that already suffers from low participation.

And then there are Florida Republicans. David Graham writes at The Atlantic, A Voting-Rights Debate Reveals Why Democrats Keep Losing:

The Democratic presidential field has spent most of the week tying itself in knots over whether prisoners should be able to vote—an important but largely abstract debate. [See, Bernie Sanders, 2020 Democrats divided on felon, prisoner voting rights.] Meanwhile, Florida Republicans are close to passing a law that allows felons to vote after serving their time, but places serious hurdles before them. [See, Florida House passes bill that would require ex-felons pay all fees before exercising voting rights].

The debate demonstrates much about the two parties. It contrasts the Democratic tendency to focus on national solutions to problems with the Republican emphasis on state-level policy. It shows a Democratic tendency toward abstraction, and a Republican emphasis on action. And it suggests why conservative policy ideas are winning across the nation, despite evidence that America is a center-left country.

The Democratic conversation kicked off during a CNN town hall on Monday, where Senator Bernie Sanders said that people serving time in prison should be allowed to vote. He mentioned that Vermont’s state constitution guarantees that right. This is a neat demonstration of how Sanders’s presence in the race shakes up the Democratic primary. While Democrats have focused in recent years on the importance of re-enfranchising people who have completed prison sentences, there has been less focus on the people who are still behind bars.

Sanders forced his rivals into a difficult spot: Should they agree with him, satisfying a party base ever more focused on social justice, at the risk of being tarred as soft on crime? (Sanders himself took heat for saying that even the Boston Marathon bomber should be able to vote, although that’s the obvious implication of such a rule.) Or should they tack right against Sanders, courting centrist voters but risking activist backlash?

Mayor Pete Buttigieg opted for the latter, saying that while in prison, felons shouldn’t be able to vote. Beto O’Rourke and Julián Castro tried to split the difference, saying they backed voting rights for nonviolent-felon prisoners. Senator Elizabeth Warren was cautious, saying, “I’m not there yet.” Senator Kamala Harris was more cautious still, calling for a “conversation.”

Conversations are useful, and policy is better made deliberately than haphazardly. The question of the right of felons to vote is important—though not important to as many Americans as whether ex-cons can vote, nor as politically advantageous for those who support it. It’s unlikely, however, to be a defining issue of the Democratic campaign, and unlikely to be a top priority if the Democratic nominee wins the 2020 presidential election.

Contrast that with this week’s proceedings in Tallahassee. In November, Florida voters overwhelmingly approved a state constitutional amendment that automatically gives people who have committed felony offenses, except for murder and sex crimes, the right to vote once they complete their prison sentence as well as parole or probation. (Previously, people could apply to a state board for restoration of rights after five years, though a small portion of requests were granted.) Although some experts contended that the law might have little real impact on elections, the prospect of 1.5 million new voters in one of the swingiest states in the nation got partisan attention. Democrats hoped that ex-felons would add to their coalition; Republicans feared the same.

After the amendment passed, the Florida legislature began working on enabling legislation—in other words, hashing out the nitty-gritty of how the amendment would work in practice. Both chambers of the state house are controlled by Republicans, as is the governorship. On Wednesday, the state house passed a bill, along partisan lines, that would require people who want to vote to pay all court fees, fines, and restitution associated with their case. The state senate is considering a version that requires that restitution be paid, but not fees and fines in many cases.

Many advocates see the bill as a betrayal of the amendment’s spirit. By insisting on payment, which may be substantial, the bill would guarantee that many of the people who appeared to be in line for rights restoration under the November vote will never actually be able to cast a ballot.

In short, while Democrats are engaged in a largely theoretical exercise on the national level, Republicans are moving aggressively to achieve their political goals at the state level.

The Democratic Party has long had a national focus. In part, that’s ideological: The party tends to believe in top-down government solutions, making Washington a natural locus for policy, while Republicans have long emphasized local control.

Since the 2010 election, Democrats have also been badly overmatched at the local level, and while the party made significant gains in 2018, Republicans still have the upper hand in state capitals. That has allowed the GOP to implement its policy views on a range of issues. Republican-led legislatures have expanded gun rights, restricted abortion rights, and hamstrung organized labor, to choose just a few. This isn’t to say that the entire Republican Party is a well-oiled machine for implementing policy, particularly at the national level.

On the question of felons and voting, however, the pattern holds. Republican actions on the state level speak louder than Democrats’ conversations.

All of this is true, but as Jack Shafer writes at POITICO, Bernie Sanders Is Right. We Should Let Prisoners Vote.

Cartoon_02Republicans have accepted Sanders’ comments as a political gift in-kind. The Republican National Committee issued a statement denouncing him for wanting “convicted terrorists, sex offenders, and murderers to vote from prison.” Senator Lindsey Graham (R-S.C.) tweeted his umbrage and ripped Sanders for wanting to give the vote to the Boston bomber, Dzhokhar Tsarnaev, and Charleston mass murderer Dylann Roof. Senator Cory Gardner (R-Colo.), tweeted that Democrats wanted to give the vote to inmates of the Supermax prison in his state.

The right-wing cartoonists are propagandizing this issue (above).

But for all their outrage, Sanders’ critics seemed clueless about the history and practice of barring prisoners from voting. As Sanders pointed out in the town hall, the Constitution of his state, Vermont, has enfranchised prisoners from the beginning without any deleterious political or social effects. Maine, too, lets prisoners cast a ballot from their cells no matter what offense they committed. And since 2016, California has allowed convicted felons serving time in county jail to vote.

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Many states have re-enfranchised ex-cons, most recently Florida [with the above caveat], but prisoners have been largely excluded from this movement. State after state continues to punish convicts with civil death. It’s not that the courts and legislatures ever said prisoners had no rights under the law. To the contrary, the government concedes that prisoners have a right of access to the courts and protection from cruel and unusual punishment, as well as standard First Amendment rights. (Also, under the Constitution, a prisoner can legally run for Congress, although the Senate or House can decide not to seat him.)

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Somebody somewhere might harbor the comic-book fear that we shouldn’t give prisoners the vote because they’ll vote as a bloc and dominate politics in the rural towns where most prisons stand. But that critique doesn’t endure scrutiny. In Vermont, inmates must register to vote using their last legal address and then cast absentee ballots, thereby dispersing their votes around the state.

Which leads to this important aspect of the policy on prisoners, voting and gerrymandering that John Nichols addressed at The Nation back in March. Prison Gerrymandering Distorts Our Democracy in the Worst Ways:

Congressman Mark Pocan accomplished something remarkable this week. Amid all the wrangling and disarray in Washington, he proposed to end an injustice and got the House to go along with him.

[T]he “For the People Act” is designed “to expand Americans’ access to the ballot box, reduce the influence of big money in politics, and strengthen ethics rules for public servants and for other purposes.” It does all that. And, thanks to Pocan, it also addresses one of the great injustices in American politics—prison gerrymandering.

“The way the Census Bureau counts people in prison creates significant problems for democracy and for our nation’s future. It leads to a dramatic distortion of representation at local and state levels, and creates an inaccurate picture of community populations for research and planning purposes,” explains the Prison Policy Initiative “The Bureau counts incarcerated people as residents of the towns where they are confined, though they are barred from voting in 48 states and return to their homes after being released. The practice also defies most state constitutions and statutes, which explicitly state that incarceration does not change a residence.”

Because Census data is used for redistricting at every level of government, prison gerrymandering creates distorted maps. In an era of mass incarceration, this distortion creates an even greater injustice because, as the Prison Policy Initiative explains, “counting the people in prison in the wrong place now undermines the Supreme Court’s requirement that political power be apportioned on the basis of population. The process of drawing fair and equal districts fails when the underlying data are flawed.”

Note: I did several posts on this topic during the the 2012 Arizona Independent Redistricting Commission, and information from the Prison Gerrymandering Project (Prison Policy Initiative) was considered by the AIRC in drawing district maps in Arizona. But this issue is not resolved nor assured to be addressed in the next redistricting.


According to the National Association for the Advancement of Colored People, “the practice of counting prisoners as residents of the state legislative districts where they are incarcerated rather than in their home districts” is especially damaging to democracy in states where prisoners from urban areas—many of them African Americans and Latinos—are sent to prisons in rural areas. “The effect is that white, rural voters in the districts where prisons are located have their electoral power unconstitutionally inflated, at the expense of voters of color in other, over-crowded districts,” explains the NAACP.

Pocan proposed an amendment to “end the practice of prison gerrymandering whereby incarcerated persons are counted in Census population counts as residents of correctional facilities and not their most recent residence prior to imprisonment.” In addition to getting fairer and more representative districts, he explained, “we know that the right community will receive an appropriate amount of population-based funding.’

Pocan’s argument carried the day. The amendment was approved by a voice vote and included in the final measure, which passed the House Friday on a 234-193 party line vote. The fight is far from finished. Senate majority leader Mitch McConnell, [The Enemy of The People] who makes no secret of his disdain for campaign-finance reform and the expansion of voting rights, is already erecting roadblocks to the measure.

“Majority Leader McConnell should listen to the American people, stop his dishonest attacks on this bill, and bring it up for a vote in the Senate,” says Pocan, even as he warns that: “Republicans are against expanding the right to vote, ensuring transparency, and reforming our democracy because they know that a corrupt system is the surest way for them to win.”