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Thursday, Nov. 30, 2000

In a presidential election so close that the candidates are willing to fight over hundreds of overseas ballots, it seems almost obscene to contemplate hundreds of thousands of missing votes. Yet in Florida, the state on which this election now hinges, over 400,000 citizens were arbitrarily deprived of the franchise. The missing voters are ex-offenders – people who, at some point in their lives, committed a felony. They are also, in strikingly disproportionate numbers, African American men.

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The close scrutiny that Florida's electoral practices are now receiving should include a critical review of this issue. Reform is needed, not only because a massive number of people were denied the vote under the state's archaic voting restrictions on the ground that they were ex-offenders, but also because this denial was profoundly unfair.

A Life Sentence of Non-Voting for Every Felony, Regardless of Magnitude

Florida, notorious for its butterfly ballots and dimpled chads, is also the land of felony disenfranchisement. Among the distinctive characteristics of the state's electoral system is the permanent exclusion of ex-offenders from the franchise. Anyone convicted of a felony is barred from voting for life, unless his or her civil rights are restored via executive clemency.

Indeed, Florida leads the nation in the number of people it bars from voting because of a previous felony conviction. And it denies the vote regardless of the magnitude of the felony or how long ago it was committed. A person convicted of first-time cocaine possession at the age of eighteen loses the vote just as surely as a third-time rapist does, and in Florida, both lose the vote for life. It does not matter if a person is a conscientious taxpayer, is devoted to his or her family, or makes significant contributions to the community; a single offense bars the door to the voting booth for life.

Almost every state denies prisoners the right to vote while they are serving their sentences, but only ten states bar ex-felons from voting long after they have been released from the supervision of the criminal justice system. (Four additional states permanently disenfranchise certain groups of ex-felons, such as those who have been convicted of a second felony.) A 1998 study by Human Rights Watch and the Sentencing Project found that nationwide, some 1.4 million ex-offenders were disenfranchised under restrictive state laws. A stunning 436,900 of these vote-less adults – one-third of the total – were in Florida.

Florida also stands out among the states with regard to another ugly aspect of felony disenfranchisement. The racially disparate impact of the ex-offender voting restrictions – while problematic in every state – is particularly egregious in Florida. Nearly one-third of African- American men in the state were excluded from the polls, a rate of black male disenfranchisement matched only by Alabama's.

These high rates are the product of two phenomena: the advent of ever-harsher sentencing practices – typified nationwide by mandatory minimums, "three strikes" laws, and "truth in sentencing" rules – and the disproportionate representation of black men among convicted defendants. With the U.S. prison and jail population having reached two million this year, more people are incarcerated now than ever before. This is especially true for black men, who are incarcerated at more than eight times the rate of white men. Even more strikingly, in the past decade or so, the rate of imprisonment of black men has increased roughly ten times faster than that of white men.

The increased rate of black imprisonment is to some extent a reflection of tougher sentencing policies for violent crime, but another dramatic contributing factor is the national "war on drugs." Although drug use and drug selling cut across racial lines, widely-accepted law enforcement strategies have targeted low-income, predominantly minority, urban areas, rather than, for example, white suburbs. The predictable result is that nationwide, African-American men are admitted to state prison on drug charges at a rate 13.4 times greater than that of white men. And even conviction of a minor drug offense – one resulting in a few years' probation – may result in the defendant's permanent loss of voting rights.

Granted, the exclusion of ex-felons from voting is not racially discriminatory on its face, nor is there hard evidence that such rules are motivated by discriminatory animus. Yet the long and tangled history of black suffrage in the United States, if it has any lessons at all, should teach us to mistrust ostensibly race-neutral voting restrictions. Southern resistance to blacks' post-Civil War voting rights took the form of poll taxes, grandfather clauses, and myriad provisions that contained no explicit reference to race, but that nonetheless had the effect of barring African-Americans from exercising the franchise. Indeed, certain Southern states even tailored their criminal disenfranchisement provisions to increase the impact on black citizens by including crimes that blacks supposedly committed more frequently than whites, while excluding those "to which the white man was as disposed."

The "Purity" of the Ballot Box

Defenders of felony disenfranchisement affect concern for the "purity" of the ballot box, arguing that criminals cannot be entrusted with any say in choosing the country's political leaders. This view, too, has heavy historical baggage. A vestige of the era of limited and elite suffrage, of voting by propertied white men, it reflects the notion that only the responsible few should be allowed to participate in the electoral process. Such a view should have no place in a country in which suffrage is deemed universal, where only children and non-citizens are disqualified from voting. And even if we assume, for argument's sake, that conviction of certain crimes, such those relating to electoral fraud, might be properly thought to be incompatible with the exercise of the franchise, felony disenfranchisement laws are glaringly overbroad. They reach many types of convictions that fall outside any category reasonably related to the ability to cast an honest vote, imposing lifetime disenfranchisement regardless of the magnitude of the crime of which the offender was convicted.

The practice of permanently disenfranchising ex-offenders is also entirely in contradiction with the modern idea of rehabilitation. If we want former criminals to successfully reintegrate into society, what message do we send by denying them the most basic right of citizenship, the right of belonging to a political community?

The American Example of Democracy: Worst in the World on This Issue

Unsurprisingly, no other democratic country in the world denies as many people –in absolute or proportional terms–the right to vote because of a felony record. A few countries like Germany and France permit disenfranchisement upon court order; others such as Finland and New Zealand restrict the vote for several years after the completion of a prison term. Yet the trend is in the other direction: many countries allow even prisoners to vote. For example, South Africa's Constitutional Court recently ruled in favor of inmate suffrage, explaining that "the vote of each and every citizen is a badge of dignity and personhood. Quite literally everybody counts."

This election has shown us that every vote counts. As we watch the Presidential candidates desperately wrestle over a few hundred ballots, we should remember the hundreds of thousands of Floridians who could not even go to the polls on Election Day. While in South Africa the message is that every person counts, in Florida the message is that quite literally, many do not.

Joanne Mariner, a FindLaw columnist, is deputy director of the Americas division of Human Rights Watch. She is also the author of Human Rights Watch’s forthcoming report on prisoner-on-prisoner rape in the United States, which will be published in early 2001.

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