Should someone who has committed a serious crime, like murder or rape, be automatically banned from voting? What about lesser crimes? In the US, even nonviolent crimes can be felonies, such as drunk driving, possession of a small amount of marijuana or fleeing the police — just to name a few. And the mark of "felon" follows them long after they've completed their sentences. Should these past offenders be allowed to vote?
That's a question long settled in some democracies. But not in the US.
"The United States is an extreme outlier when we look at [prisoner] voting rights in industrialized nations," says Marc Mauer, executive director of the Sentencing Project, a nonprofit organization that advocates for prisoner rights in the US. That is because of the harsh voting restrictions it puts on people with criminal records, also known as felony disenfranchisement.
While each state has its own laws, nearly all take away an incarcerated person’s right to vote. Some extend it to after the person is out of prison. In some cases states go further, imposing a lifetime ban unless a board of clemency issues a pardon. Only two states impose no voting restriction at all: Maine and Vermont.
Opponents of these laws say they are outdated and they disproportionately affect people of color. However, Mauer says, "supporters will sometimes say, 'well, you broke the law, therefore you deserve some type of punishment and punishment may include loss of the right to vote.'"
But, Mauer argues, "you don't lose your fundamental rights of citizenship when you're convicted of a felony. You can still buy or sell property, you can get married or divorced, you can submit an op-ed article in The New York Times and possibly get it published." Losing the right to vote, he says, is contrary to that.
Supporters of keeping disenfranchisement laws have also argued that "if you are not willing to follow the law, you cannot demand the right to elect those who make the law."
To that effect, former British Prime Minister David Cameron said in 2012 that allowing serious criminals to vote made him "physically sick."
'I lost my right to vote before I ever had the right to vote'
Experts point to Florida as one state that has some of the harshest disenfranchisement policies in the country. There, felons are banned from voting even after they have completed their sentence, parole and probation. Only the governor and a clemency board can reinstate a formerly incarcerated person's right to vote. This process can take years and sometimes depends on the whims of the board members at the time of the decision.
Thirty-six-year-old Angel Sanchez has experienced Florida's strict laws firsthand.
Sanchez was just 16 years old when he was sentenced to 30 years in prison for attempted murder. The son of Cuban and Venezuelan immigrants, he says he started getting into trouble at a young age. Before he knew it, he was part of a gang, sucked into crime.
"As a teenager, I couldn’t see past 24 [years of age]," he says, "I just saw what I was living. I saw friends getting killed and I figured if it’s between prison or dead, I’d rather go to prison."
It was in prison, where Sanchez turned his life around. His breakthrough came when he got a job at the prison library.
"They gave me a desk. And they gave me my own chair. And when I sat down, I felt important, or as we would say on the streets, I felt official."
Sanchez spent hours pouring over books at the library. He wanted to learn about his rights as an incarcerated person. He read about disenfranchisement laws here in the States, but also how other countries have debated and solved the issue. Like in South Africa.
"They recently came out of Apartheid and after that they said 'we can’t allow disenfranchisement or the snatching away of voting eligibility simply because someone gets incarcerated, because we know that the people in power could be part of the reason that people get incarcerated.' Or, the party in power would not care about the humanity and the importance of these individuals if they’re not voting."
Sanchez thinks that’s what’s happening in Florida today. He says by denying people with a criminal record their right to vote, the state is essentially telling them they don’t matter.
"One in 10 Floridians don’t have voter eligibility but no one talks about it," he says.
But Sanchez has been working to change that. His days in the library taught him that he could appeal his sentence. He got it reduced to 12 years. He served those years and got out.
Once outside, he stayed at a Salvation Army shelter. With some luck, he got a minimum-wage job at a fast-food restaurant and eventually applied for community college.
"My first research paper in community college was on disenfranchisement," he says.
Now that Sanchez is in the second year of law school at the University of Miami, he is advocating for Amendment 4, a referendum on the current disenfranchisement laws in Florida. It’s on the state ballot this November.
"Your liberty, that’s your punishment," Sanchez says. "You get arrested, you get incarcerated. You get held. When the time is up, you’re let go. And so true liberty is supposed to be given back to you once you complete and pay your debt to society. That liberty comes with the eligibility to vote."
Racial roots of disenfranchisement in US
Nora Demleitner, a professor at the Washington and Lee School of Law in Virginia, says the roots of prisoner disenfranchisement policies go way back to the colonial period and they were brought to the United States by British settlers.
"But really, it does not become a big issue in the United States until after the Civil War," she says.
This was around the time when the 14th and 15th amendment were ratified.
"Many more states started putting them in effect, especially the Southern states that have the most restrictive disenfranchisement provisions to disenfranchise African Americans who otherwise would have been permitted to vote," she continues.
In 2003, the academics Angela Behrens, Christopher Uggen and Jeff Manza published a report about the racial roots of disenfranchisement laws in the US. "Many states enacted felon disenfranchisement provisions in the aftermath of the Civil War," they wrote. "Such laws diluted the voting strength of newly enfranchised racial minority groups, particularly in the Deep South but in the North as well."
More recently, in 2016, about 6.1 million Americans were not allowed to vote because of a felony conviction. That's according to The Sentencing Project, which reports that disenfranchisement laws impact black Americans more disproportionately — one out of 13 African Americans is affected. The US also has the largest reported incarcerated population in the world and according to the latest figures from the Pew Research Center close to 7 million Americans are either incarcerated or "under community supervision."
'Why would a politician listen to me? I am a prisoner. I can’t vote for him.'
Salvador Solorio registered to vote as soon as he turned 18.
"I voted in the municipal elections, county elections. Anytime there was an election, I was there," he says.
He kept up with the news, went to city council meetings, wrote letters to local representatives. Politics was his jam.
But his enthusiasm for civic engagement hit a wall in 1992, when he was sentenced to 18 years-to-life in prison for second-degree murder.
It meant losing his right to vote.
"I felt really out of the loop. I had lost my little privilege and joy of casting a ballot."
Solorio, who’s currently incarcerated at San Quentin State Prison, says he hasn’t voted for the past 28 years.
"I essentially lost my voice," he says speaking on a phone from prison. "There’s a sense of helplessness, being cut off. Why would a politician listen to me? I am a prisoner. I can’t vote for him. Why would he bother?"
Solorio says he follows the news from prison and while he can't cast a ballot himself, he encourages his friends and family to vote.
He is optimistic that one day he will be able to vote. "For me to vote, it's establishing the fact that I am still a citizen of this country. I care about this country," he says.
Meanwhile, researchers and supporters of voting rights for incarcerated people in the US often point to how other nations have debated and resolved the issue.
Should an assassin be allowed to vote?
On a November night in 1995, Prime Minister Yitzhak Rabin wrapped up a peace rally in Tel Aviv, Israel. He then made his way through the throng of supporters, embracing them, shaking hands and taking photos.
At the same time, a 23-year-old law student worked his way to within a few feet of Rabin, raised a gun and fired three shots.
Rabin fell to the ground. There was a moment of confusion. Security guards surrounded him, scooped him up and rushed him to the hospital.
It was too late. He didn’t survive.
The attacker, Yigal Amir, was arrested on the spot and confessed to the murder shortly after.
"It was a total shock, of course. Something that you never forget," recalls Mota Kremnitzer, who attended the rally in Tel Aviv that night. Today Kremnitzer works as a senior research fellow at the Israel Democracy Institute and professor emeritus at the Hebrew University Faculty of Law.
"Me and my friends were on the way back to Jerusalem when we heard on the radio that Mr. Rabin was wounded seriously and then we heard the awful news that he died."
A judge sentenced Amir to life in prison. And the activist became one of the most controversial Jewish prisoners in the history of the state.
Then, a year later, the Israeli high court found itself deciding on whether Amir should be stripped of his citizenship, which would also mean he would lose his right to vote.
"The idea came forth that he should be disqualified from participating in elections," says Kremnitzer.
In the end, judges ruled that Amir should not be stripped of his citizenship and voting rights, even though he had assassinated the head of state.
"The right to vote is such a basic and fundamental right in a democracy that the only way to take it away is by law and since the legislator did not do it, it seems to me that the prison authorities had the duty to allow him to vote," explains Kremnitzer.
Marc Mauer of The Sentencing Project, who has advocated for prisoner rights in the US for three decades, says the US can learn from the judges' arguments in Amir's case.
"In their decision, [the judges] said we must separate our contempt for his action from his rights as a citizen," Mauer says. "Obviously, there are some serious human rights challenges in the state of Israel," he adds. "At the same time, it’s still very instructive, I think, that the highest court in the land could come out with a decision like this about the most despised Jewish citizen of the state."
The 'beautifully done' case in Canada
In 2002, the Supreme Court of Canada heard the Sauvé v. Canada case. Demleitner, a law professor at the Washington and Lee School of Law, calls it "a beautifully done decision" because "they outline any possible rationale you could have for disenfranchisement and debunk all of them."
Debra Parkes, Chair in feminist legal studies at the Peter A. Allard School of Law at The University of British Columbia, has researched disenfranchisement in a global context. She says the Sauvé case was significantly consequential and it has been cited in subsequent disenfranchisement decisions around the world. Just like in the US, Parkes adds, the disenfranchisement laws in Canada impacted minorities, specifically Indigenous groups.
Rick Sauvé challenged the disqualifying laws in Canada by arguing that Canadians do not lose their citizenship rights once they go to prison.
"When I found myself in prison," he told the Canadian Broadcasting Corporation after the Supreme Court's decision, "I found out that I couldn't vote and it bothered me a great deal. And then I read through the [Canadian] Charter [of Rights and Freedom] and I saw in Section Three that it said every citizen has the right to vote. I hadn't lost my citizenship so I contacted my lawyer."
Sauvé fought for 18 years to change the laws in his home country and convince officials that he and others like him should be allowed to vote. The final court ruling was close — four judges against and five in support.
"Our freedom has been taken away from us," he told the CBC. "That's the punishment. [...] The other fundamental rights, we maintain."
The Canadian judges, Parkes says, found that "the government hasn't shown that there is a pressing objective in denying a constitutional right."
Parkes adds that after the ruling there was "some grumbling, a number of editorials in the papers and letters to the editor [...] people saying 'well, this seems outrageous that prisoners can vote,' but [...] the issue has [since] died down in Canada."
There are instances, law professor Nora Demleitner argues, under which barring an incarcerated person from voting could be understandable.
"If you commit voting fraud, for example, to bar someone from the democratic process makes sense. It’s a direct relationship to the crime," she says.
In some European countries, such as Germany, she adds, the courts take away voting rights as an additional penalty. "But what you see in Europe is much more of a surgical approach, whereas in the US it comes automatically." Eastern European countries, Demleitner adds, "tend to be much more restrictive."
In New Zealand, a debate about prisoner disenfranchisement has been gaining traction. There, a law in 2010 banned all prisoners from voting. Prior to that, incarcerated individuals could vote if they were serving a term less than three years. Unlike some states in the US, there is no law stopping those who have served their time in prison to vote. Interestingly, the disenfranchisement laws in New Zealand also disproportionately impact the Māori, the Indigenous people in that country.
Can an international body intervene?
Felony disenfranchisement in the US has come up in the United Nations Human Rights Committee, says law professor Demleitner. "But even in 2006, when the US was a member [of the UN Human Rights Committee], basically there was no reaction to it."
There is "a culture of dismissing international human rights bodies in the US," says Parkes of The University of British Columbia. "The perspective that many US governments have taken over the years is that the US doesn't need to look at those international bodies and it's in fact meddling in US affairs."
Still, she adds, American activists and civil rights groups continue to take this cause to international bodies. And there has been incremental change. Demleitner points out that last spring, New York governor Andrew Cuomo signed an executive order restoring the right to vote to New Yorkers on parole.
Many of those incarcerated in US prisons are also not silent about losing the right to participate in the electoral process. Last August prisoners in several states staged a nationwide strike after seven inmates died during a riot in April at Lee Correctional Facility in South Carolina. They put forward a list of 10 demands, including improvement of prison conditions and fair wages, but they also demanded that "the voting rights of all confined citizens serving prison sentences, pretrial detainees, and so-called 'ex-felons' must be counted. Representation is demanded. All voices count."
In Florida, Amendment 4 promises to "automatically restore the right to vote for people with prior felony convictions, except those convicted of murder or a felony sexual offense, upon completion of their sentences, including prison, parole, and probation."
"I think it’s going to be really crucial," says Demleitner of the referendum in Florida, "because if that were to happen that means a quarter of the people who are currently disenfranchised, will be re-enfranchised."
But given the long road it took to even get this on the ballot in Florida, she says, "I’d say to the world, 'don’t follow the US example. It’s really not a good one.' But on the other hand, I’d also add we’re working on it. And I think Florida’s referendum is the example that we are trying to change."