Voting No on Proposition 17 is at Odds With Our Democracy Values and Representation

The right to vote has long been considered as one of the most essential components of democracy (1). Throughout the course of American history, the literal and symbolic power of the vote has compelled countless groups to fight for their right to franchise, shape their communities and enhance civic inclusion. Despite the importance of the vote, individuals convicted of a felony continue to be systematically denied the right to franchise on a larger scale. Compared with other democracies, the United States is “virtually the only democratic country in the world to disenfranchise large numbers of former felons and current felons under parole or probation supervision” (Christopher Uggen 48). Historically, felon disenfranchisement laws were put in place for the most egregious crimes committed and were not driven by discriminatory intent. After the Reconstruction Amendments, however, felon disenfranchisement laws were designed as effective means to disenfranchise African Americans. Although the felon disenfranchisement provisions of today are less exclusively discriminatory and defended on race-neutral grounds, these provisions continue to disenfranchise and disproportionately affect historically marginalized communities, primarily African Americans. Ultimately, the disparities caused by felon disenfranchisement are at odds with our democracy and commitment to representing all Americans, including individuals convicted of a felony (2). Therefore, it is imperative that Californians vote yes on Proposition 17, the Voting Rights Restoration for Persons on Parole Amendment.

Proposition 17 and Felon Disenfranchisement Provisions in Other States

In 1974, California voters passed a ballot measure, California Proposition 10: Voting Rights Restoration Amendment , giving people who have committed a felony the right to vote once they have completed their imprisonment and parole sentence. The California Proposition 17 is a proposition on the 2020 California Ballot proposing to amend and reform Proposition 10 by allowing individuals on parole for felony convictions to franchise in California. A “yes” vote will then “amend Section 2 and Section 4 of Article II of the California constitution” and a “no” vote will in turn oppose this amendment to the California constitution (“California Proposition 17, Voting Rights Restoration for Persons on Parole Amendment (2020)”).

Felon disenfranchisement provisions fall within the provenance of the states, hence there is considerable variation in the states felon disenfranchisement provisions. For instance, states provisions generally “differentiate between four categories of convicted offenders: (1) felons who are currently incarcerated; (2) previously incarcerated felons who are under parole supervision; (3) convicted felons who were never incarcerated, but were sentenced to probation; and (4) former felons who have completed their sentence and no longer have any official connection with the criminal justice system” (Christopher Uggen 48). However, it should be noted that Maine and Vermont are the only states that allow people to vote while in prison. (3) Conversely,(4) there are eleven states who disenfranchise some or all individuals who have completed their prison, parole or probation sentences and post sentence and 16 states who allow individuals to franchise after they have completed their prison, parole and probation . Four states allow individuals to franchise after they fulfill their prison and parole sentences, while seventeen states have felony disenfranchisement laws that allow people to vote once they have fulfilled their prison sentences. Although much progress is needed to reform felon disenfranchisement laws across the nation, a few states have led the way. In 2018, Florida voters approved and passed an amendment that restored the voting rights to one million individuals after they have completed their sentence. In the same year, Governor Cuomo of New York reviewed and restored the voting rights of individuals who were on parole through an executive order. (5) Therefore, a yes on Proposition 17 will put California on track with the progress made toward felon disenfranchisement provisions in other states as the right to vote will be given to individuals after they have successfully completed their prison sentence.

The Racial History of Felon Disenfranchisement

The concept of felon disenfranchisement was not “created as a tool to punish African Americans and former slaves” as it can be traced back to ancient Green and Roman traditions (Aviram, Bragg and Lewiset 305). In ancient Greece, individuals convicted of a crime, who were pronounced as “infamous”, were prohibited from going to court and voting in the assembly. Similarly, individuals convicted of the most heinous offenses would suffer “civil death” and “outlawry” in England. Individuals, who would suffer these penalties, would lose the right to vote, own property, and to some extend their own life. For instance, individuals declared as “outlaws” could be killed without penalty as they were considered to be outside of the law. England’s disenfranchisement provisions were eventually brought to the American colonies, in which “11 of the 13 original colonies disenfranchised individuals who committed morally repugnant acts” (Aviram et al. 305). (6)

However,(7) it was until after the Reconstruction Amendments, that felon disenfranchisement laws were redesigned as a discriminatory tool to suppress, exclude and dispute the voting rights of African Americans. While the 13th, 14th, and 15th Amendments seemed to mark a definitive legal change by guaranteeing “equal treatment under the law for former slaves, and establishing a national standard for civil inclusion and voter participation,” felon disenfranchisement laws were amended to decrease African Americans political empowerment (Campbell 179). After the passage of the 13th and 14th Amendment, the increased representation and potential voting bloc of recently emancipated slaves greatly concerned white legislators in the South. The white legislators ultimately felt their political dominance was being threatened and hence, saw felony convictions as an opportunity to limit and exclude African Americans while withstanding strict scrutiny.

To guarantee state control, various jurisdictions “narrowly tailored their disenfranchisement laws to apply to offenses that were perceived to be committed primarily by African-American offenders,” (Scott King 9). The offenses perceived to be committed primarily by African American offenders included “furtive offenses’’ such as burglary, theft, arson, wife-beating and petty larceny and related crimes (Powell 388). However, robust crimes such as murder, “which were considered to be more commonly by whites, would not result in a loss of voting rights” (Scott King 9).The discriminatory intent behind felon disenfranchisement provisions was greatly notable through Virginia State Senator Carter Glass’s statement in regards to the meaning behind the state felon disenfranchisement. Senator Carter Glass mentioned that the state’s felon disenfranchisement was meant to “‘eliminate the darkey as a political factor in this State…so that in no single county of the commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government’” (Wong 1687). With the goal to minimize the political power and voice of the newly enfranchised African Americans, the rapid adoption of Black Code and later Jim Crow laws went hand-in-hand with a dramatic increase in disenfranchisement and imprisonment rates of African Americans.

Challenges to Proving Discriminatory Intent

As a result, the legitimacy of the felon disenfranchisement laws have been challenged on two grounds: under the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act of 1965. For instance, one of the most prominent cases concerning felon disenfranchisement is Richardson v. Ramirez. The Supreme Court held that under Section 2 of the 14th Amendment the California’s felon disenfranchisement provisions did not violate the Equal Protection Clause. Ultimately, the Court found that Section 2 of the 14th Amendment positively affirms that an individual with current or served felony conviction can be denied the right to vote for their participation in rebellion or other crimes. The Court’s decision ultimately demonstrated that felons “as a class have no constitutionally protected right to vote” and plaintiffs have a limited ability to challenge felon disenfranchisement provisions under the Equal Protections Clause of the 14th Amendment (Powell). However, the plaintiff in Hunter v. Underwood was able to successfully challenge felon disenfranchisement provisions under the 14th Amendment for the first time. The Court held that Alabama’s disenfranchisement law violated the Equal Protection Clause of the 14th Amendment due to its clear discriminatory intent and disproportionate impact. The law established in Hunter means that constitutional challenges to felon disenfranchisement laws will only succeed if the plaintiff is able to prove that disenfranchisement laws were enacted with purposeful discriminatory intent and have a disproportionate impact, all which is a difficult burden of proof. The plaintiffs “must show that the illicit purpose played a substantial role in the passage of the law” (Schaefer and Kraska 313). Therefore, the plaintiff challenging the state laws on an Equal Protection Clause claim will not be able to prove a discriminatory intent and disproportionate impact by merely demonstrating that a law disproportionately affects a particular racial group. (8)

Alabama was found to be the only state to violate the Equal Protection Clause of the 14th Amendment for its clear discriminatory intent and disproportionate impact behind its felon disenfranchisement provision compared to most states. In fact, most states defended their current disenfranchisement provisions by claiming that they have eliminated any racial discriminatory intent behind their felon disenfranchisement laws. For instance, the states amended their current provisions by “broadening their scope to include felonies that are perceived as traditionally ‘White’ crimes” (Powell 394–395). Thus, felon disenfranchisement laws are defended on race-neutral grounds, in which states maintain that the law applies equally to all criminal offenders. However, given the overrepresentation of historical marginalized individuals in the criminal justice system and disenfranchisement rates of the African American population and other historically marginalized populations, race-neutrality claims cannot withstand close scrutiny(9). Although felon disenfranchisement discriminatory intent does not show itself as obvious as it did in the past, covert discrimination and racism remain socially and culturally embedded in the disenfranchisement laws of today. This racial discrimination is disguised and subtle through implicit racial bias, institutional racism, and perceived racial threat. For instance, implicit racial bias can manifest itself not only in the discretionary decision making of criminal justice system actors such as through police officers, prosecutors, etc. but also through well-intentioned crime control laws such as the Anti-Drug Abuse Act of 1989 (10). Ultimately, covert discrimination and racism is most notable though the disparate treatment of nonwhite and white individuals in every level of the criminal justice system. From the initial point of contact particularly to practices of “stop and frisk” to felony convictions, one’s race plays a key role determining their sentence (11). As a result, minorities, primarily African Americans are excluded both politically and socially from participation in the life of the nation.

Felon Disenfranchisement in Connection with Mass Incarceration

In The New Jim Crow, Michelle Alexander states that “no other country in the world imprisons so many of its racial or ethnic minorities. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid” (6). It is therefore essential to look at the statistics illustrating the way in which mass incarceration disproportionately affects nonwhite individuals as mass incarceration serves as a new tool to the disenfranchisement of nonwhite individuals and devastate the voting power of minorities.(12) The Prison Policy Initiative reports that the American criminal justice system holds about 2.3 million people in state and federal prisons, military prison, prisons in the U.S. territories, local jails, juvenile correctional facilities, immigration detention facilities, civil commitment centers, and state psychiatric hospitals while 840,000 people on parole and 3.6 million on probation. It is therefore not surprising that the U.S is a world leader in its rate of incarceration, which makes the rate of nearly every other nation as insignificant (13). Based on the 2010 Census, while Black individuals make up 13% of U.S. residents, they make up 40% of the incarcerated population and are five times more likely to be incarcerated than white individuals. On the other hand, while white individuals compromise 64% of U.S. residents, they make up 39% of the incarcerated population.

Specifically (14), the state of California has an incarceration rate of 581 per 100,000 people. California’s incarceration rate stands out internationally as it imprisons higher percentages of its population than many other wealthy democracies. In 2018, California had 565,000 residents behind bars or under criminal justice supervisions. In 2017, “ 28.5% of the state’s male prisoners were African Americans compared to 5.6% of the state’s adult male residents” (Heather et al). In fact, California incarcerates 4,236 African American men per 100,000 people, while it incarcerates 1,016 Latino men per 100,000 people and 422 white men per 100,000 people. The imprisonment rate for African American in California is nearly ten times higher than the imprisonment rate for white men. The disparities between the imprisonment rates for California white and Black residents is further exacerbated when looking at the implications of the Three Strike Laws and its tough on crime policies. It is argued that the Three Strike law helped disproportionately fill prisons with minority offenders as minorities primarily African Americans were heavily overrepresented among the second and third strike inmates. For instances, in 2005, African Americans “made about 35% of second-strikers and 45% of third-strikers among California prison inmates, despite the fact that African-Americans constitute only slightly more than 6% of California’s adult population” (Chen 85). On the other hand, white “Californians made up 26% of second strikers and 25.4% of third strikers” while they made up 47% of California’s population (Ehlers, Schiraldi and Lotke 3). Such broad statistics demonstrate the racial disparity that pervades the U.S. criminal justice system, and for African American in particular. (15)

There is overwhelming evidence that historically marginalized individuals are disparately represented in the criminal justice system, and these disparities are also notable when looking at the felon disenfranchisement rate of minorities. (16) As of 2020, there are 5.17 million disenfranchised citizens, which means that one of 44 individuals within the voting-age population has lost the right to vote due to felon disenfranchisement policies (17). It is worth noting that “over three-quarters of the disenfranchised population are not even physically in prison; some are on parole or probation, while others have already completed their sentences” (Wong 1693). In regards to the disenfranchisement of African Americans, one in 16 African Americans of voting age are disenfranchised. In fact, it should be noted that “over 6.2 percent of the adult African American population is disenfranchised compared to 1.7 percent of the non-African American population” (Uggen et al.). These disparities shows that criminal convictions ultimately work as “an exclusionary policies that shares an infamous historical legacy with practices of racial discrimination and a general effort to restrict the integration of African-Americans into the mainstream political community” (Scott King 20).

Although California state legislatures have been active in re-enfranchising felons by amending “Section 2102 of the Election Code to allow convicted felons sentences to county jails to vote in custody,” disparities in felon disenfranchisement rates continue to be prominent in that African Americans and Latinos remain overrepresented in felony arrests and parole population, hence meaning that they are unable to vote under the current law in place (“California Proposition 17, Voting Rights Restoration for Persons on Parole Amendment (2020)”). For instance, the felony arrest rate of African Americans is 3,229 per 100,000 and the felony arrest rate for Latinos is 945 per 100,000, while the felony arrest rate for white Californians is 751 per 100,000. In regards to the parole population , African Americans constituted 6% of California’s adult population and made up 26% of parolees, while Latinos account for 35% of California adults and 40% of parolees in 2016. White Californians also made up 26% of the parolee population, however they constituted a larger share of the total population, 41%. Although the felony arrest and conviction dropped after Proposition 47: the Safe Neighborhoods and Schools Act passed in 2014, it is imperative to address the impact that California Proposition 20, Criminal Sentencing, Parole, and DNA Collection Initiative will have on the state’s felon disenfranchisement provisions if Californian voters were to pass it. Proposition 20 will amend AB 109, Proposition 47 (2014) and Proposition 57 (2016) , which were designed to reform and reduce the state’s prison population. If Proposition 20 is supported and passed by California voters, we should expect to see greater disparities in the California criminal justice system and the disenfranchisement of minorities. Proposition 47 will give prosecutors the opportunity to charge crimes that are currently considered as misdemeanors to wobblers, which can be crimes chargeable as misdemeanors or felonies. Hence if charged as felonies, we should expect to see heightened rates of felony arrest and convictions, all which already disproportionately affects minority offenders as they are more likely to be charged and convicted than their white counterparts. To add on, it will exacerbate the disparities between parolees rates as it will make it harder for individuals charged of nonviolent crimes to be released on parole upon completing their sentence for his/her offense. The enactment of Proposition 20 will also “define 51 crimes and sentence enhancements as violent in order to exclude them from the parole review program” (“California Proposition 20, Criminal Sentencing, Parole, and DNA Collection Initiative (2020)”). This exclusion will not only mean being excluded from the parole review program but also it will also mean being excluded from having the opportunity to re-enfranchise upon the completion of their sentence if Proposition 17 is to pass.

Proponents of Felon Disenfranchisement

The California felon disenfranchisement law is justified under the principle that voting is a privilege to be enjoyed and upheld by law-abiding citizens, therefore proponents for felon disenfranchisement are urging voters to vote no on Proposition 17. This argument is grounded on the idea that those who fail to abide by the law “should not benefit from the privilege of making the law” (Aviram, Bragg Lewis 298). In other words, the rationale for prohibiting convicted felons from voting is based on the idea that they do not deserve to participate in the lawmaking process for their criminal behavior and for breaking the social contract. As a result, many supporters of felon disenfranchisement provisions perceive individuals who have broken the social contract as individuals who are less trustworthy, irresponsible and immoral. Proponents fear that letting someone who has broken the social contract will be more likely to vote for “pro-crime” candidates and policies that are contrary to the national interest. However, this argument is facially unsound as it presumes that individuals convicted of a crime are one issue voters. Individuals convicted of a crime are not concerned about a single issue, indeed they are concerned about the same issue such as the economy as most eligible voters. (18) Additionally, assuming that all California parolees do seek to vote for a “pro-crime” candidate who would strongly support a “soft on crime agenda,” “the likelihood that a candidate of such description would ever reach the ballot with enough support to win is preposterous” (Scott King 19). Another concern of proponents for felon disenfranchisement is that individuals who have been convicted of a crime by nature of their criminal background will interfere with the voting process. Notwithstanding, this argument seems to be an overbroad concern in that most individuals convicted of a crime have not been convicted of offenses involving the voting process such as electoral fraud. (19) Therefore, it is hard to imagine why an individual convicted of non-electoral offenses will have an interest or knowledge of committing electoral fraud. (20)

Yes on Proposition 17

As mentioned above, proponents for felon disenfranchisement claim that disenfranchisement is justified under the principle that voting should be enjoyed by law-abiding citizens. However, given the historical efforts to deny the franchise of African Americans and the overrepresentation of historically marginalized individuals within the criminal justice system, felon disenfranchisement provisions are at odds with our democratic values and democratic representation. According to Ruth, Matusitz, and Simi, “Democratic Theory is the foundation of both direct and representative democracy” and “at its core is the importance of political participation” (57). Therefore, the act of suffrage is often considered as the cornerstone and essence of political participation in a democracy as it is based on the idea that citizens should be the ones electing their leaders according to their policy preferences and political ideologies. For democracy to successfully work, citizens including those who have been convicted of a crime, paid their debt to society, and living productive lives must be allowed to cast their ballot and fully participate in the electoral process (21). However, perpetuating individuals who have committed a felony as a class who are governed by a democratic law, but are restricted and excluded from participating in the political process of making the law, the California felon disenfranchisement provisions “undermines the legitimacy of democratic decision making” (Whitt 285). This is especially true when it is argued that we need to limit eligible voters based on the fear of how they will vote and the voting bloc they may form based on their criminal record, all which is directly contrary to the values of democracy. The wide racial disparities in the criminal justice system and disenfranchisement rate suggest that felon disenfranchisement laws continue to have an intimately tied relation with the country’s legacy of racism and systemic disenfranchisement. This relation is at odds with the values of democracy and representation in that felon disenfranchisement provisions have a significant impact on the political power of communities of color. In short, felon disenfranchisement provisions render minorities as politically powerless and second class citizens by silencing their political voice diluting the electoral impact of their broader communities. As a result, historically marginalized individuals are not only excluded from influencing policies in their communities that can impact their right to resource allocation but are also underrepresented in the political process. Ultimately, the current disenfranchisement provision in place illegitimate the values of democracy and the claim that California and the nation values every citizen’s voice. (22)

To add on, California felon disenfranchisement provision is not only at odds with our democratic values but is also at odds with the goal and purpose of parole. Accordingly, parole is a privilege which allows individuals convicted of a crime to be released from prisons after serving a portion of their sentence. Parolees must abide by certain terms and conditions such as “living within state or county lines, meeting regularly with a parole officer, submitting to drug and alcohol tests, and providing proof of residence and employment” (“Parole and Probation”). Parole boards grant individuals convicted of crime parolee status after analyzing different factors such as the nature of the offense, inmate’s degree of remorse for the offense committed, mental stability, personal characteristics, their ability to obtain employment after release, among other factors. The board does not simply consider the individuals “good behavior” during incarceration, rather it is a very detailed and extensive process for an individual to receive parole. The ultimate goal of parole is to rehabilitate individuals and direct them back into society while minimizing the likelihood of recidivism. However, the current California felon disenfranchisement provision is at odds with the goal of parole in that it signifies exclusion from society as they are unable to have a stake in the society they are members of and contribute to. While individuals are told that they must find work, permanent residence, and follow up with the necessary and relevant guidelines of release in order to return to the status of being a full member of society, the current disenfranchisement provision sends the contrary message that they are not part of society and therefore, not entitled to the right that every other American eligible voter is able to enjoy. For instance, the current disenfranchisement provision tells the 50,000 Californians who have completed their sentences that their opinions are essentially unwelcome in the state discourse on policy making. Essentially, making them outsiders in their own communities and preventing their successful reintegration. (23)The current disenfranchisement law therefore, conflicts with the idea that once an offender has paid his debt to society he should be free to join the community again as a full member as it sends the message to offenders that their debt cannot be paid in full. (24)

In fact, the “degree to which an ex-felon is excluded from his or her community, such as in job opportunities, housing, or the right to vote, reinforces their pariah status and makes them more likely to recidivate” (Aviram et al. 304). Statistics demonstrate that about 76.6% of all prisoners “will be arrested within five years” of their release from prison (Aviram et al. 303). Studies have further demonstrated that disenfranchisement provisions are more likely to result in higher recidivism rates, whereas political participation is positively correlated with a reduction in recidivism rates. For instance, “in states where ex-felons are permanently disenfranchised, the rate of repeat offenses is significantly higher than in states that do not have permanent disenfranchisement laws” (Aviram et al. 304). Therefore, allowing parolees to vote will decrease the burden and challenges of a successful integration back into society, making them less likely to recidivate. (25) In addition amending the current felon disenfranchisement law will give parolees the opportunity to have a stake in the welfare of the communities in which they live and hence, be able to foster a stronger connection to their community for parolees. (26)

Therefore, it is imperative that California voters vote yes on Proposition 17 on November 3, 2020. Parole by definition is not punishment and it is driven by the goal to help people reintegrate back into the society. Restoring parolees’ right to vote not only contributes to their successful reintegration back to the community, but will also allow them to have a stake in the community in which they work, pay taxes and raise their family. As a result, parolees should be able to vote on policies that directly impact them. Given the racial disparities in the California criminal justice system and disenfranchisement rates, a yes vote will contribute to the upbringing of the political and powerful voices of historically marginalized individuals and work towards eliminating the structural vote dilution in broader communities as a result of the current disenfranchisement law. Ultimately, voting yes on proposition 17 will uphold the values of democracy and allow for a broader community to be represented in the state’s democratic decision making.