A Cunning Past: How America Betrayed Democracy
Why are we still having to fight this fight? The May issue of the All of Us or None newspaper looked into why voting rights has been a centuries-long fight and where that fight is today.
Do you remember the first time you voted? Would you be able to describe where you were, how it felt?
Angelique Evans can describe her experience down to the minute.
Shortly before the 2018 midterms, Angelique’s boss, A New Way of Life founder and All of Us or None co-founder Susan Burton, asked her if she was going to the polls. Angelique, who was imprisoned as a juvenile, had never voted, and she’d assumed she wasn’t allowed to because of her conviction history. Plus, why bother? What difference would it make?
With a soft but stern, “No, baby,” Susan explained that in California, people off parole and on probation had the right to vote. Unlike many of the women in her transitional living home,
Angelique had an opportunity to speak for herself. It was incumbent upon her, for her sake and for the sake of her muted comrades, that she seize that opportunity.
So, on November 6, 2018, Angelique strolled into the polling station at Watts Labor Community Action Committee Center in South Central.
“I literally screamed,” she said. “I started going up to people being like, ‘Oh my God, this is the first time I ever voted! I took a picture with that “I voted” sticker with my fist up. I will never forget the chills I had. I was so happy.”
“It made me feel like I mattered,” she continued. “You feel like you have your voice and you’re being heard.”
Voting may be the most political thing we do in this country, but the experience is more personal than political for people like Angelique. For a formerly incarcerated individual reentering society, not being able to vote doesn’t just feel like exclusion from the American political system. It feels like exclusion from the American system.
“To me it was painful,” said Guy Hamilton-Smith, a formerly incarcerated individual living in Kentucky. Guy remembers the pain of being purged from the voting role as clearly as he does the joy of reregistering. “You can say what you want to say on any street corner, but the only way that we actually have a voice is at the ballot box.”
Unlike Angelique, Hamilton-Smith spent nearly a decade waiting for his voting rights to be restored. Like 77% of all disenfranchised Americans, he had served his sentenced and was a member of a community he cared about but in which he could not fully participate.
“It made me feel like I didn’t matter, that my voice didn’t count — even though I worked, I paid taxes, I volunteered at the church, I volunteered at the homeless shelter — like it doesn’t matter what you do, you don’t have a voice in this community” Guy said. “If you tell someone all they can ever be is a criminal, why should they bother trying to be anything other than that?”
Felony disenfranchisement laws by state as of 2019. Source: The Sentencing Project
In fact, you should absolutely abandon the idea that this particular element of the legal system has anything to do with rehabilitation or public safety: An independent study that Guy helped develop entitled “The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism” found that there was a 10 percent higher rate of rearrests in states that deny civic engagement than those that allow it.
“If people are civically engaged, showing up at the polling place, if they care about the issues going on in the community, that’s a person that’s less likely to go back to a life of crime and that should be what we want,” Guy said.
After a decade of unanswered inquiries regarding his voting status, Guy finally registered to vote in December after Gov. Andy Beshear signed an executive order restoring voting rights to “nonviolent offenders” who have completed their sentences. The carveout is frustrating, but since the order was signed, All of Us or None Louisville and Kentuckians for the Commonwealth have mobilized to register 152,000 formerly disenfranchised voters for the November election.
Beshear’s order is one policy change in a growing movement nationwide to chip away at felony disenfranchisement laws. Angelique represents A New Way of Life Reentry Project in the Free the Vote 2020 coalition for ACA 6, the constitutional amendment that seeks to restore voting rights to 50,000 Californian’s on parole. A New York Times analysis found that 130 voting rights bills were introduced in 30 state legislatures last year, and at least four of those states were considering allowing incarcerated people to vote.
Furthermore, the voting populace has shown a desire to overturn disenfranchisement laws. In 2018, two-thirds of Florida voters, spanning both political parties, approved Amendment 4, which restored voting rights to 1.4 million Floridians with conviction histories.
“The response has been really exciting,” said Desmond Meade, Executive Director at Florida Rights Restoration Coalition, whose grassroots movement propelled Amendment 4’s victory at the ballot box. “People can come out of the shadows because their voices can be heard now, especially when they realize people with felony convictions have the power to transform their community, have the power to change an electorate, and have the power to actually change policy they know is detrimental.”
Part of what makes felony disenfranchisement so cunning — part of the reason why it’s taken generations of civil rights activism to get to this moment where states are beginning to chip away at its breadth — is that it’s designed to target the legal system in a way takes centuries to undo.
It’s an approach so effective it’s still being used today, mostly in the context of immigration. To ensure white supremacy in a democracy required a simple, diabolical recipe:
Expand the type of behaviors that constitute a crime;
Expand the disenfranchisement laws to include the new class of “criminals.”
Like many aspects of mass incarceration, felony disenfranchisement stemmed from the involuntary servitude exemption of the 13th Amendment. As we explored in our April issue, this exemption allows the restrictions of slavery to apply to an individual who has committed a crime.
States were quick to exploit this loophole to maintain political and physical control over the freed slaves. New laws, known as “Black codes” were designed to criminalized African-American life in a post-Civil War era. For example, the Vagrancy Act of 1866 criminalized any person who appeared to be unemployed or homeless, something recently freed slaves, looking for and displaced from their families would naturally find themselves doing a lot.
Other laws prohibited freedmen from assembling without the presence of at least one white person and preaching Gospel without a license from a registered church, although facilities were segregated and for a freedman to enter a white church was also a crime. As a result of these laws, he percentage of nonwhite prisoners in states like Alabama jumped from 2% in 1850 to 74% in 1870.
P. Thomas Stanford’s “The Negro Disenfranchised,” drawn in 1897, depicts the pride taken by states who successfully disenfranchised freedmen. Source: New York Public Library
Once this new caste of “criminal” was defined, it became the target of expanded disenfranchisement laws. Disenfranchisement became a consequence for all felonies, rather than only a few select crimes. Specific crimes thought to be perpetrated primarily by former slaves were also elevated to felonies. In Mississippi, for example, lawmakers believed Black men were more likely to commit burglary and theft, while violent crimes like murder were committed primarily by white perpetrators. As such, lawmakers made burglary and theft disqualifying crimes for voting rights while murder and robbery were not. As the NAACP Legal Defense and Educational Fund noted in its 2016 analysis of felony disenfranchisement for The Sentencing Project, “Through the convoluted reasoning of this law, one would be disenfranchised for stealing a chicken, but not for killing the chicken’s owner.”
In rapid succession between 1865 and 1880, at least 13 states — more than a third of the country’s 38 states — enacted broad felony disenfranchisement laws.
By the time the 15th Amendment was ratified in 1870, enshrining the right of all Americans, regardless of “race, color, or previous condition of servitude” the right to vote, the groundwork had already been laid for its undermining. Six years later, the U.S. Supreme Court upheld ostensibly race-neutral limitations on suffrage including a grandfather clause that exempted citizens from other voting requirements if their grandfathers had been registered voters, a condition only white men could generally meet. United States v. Reese (1876).
The intention here was not subtle: At the turn of the 20th century, states held constitutional conventions that documented a clear mission to deny voting rights in order to maintain white supremacy. At the 1906 Virginia convention, Carter Glass, a delegate who later became a U.S. senator, said, “This plan of popular suffrage will eliminate the darker as a political factor in this State in less than five years, 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.”
These kinds of conventions were held all over the country, not just in the former Confederate. In the West, where Native Americans and Mexicans were subject to involuntary servitude, those populations were also disenfranchised. Lawmakers in California, eager to find a way to claim land owned by Native Americans and Mexicans, refused to ratify the 15th Amendment until 1962.
It is worth noting here that data on the disenfranchisement of Brown communities is limited by the negligence of courts and corrections departments to specify non-Black and non-White nationalities. However, a 2003 study of 10 states found nine of those states “disenfranchise the Latino community at rates greater than the general population.”
While the Voting Rights Act of 1965 enshrined protections for all minorities at the polls, the Supreme Court almost immediately dampened its effect. In 1974, the Court decided in Richardson v. Ramirez that felony disenfranchisement was not at odds with the Constitution because convicted persons were exempt from the equal protections provided by the 14th Amendment. In more recent decades, the Court’s conservative majority has put forth a so-called “color-blind jurisprudence,” where it allows deviations from the Voting Rights Act because “today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.” Shelby County v. Holder (2013).
Virginia Hench wrote in Case Western Law Review, “In the last century and a half, minority access to the ballot box has been, if not killed, then at least rendered largely unenforceable by a combination of racial bias in the criminal justice system and the Supreme Court’s so-called “color-blind” jurisprudence.” By refusing to acknowledge and rectify the racist history of felony disenfranchisement laws — to deny that, in present day, one in 13 Black men have lost their voting rights due to these laws — America has undermined the one value that defines it: democracy.
Felony disenfranchisement is not just unfair. It’s un-American. Besides the obvious contradictions to the 14th and 15th Amendments, modern phenomena like prison gerrymandering — the redistricting of areas based on a prison population that has no voting rights — violates the basic principle of “one person, one vote.”
That principle alone encapsulates the deeply personal impact the right to vote can have on an individual.
“It changes you as a person,” said Angelique. “I was always the person that thought my vote didn’t count, but the first time I went to that polling place it was like God put a fire in my soul.”
Read the May newspaper in full here or download the PDF version from https://prisonerswithchildren.org/aouon-newspaper/.