Why Can’t Ex-Cons Vote?

They did the time, why can’t they pull the lever?

Why can't felons vote?
The politics surrounding voting rights for ex-cons are complicated.

Photo illustration by Slate. Photo by Thinkstock

A bill is currently working its way through the Minnesota statehouse that would restore the right to vote to some 47,000 Americans, all of whom have been convicted on felony charges and are currently on probation or parole. Under existing Minnesota law, it is illegal for these 47,000 people to vote in elections, just as it is for more than 4 million other non-incarcerated felons around the country.

If the legislation passes—so far it has gotten through two committees in the Senate, but has yet to move forward in the House—the state would join 13 others in allowing felons to vote as soon as they leave prison. (Maine and Vermont allow felons to vote while still in prison.)

Felon enfranchisement measures tend to face opposition from conservatives. But the Minnesota bill has built strong momentum among Republicans. The bill’s supporters on the right include state Rep. Tony Cornish, a former police chief known for wearing a pin on his lapel depicting a pair of handcuffs, who has signed on as the bill’s chief author in the House. Of the remaining 44 lawmakers in the Senate and House who have officially come out in support of the enfranchisement measure, about one-third are Republicans. The bill has received endorsements from several law enforcement associations and libertarian groups as well.

On the surface, the bipartisan embrace for the Minnesota bill might appear to fit with the broader narrative about criminal justice reform in America, with Republicans and Democrats seemingly on the same page about the need to make the system less punitive. But the politics surrounding voting rights for ex-cons are complicated. Will the progress in Minnesota augur bipartisan cooperation on the issue nationwide?

Proponents of making it easier for ex-felons to vote usually make a moral case and a practical case. The moral case is that ex-cons have already paid their debt to society and should be allowed to enjoy the full range of rights afforded to the rest of us. The practical case is that preventing ex-cons from voting is logistically more trouble than it’s worth. 

“These are folks we’ve deemed safe to live and work among us,” said Christopher Uggen, a criminologist at the University of Minnesota and the co-author of Locked Out: Felon Disenfranchisement and American Democracy.* “They pay taxes, they participate in their communities in all sorts of ways, and logistically, it’s far simpler to have a system where, if you’re in, you’re in, and if you’re out, you’re out.”

Opponents of enfranchising probationers and parolees have several rationales of their own. One is that people who have committed serious crimes aren’t people we want influencing our elections, because they’ll vote for candidates who are soft on crime: lenient prosecutors, lenient judges. Another is that they deserve to be punished for their misdeeds, and forced to earn back the right to weigh in on the future of the country.

A common belief on the left is that these arguments are disingenuous—that they conceal the right’s true motivation, which is more nakedly political, and rooted in an assumption that ex-felons are more likely to vote for Democrats. Indeed, there are instances of Republicans coming right out and making this argument themselves: “As frank as I can be, we’re opposed to [restoring voting rights] because felons don’t tend to vote Republican,” the chairman of the Alabama Republican Party was quoted as saying in 2004.

Empirical research on felon voting patterns supports this assumption, in some ways. One study of voter registration records showed that among ex-felons in New York, about 62 percent were registered as Democrats, compared to just 9 percent who were registered as Republicans. In New Mexico the breakdown was 52 percent vs. 19 percent, and in North Carolina it was 43 percent vs. 31 percent.

But it’s far from clear that enfranchising ex-felons would be a slam-dunk for Democrats. For one thing, very few ex-felons tend to vote even in places where they’re allowed to do so, which means adding more of them to the rolls isn’t likely to affect electoral outcomes except in extremely close races.  Furthermore, argues Northwestern University political scientist Traci Burch, while it’s true that black felons tend to support Democrats, their white counterparts are much more likely to vote Republican, especially in certain states.

The population of Minnesota is 86.2 percent white, a fact that is surely not lost on the conservative politicians who have lined up behind the proposed felon voting rights bill. As Mark Haase, a lawyer in Minneapolis who helped craft the legislation, put it, “the vast majority of people they’d be re-enfranchising are white.” It’s also worth noting that Minnesota has the second lowest incarceration rate in the country; according to Uggen, it’s not at all clear that more punitive states can be expected to follow in its footsteps

But Haase argues that the bipartisan energy the bill is enjoying should not be dismissed as a fluke. “It’s pretty damn significant that we can get a Republican chief author and such a solid number of Republicans on board with this kind of reform,” he said. “Over the past several decades, both Republicans and Democrats have fought to be the toughest on crime, to mete out the most punishment possible. Now they’re coming together to support proposals that look at the issues differently—and to support people who have made mistakes in the past.”

Still, with the exception of Sen. Rand Paul, former Justice Fellowship president (and ex-con) Pat Nolan, and a few others, Republican leaders in the criminal justice reform movement have so far not treated felon voting rights as a major issue. The influential reform organization Right on Crime, for instance, has not staked out a position in the debate, and the topic hasn’t come up at the Coalition for Public Safety, the bipartisan advocacy group formed last month with support from the Koch Brothers and the ACLU, either. Then again, Democrats have never fully embraced the issue either, for fear of seeming soft on crime (and perhaps in recognition that there aren’t many votes in it).    

As the criminal justice reform movement continues to evolve, its power to effect change will be determined by politicians who will be mindful of what positions are and aren’t safe for them to take. If nothing else, the bipartisan support that Minnesota’s felon voting rights bill has received suggests that it’s possible for lawmakers on both sides of the aisle to talk about a historically divisive issue with open minds. At least in Minnesota.

Correction, March 18, 2015: This article originally misidentified the title of Locked Out: Felon Disenfranchisement and American Democracy as Clocked Out. (Return.)