Excerpted From: Jaylen Amaker, Danielle M. Lyn, and Marquan Robertson, Mass Incarceration & the Minority Vote: the Case for a Federal Ban on Felon Disenfranchisement, 36 Notre Dame Journal of Law, Ethics & Public Policy 731 (2022) (Footnotes) (Full Document)


AmakerLynRobertsonPrisoners in Maine and Vermont enjoy uninterrupted voting privileges while serving time behind bars. To Foster Bates, an inmate at Maine State Prison, this privilege allows him to “assess the best candidate for [his] values, [his] family's values, and the values of the country.” Moreover, Bates views the right to vote behind bars as a means of having a say in his own future. Bates's attitude towards voting and civic engagement is incredibly refreshing, considering eighty-million Americans neglected to hit the polls in the most recent presidential election. As inspiring as Bates's story is, the reality is that his circumstances are the exception and not the rule. In the United States, a lengthy prison sentence often entails an equally lengthy period of disengagement from the political process. Some view this forced abstinence from voting as a just punishment for crimes committed. On the contrary, we believe that individuals like Bates prove that this sentiment could not be farther from the truth.

Additionally, the United States has slowly evolved into a carceral state, with many of those caught in the criminal justice system being black and brown minorities. Combine the increased incarceration of minorities with the deprivation of voting rights for those same minorities, and reasonable fear of race-based voter disenfranchisement is created. One solution to this problem is to remedy the criminal justice system to systemically correct the over-incarceration of minorities. As time has proven, the fact that minorities--especially African Americans--are incarcerated at higher rates than their non-minority counterparts is not so simple to correct. So, another solution is needed. One remedy could be a nationwide ban on the disenfranchisement of felon voting rights. As this paper suggests, such a remedy is not only desirable from a moral standpoint but may also be required in accordance with the Voting Rights Act of 1965 and the Fourteenth and Fifteenth Amendments of the United States Constitution.

In making the case for a nationwide ban on felon disenfranchisement, Part I explores the relevant history behind the Voting Rights Act and the effects of subsequent amendments on the Act. Namely, the Fourteenth Amendment, and the Fifteenth Amendment. This history is then examined in relation to the mass incarceration epidemic that has plagued the United States. Part II examines the history and impact felony disenfranchisement has had on America and its elections, taking an especially hard look at the effect on African Americans to better understand if felony disenfranchisement has the type of effect on minorities that would require the type of government intervention contemplated by the enactors of the Voting Rights Act. Lastly, Part III outlines the parallels and shared struggles between early American colonists and present-day disenfranchised felons, touching on how today's government can implement principles taken up by the founding fathers to create a legally sound framework under the Fourteenth Amendment principles and the Voting Rights Act.

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Given the fifty states' independent action to follow the changing tides of public perception of felons, the moral turpitude that created the foundation to justify disenfranchisement must be revisited. The parameters of what today's American public is willing to accept as moral and legal regarding felon disenfranchisement is a live debate on all fronts. On the judicial front, a dynamic circuit split presents the ideal opportunity for the Supreme Court to reconsider the Voting Rights Act in a new light, given the changing social and political climate. Politically, states have made the importance of the felon vote apparent with changing laws and, when necessary, using the power of the executive to restore the right to vote to the felon and ex-felon classes. What remains to be considered on the federal legislative level is if providing a federal minimum for felon voting rights--whether within the Voting Rights Act or in a new Act addressing the matter--would be advantageous. Given the states' divergent attempts to restore voting rights, the Founding Fathers' emphasis on the importance of the vote for every citizen, the consequences of withholding the vote from a large population of minorities, and the lack of unison in the judiciary, we argue that Congress should enumerate the rights of the felon class and provide a federal blanket within the bounds of the Fourteenth Amendment.