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The Democratic debate over letting people in prison vote, explained

Bernie Sanders sparked a debate over prisoners’ voting rights. But most of the public — and most Democrats — aren’t on board.

Sen. Bernie Sanders (I-VT) speaks at a Get Out the Vote Rally in Florida in 2018.
Sen. Bernie Sanders (I-VT) speaks at a Get Out the Vote Rally in Florida in 2018.
Jeff Mitchell/Getty Images

The latest debate in the 2020 presidential race has exposed the limits of how far Democrats are willing to go on voting rights.

It began with a question to Sen. Bernie Sanders (I-VT), from a volunteer with the American Civil Liberties Union at an Iowa town hall in April: Should people in prison be allowed to vote?

Sanders said yes, and then doubled down on his answer. At a CNN town hall a couple weeks later, Sanders was asked if the Boston marathon bomber should be allowed to vote — and, again, said yes. In a USA Today op-ed, he defended his position, arguing that “the right to vote is an inalienable and universal principle that applies to all American citizens 18 years and older. Period.”

Since Sanders was first asked, other Democratic candidates have been questioned about their stances. Most other candidates have yet to say that prisoners should be given the right to vote, instead defending the right to vote only for nonviolent offenders or people who completed their sentences. Some appear undecided.

Only two states — Maine and Vermont, where Sanders is from — currently let all people vote while they’re in prison. Other states apply restrictions based on whether someone is in prison, on probation, on parole, or has completed a sentence. (They don’t typically make a distinction on whether a person’s crime was violent or not.)

As of 2016, 6.1 million people were prevented from voting due to a felony conviction, and about 1.3 million were in state or federal prison, the Sentencing Project, an advocacy group, found.

Since black Americans are more likely to go to prison, these laws have a disproportionate impact on black voters, in part reflecting their roots in the Jim Crow era: More than 20 percent of black voters were disenfranchised in Florida, Kentucky, Tennessee, and Virginia in 2016.

There appears to be some support for giving people convicted of felonies their voting rights back. Last fall, Florida voted to let most people with felony records vote once they complete their sentences — giving the right to vote back to, potentially, more than 1 million people (although that’s now in question as Republican lawmakers place new restrictions on who can vote).

What Sanders is calling for, though, goes much further, enfranchising literally hundreds of thousands or millions of people across the country — in a way that could especially benefit black voters. For some Democrats, who have paid more attention to voting rights in recent years, and for activists with the ACLU who are aiming to get candidates on the record on this topic, it’s a logical next step.

But the discussion has shown there are limits in how far even some Democrats — let alone the public — are willing to go in expanding voting rights. The polls so far show that giving people in prison the right to vote is unpopular among the majority of voters and Democrats. And in a Democratic primary where so much of the attention, even beyond policy specifics, is going to finding the candidate who can beat President Donald Trump, that unpopularity is drawing concerns about whether a politically risky issue like this one should be discussed at all.

Modern felony disenfranchisement laws have some roots in Jim Crow

Felony disenfranchisement laws slotted into the push after the Civil War, particularly in the South, to limit civil rights gains following the end of slavery and ratification of constitutional amendments — the 13th, 14th, and 15th — protecting minority rights. The resistance to civil rights gains also included the Jim Crow laws behind legally enforced racial segregation and other limits on black voting power. It’s been a decades-long project for civil rights activists to undo all of these laws.

After the civil right movement, Democrats have taken up the banner to protect minority voting rights. Passage of the Voting Rights Act of 1965 was fairly bipartisan, but since then Republicans in particular have moved to curtail access to the polls through voter ID laws, cuts to early voting, and purges of the voter rolls. Democrats have fought back against Republicans on these issues, but the Democratic efforts haven’t included much advocacy on prisoner disenfranchisement laws.

Preventing people with criminal records from voting in the US goes back to the colonial era and the concept of “civil death” — the notion that some bad actions effectively left a person dead in terms of civic engagement. But there’s also a uniquely American and racist twist to this story, rooted in Jim Crow.

After the South lost the Civil War, state lawmakers in Florida, for example, enacted laws — the Black Codes — to constrain black rights. They created crimes, such as disobedience and “disrespect to the employer,” that could be enforced in a way that would target and criminalize black people in particular, according to a 2016 report by the Brennan Center for Justice, an advocacy group.

Then, when Florida was forced to write voting rights protections for men of all races into its state constitution, lawmakers added an exception that would exempt victims of the Black Codes:

Article XIV, Section 2, imposed a lifetime voting ban for people with felony convictions. Section 4 of this same suffrage article directed the legislature to “enact the necessary laws to exclude from ... the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime” — the same crimes the legislature had recently recognized and expanded through the Black Code.

Brennan went on: “Shortly after the 1868 constitution was approved, a moderate Republican leader boasted that he had kept Florida from becoming ‘niggerized.’”

Since then, Florida has changed its constitution and laws, Brennan noted, and the felony disenfranchisement law was reformed again after the report, in the 2018 elections. But the roots of its post–Civil War disenfranchisement laws linger.

Florida was not alone. Journalists and historians have documented similar efforts in Virginia and other Southern states. And of course, the federal government had to enact the (now-weakened) Voting Rights Act of 1965 to shield black voters from state-level discrimination, as well as other civil rights laws to prohibit other forms of systemic racism.

But the criminal justice system remains one path toward disenfranchising voters, with a criminal or felony record often costing people various legal rights and protections even after they get out of jail or prison. And this system is rife with racial disparities, as the Washington Post’s Radley Balko explained in his thorough breakdown of the research.

“We use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind,” Michelle Alexander argued in her influential (and at times criticized) book The New Jim Crow. “Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans.”

Still, felony disenfranchisement laws have survived legal challenges. Courts, including the US Supreme Court, have generally upheld such voting restrictions under the US Constitution’s 14th Amendment, which suggests that the government may abridge the right to vote due to “participation in rebellion, or other crime.”

Without the courts, the only real hope for these efforts is to turn influential politicians and public opinion around on the issue — which is what Sanders seems to be trying to do and what some activists are encouraging. This might have to trickle down to the state level too, because there’s some scholarly debate about whether Congress even has the power to end felony disenfranchisement at the federal level.

Where Democrats stand on felony disenfranchisement

With the debate about voting from prison, Democrats now have a chance to expand the broader debate about voting rights. But, besides Sanders, most other candidates haven’t committed to full voting rights for people in prison.

Sanders has been very explicit in his case: He argues that voting is a right that should never be taken away from anyone in a democracy. And that means people, no matter how terrible they prove to be, should keep their right to vote.

“Even if Trump’s former campaign manager and personal lawyer end up in jail, they should still be able to vote — regardless of who they cast their vote for,” he wrote in USA Today.

He later added, “In my view, the crooks on Wall Street who caused the great recession of 2008 that hurt millions of Americans are not ‘good’ people. But they have the right to vote, and it should never be taken away.”

Some journalists, pundits, and activists have sided with Sanders. Writing in New York magazine, Zak Cheney-Rice argued that people aren’t imprisoned just because of bad decisions or mistakes, but also due to systemic factors that led them on a wrong path. Denying these people the right to vote robs them of the opportunity to express how society has failed them, how society continues to fail them through torturous and unconstitutional prison environments, and how society should and can be corrected, he argued.

“A society that expels from its conception of humanity so many people who are sick, or in pain, or who make mistakes based upon which their entire lives are suddenly deprived of the opportunity for redemption, is an immoral society,” Cheney-Rice wrote. “But most Americans will not see that unless prisoners have a voice in that society. Giving them the vote is not the whole answer, nor is it the only one. But it is an essential beginning.”

He pointed out that, beyond Maine and Vermont, several countries let people vote from prison to varying degrees, including France, Israel, Japan, and Sweden.

But so far, other Democratic candidates have mostly distanced themselves, to varying degrees, from Sanders’s proposal.

South Bend, Indiana, Mayor Pete Buttigieg spoke in stark terms, arguing, “I do believe that when you are out, when you have served your sentence, then part of being restored to society is that you are part of the political life of this nation again — and one of the things that needs to be restored is your right to vote.” He added, “But part of the punishment when you’re convicted of a crime and you’re incarcerated is you lose certain rights, you lose your freedom. And I think during that period it does not make sense to have an exception for the right to vote.”

Former Rep. Beto O’Rourke (D-TX), meanwhile, suggested that maybe there should be an exception for nonviolent offenders: “I would think especially for nonviolent offenders that we rethink removing the right to vote and allow everyone, or as many as possible, to participate in our democracy. For violent criminals, it’s much harder for me to reach that conclusion.”

Other candidates suggested they’re undecided. Sen. Elizabeth Warren (D-MA), for example, said, “Once someone pays their debt to society, they’re out there expected to pay taxes, they’re expected to abide by the law, they’re expected to support themselves and their families. I think that means they’ve got a right to vote. While they’re still incarcerated, I think it’s a different question. And I think that’s something that we could have more conversation about.”

Sen. Kamala Harris (D-CA) similarly said, “I think we should have that conversation.”

It’s a philosophical question: Can someone at some point do something so terrible that he loses his right to vote? For Sanders, the answer is no. For others, the answer is yes, though just how terrible the act has to be before that right is lost, and how long the right is lost for, varies from candidate to candidate.

Sanders’s stance is very unpopular

One reason Sanders’s Democratic opponents may be reluctant to support his idea: politics.

The idea of letting people in prison vote is very unpopular. A recent poll from the Hill and Harris X found that 69 percent of registered voters — and 61 percent of Democrats — said people who are incarcerated for a felony shouldn’t be allowed to vote.

Another poll by YouGov found that 65 percent of Americans disagree with Sanders’s statement that all prisoners, including “terrible people” like the Boston Marathon bomber, should be allowed to vote.

There is support for letting people vote after they complete their sentences. YouGov found that 65 percent of Americans agree that people convicted of a nonviolent felony should be allowed to vote after they have completed their sentences. And in Florida, voters approved an initiative, with nearly 65 percent in favor, letting people convicted of felonies vote once they’ve completed their sentences, with exceptions for those convicted of murder or felony sex offenses.

But with the poll numbers on prisoners’ voting rights, it’s not hard to guess why a bunch of Democratic candidates might be cautious about supporting the idea.

This has come up with some other issues in the Democratic primaries, like reparations. While some Democrats may truly believe that reparations are good policy, they’re still widely viewed as politically toxic. Sanders himself previously took this approach when asked about reparations, calling the idea “very divisive” in 2016.

But in other instances, and seemingly with prisoner voting rights, Sanders has stuck his neck out in support of political causes. He is, after all, a self-described socialist willing to take on the establishment. His entire 2016 campaign against Hillary Clinton was widely considered a long shot, but he launched it anyway largely to move the party to the left on issues like college and health care.

To Sanders’s credit, this worked. Today, Democrats are tripping over themselves in voicing their support for Medicare-for-all or at least some sort of expansion of public health insurance. It’s hard to see that happening, or the broader conversation about single-payer health care in general, without Sanders putting the issue at the front of his 2016 bid for the White House.

For activists, this is what they want to see. As the ACLU explained, “If we can raise the volume on key issues like criminal justice reform, immigration, voting rights and reproductive freedom with presidential candidates before the 2020 primaries, we can make sure civil rights and civil liberties are front and center.”

For many Democrats, though, this isn’t the time for stands purely based on principle. An overwhelming focus of the 2020 Democratic primaries is to find a candidate who can beat Trump. The notion of “electability” is one of the reasons that former Vice President Joe Biden is leading in the polls. So taking up a cause that is very unpopular and could help Democrats lose the 2020 election is a nonstarter for many, even those who may in theory support giving people in prison the right to vote nationwide.

There may be some political incentives for Democrats to embrace Sanders’s views on prisoner voting rights, though. The research indicates that letting people convicted of felonies vote could disproportionately benefit Democrats. That’s made Republicans more resistant to the idea — Trump and Vice President Mike Pence criticized Sanders’s comments — but it could make Democrats more receptive, too.

But, at least for now, most of the public, Democrats, and the presidential candidates are not on board.

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