Sasha Abramsky is a senior fellow at Demos: A Network for Ideas & Action and the author of Conned (The New Press).
Late this summer Judge Robert Vance, Jr., of the Circuit Court of Jefferson County, issued a decree that the blanket disenfranchisement of felons in Alabama violated the state’s constitution. A few weeks later, at the urging of the state’s attorney general, Vance agreed to put most of his order on hold until after the November elections. The delay would, he said, give the state’s Supreme Court a chance to weigh in on the question.
Vance’s initial ruling was a brave one and ought to have been applauded by all who care about voting rights in America. Yet, even before political pressure led to his backtracking, Vance’s decision was founded almost on a technicality, rather than on a principled objection to disenfranchisement per se . Let me explain.
Because election law is generally left up to individual states, America has a crazy-quilt system of laws when it comes to felons and voting rights. In Maine and Vermont, felons can vote even while they’re in prison. In Utah they cannot vote while in prison but their political rights are restored the moment they exit the prison gates at the end of their sentences. Elsewhere parolees cannot vote. Some states impose additional waiting periods at the backend of a person’s sentence before they can vote, and still other states have a system of “permanent disenfranchisement” in place, whereby one-time felons have to go through a variety of difficult bureaucratic processes in order to apply to have their voting rights restored. If they don’t make this effort, they remain voteless. Alabama, like many of its southern neighbors, is in the latter category.
Yet, to make matters still more confusing, while a state like Florida simply disenfranchises all ex-felons until such time as they can convince the governor and his staff that they are worthy of re-enfranchisement, Alabama’s disenfranchisement laws rest on Jim Crow-era language that was originally intended to allow elections’ officials to remove the vote from people convicted of supposedly “black crimes.” In Alabama, a felony conviction only triggers disenfranchisement if the crime involves a vaguely defined concept called “moral turpitude.” A catch-all term largely defined by county officials in any way they chose, “moral turpitude” was, like the poll tax and the literacy test, a tool used by white authorities during the darkest days of racial segregation to preserve their political dominance over African Americans in the state. Hence people convicted of stealing food—a crime most likely to be committed by impoverished, landless, ex-slaves—lost their vote, while those convicted of a host of violent crimes that were thought to be more frequently committed by whites at the end of the 19th century didn’t.
In the decades since the passage of the Voting Rights Act, Alabama has changed its “moral turpitude” provisions. These days, any felony is deemed to have a moral element, and thus any felony triggers a person’s disenfranchisement. This was the state’s way of approaching disenfranchisement in a color-blind manner. Judge Vance’s recent court decision essentially said the state wasn’t playing fair; that since individual crimes weren’t identified by legislatures as involving the somewhat ethereal element of “moral turpitude” the state was exceeding its power by disenfranchising all felons.
It was a brave decision, but it is also a double-edged one. Taken in one direction, the ruling serves to re-enfranchise the hundreds of thousands of Alabamans who have had to sit out recent elections—men such as Clinton Drake, a Montgomery resident and Vietnam war veteran whom I interviewed, who lost his voting rights after being convicted of a low-end marijuana offense; or the 40-something year old man I met in Dothan who had been unable to vote since getting drunk one day when he was 18 and barging into a stranger’s house—a breaking and entering offense for which he had served no prison time but which had left him with a felony record. Since upwards of a quarter of a million Alabamans are now voteless, and since approximately one quarter of black men in the state have been told they cannot cast ballots come Election Day, this clearly has a tremendous impact on the state’s political system—and might well, ultimately, impact closely-fought political races.
Taken in another direction, however, the ruling could lead back to the bad-old-days of selective disenfranchisement based on type of crime—a route that could, all too quickly, recreate the worst forms of racial stereotyping and discrimination. For, according to this ruling, if the state were to, for example, legislate that all drug felons were henceforth to be regarded as having committed acts of "moral turpitude," that would satisfy the court’s objections to felon disenfranchisement—even if, for a host of complex reasons, a vastly disproportionate number of African-Americans in Alabama, and countrywide, get caught up in the War on Drugs. Just such a scenario has been made more likely with Vance’s decision to put his ruling on hold, and his explanation that he hoped the state’s legislature would, in its next session, explicitly define what sorts of crimes would lead to a loss of voting rights.
Given the startlingly large numbers of people now getting felony records—not because the country is more besieged by violent crime and hardened criminals today than at most other moments in its history, but because of a series of public policy decisions made since the early 1970s that have had the effect of ramping up all elements of the country’s criminal justice system and have resulted in a five-fold increase in the incarcerated population—felon disenfranchisement statutes only serve to take already marginalized classes and races and to magnify their disengagement with the political process.
Instead of arguing about exactly what crimes involve “moral turpitude,” as a society we’d be far better served if our political and judicial leaders were to engage in a genuine debate about the merits and costs of spending an ever-greater percentage of our national wealth on locking people up; if we were to engage in more serious conversations about how best to tackle deep societal problems such as mass drug addiction and the alienation and despair felt by so many millions of poor Americans.
This isn’t a debate about “coddling criminals.” After all, no law-abiding person wants to live in a society ravaged by crime.
Rather this is a debate about how best to tackle the root causes of crime and how best to ensure that ex-criminals are successfully—and law-abidingly—reintegrated into the community at the tail-end of their sentences. Removing the vote from millions of Americans doesn’t make anyone safer; instead, it further alienates already marginalized people, and ultimately undermines the workings of the very democratic institutions we so value.
