Last month a trio of civil liberties groups and eight former inmates
filed suit against the state of Florida for a law that strips ex-felons
of the right to vote. The suit charges the Florida law has a disproportionate
affect on the black electorate, and is thus unconstitutional. The
ultimate aim of the action is to challenge all state laws that disenfranchise
According to a 1998 report by Human Rights Watch and the Sentencing
Project, 2 percent of all Americans, or 3.9 million, have lost the
right to vote because of felony convictions. Of that number, 1.4
million (36 percent) are African-American men, which represents
13 percent of all voting-age black men and reflects a rate of disenfranchisement
that is seven times the national average.
In the states of Florida and Alabama, one in three black men is
permanently disenfranchised, and in seven other states that ratio
is near 25 percent. If current trends continue, the study notes,
30 percent of the next generation of black men can expect to lose
their right to vote at some point in their lifetimes.
Laws disenfranchising felons have been around since the early days
of the nation, but after the Civil War they took on an added significance
and (especially in the southern states) specifically targeted formerly
enslaved Africans and their descendants. Currently, 47 states and
the District of Columbia have laws that deprive inmates of the right
to vote (the three states that permit inmate voting are Maine, Massachusetts
and Vermont). Thirty-two states further deny the vote to persons
on probation or parole; in 15 states a felon can be barred from
voting for life. The skyrocketing growth of the racially disparate
inmate population has exacerbated discriminatory effects of these
The Florida suit was filed on behalf of the eight former inmates
by the Brennan Center for Justice at New York University's School
of Law, the Lawyers Committee for Civil Rights Under Law in Washington
and James Green, a Florida civil rights attorney. According to Nancy
Northup, director of the Brennan Center's Democracy Program, Florida
was targeted because it has the largest number of disenfranchised
ex-felons in the country, and because the law there was enacted
specifically to deny blacks the right to vote in the aftermath of
the Civil War.
The precedent for this challenge is a 1985 ruling, Hunter v.
Underwood, that struck down an Alabama criminal disenfranchisement
law under the 14th Amendment's equal protection clause. The court
held that any criminal disenfranchisement law that had a racially
discriminatory intent and effect would violate that clause. No other
democracy bars convicted offenders from voting for life. In fact,
many countries—including France, Germany, Sweden, Norway and Poland—permit
those in prison to vote. Most democracies have concluded that such
laws defeat the purposes of incarceration: rehabilitation and public
safety. Since most prisoners will return to the community, society
has an interest in cultivating their sense of social obligation
and encouraging civic engagement; electoral participation is the
bedrock of civic engagement.
Disenfranchisement laws are so destructive to democratic values
they can hardly be justified except as part of an exclusivist tradition.
The Florida suit seeks to break that tradition through the courts.
Others are trying in other venues. Rep. John Conyers (D-Michigan)
last year introduced the Civic Participation and Rehabilitation
Act, which would restore the right to vote in federal elections
to individuals who have been released from prison. Conyers' measure
has received little support, but it is a bill whose time has come.