A Brief History of Felon Disenfranchisement and Prison Gerrymanders
This essay explores two problems that have largely evaded current scrutiny of America’s carceral state but that have profound implications for democracy and representation in America: felon disenfranchisement laws and prison gerrymanders. America currently disenfranchises over six million citizens with a felony conviction. Forty-eight out of fifty states disenfranchise individuals while they are incarcerated. Because a disproportionate number of prisoners are black and Latinx and tend to come from urban and poor communities, felon disenfranchisement laws disproportionately burden the already marginalized, both as individuals and as a class. Moreover, many jurisdictions across the country engage in prison gerrymandering, which is the practice of counting the incarcerated in an electoral district in which a prison is located. This artificially inflates the size of such a district relative to adjacent districts without a prisoner “filler” population. Because the vast majority of America’s prisons are located in areas that are predominantly white, prison gerrymanders tend to enhance the representation of those communities while diminishing the representation of urban communities of color. These gerrymanders also disadvantage neighboring jurisdictions that have no prison population with which to expand the size of their electoral districts. Both practices run aground of key aspects of the Voting Rights Act, the Fourteenth Amendment, and the concept of “one person, one vote.” Prison gerrymanders also evoke the Three-Fifths clause, this time at a ratio of one-to-one. Taken together, these two practices imprison not just people, but democracy.
The practice of disenfranchising those convicted of a felony in the United States has deep roots that extend to the medieval principle of “civil death.” According to this principle, those who commit a serious crime against society forfeit their civic personhood, including their right to vote, either for a period of time or permanently. In the American context, these laws reflect the elitism of America’s colonial and founding eras. Some founders such as Benjamin Franklin, Samuel Adams, and George Mason promoted universal suffrage to stave off a democracy that would “betray a great partiality to the rich.” However, less egalitarian sentiments such as John Randolph’s declaration that “I am an aristocrat. I love liberty. I hate equality” prevailed.
Felon disenfranchisement laws proved very effective at limiting the political influence of those considered to be inferior. These laws first appeared in the United States in the early nineteenth century and proliferated with increases in European migration, reinforcing both nativist and elitist distrust of popular sovereignty. They also reinforced precepts of black inferiority and criminality that pervaded the colonial and antebellum eras, and thus have had a particularly pernicious effect on African-American political power. The Radical Reconstruction era, crowned by the ratification of the Fifteenth amendment protecting the voting rights of men of African descent, began to crumble after the compromise of 1877. Soon thereafter, states of the former Confederacy undermined that amendment by passing felon disenfranchisement laws based on entrenched beliefs about black inferiority. They, along with other Jim Crow laws, suppressed virtually all black political power in the South for nearly a century. After the civil rights movement of the 1960s, southern states purged their constitutions of their most egregious provisions. But most left intact their felon disenfranchisement laws and, implicitly, their racist intent.
In a twist on Seymour Martin Lipset’s conceptualization of “American exceptionalism,” the United States is exceptional in the sheer size of the population it disenfranchises due to felony convictions. Every state except Vermont and Maine disenfranchises prisoners (Puerto Rico also allows incarcerated individuals to vote). In fourteen states and the District of Columbia, the incarcerated regain their eligibility to register to vote immediately upon release. Twenty-eight states suspend the voting rights of those on probation and/or parole, after which their eligibility is automatically restored. Seven states permanently disenfranchise some individuals with felony convictions unless they obtain restoration of their eligibility from the courts or the governor. Florida, Iowa, Kentucky permanently disenfranchise all with felony convictions, unless governmental entities approve restoration of their voting rights. The restoration processes are usually extremely difficult to accomplish. Governors in Florida and Kentucky rescinded their felon disenfranchisement laws in 2007 and 2016 respectively. During the reprieve period in Florida, 155,315 formerly disenfranchised individuals regained their voting rights. However, the reprieves were brief. Subsequent governors reinstated Florida’s permanent ban in 2011, and Kentucky’s in 2017.
Felon disenfranchisement has a negative impact on voting and representation in America. The number of people disenfranchised due to a felony conviction as increased more than five-fold in four decades. In 1976, approximately 1.17 million individuals were disenfranchised due to felony convictions. That number nearly tripled to 3.34 million in 1996. Over the next twenty years it nearly doubled again to approximately 6.1 million in 2016. In states that disenfranchise felons until after they have completed their sentences, including parole and probation, such individuals make up about 45 percent of the entire disenfranchised population in those states, and total over 2.6 million people overall. As of 2010, six states–Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia–disenfranchised more than 7 percent of their adult populations.
The impact of felon disenfranchisement is significant in most states and severe in the states specified above.
Because communities of color and the poor are disproportionately incarcerated, felon disenfranchisement laws disproportionately affect them. As noted above, such laws have a particularly deleterious effect on black political power. Approximately one in every thirteen African Americans in the United States is disenfranchised. Put otherwise, nearly 8 percent of the adult African American population is disenfranchised compared to 2 percent of the overall population. In Florida, Kentucky, and Virginia more than one in five blacks are disenfranchised based on their felony status. Floridians with a felony conviction can regain their voting rights, but only through an onerous process. First, they must wait five years after their release to begin this process. Second, they must successfully petition the governor to reauthorize their eligibility to vote. As of mid-2017, 10,513 Floridians had applied to re-establish their eligibility. But the governor heard only about fifty such cases per quarter. At that rate, it would take decades for these individuals to regain the right to vote. Meanwhile, the success rate is very low, and minor infractions such as traffic tickets and recreational drinking can disqualify an applicant. In 2017 Alabama revised its permanent voting ban on those convicted of offenses that fell under the ill-defined Redemption Era classification of “crimes of moral turpitude.” Prior to this, all but five felony crimes were loosely classified as crimes of moral turpitude. The new law now specifies about fifty crimes in this classification that trigger permanent disenfranchisement. This revision is expected to render thousands of Alabamians ineligible to register to vote. On the whole, while felon disenfranchisement was initially intended as “a symbolic act of political banishment,” the banishment is real, particularly for members of already marginalized communities.
Prison-based gerrymandering takes the act of political banishment a significant step further. Opponents of the practice contend that it “artificially inflates the population count and the concomitant political representation of the districts where prisons and jails are located.” The most egregious example of such inflation occurred in 2008 in Anamosa, Iowa, where Danny R. Young was elected to the city council with a total of two write-in votes—one of which was from his wife. His district included the population of a large state penitentiary, which meant that only fifty-eight of Young’s 1,400 or so constituents were not incarcerated and thus eligible to vote. This was compared to about 1,400 non-incarcerated constituents in each of the three adjacent wards. The imbalance gave Councilman Young’s fifty-eight non-incarcerated constituents about twenty-five times as much political power as their peers in adjacent wards.
Although this example is extreme, the fact that dozens of jurisdictions engage in this practice adds up to a pervasive problem of malapportioned representation across the country.
Prison gerrymanders also tend to come at the expense of “urban communities of color, whose members are disproportionately represented in the incarcerated population.” For example, “60% of Illinois' prisoners are from Cook County (Chicago), yet 99% of them are counted outside the county...In Texas, one rural district’s population is almost 12% prisoners. Eighty-eight residents from that district, then, are represented in the State House as if they were 100 residents from urban Houston or Dallas.” Moreover, seven out of ten incarcerated individuals in Illinois identify as black or Latinx, yet nearly ninety-five percent of the prison population is located in counties that are overwhelmingly white. Of the ten counties with the highest percentage of prison residents, eight of them had non-prison populations that were at least eighty-five percent white.
The intersection of race and partisan implications are also clear, as most prisons are located in areas that are as overwhelmingly Republican as they are white. These geographic, racial, and partisan counter-currents are common to virtually all prison gerrymanders.
Another problem with prison gerrymanders is that of “ghost” constituents. Electoral district populations are not adjusted with the release or relocation of incarcerated individuals. Because newly released individuals are not counted at their new address until the next census, their political presence remains incarcerated at their former prison address. The same would go for those who are transferred from one institution to another. Consequently, though no longer physically present in that district, these "phantom” constituents continue to enhance the political power of the communities that count them in their districts for many years.
Inmates politically empower the communities in which they are held regardless of whether they share the same interests as those communities. Conversely, representatives of jurisdictions in which prisons are located do not necessarily view prisoners as their constituents. When Anamosa Councilman Young was asked if he considered the inmates who constitute an overwhelming majority of his ward’s population to be his constituents, his response was that “[t]hey don’t vote, so, I guess, not really.” In a 2016 challenge to a prison gerrymander in Jefferson County, Florida, a local legislator said that he “considers the Jefferson Correctional Institute a part of the community,” but that “[a]bout “the only opportunity we have to interact with the inmates directly would be maybe when we see them on work crews” and that “there was nothing that I could help any of these prisoners with that they asked for.” His subsequent testimony indicated that he represented the prison staff and surrounding community more than the inmates in terms of ensuring that the facility stayed open. A second legislator expressed compassion for the incarcerated and even distress over the institution’s poor conditions. But when asked if she felt compelled to address those conditions or prisoners’ interests, she responded that she “could not do anything about that. That’s the way it was made.” When asked if she had ever campaigned to those in prison, she responded “No. If they can’t vote, I mean, why would I do that?” The testimony of these two legislators was key to the judge’s decision to overturn the prison gerrymander.
The practice of counting prisoners in electoral districts is longstanding, beginning with the first United States Census in 1790. While incarceration rates were low, prisons were in or near prisoners’ home communities, and census data was used solely to allocate congressional seats, prison gerrymanders did generate little controversy. They also had minimal influence on representational outcomes. The incarcerated were, by one account, “minimal blips in the redistricting data.” Nor does there seem to be any evidence of racial animus behind prison gerrymanders. The racial inequities that emerge from this practice are seen by some as simply the product of “historical accident”.
The exponential growth of America’s prison population since the 1980s, along with the racial and ethnic imbalance of that population, has brought increased scrutiny of prison gerrymanders. By the early 2000s, Colorado, Michigan, New Jersey, and Mississippi stopped including prisoners in their electoral districts. Several more states have sought to abolish the practice, either by excluding incarcerated individuals when redistricting, or by allocating them to their pre-incarceration addresses. In 2012, California and Delaware passed laws to do the latter. However, they will not go into effect until after the 2020 census, and Delaware’s law applies only to state legislative districting. In 2017, State Representative LaShawn Ford reintroduced the “No Population Without Representation Act” to the Illinois House of Representatives. Despite these reversals, the number of localities that count prisoners in their electoral districts actually increased between 2000 and 2010, and the issue still garners little attention.
In defending voter ID laws, then-speaker of the Minnesota House of Representatives declared in 2011 that voting “is a privilege, it’s not a right.” The tenacity of felon disenfranchisement laws demonstrate the tenacity of a limited approach to democracy, and equality, in this country. Common perceptions of the currently and formerly incarcerated are that they have little interest in voting. Reality, however, indicates otherwise. For over 100,000 formerly incarcerated individuals in Florida to regain their voting rights in the span of four short years demonstrates strong voter engagement among those involved with the criminal justice system. The “Unlock Your Vote” efforts by the Texas Criminal Justice Coalition, the 2014 findings of high voter interest and engagement among formerly incarcerated individuals by the Georgia Justice Project, the turnout of 1,200 detainees at an election station set up at Cook County Jail in 2016 (the first time an election was held there in over a decade), and a legal challenge of Florida’s felon disenfranchisement brought by individuals with felony convictions are among increasing examples of such engagement.
Paraphrasing the title of Michael Waldman’s book, the right to vote and be represented has often been a fight to vote and be represented. Compared to the past, today there is a critical mass of formerly incarcerated individuals and their allies who are prepared to do legal and political battle to restore this crucial aspect of their citizenship.
Christina Rivers is an associate professor of Political Science at DePaul University. She earned her BA in political science from the University of California, Irvine and her Ph.D. in government from Cornell University. Her teaching and research focuses on black politics and political thought, law and voting rights, and the political implications of mass incarceration on those with felony convictions and their communities. She also teaches on these topics at Stateville Correctional Center in Crest Hill, Illinois
Jean Chung, “Felony Disenfranchisement: A Primer,” The Sentencing Project, June 2013, p. 2–3. Marc Mauer and Meda Chesney-Lind, Invisible Punishment: The Collateral Consequences of Mass Imprisonment (2003), 50–51. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (2009), 131–32. Keesha Middlemass, “Unfit to Vote,” in Racializing Justice, Disenfranchising Lives: The Racism, Criminal Justice, and Law Reader, ed. Manning Marable, Ian Steinberg, and Keesha Middlemass, (2007), 218–20. Michael Waldman, The Fight to Vote (2017), 24, 43.
Waldman, The Fight to Vote, 22–23, 39, 43. See A. Leon Higginbotham, In the Matter of Color: Race and the American Legal Process: The Colonial Period (1980). Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (2006), 49–52. See Douglas Blackmon, Slavery by Another Name: The Re-enslavement of Black Americans from the Civil War to World War II (2009). Some states in the west southwest also targeted Latinx and Native American populations with felon disenfranchisement laws and other Jim Crow forms of vote suppression. For more on the latter see Dan McCool et. al, Native Vote: American Indians the Voting Rights Act, and the Right to Vote (2007). Florida Rights Restoration Coalition and the Brennan Center for Justice, “History of Florida’s Felony Disenfranchisement Provision,” March 2006
Demos, Restoring Voting Rights to Citizens with Felony Convictions (2003). National Conference of State Legislatures, “Felon Voting Rights.” Brett Useem and Anne M. Piehl, “Prison Build Up and Disorder, Punishment and Society (Jan. 2006), 46; Jean Chung, “Felony Disenfranchisement: A Primer,” The Sentencing Project, Jan. 2007, p. 3; Brennan Center for Justice, “Criminal Disfranchisement Laws Across the United States,” 2016. Charlie Crist, “Restore Voting Rights to Florida Felons: They’ve Paid Their Debt,” Orlando Sentinel, June 13, 2017. Waldman, The Fight to Vote, 204.
Christopher Uggen, Ryan Larson, and Sarah Shannon, “Six Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016,” Oct. 6, 2016, The Sentencing Project.
Useem and Piehl, “The Prison Build up and Disorder,” 46. Christopher Uggen, Jeff Manza, and Sarah Shannon, “State-Level Estimates of Felon Disenfranchisement in the United States, 2010,” The Sentencing Project, July 2012, p. 1. Hand et. al. v. Scott et. al., United States District Court for the Northern District of Florida, Civil No. 4:17-cv-00128-MW-CAS, 6–7. Connor Sheets “Gov. Ivey signs bill restoring 'thousands' of Alabama felons' right to vote,” AL.com. Keyssar, The Right to Vote, 132. Middlemass, “Unfit to Vote,” 218.
Dale E. Ho, “Prison-Based Gerrymandering and the Current Redistricting Cycle,” Stanford Law and Policy Review, (No. 2, 2011), 355–56. Prison Policy Initiative—Prison Gerrymandering Project, “The Problem.” Sam Roberts, “Census Bureau’s Counting of Prisoners Benefits Some Rural Voting Districts,” The New York Times, Oct. 23, 2008.
Ho, “Prison-Based Gerrymandering and the Current Redistricting Cycle,” 355–56. Casey Hendricks, José Acosta-Córdova, and Amanda E. Lewis, “How Prisons Inflate White Voting Power in Downstate Illinois,” The Chicago Reporter, Oct. 9, 2017. Heather Ann Thompson, “How Prisons Change the Balance of Power in America,” The Atlantic, Oct. 7, 2013, .
John C. Drake, “Locked Up and Counted Out: Bringing an End to Prison-Based Gerrymandering,” Washington University Journal of Law & Policy, (2011), 260. Editorial, “Phantom Constituents in the Census,” The New York Times, Sept. 26, 2005, https://goo.gl/C3hmwV.
Tracy Huling, “Building a Prison Economy in Rural America,” 210–212, Marc Mauer and Meda Chesney-Lind, Invisible Punishment: The Collateral Consequences of Mass Imprisonment (2002). Peter Wagner, “Momentum Builds to End Prison-Based Gerrymandering,” Prison Legal News, Dec. 15, 2012, p. 1, 13, https://goo.gl/bRY7xT. Roberts, “Census Bureau’s Counting of Prisoners Benefits Some Rural Voting Districts.” Deposition of Hines Boyd in Calvin et. al., v. Jefferson County, et. al., U.S. District Court, Northern District of Florida, Jan. 26, 2016, p. 16–19, 21. Deposition of Shirley Washington, ibid., p. 33–34. Opinion, ibid., p. 42–44, 59, 65–77.
Anthony Thompson “Unlocking Democracy: Examining the Collateral Consequences of Mass Incarceration on Black Political Power,” Howard Law Journal, (2010–2011), 600–601. Peter Wagner “Breaking the Census: Redistricting in an Era of Mass Incarceration”, William Mitchell Law Review, (No. 4, 2010–2011), 1242; Wagner, “Momentum Builds to End Prison-Based Gerrymandering,” 1.
Wagner, “Breaking the Census,” 1248–51. Leah Sakala, “Census Bureau Contributes to Prison-Gerrymandering,” Race, Poverty, and the Environment (No. 2, 2011), 41. Thompson, “Unlocking Democracy,” 629. Prison Policy Initiative, “Fixing Prison-Based Gerrymanders after the 2010 Census: A 50-State Guide,” https://www.prisonersofthecensus.org/50states/. Illinois General Assembly, “No Representation Without Population Act,” https://goo.gl/gKu4F2. Prison Policy Initiative, “The Impact on Local Democracy, Prisoners of the Census, https://www.prisonersofthecensus.org/problem/local.html.
Waldman, The Fight to Vote, 19–32,41–44, 63–69, 84, 204. “Unlock Your Vote!” https://goo.gl/xD3PWZ. Geroge Jusitce Project, “Georgia Justice Project’s 2014 Felony Disenfranchisement Study Report,” http://www.gjp.org/wp-content/uploads/Final-Report-Final2.pdf. La Risa Lynch, “Voting Behind Bars,” The Chicago Defender, July 5, 2017, https://chicagodefender.com/2017/07/05/voting-behind-bars/. Hand et. al. v. Scott et. al., United States District Court for the Northern District of Florida, Civil No. 4:17-cv-00128-MW-CAS.