Millions Of Americans Denied Right To Vote Because of Legal Problems
A significant percentage of the nation will not be voting for president not for lack of interest but because they are either in jail or prison, awaiting trial, are still completing a probation periods or are otherwise not allowed to vote because of longstanding, archaic laws.
As of 2022, more than 4.4 million Americans were prohibited from voting due to laws that disenfranchise citizens convicted of felony offenses.
And nowhere are the nation’s racist underpinnings more obvious than in the disenfranchisement of the prison population, particularly people serving time for non-violent, drug offenses. Prison and jail populations include disproportionately high numbers of black, brown and indigenous people who were low-income, homeless or disabled, or otherwise lived on the margins of society, before they were arrested. The latest report shows African Americans make up 35 percent of the prison and jail populations but only 14 percent of all U.S residents.
The Sentencing Project found that one of every 19 African American adults is barred from voting nationally. As of 2022, in Alabama, Arizona, Florida, Kentucky, South Dakota, Tennessee and Virginia more than one in 10 African American adults are disenfranchised. In total, 1.4 million African American citizens are banned from voting. At least half a million Latinx citizens are disenfranchised across the United States.
Voter disenfranchisement is an outgrowth of the common law practice of “civil death,” a set of criminal penalties that included loss of voting rights. After the American Revolution, states began codifying disenfranchisement provisions and expanding the penalty to all felony offenses. Many states instituted disenfranchisement policies in the wake of the Civil War, and by 1869, 29 states had enacted such laws.
In the post-Reconstruction period, several Southern states tailored their disenfranchisement laws in order to bar Black male voters.
The U.S. has the highest incarceration rate of any democratic nation and consequently the highest number of disenfranchised people. The European Court of Human Rights determined in 2005 that banning prisoners from voting violated the European Convention on Human Rights. Almost half of European countries allow all incarcerated individuals to vote, within the prison or by absentee ballot. In Canada, Israel, and South Africa, constitutional courts have ruled that any conviction-based restriction of voting rights is unconstitutional.
A 2024 report by the Prison Policy Initiative found that more than 1.9 million people are held in 1,566 state prisons, 98 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 142 immigration detention facilities, and 80 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. The overall cost is at least $182 billion each year.
A significant number of those incarcerated or awaiting trial are arrested for drug offenses, often a symptom of the poverty and crime in poor areas. More than 360,000 people were arrested on drug charges while police make more than 1 million drug possession arrests each year. An arrest on drug charges makes it difficult to get a job and presents the likelihood of a longer prisons sentences for a subsequent arrests.
Many innocent people are in jail because they cannot afford competent lawyers, or they are misinformed and plead guilty when faced with the pressure of a long sentence coming from a guilty verdict.
The non-profit Campaign Legal Center (CLC) reported that two out of every three people in U.S. jails, roughly half a million people, are being held while they await trial, either because they could not afford bail or because bail was set inordinately high. These Americans have not been convicted of a crime but restrictions on voting remain.
Restrictions have been eased in 44 states and the District of Columbia where people can vote in jail if they are serving time for minor, misdemeanor crimes. Exercising their right to vote, however, has been made incredibly difficult, resulting in a de facto disenfranchisement.
For example, people in jail or prison must depend on often unfriendly, uninformed corrections officers to provide the necessary forms and information and access to vote. Bureaucratic delays result in prisoners missing voting and registration deadlines. Prisoners have no Internet access to vote by mail or to acquire the needed registration forms. The CLC found that 30 percent of election officials in Ohio did not know if those serving misdemeanor sentences could still vote.
One draconian prison law is that many states require an excuse to vote by mail but they don’t consider incarceration as a valid excuse.
Jurisdictions have various rules about voting from jail. In California and Texas, individuals submit a voter-registration form and absentee or vote-by-mail request in the jail. Massachusetts jails consider detainees to be “specially qualified” and they do not have to register before completing an absentee ballot. In Chicago jails, a policy supports voter participation among homeless residents, who can vote if they include the address of a recognized shelter. Cook County (Chicago), Los Angeles County, and the District of Columbia facilitate in-person voting in their jails.
Many states have passed laws that make it harder to register and vote, like a Tennessee law that required voters to cast their ballot in person the first time they vote, an impossible requirement for someone who is in jail.
The result of the many roadblocks has meant that many prisoners simply choose not to vote. For example, the CLC reported that in one Ohio jail with 1,600 prisoners, only eight were able to vote in 2016. In another jail in the same county, only three inmates voted out of 500.
The Prison Policy Initiative reported that in 2022, more than 7 million people went to jail while about 469,000 were in state or federal prisons. Those held in local jails were arrested or couldn’t make bail, while only about 102,700 people in jail on any given day were convicted and were serving sentences under a year for misdemeanor crimes.
And after they are released, one in four will be arrested again in the same year, for crimes stemming from factors that were aggravated while in jail, including poverty, mental illness and substance abuse.
The report said that the median bail amount for felonies is $10,000, representing eight months of income for a typical detainee.
Additionally, many people are released with requirements of long, supervised probation. Too often, people on probation violate through minor infractions like breaking curfew or not paying supervision fees. At least 128,000 people were incarcerated for such non-criminal “technical violations” of probation or parole. The supervision violations accounted for 27 percent of all admissions to state and federal prisons. The Bureau of Justice Statistics found that almost 24 percent of people in state prisons were on probation at the time of their arrest.
The latest statistics show that 800,000 people are currently free on parole and 2.9 million people are on probation. And after their sentences and probation are complete, they remain in a legal purgatory as millions of people can’t find jobs or housing because of their criminal records. Without a permanent address, registering to vote is difficult, at best.
Many jurisdictions differentiate between violent and non-violent crimes when deciding on criteria to vote. State and federal laws apply the term “violent” to a wide range of criminal acts that may include such infractions as purse-snatching, manufacturing methamphetamines, and stealing drugs. Burglary is usually considered a non-violent property crime but it can be classified as violent if the burglary occurred at night, in a home or with a weapon.
Prisoners in a number of states will not receive automatic restitution upon release but will have to wait until completion of sentence which may also include parole, probation, fines, fees and a post-sentencing waiting period or other required action. The states include Alaska, Alabama, Arkansas, Arizona, Georgia, Delaware, Idaho, Florida, Kansas, Iowa, Louisiana, Kentucky, Missouri, Mississippi, Nebraska, Tennessee, North Carolina, Virginia, Oklahoma, Wyoming, South Carolina, South Dakota, Texas, West Virginia and Wisconsin.
Currently, only Maine, Vermont, and the District of Columbia allow incarcerated individuals to vote. The Federal Bureau of Prisons requires that all prisoners have access to educational materials on voting from all states.
In 14 states, people formerly incarcerated for felonies automatically regain the right to vote after completing their entire sentence, including probation or parole and, in some states, payment of certain court-appointed fines and fees. In 2021, about 30 percent of the total U.S. prison population came from these states.
Six states — Delaware, Florida, Iowa, Kentucky, Mississippi, and Wyoming — automatically restore voting rights for nonviolent felonies. The specific crimes disqualifying former prisoners from automatic voting right restoration varies from state to state, but most commonly includes homicide, sexual crimes, and certain theft crimes.
Eleven states have various rules about when people regain the right to vote after they have been released from a prison or jail. People in these circumstances represented about 21 percent of the 2021 prison population and included Arizona, Wyoming, Nebraska, Iowa, Kentucky, Virginia, Tennessee, Mississippi, Alabama and Florida.
Wyoming automatically restores voting rights to first-time offenders with nonviolent felony convictions, but not to repeat offenders or people convicted of violent felonies.
In Nebraska, people formerly incarcerated for felonies must wait two years after completing their full sentence before their right to vote are restored. In Arizona, repeat offenders can petition the court for restoration of voting rights two years after the completion of their sentence.
In Alabama, Tennessee, and Virginia, people formerly incarcerated for felonies who do not qualify for automatic restoration of rights must petition the court or state government. In Virginia and Tennessee, the petition process is the only way to restore voting rights.
The National Conference of State Legislatures, (NCSL) reported that “automatic restoration” does not always mean voter registration is automatic. Typically, prison officials inform election officials that a formerly incarcerated person’s rights have been restored. The person is then responsible for re-registering. Some states, such as California, require voter registration information be provided to formerly incarcerated people.
This year, Nebraska restored voting rights upon the completion of a sentence, including any parole term. The law was delayed in July after the state attorney general ruled that the legislature lacked authority to make the change. On Oct. 16, 2024, the Nebraska Supreme Court allowed the law to take effect. The Marshall Project reported that more than 7,000 people could be eligible to vote under the new Nebraska law.
In Mississippi, the U.S. Fifth Circuit Court of Appeals last year overturned a state law that imposed a lifetime voting ban for a range of felony convictions, including shoplifting and bad check writing. The Marshall Project found that the Mississippi law would have left at least 55,000 people unable to vote in Mississippi.
Oklahoma passed HB 1629 clarifying that individuals convicted of a felony are eligible to register to vote if their sentence was reduced to time served and they have no other outstanding sentence under any other felony conviction. The right to vote also is returned to people whose offenses have been reclassified from a felony to a misdemeanor with no remaining time to serve, have been granted a pardon and have no other outstanding sentence under any other felony conviction.
In Florida, voters passed a 2018 amendment that restored the voting rights of most people who had completed their sentences. The following year, state legislators said that before they can vote, former prisoners must pay all restitution, fines, and fees. The Sentencing Project estimated that 934,500 people who owe legal financial obligations remain disenfranchised in the state. Voting rights advocates have called the move a “poll tax” and a “pay to vote” system.
Virginia passed H 1330 which allows registered voters who are confined while awaiting trial or have been convicted of a misdemeanor to vote by absentee ballot.
In 2023, Minnesota and New Mexico restored voting rights to citizens on parole. Tennessee’s Supreme court ruled that felons could vote only after they get their voting rights restored by a judge or provide evidence that they were pardoned. Virginia Gov. Glenn Youngkin reversed the practice put in place by Gov. Ralph Northam. Wyoming passed S 120 which automatically restores rights to citizens five years after completing their sentence, including probation and parole.
In 2019, Oklahoma HB 2253 clarified that persons convicted of a felony are eligible to register to vote when they have fully served their sentence, including incarceration, parole, or supervision, or completed a period of probation ordered by the court.
Also, in July, 2019, Florida Gov. Ron DeSantis signed SB 7066,which defined “completion of sentence” to include release from imprisonment, termination of any ordered probation, fulfillment of any terms ordered by the courts, termination of any ordered supervision, full payment of any ordered restitution and the full payment of any ordered fines, fees or costs.
The Innocence Project reported that in Maine, Vermont, District of Columbia and Puerto Rico people may vote while serving a prison sentence.
People are eligible to vote immediately after release from prison in California, Colorado, Connecticut, Guam, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New York, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah and Washington. In these states, the right to vote is extended even if a person is on probation or parole, or owes any money, including fines, fees, costs, or restitution.
People may vote after completing parole or probation in Alaska, American Samoa, Idaho, Kansas, Louisiana, Missouri, North Carolina, Northern Mariana Islands, Oklahoma, South Carolina, South Dakota, Texas, U.S. Virgin Islands, West Virginia and Wisconsin.
People may or may not be eligible to vote after completing sentences in Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Iowa, Kentucky, Mississippi, Nebraska, Tennessee, Virginia and Wyoming. Voting rights may be provided after meetings certain conditions, including parole, probation, and/or payment of any owed money including fines, fees, costs, or restitution.