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Virginia Gives Many Former Felons Permission to Vote

June 3, 2013 10:29 am / Leave a comment

In Civil Rights Victory, Virginia Restores Voting Rights for Hundreds of Thousands Nonviolent Felons

In a major victory for voting rights, Virginia’s Republican Gov. Bob McDonnell has announced he will automatically restore voting rights for people with nonviolent felony convictions. His decision will eliminate the two-year waiting period and petition process that currently disenfranchises thousands of nonviolent felons who have completed their sentences and satisfied all the conditions of their punishments. According to the Sentencing Project, 350,000 Virginians who have completed their sentences remained disenfranchised in 2010. We speak to Benjamin Jealous, president and CEO of NAACP, which has been on the forefront of the campaign to restore voting rights to former felons. The news comes as the U.S. Supreme Court prepares to issue a major ruling that could decide the future of the Voting Rights Act.  Please click here to see this video episode. It explains the issues behind this very welcome development. This is really great news.  It doesn’t, however, change Virginia’s constitution and it is based on an executive decree, which another governor can simply recind. So the title of the piece is a little misleading since it doesn’t change anyones voting rights, it simply restores the ability of a class of non-violent former felons to vote.
I have written extensively on voting rights.  What rights you have regarding voting is determined by which state you happen to live.  The federal constitution only limits the ability of states to discriminate based on age, race, gender and such. States’ constitutionally explicit voting rights are much vary greatly and are not as comprehensive as most citizens would believe.  What isn’t explicit in constitutional language, however, is usually provided in state statues so that voting in every state looks much more uniform and universal than it actually is.   For more on state-by-state constitutional voting rights, click here.
In addition to general voting rights outlined in state constitutions, most states have constitutional exceptions as to who may or may not be allowed to vote.  Below is a table which shows common voter qualification and disqualifications as contained in the state constitutions.
Number of States WithThis Right
Percent of US Population With ThisRight
QUALIFICATIONS and EXCEPTIONS
49
99.6%
Must be A US Citizen
46
91.2%
Must be Registered to vote
20
27.6%
State’s Deployed Solders Can Vote
37
83.9%
Felony Exception
12
15.5%
Treason Exception
13
30.9%
Incarceration Exception
33
69.5%
Mental Capacity Exception
2
0.5%
Moral Conduct or other Exception
23
34.0%
Restoration from Exception
10
17.6%
No quartered solders
2
1.8%
Right to Appeal Voter Ineligibility
The greatest variation among state constitutions involves voter disqualifications.  Thirty-seven states don’t allow felons to vote and twelve states also include treason as a voter disqualification, but there are differences in how broadly or narrowly these exceptions are defined. http://aseyeseesit.blogspot.com/2012/04/can-convicted-felon-vote-major.html
State statute laws and policies create a certian amount of lattitude to manipulate the voter roles. This has become a problem in recent election cycles.  Here is just one example pertaining to felons that appeared in the Huffington Post prior to the last presidential election.
huffingtonpost.com
Posted: 07/12/2012 3:01 pm Updated: 07/12/2012 3:08 pm
Michael McLaughlin

“A record number of Americans with criminal records cannot vote in what is expected to be a tight presidential election, a new study says.

More than 5.85 million adults who’ve been convicted of a felony aren’t welcome at polling places, according to data through 2010 compiled by The Sentencing Project. That’s 600,000 more than in 2004, the last time the nonprofit group crunched the numbers.

“The vast majority of these disenfranchised adults have been released from prison. Sentencing Project researchers found more than 4 million Americans who cannot cast a ballot because they’re on probation or parole, or live in a state that withholds the right to vote from all ex-felons.

RACIAL DISPARITY

  • More than 60% of the people in prison are now racial and ethnic minorities.
  • For Black males in their thirties, 1 in every 10 is in prison or jail on any given day.
These trends have been intensified by the disproportionate impact of the “war on
drugs,” in which two-thirds of all persons in prison for drug offenses are people of color. – The Sentencing Project

 

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OUR VOTING RIGHTS – A State by State Analysis

January 7, 2013 1:24 pm / 2 Comments on OUR VOTING RIGHTS – A State by State Analysis

In an off handed comment made after the 2012 election, President Barack Obama said we need to fix our election process.  This is a welcome suggestion.  Our election process is badly broken and we need to take a good look at it.  We should start by asking:

What voting rights do I have in my state? 

This is not a commonly asked question, but it should be.  Most of us believe voting rights are guaranteed under the federal constitution. This isn’t exactly true.  The Constitution contains several amendments to prevented states from disenfranchising certain categories of voters. For example, states cannot use race, religion, gender or the age of anyone 18 or older as a means to disqualify a “citizen” from voting.  The actual right of suffrage, however, isn’t a federal guarantee. This is up to the states.  Fixing our voting system will be a state by state effort.

In all our public discussions about elections there is rarely mention of how voting rights differ in various states. When you look at state constitutional language on voting rights, however, you quickly learn that many of the rights we take as granted, such as a right to secret ballots, are nowhere to be found in most state constitutions.  In fact, state constitutional voting rights differ widely from one state to the next.

The wide variation in voting rights are not immediately evident because state laws, administrative regulation and voting practices over time have created consensual frameworks for elections that appear similar from state to state.  For example, the vote counting process is open for public view in most states, but only the constitutions of Louisiana, South Carolina and Virginia guarantee public vote counting.  California is the only state guaranteeing that  votes will even be counted.  After candidates concede defeat based on vote projections, the states are not constitutionally obligated to finish counting every ballot.

When elections run smoothly and no questions are raised, everyone consents to the will of the majority. This is true because in a representative democracy, elected officials are expected to represent everyone’s interests and not just the interests of those who voted for them. But when elections are very close and the process seems flawed, explicit constitutional language is essential to protect the democratic process and win over the consent of the minority.  Elections have consequences.  Flawed elections or overtly partisan representation can have dire consequences. Faith in our democracy begins with faith in our voting systems.

I am not a lawyer or constitution expert, but curiosity about state voting rights caused me to survey all fifty state constitutions and document the articulated rights in each.  Some results of this exercise are presented in the tables below.  Keep in mind that some constitutions have very archaic language or formats that make them difficult to interpret.  The information below represents my best effort to classify and document basic voting rights as articulated in state constitutions.  It is followed by a brief discussion for each of the categories presented below.

Basic Voting Right Articulated in Individual State Constitutions
StateVotingRights
 
DISCUSSION OF VOTING RIGHTS FOUND IN STATE CONSTITUTIONS
RIGHT TO HAVE EVERY VOTE COUNTED  –  As mentioned above, California is alone in this protection. This right may seem obvious or implied,  but there are documented instances where absentee ballots have gone missing and uncounted.  One example took place back in 2008 in Santa Fe, New Mexico, when garbage bags believed to contain missing ballots were impounded by police but not opened because it was unclear if the missing ballots had to be counted.
GENERAL RIGHT OF SUFFRAGE –  Many state constitutions have high sounding language about how all power is derived by the people, but only nine state explicitly guarantee the right of suffrage.  Suffrage is the right to vote in a democratic process. It is the political franchise itself, not the right of any one individual. It says that elected officials do not have the power to suspending elections.  This seemingly essential right of the people is specifically named in only nine state constitutions.
RIGHT TO FREE AND FAIR ELECTIONS – “In any State the authority of the government can only derive from the will of the people as expressed in genuine, free and fair elections held at regular intervals on the basis of universal, equal and secret suffrage.”  So said the Inter-Parliamentary Council at its 154th session in Paris, 26 March, 1994.  Here in the US, the State Department was actually very helpful in sharing their view on Free and Fair Elections with nations whose democracies are less advance than our own.  They provided third-world countries with the following guidelines:
Free and fair elections require:
– Universal suffrage for all eligible men and women to vote
– democracies do not restrict this right from minorities, the disabled, or give it only to those who are literate or who own property
– Freedom to register as a voter or run for public office.
– Freedom of speech for candidates and political parties
– democracies do not restrict candidates or political parties from criticizing the performance of the incumbent.
– Numerous opportunities for the electorate to receive objective information from a free press.
– Freedom to assemble for political rallies and campaigns.
– Rules that require party representatives to maintain a distance from polling places on election day
– election officials, volunteer poll workers, and international monitors may assist voters with the voting process but not the voting choice.
– An impartial or balanced system of conducting elections and verifying election results
– trained election officials must either be politically independent or those overseeing elections should be representative of the parties in the election.
– Accessible polling places, private voting space, secure ballot boxes, and transparent ballot counting.
– Secret ballots – voting by secret ballot ensures that an individual’s choice of party or candidate cannot be used against him or her.
– Legal prohibitions against election fraud
– enforceable laws must exist to prevent vote tampering (e.g. double counting, ghost voting).
– Recount and contestation procedures
– legal mechanisms and processes to review election processes must be established to ensure that elections were conducted properly.
Many states could learn a lot from the State Department.  Only 44% of Americans can claim that Free and Fair Elections are constitutionally protection in their state. It is ironic that the government Website from which the above information comes contains the following disclaimer: “NOTE: The America.gov website is no longer being updated.”
RIGHT TO VOTE BY BALLOT – There are many ways to vote, of course.  You can have a show of hands or call for an assembly to shout yea or nay.  You can even draw straws.  In democratic elections we prefer ballots.  They are discrete and unique to each voter. They allow for the possibility of secret voting.  Until recently they were also made of paper, not electrons.  The decision to redefine “ballot” to include patterns of electrons stored on memory cards was never publicly debated. As with all voting processes in this country, we never got to vote on whether we wanted this change.  Just 28 state constutions guarantee voting by ballot but none of them contain any language to define what is a “ballot”, so electronic voting cannot be easily challenged on constitutional ground.
RIGHT TO SECRET VOTING –  The secrecy of our vote is among our most cherished rights, except it isn’t a constitutional right at all for more than 146 million American citizens.  Secret voting prevents voter intimidation.  It assures us that how we vote can not be used against us later on.  Only 23 states guarantee secrecy in voting.  Several other states guarantee the right to vote in private, but that’s not quite the same thing, is it?
RIGHT TO PUBLIC VOTE COUNTING – Stalin has been credited with saying, “The people who cast the votes decide nothing. The people who count the votes decide everything”.  This speaks volumes for both the right to have our vote counted and the necessity to have all vote counting conducted in public view.  This is especially true when ballots are cast is secret or when they are electronically invisible.  Public vote counting is even more important as we rely more and more on private corporations to count our electronic ballots.  They claim that the software they use to count or votes is so proprietary that even state election officials are not allowed to peek.  Coupled with a trend among election officials to view with suspicion any voter who wants to observe the process, it is shocking that only 3 states constitutionally protect this essential right.
FREQUENCY OF ELECTIONS –  It is one thing to guarantee that the government will hold elections and another to assure they are regularly scheduled.  Ask anyone from a parliamentary democracy about this and they can tell you how the timing of elections can be manipulated to benefit incumbents.  We need clear guidance on when elections should be held. Fifteen states have clear constitutional language about this.  The rest don’t.  While we know when to expect elections in our state only 30% of us have these expectations guaranteed.
PRIVILEGE FROM ARREST AND EXCEPTIONS –  Imagine heading out to vote knowing you have a few outstanding parking tickets.  You show up at your polling place and notice a police presence out front.  Maybe they even appear to be question some voters. Do you try to walk past them to vote or do you turn around and play it safe?
This is the predicament that a privilege from arrest is designed to resolve.  You should not see a uniformed police presence at polling sites or feel any intimidation at all.  A uniformed police officer at a polling site can be especially intimidating to minorities and economically disadvantaged voters. It can suppress the vote.  Unless a voter is wanted for  serious crimes or treasonous, or unless they cause a public disturbance, the privilege from arrest while voting should be guaranteed.  Just 23 states have this guaranteed. Only a third of our citizens are covered by this protection.
RIGHT TO ACCESSIBLE POLLING PLACES –  “… polling places shall be easily accessible to all persons including disabled and elderly persons who are otherwise qualified to vote,” says the New Hampshire State Constitution.  You might think that the “Americans with Disabilities Act” covers this right, but voting doesn’t always take place in buildings covered by the act.  More broadly speaking, a guaranteed access to polling places means adequate numbers of voting machines voting locations that people can  get to without a significant expense of time or money.  This has been a particular problem in “battle states” such as Florida where the lines to vote were many hours long.  It turns out that onlyNew Hampshire and Oklahoma are the only states providing this constitutional protection.
 Here below is a summary voter rights and the percentage of American citizens who are covered under those right.

PERCENTAGE OF CITIZENS COVERED BY THE VOTING RIGHTS 

ARTICULATED IN STATE CONSTITUTIONS
Num. of States

 w/This

 Right

 Percent of  Population

 w/this  Right

  

GENERAL VOTING RIGHTS
1
9.7%
Right to Have Every Vote Counted
9
10.5%
General Right of Suffrage
21
44.0%
Right to Free and Fair Election
28
55.3%
Right to voting by ballot
23
46.7%
Right to secret vote
3
5.6%
Right to Public Vote Counting
15
32.6%
Frequency of Elections Right
23
36.5%
Privilege from Arrest during voting
21
36.5%
Privilege from Arrest Exceptions
2
1.6%
Right to accessible polling place
Num. of 
States
 w/This Right
Percent of Population 
 w/This Right
QUALIFICATIONS and EXCEPTIONS
49
99.6%
Must be A US Citizen
46
91.2%
Must be Registered to vote
20
27.6%
State’s Deployed Solders Can Vote
37
83.9%
Felony Exception
12
15.5%
Treason Exception
13
30.9%
Incarceration Exception
33
69.5%
Mental Capacity Exception
2
0.5%
Moral Conduct or other Exception
23
34.0%
Restoration from Exception
10
17.6%
No quartered solders
2
1.8%
Right to Appeal Voter Ineligibility