Felon Disenfranchisement, Then and Now

by Matthew Rothschild, Executive Director

April 13, 2016

Lecture delivered to Professor David Pate’s class,"Black Lives Matter: Analysis and Critique of the Movement," at the University of Wisconsin-Milwaukee, April 12, 2016.

I’d like to thank Professor Pate for inviting me to speak to you today. It’s been a real pleasure over the past couple months getting to know David, and over the past several years getting to know your co-teacher, Kelly Parks-Snider, who’s a good friend of mine. They’re both doing such important work here in Wisconsin to raise awareness about the injustices around us.

I brought some handouts with me that I’d like to share with you.

The first two are some of the most powerful articles ever published by The Progressive magazine.

One is by James Baldwin, his famous “Letter to My Nephew.”

James Baldwin wrote: “You were born into a society which spelled out with brutal clarity and in as many ways as possible that you were a worthless human being.”

And the other is by June Jordan, who I had the pleasure of working with for many years. She used to fax her columns in, and they were written in long-hand, and it was hard to decipher them sometimes, but they always packed a punch, especially this “Requiem for a Champ,” about Mike Tyson and his rape conviction.

June Jordan wrote: “In the big picture of America, I never had much going for me. And he had less. . . . I’m black. Mike Tyson is black. And neither one of us was ever supposed to win anything more than a fight between the two of us.”

Both of these are kind of prequels to Ta-Nehisi Coates’s Between the World and Me.

Coates, writing to his 15-year-old son, said: “Here is what I would like for you to know: In America, it is traditional to destroy the black body— it is heritage.”

James Baldwin was writing in 1962.

June Jordan was writing in 1992.

And Ta-Nehisi Coates was writing in 2015.

But the themes are the same, and the poignancy, and the urgency.

And it’s a bit shocking, hearing these echoes, over this span of 54 years, knowing that we haven’t made more progress than we have.

The other two handouts deal more directly with the topic of the day, which is incarceration and felon disenfranchisement.

One is just a snapshot of Wisconsin’s prison population. The source for that is the Sentencing Project. You can see that blacks are imprisoned ten times more frequently than whites in Wisconsin!

And the other is a two-page list of “felon disenfranchisement” by state. In four states, one out of five African American voters has lost the right to vote essentially for life: Those states are Florida, Kentucky, Tennessee, and Virginia, though Virginia over the past couple of years has loosened up a bit.

On the other end of the spectrum, only two states let prisoners vote while in prison: Maine and Vermont.

Like many states, Wisconsin won’t let prisoners vote until they’re “off paper”—until they’ve finished their sentence, as well as parole and probation.

Many Western European countries, like Germany, by the way, allow all prisoners to vote. And the supreme courts of Canada, Israel, and South Africa have restored inmate voting rights in those countries.

So what we’re seeing in the United States—the mass disenfranchisement of prisoners—is not the norm for contemporary democracies.

But it’s been the norm here for quite some time.

And the expansion of felon disenfranchisement, after Reconstruction and then again after 1970, has racism at its root.

First, I’d like to provide a short history of the battle for the ballot in the US.

Battle for the Ballot in the US

A. At the Founding of the United States

As you probably know, at our founding, only white male property owners could vote.

The prevailing view, as articulated by the English jurist William Blackstone, was that property-less males had “no will of their own”

One of our Founding Fathers, Gouverneur Morris of New York, who wrote the Preamble to our Constitution, railed against what he called “the mob,” and he referred to working people as “reptiles,” according to Michael Waldman’s The Fight to Vote. People who don’t own property “don’t deserve” to vote, Morris said.

A common excuse to justify this denial of the vote to property-less white males was that they were so poor they would be likely to sell their votes. The underlying reason, that property owners felt threatened, was not so often expressed.

That’s how things go. Those in power justify their positions by spinning whatever rationale they can find.

B. Expansion to White Workers

This expansion occurred state by state. Ben Franklin led the way in Pennsylvania, which was one of the first states to allow white male working people to vote.

Here was the classic case he made, according to The Fight to Vote:

“Today a man owns a jackass worth $50 and he is entitled to vote, but before the next election, the jackass dies. The man in the meantime has become more experienced, his knowledge of the principles of government, and his acquaintance with mankind, are more extensive…But the jackass is dead. Now gentleman, pray inform me, in whom is the right of suffrage? In the man, or in the jackass?”

C. Expansion to African American Men

The battle to gain the vote for African American men was not an easy one.

After the Emancipation, Frederick Douglass and the Abolitionists championed it.

But racist Senator John C. Calhoun of South Carolina warned that it would allow former slaves to gain “political and social equality with their former owners.”

Yet the Civil War itself, where one in ten Union soldiers were black, made a compelling argument for granting blacks the right to vote. This was not lost on General William Tecumseh Sherman, who said:

“When the fight is over, the hand that drops the musket cannot be denied the ballot.” (As quoted in Waldman’s The Fight to Vote.)

The Fifteenth Amendment passed in 1870. It states:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. The Congress shall have the right to enforce this article with appropriate legislation.”

D. Expansion to Women

During the Fight for Independence, Abigail Adams wrote her husband, John: “Remember the ladies…If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have not voice, or representation.” (As quoted in The Fight to Vote.)

As many of you know, the fomenting of this rebellion began in earnest at Seneca Falls in 1848. For the next 72 years, activists for women’s suffrage demanded the vote.

Jane Addams, writing in 1912, put it pithily when she gave a speech entitled “If Things Were Reversed,” asking how men would react if they didn’t have the right to vote and heard the same common, annoying, and belittling complaints that women were receiving as to why they couldn’t vote:

“First, men would find politics corrupting.”

“Second, they would vote as their wives and mothers did.”

“Third, men’s suffrage would only double the vote without changing the results.”

“Fourth, men’s suffrage would diminish the respect for men.”

“Fifth, most men don’t want to vote.”

“Sixth, the best men won’t vote.”

(Source: Democracy in Print: The Best of The Progressive magazine, 1909-2009.)

The Nineteenth Amendment to the Constitution finally passed in 1920. It says:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.”

But even as the suffrage was expanding, a powerful and ugly backlash was under way.

E. Jim Crow laws from 1870-1965

In the post-Reconstruction era, the access to the ballot for blacks was essentially closed off. A variety of means were used:

-- The literacy test:

In the movie “Selma,” you saw how this was enforced. The character that Oprah played knew all the right answer to every civics question that the city clerk could possibly ask, until he came up with a ludicrous question that no one could know the answer to, and so she was denied the right to vote. The imposition of the literacy test was at the discretion of the city clerk, and that discretion was used almost always against blacks.

--The poll tax:

This was usually around a dollar, which for most people amounted to about 2% of their annual income. In today’s terms, that would be about $600. And again, the clerk would have discretion, and again it was used primarily to deprive blacks of their right to vote.

-- Proof of residency:

Demanding sometimes elaborate proofs of residency was another way to deprive blacks of the right to vote.

-- Violence and intimidation:

And, of course, no account of Jim Crow and disenfranchisement can ignore the lynchings, beatings, threats, and intimidation that were commonplace and served to deter blacks from voting.

F. Other rollbacks on voting

Interestingly, immigrant noncitizens had the right to vote in many states in the late eighteenth and early nineteenth century. But soon immigrant noncitizens were denied the right to vote. Most notoriously, the Naturalization Act of 1870 barred Chinese immigrants from becoming citizens and from voting.

So as you can see, the fight for the right to vote has always been a struggle, and even as there have been advances, there have also been setbacks.

One of the biggest setbacks has been the disenfranchisement of felons, which took off during Jim Crow.

History of Felon Disenfranchisement

By 1850, eleven states had felon disenfranchisement.

Just 50 years later, 1900, 38 states had felon disenfranchisement.

Here in Wisconsin, it’s in our Constitution from 1848:

"Laws may be passed excluding from the right of suffrage all persons... convicted of bribery, or larceny, or any infamous crime... and for betting on elections."

Under Jim Crow, the racist intent was clear, especially in some Southern states, which explicitly used these laws as a way to uphold white supremacy, often rewriting state constitutions to make it easier to get the job done.

Take Mississippi :

Its 1890 constitutional convention “explicitly barred individuals convicted of petty offenses” from voting and this, in practice, “was almost exclusively applied to blacks,” according to Locked Out: Felon Disenfranchisement and American Democracy, by Jeff Manza and Christopher Uggen. Petty theft or “larceny” was often used as a way to disenfranchise blacks. Basically, if you stole a candy bar, you could lose the right to vote. However, “rape and murder convictions” did not get you disenfranchised, Manza and Uggen pointed out.

In 1896, the Mississippi Supreme Court, in a case challenging the racism behind this, upheld this disparate treatment.

Blacks have “certain peculiarities of habit, temperament and character,” the court ruled. “[They are] a patient, docile people, but careless, landless … and its criminal members given rather to furtive offenses than to robust crimes of whites.”

Or take Alabama:

The president of the state’s 1901 constitutional convention, John Knox, said the goal of the convention was “to establish white supremacy in this State…We must establish it by law--not by force or fraud.” The way they established it by law was expanding the list of those disenfranchised.

The 1901 Constitution specified all the different acts that could cost you the vote.

"The following persons shall be disqualified both from registering, and from voting, namely: All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude; also, any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector."

Or take Virginia in 1902:

It redrafted its state constitution and incorporated a lifetime ban on voting for former felons, along with a poll tax and a literacy test. State Senator Carter Glass was disgustingly blunt and public about his racist intent. “This plan,” he told the convention, “will eliminate the darkey as a political factor in this state in less than five years.” His remark was met with raucous cheers, according to The Fight to Vote.

That is the sordid and racist history of felon disenfranchisement.

When you couple felon disenfranchisement with mass incarceration, you get mass disenfranchisement, especially of people of color.

Modern Mass Incarceration: The numbers

The prison population has gone up 700% since 1970.

2.3 million people in America are behind bars.

3.8 million are on probation.

820,000 on parole.

And it is racially biased:

One out of 106 white men ages 18 and up is behind bars.

One out of 36 Hispanic men.

One out of 15 black men. They are seven times more likely than white men to be behind bars.

White women, 35-39: 1 out of 355 are behind bars.

Hispanic women in this age group: 1 out of 297

Black women in this age group: 1 out of 100.

Modern mass incarceration: racist at its root

Michelle Alexander in The New Jim Crow and Ta-Nehisi Coates in his Atlantic article that you read this week spell this out clearly. The huge increase in incarceration did not correspond to a huge increase in crime; in fact, it had nothing to do with crime rates and everything to do with politics.

In 1968, Alabama’s racist governor, George Wallace, ran for president on a third-party ticket, with the slogan “Law and Order.” The racist meaning of that slogan was not lost on anyone.

Least of all, Richard Nixon, the Republican nominee that year. He employed his “Southern Strategy,” appealing to whites in the South who had traditionally voted Democratic by constantly repeating his theme that he would be “tough on crime.” Again, the hidden message was clear to everybody.

Ronald Reagan in 1980 also made very thinly veiled racist appeals by invoking the stereotype of the “welfare queen” and launching his campaign in Philadelphia, Mississippi, where the civil rights workers Michael Schwerner, James Chaney and Andrew Goodman were slain in 1964.

George H.W. Bush in 1988 infamously ran his “Willie Horton” ad about this convict who was serving a life sentence and was furloughed for a weekend by his opponent, Michael Dukakis, and then committed assault and rape. Viewers across the country repeatedly saw the mugshot of this black man on their TV screens. Bush’s campaign manager, Lee Atwater, bragged about turning Willie Horton into Dukakis’s “running mate.” Dying of brain cancer, Atwater later apologized for this, saying it made him appear racist, which he insisted he wasn’t.

Bill Clinton in 1992 said “one of my objectives, quite frankly, is to lock Willie Horton up in jail.” As Ta-Nehisi Coates noted in his Atlantic article, one way Clinton did this was to “fly home to Arkansas to preside over the execution of Ricky Ray Rector, a mentally disabled, partially lobotomized black man who had murdered two people in 1981.” Another way was to denounce the rap artist Sister Souljah at a meeting of Jesse Jackson’s Rainbow Coalition, thus showing white America that he had no trouble talking down to black people. Clinton followed through by passing the crime bill of 1994, which lengthened prison sentences, expanded police forces, and built more prisons.

Joe Biden , now Obama’s vice president, voted for the bill. At the time, he boasted of the Democrats’ toughness on crimes, as quoted by Coates: “Let me define the liberal wing of the Democratic Party. The liberal wing of the Democratic Party is now for 60 new death penalties…The liberal wing of the Democratic Party has 70 enhanced penalties…The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the Democratic Party is for 125,000 new state prison cells.”

The “war on drugs” and mandatory minimum sentences were two of the primary ways that both parties filled up all these new prison cells.

Political Effect of Mass Felon Disenfranchisement

“Felon disenfranchisement has provided a small but clear advantage to Republican candidates in every Presidential and Senatorial election from 1972-2000,” write the authors of Locked Out.

They say George W. Bush would never have been President without mass felon disenfranchisement. Al Gore would have won Florida by 80,000 votes—and thereby won the White House, they claim.

They also say that Senator Mitch McConnell, Republican Majority Leader, would never have won his Kentucky senate seat in 1984, which he won by only 5,000 votes, without the mass disenfranchisement of felons.

Prison Gerrymandering

Another political effect of felon disenfranchisement, and the disproportionately racial content of it, is to give more representation to white, rural areas and less representation to black, urban areas by way of “prison gerrymandering.” Every ten years, the Census comes out, and it counts heads. Political districts are drawn in each state, with each district required to have basically the same number of people in it. But prisoners are counted as living where they are incarcerated, not where they’re from. And many states imprison people in rural areas, even though a large percentage of them come from urban areas. So the rural areas get more representation than the urban areas in this way.

Human Effect of Mass Felon Disenfranchisement

While the political effect of mass felon disenfranchisement is dramatic, the human effect is devastating. With the possible exception of people in the Armed Services, prisoners are more under the thumb of the government, every single second of the day, than anyone else in America. The policies that public officials impose on them can make their lives a living hell. And yet they have no say whatsoever over those policies—or any other policies, for that matter. They have no voice. And since voting is a human right, they are treated as less than human.

The New Assault on Voting

Over the last five years, 19 states have passed laws making it harder to vote. Many of these are states with high African American and Latino turnout.

Here in Wisconsin, the Walker Wrecking Crew passed one of the most onerous Voter ID laws. A study showed that as many as 300,000 Wisconsin citizens didn’t have the necessary IDs to vote. And the Voter ID law is confusing. You need different identification to register to vote than you do to cast a ballot. And if you’re a student, you need not only a college photo ID but also a document from your college that you’re still enrolled and your tuition is paid up. This created a lot of problems on April 5, especially at Marquette.

The voter ID law also limited early voting and did away with weekend voting—other ways to make it harder to vote.

And if you saw the recent John Oliver segment on “Last Week Tonight,” you saw how ludicrous Wisconsin’s Voter ID law is. He pointed out that you can get a valid photo ID from your local DMV, but in a lot of towns, the DMV isn’t open more than once a week or once a month. In Sauk City, he pointed out, it’s open only on the fifth Wednesday of every month, and there are only four months with five Wednesdays in them this year!

The calculated and racist intent behind Wisconsin’s voter ID law became clear over the past week.

Wisconsin Congressman Glenn Grothman admitted out loud and on TV last week that Voter ID is a way to help Republicans win in Wisconsin. And Todd Albaugh, the chief of staff of former Republican State Senate Majority Leader Dale Schultz, went public with his recollection of Republicans in the state senate openly “giddy about the prospects of suppressing minority and college votes.”

Wisconsin’s voter ID law was done with a racially discriminatory intent, and should be thrown out on that basis.

I hope there’s a new lawsuit coming.

So let’s put this all into context:

The mass, disproportionate incarceration of black people in America is part and parcel of a long and sordid history to strip them of their birthright.

It was a consciously racist and political practice during Jim Crow, and it remains a racist and political practice, though few people say it out loud in public anymore.

We need to end felon disenfranchisement in this country.

And we need to end the disastrous policy of mass incarceration itself.

Bernie Sanders is talking about it; he’s gotten Hillary to talk about it; even Rand Paul talks about it.

And thanks to Michelle Alexander and Ta-Nehisi Coates and the Black Lives Matter movement, there is now a demand to end these policies.

We urgently need to do so if we are to ever have even a semblance of a democracy and a modicum of justice here in America.

I’d just like to end with two quotes.

One is from historian Howard Zinn:

“Human history is a history not only of cruelty but also of compassion, sacrifice, courage, and kindness,” he wrote. “If we remember those times and places where people behaved magnificently, this gives us the energy to act, and at least the possibility of sending this spinning top of a world in a different direction.”

One is from Ta-Nehisi Coates in Between the World and Me.

“History is not solely in our hands,” he writes. “And still you are called to struggle, not because it assures you victory but because it assures you an honorable and sane life.”

So here’s to struggle, and to honorable and sane living!