Background and History of Felony Disenfranchisement Laws in the U.S.

The U.S. stands alone in the democratic world as the only country to impose restrictions on voting by citizens with past felony convictions once they are released and re-entering their local communities. The continued disenfranchisement of people rebuilding their lives after prison runs counter to the core justice and civic goals of rehabilitation, re-integration, and protection of public safety that comes from encouraging active citizenship. For the returning citizen, the voting prohibition becomes a unique stigma, a status of dishonor, and a reason to feel alienated from government and civic life.

Two recent lawsuits lay the problem bare:

In 2019, the Minnesota ACLU with plaintiffs like Jennifer Schroeder filed a lawsuit  contending the state law preventing people on parole and probation from voting was illegal under the Minnesota Constitution. Schroeder was convicted of drug possession in 2013 and spent one year in county jail. But 40 years of probation means she can’t vote again until 2053.

The complaint asserts: “The fifty-five years since the passage of the law have demonstrated that disenfranchisement undermines rehabilitation, increases recidivism, alienates individuals from their communities, and fails to achieve any deterrent effect.”

At the same time in North Carolina, the Community Success initiative filed a similar lawsuit, saying:  “(The) felony-based disenfranchisement scheme of North Carolinians living in our community — probation and post-release felony disenfranchisement — serves no legitimate government purpose. It is unfair, discriminatory, and wrong. And it violates the North Carolina Constitution.”

These lawsuits came on the heels of a surge in states ending or scaling back their disenfranchisement laws. Last year, Colorado, Nevada, and New Jersey eliminated all post-release restrictions. They joined the 17 states that already did so. Florida, Kentucky and Virginia which have some of the harshest disenfranchisement laws, each took a big step in that direction, ending lifetime voting bans for more than 1.7 million voters.

But why does our country operate this way and when did it start? 

The Beginning

The first felon disenfranchisement laws came in the Jacksonian era starting in the 1820’s. However, the largest and harshest expansion followed the Civil War and post-reconstruction as the central to the architecture of Jim Crow. Their enactment and expansion towards limiting the voting and political rights of freed slaves and minorities generally came in three stages. 

In the earliest stage, the first states adopted the restrictions starting in the 1820s when the requirement for white males to own property was on the wane. It was one more way to limit voting for a whole class of voters even as states relaxed the need to own property.

A second wave with two crests was led by southern states after the Civil War. First, in the wake of the Fifteenth Amendment, which gave Black Americans the right to vote, and then again after reconstruction. The self-evident purpose of these laws to limit the growing political power of former slaves was then made explicit. 

  • In 1900, a unanimous Mississippi Supreme Court heralded the constitutional change “under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power.”
  • In Alabama, the president of the 1900 Constitutional Convention, which added crimes of “moral turpitude” to its disenfranchisement laws, said: “manipulating the ballot to exclude blacks was warranted, because they are inferior to whites and because the state needed to avert the ‘menace of Negro domination.’” 
  • A South Carolina newspaper argued voting laws needed to be amended, lest whites be swept away at the polls by the black vote.

In the modern era, these laws persist on a legacy of racial bias and perceived partisan advantage brought by this and other types of voter restrictions. They continue to have the largest impact on African-Americans, who are four times as likely as others to lose their voting rights. In the states with post-release restrictions, the problem has been escalated by high incarceration rates and a longer list of crimes deemed felonies. 

Still, among the public a bipartisan majority supports restoring the right to vote for parolees (60%) and probationers (68%) who have returned to their communities. Public support drops off but is still a majority when a survey refers to people as “felons” – the often used disparaging and headline-fitting term for those with a felony conviction. In concert with public opinion, more states are restoring voting rights on re-entry and even making voter registration part of the exit policy at correctional facilities. States with the most severe laws are dialing back their restrictions and considering future reforms.