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Voting Rights Should Not Be Denied to Former Felons, Says Sotomayor and Growing Number of States

As the United States has grown older, it has expanded the right to vote to nearly every group of citizens, with one notable exception: former felons. Today, 48 states have their own laws that disenfranchise convicted felons at some point during incarceration, probation, or parole. This hodgepodge of policies has created confusion for former offenders and election officials alike, and has resulted in the loss of voting rights for about 5.3 million Americans.Voting rights experts have long advocated that these unfair laws–which have a disproportionate impact on low-income and minority communities that are overrepresented in the criminal justice system–should be abolished. It's an opinion apparently shared by President Obama's new nominee to the U.S. Supreme Court, Sonia Sotomayor, and there are encouraging signs that many states are moving towards restoring the rights of these millions of disenfranchised Americans.

In the 2006 Second Circuit Court case Hayden v. Pataki, plaintiffs brought a challenge under the Voting Rights Act against New York's felon disenfranchisement law. The plaintiffs argued that, in light of the history of discrimination, both in society and in the New York criminal justice system specifically, the state's disqualification of felons constituted disqualification based on race. This was rejected by court, as the majority reasoned that Congress did not intend the VRA to apply to state felon disenfranchisement laws.

Second Circuit Court Judge Sonia Sotomayor, however, saw it differently. She joined the main dissent–which found that the New York law amounted to a denial of the right to vote on account of race, and was therefore covered under the Voting Rights Act. Sotomayor also wrote a dissenting opinion of her own in which she found that the VRA “applies to all `voting qualifications,'” and – in her view – the state law “disqualifies a group of people from voting.”  

“These two propositions,” she concluded, “should constitute the entirety of our analysis.”  

Unfortunately, the majority of her colleagues did not undertake a similar analysis, and the result was a distorted interpretation of the Voting Rights Act that, in the words of the attorney Justin Leavitt of the Brennen Center  “effectively amended the Voting Rights Act, giving the green light to racial discrimination.”

Restoration of voting rights for all former felons is still a ways off, but glimmers of hope do exist in legislative and judicial efforts of the recent past. Since 1997, 19 states have amended felon disenfranchisement policies, leading to the restoration of voting rights for at least 760,000 people, according to a 2008 Sentencing Project report.

In Washington State earlier this month, Governor Chris Gregoire signed felon voting rights bill, HB 1517, completing “a nine-year effort by…[Democratic Rep. Jeannie] Darneille to end a system that denied voting rights to former felons until all financial obligations ordered by the courts had been paid in full,” according to the May 6 Seattle Medium.

Under this bill, the voting rights of former felons are restored once they “are no longer incarcerated or in community custody,” a measure that could help as many as 167,000 former felons regain their rights. “Voting rights should never be based on the ability to pay,” said Darneille, who cited studies by Project Vote and other groups that “prove that recognizing the voting rights of ex-offenders reduces recidivism and improves successful outcomes in reintegrating former offenders into society.”

This year, 17 states have introduced bills to expand voting rights of former felons. Currently, only bills in MA, NJ, NY, OK, PA, TN, and TX are pending. Only one U.S. bill, HB 59 – which secures the federal voting rights of certain qualified ex-offenders who have served their sentences –  remains pending in the House Judiciary Committee.

However, substantial reform will require at least the passage of fair and consistent felon re-enfranchisement laws, and their proper interpretation by judges like Sonia Sotomayor.

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