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In reversal, some states make it harder for people with felony convictions to vote

By Matt Vasilogambros, Stateline.org
Published: August 20, 2023, 6:00am

The year started out strong for advocates trying to make it easier for people with felony convictions to regain their voting rights.

In March, the Democratic-led legislatures in Minnesota and New Mexico enacted measures that cleared a pathway for residents serving prison time for felonies to regain their right to vote upon being released.

It followed a decadelong trend that has allowed more than 1.5 million Americans a chance to cast a vote once again, after being denied the right on parole, probation or because of guidelines that left that decision up to governors.

But in more recent months, state officials in North Carolina, Tennessee and Virginia have taken steps to make it far more difficult for people with felony convictions to register to vote, leading to widespread concern among voting rights activists who have steadily and successfully changed laws in states around the country in recent years.

State officials said the changes followed the letter of the law and argued that those who served the entirety of their sentences — parole, paid fees and all — could eventually regain their voting rights.

Frustrated by what they see as a regression on access to the ballot box, voting rights advocates have taken those and other states to court. They argue that the chance to participate in elections allows residents with felony convictions to feel part of the community and makes them less likely to commit crimes in the future.

There has been “a lot of whiplash” for people with felony convictions in those states, said Blair Bowie, director of the Restore Your Vote project at the Campaign Legal Center, a nonpartisan legal advocacy group.

“That means there’s a ton of confusion in those states over who can and can’t vote,” she said. “And that confusion can lead people who did have their rights restored and people who are fully eligible to vote to sit out elections because of fear that they’re ineligible and a fear that they would get prosecuted.”

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Last month, the Tennessee Supreme Court ruled against the Campaign Legal Center after it sued the state for forcing a resident who had been convicted of a felony, served his sentence and later had his voting rights restored, all in Virginia, to also prove he served his parole and paid all court costs associated with that felony to Tennessee officials before being eligible to vote.

A week after the ruling, Mark Goins, the state’s coordinator of elections, said in a July memo to county election commissions that though the ruling applied to out-of-state convictions, his interpretation of the case now meant that all Tennesseans with felony convictions must have their full citizenship rights restored by a judge or show they were pardoned by the governor.

Previously, Tennesseans with felony convictions could petition for their voting rights if they proved they served their entire sentence, parole and all, and paid all court fees or child support. Now, residents must also seek a gubernatorial pardon or court-ordered citizenship restoration.

It’s “an impossible standard,” said Bowie.

The Campaign Legal Center is in another, ongoing lawsuit in federal court over Tennessee’s strict guidelines for restoring voting rights. The trial is set for November.

More than 20% of voting-age Black people in Tennessee are disenfranchised because of felony convictions, according to The Sentencing Project, a nonprofit that advocates for solutions to mass incarceration. Overall, more than 470,000 Tennesseans are denied voting rights for felony convictions — the second most in the country after Florida.

Momentum interrupted

Since the Civil War, states have generally stripped people with felony convictions of their voting rights. Many of those laws are rooted in racism and specifically targeted formerly enslaved Black people. In some states, disenfranchisement lasted for life.

Voting rights and criminal justice advocates have for the past decade built a political infrastructure across the country to educate and encourage state legislators to pass measures that allow people with past felony convictions to either vote upon leaving prison or never lose their right to vote; they’ve had widespread success, sometimes with bipartisan support.

In March, Minnesota Gov. Tim Walz and New Mexico Gov. Michelle Lujan Grisham, both Democrats, signed into law measures that restored the voting rights of people with felony convictions once they leave incarceration.

Twenty-three states now restore voting rights after the end of prison sentences, while residents of the District of Columbia, Maine and Vermont never lose their right to vote, according to the National Conference of State Legislatures. In 14 states, people must wait until the end of parole or probation before being able to vote again, and in 11 states the period is indefinite and people must seek the governor’s approval before registering to vote.

As of last year, around 4.6 million people were disenfranchised because of felony convictions, according to The Sentencing Project.

“I do think we’re trending in the right direction,” said Bowie of the Campaign Legal Center. “But backlash is part and parcel of progress. Power doesn’t give up power easily. And some people view restoring voting rights as a sort of a power shift.”

While the trend has generally shifted toward an expansion of voting rights for people with felonies, some states have made it harder to regain those rights, including Virginia.

Earlier this year, Republican Gov. Glenn Youngkin’s administration confirmed he had rolled back an automatic voting rights restoration process that had been used by both Democratic and Republican Virginia governors for more than a decade.

In a July letter to the Virginia NAACP, Republican Secretary of the Commonwealth Kay James said Youngkin will make “an individual case-by-case determination considering the unique aspects of every case” in accordance with state law. She added that the state has ensured that every person leaving incarceration is aware of their responsibility to apply for voting rights restoration.

“We take our responsibility to consider re-enfranchisement seriously,” she wrote. “Because the constitution gives Virginia’s governors sole discretion on the restoration of rights, each governor determines how he will make these important decisions individually.”

But voting and civil rights groups have lambasted this new approach.

“He has made it much harder for formerly incarcerated people to have their rights restored,” said Rachel Homer, counsel for Protect Democracy, a nonprofit that advocates for expanding voting rights. “He has not provided clear guidance on when he will be granting those applications.”

In June, Protect Democracy sued the state in federal court over a provision in its constitution that the group says violates a 150-year-old federal law limiting the kinds of felonies the state could use to strip residents of voting rights. Virginia’s constitution disenfranchises residents convicted of any felony, which Protect Democracy argues is illegal.

The state is expected to respond to the lawsuit by the middle of this month.

And in April, the North Carolina Supreme Court upheld a state law that does not allow people who are on probation, parole or other supervision to vote, overturning a lower court’s 2022 decision that struck down the statute — another blow for voting rights advocates.

North Carolina, Tennessee and Virginia are states with large Black populations, severe criminal justice systems and laws that make it difficult for people with felony convictions to ever regain their right to vote, said Nicole Porter, senior director of advocacy at The Sentencing Project.

“People with felony convictions are acutely vulnerable,” she said.

In a court decision that could impact other states’ laws, the U.S. Court of Appeals for the 5th Circuit late last week overturned Mississippi’s lifetime voting ban for people convicted of certain felonies, describing the state’s policy as “cruel” for excluding them “from the most essential feature and expression of citizenship in a democracy — voting.” Mississippi is expected to appeal the decision.

More legal action ahead

In July, the U.S. Court of Appeals for the 6th Circuit rejected a challenge to Kentucky’s felony disenfranchisement law, which allows the governor to arbitrarily grant voting rights to people with former convictions. But the fight isn’t over.

Last week, the group behind that challenge, the nonpartisan Fair Elections Center, filed for a rehearing of the case before the federal panel. If the panel denies the motion within the next two weeks, the Fair Election Center could appeal to the U.S. Supreme Court.

The center’s case argues that Kentucky’s law around felony disenfranchisement violates 85 years of U.S. Supreme Court precedent that prohibits discretionary decision-making about, or “arbitrary licensing” of, First Amendment-protected expression, said Jon Sherman, the center’s litigation director and lead counsel.

“Voting is a political expression,” he said. “We think it’s clear that the practical effects of voting rights restoration make it a licensing scheme, and there are no rules or criteria governing the decision of whether to grant or deny voting rights restoration applications.”

Democratic Gov. Andy Beshear has restored the voting rights of more than 183,000 Kentuckians in his time in office, but voting rights groups don’t want to have to rely on a single governor to restore these rights — they want an automatic process upon leaving incarceration.

Meanwhile, Minnesota’s new law is getting its own legal challenge.

Instead of a law that restored voting rights for people with felony convictions upon leaving prison, the legislature should have sought a constitutional amendment, said Andy Cilek, executive director of the conservative Minnesota Voters Alliance, which is suing the state on grounds that the state constitution has clear guidance on felon voting rights.

“We’re for a second chance for everybody,” Cilek said. “But that’s not what this case is about, with all due respect. We’re not arguing whether it’s a good idea or what it should look like. We’re arguing about who has the authority to make the change. In our view, it’s not the legislature.”

There is a district court hearing for the case in October.

While it became more difficult for people with felonies to vote in certain states this year, the movement to expand the franchise is still moving forward in other states, said Porter, of The Sentencing Project.

She expects Connecticut, Massachusetts and New York in either this or upcoming legislative sessions to pass measures that would overturn their disenfranchisement laws outright. But she hasn’t given up on states with more restrictive laws, such as North Carolina and Tennessee. It will just take years of organizing and interstate support, she said.

“There’s a lot of momentum,” she said. “What we do now is support people in those states, laying the groundwork to build the infrastructure and the power to set those states up for a future where everybody’s vote is guaranteed.”

Stateline is part of States Newsroom, a national nonprofit news organization focused on state policy.