Felon disenfranchisement, political power, and the First Amendment right to vote

Recently, The Atlantic published this piece on the very real impact of felon disenfranchisement and mass incarceration in the United States. This worthwhile read begins:

The 14th Amendment, when combined with the War on Crime, has paradoxically disenfranchised vast swaths of the population  and given the rural, white areas surrounding the prisons unforeseen political power.

What has it really cost the United States to build the world’s most massive prison system?

To answer this question, some point to the nearly two million people who are now locked up in an American prison—overwhelmingly this nation’s poorest, most mentally ill, and least-educated citizens—and ponder the moral costs. Others have pointed to the enormous expense of having more than seven million Americans under some form of correctional supervision and argued that the system is not economically sustainable. Still others highlight the high price that our nation’s already most-fragile communities, in particular, have paid for the rise of such an enormous carceral state. A few have also asked Americans to consider what it means for the future of our society that our system of punishment is so deeply racialized.

As I have noted here and here, my research focuses on the vote as protected First Amendment speech. The effect of re-conceptualizing the vote thusly would touch an array of voting issues. But, the effect on felon and ex-felon disenfranchisement would likely have the greatest impact in terms of the size of the electorate.

Put simply, felons do not forfeit all First Amendment protections by virtue of their incarceration. In Turner v. Safely, the Court held that a restriction on prisoners’ First Amendment speech rights must be reasonably related to a valid penological interest. This standard has been used in upholding regulations limiting prisoner-to-prisoner communications, press access to prisoners for interviews, and prisoner access to information through magazines and certain kinds of books. 

However, in Bell v. Wolfish, the Court affirmed prisoners’ First Amendment right to receive “soft-bound books and magazines…from any source and hardback books…from publishers, bookstores, and book clubs.” Importantly, the Court limited prisoners’ right to receive hard cover books from other sources because “hardback books are especially serviceable for smuggling contraband into an institution; money, drugs, and weapons easily may be secreted in the bindings[,]…which are difficult to search effectively.” 

Assuming, for the sake of argument, that the right to vote for state and federal representatives is protected by the First Amendment, continued felon disenfranchisement becomes much more difficult to sustain. As I mentioned yesterday, the government assumed responsibility for printing ballots at the end of the 19^th century. The Court’s limitation on prisoners’ receipt of hardback books in Wolfish cannot reasonably be said to apply to state-printed ballots. No principled concern about the smuggling of contraband and weapons can be reasonably maintained. 

Further, this country has a long history of absentee voting. Rhode Island and Massachusetts instituted proxy voting during the pre-Revolutionary period. At the time, the country was principally rural with economies heavily dependent on agriculture. Elections were usually held at the county court house, and thus many people had to travel great distances to cast their votes.

Absentee voting became more widely used during the Civil War when men were dispersed for great periods of time and could not make it back to their localities to vote. Today, all 50 states permit some form of absentee voting (although some states require a statement of need to do so). 

If the right to vote is First Amendment speech, then the burden on prisoners’ speech rights from disenfranchisement would need to be re-examined.

At a minimum, state laws restricting the rights of probationers and parolees would likely be unconstitutional.  Currently, more than 4.5 million ex-felons are on probation or parole. Although not every state disenfranchises this population, the number of people re-enfranchised by such a re-conceptualization would be significant. 

Update: the above image is from a painting by Anthony Papa who wrote this account of his personal experience with disenfranchisement.