Sobol on De Facto Disenfranchisement of Criminal Defendants

Neil L. Sobol (Texas A&M University School of Law) has posted Defeating De Facto Disenfranchisement of Criminal Defendants (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In a democracy, voting is not only an important civic duty but a right owed to its citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on a criminal conviction. This de jure disenfranchisement has been under attack by activists and scholars as an improper collateral consequence that disproportionately impacts people of color. Although recent years have seen substantial reforms to re-enfranchise defendants, an estimated 5.17 million defendants were still ineligible to vote in 2020.

While efforts to address de jure disenfranchisement continue to be necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants, who have the legal right to vote but are prevented from exercising it.

De facto disenfranchisement applies to defendants who have regained their voting as well as defendants who never lost their rights. Although de jure disenfranchisement excludes millions from voting, confusing restoration requirements, lack of information, misinformation, and physical barriers prevent millions of eligible voters from voting. For example, while most of the nearly 750,000 people in jail have the right to vote, they face informational and access hurdles to exercising their rights. Moreover, distrust of the political system and fear of arrest for voting exacerbate the issue. As with de jure disenfranchisement, de facto disenfranchisement disproportionately impacts people of color.

As states decide to restore voting rights to more individuals, de jure disenfranchisement will fade, but de facto disenfranchisement threatens to keep the same restrictive policies alive in practice. As a result, more progress is necessary to go beyond merely providing criminal defendants the right to vote to actually empowering them with the ability to vote. This Article addresses the problems associated with de facto disenfranchisement. It suggests and analyzes national, state, and local reforms and practices to ensure that defendants with voting rights have meaningful notice and access to voting.