By Ellen J. Kennedy, Ph.D., and Judge Tara Kalar
The United States is the only democracy in the world in which most convicted offenders who have served their prison sentences are denied the right to vote for many years, and in some cases, for the rest of their lives. This has been described as ‘civil death.’
We examine this phenomenon globally, in the US, and in Minnesota.
Global voting rights
The Universal Declaration of Human Rights (UDHR) was passed by the United Nations in 1948 after the tragedy of World War II. Eleanor Roosevelt, a leading supporter and a drafter of this document, said, “This Declaration is intended to serve as a global road map for freedom and equality – protecting the rights of every individual, everywhere. It was the first time that countries agreed on the freedoms and rights that deserve universal protection in order that every individual can live … freely, equally and in dignity.”1
Article 21 of the UDHR clearly affirms that “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”2
Nearly thirty years later, in 1976, the UN ratified the International Covenant on Civil and Political Rights (ICCPR).
Article 25 of the ICCPR is the key international guarantee of voting rights. It affirms: Every citizen shall have the right (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; and (b) to vote.3The United States ratified the ICCPR in 1992.
A worldwide summary by the Global Democracy Coalition Project concludes that in the last three decades, every single new constitution has established a citizen’s entitlement to vote.4 This illustrates the trend towards accepting international standards of human rights—and the right to vote—as a standard component of domestic law.5
But, strikingly, there is no constitutional right to vote in two of the world’s oldest democracies, the UK and the US, nor in the world’s largest democracy, India.6
The United States
The U.S. situation has brought international scrutiny. The United Nations charges that U.S. policies “violate international law and disproportionately impact the rights of minority groups.”7 The Marshall Project, a nonpartisan organization that reports on the U.S. criminal justice system, affirms that this disproportionate disenfranchisement of Black men has happened through practices that continue the racist policies of the Jim Crow era.8 Yet Article 2 of the ICCPR, which the US has ratified, specifies that voting in elections is a universal right not to be denied because of any “status.”
An important question is the extent to which both international and customary law should be applicable to U.S. law. A report by Human Rights Watch concludes, “Today, [in the United States] all mentally competent adults have the right to vote with only one exception: convicted criminal offenders. There is little good to be gained from disenfranchising ex-felons who have served their time.”9
The late Supreme Court Justice Thurgood Marshall said, “It is doubtful whether the state can demonstrate either a compelling or a rational policy interest in denying former felons the right to vote. Ex-offenders have fully paid their debt to society. Furthermore, the denial of a right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons and convert them int law-abiding and productive citizens.”10
A map of voter disenfranchisement in the U.S.11 shows a patchwork of felon voter restrictions across the country.
- In 10 states, former felons may lose the right to vote permanently: Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Tennessee, and Wyoming.
- In 20 states, the vote is restored after prison, parole, and probation: Alaska, Arkansas, Georgia, Idaho, Kansas, Minnesota, Missouri, Nebraska, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin.
- In three states, former felons have the vote restored after prison and parole:Connecticut, Colorado, and California.
- In 15 states the vote is restored after prison:Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, and Washington.
- And in two states, voting is unrestricted and prisoners can vote from prison:Maine and Vermont
The Sentencing Project reports that, as of October 2022, an estimated 4.6 million U.S. citizens are disenfranchised, including over one million who have fully completed their sentences.12
As Human Rights Watch notes, “The racial impact of disenfranchisement laws is particularly egregious. Thirteen percent of all African American men—2.6 million people, black US citizens—are disenfranchised, representing more than half of the total disenfranchised population.”13
The United States is the only democracy in which most convicted offenders who have served their sentences are disenfranchised for many years - and, in some cases, for the rest of their lives.14 There are variations across democracies, but none are as limiting as the policies in the United States.
An analysis of disenfranchisement across 49 democracies yields the following results:15
- In 21 countries, there are no restrictions: felons can vote in prison.
- In 14 countries, there are selective restrictions: some felons can vote while in prison.
- In 10 countries there is a ban on voting in prison but restoration upon release.
- In four countries – including the US - there are post-release restrictions.16
- Many countries permit persons in prison to vote, including the Czech Republic, Denmark, France, Israel, Japan, Kenya, the Netherlands, Norway, Peru, Poland, Romania, Sweden, and Zimbabwe.
- In Germany, the law actually obliges prison authorities to encourage prisoners to vote and to facilitate prison voting procedures.
The United Nations Human Rights Committee has charged that U.S. disenfranchisement policies are discriminatory and violate international law, and the committee calls for the restoration of voting rights to people released from prison. The committee has further raised concerns that “the widespread practice of denying voting rights to people with felony convictions disproportionately impacts the rights of minority groups and are counterproductive to efforts to reintegrate those re-entering society after prison. The U.S. should adopt appropriate measures to ensure that states restore voting rights to citizens who have fully served their sentences and those who have been released on parole.”17
Disenfranchisement and Jim Crow
U.S. policies concerning voting by convicted felons bear a clear connection to Jim Crow laws that eliminated Black Americans from voting. The Marshall Project has documented this historical context for U.S. felon disenfranchisement and offered specific examples.
In 1901 in Alabama, for example, delegates drafting a new constitution for Alabama openly acknowledged their mission. “Within the limits imposed by the Federal Constitution,” convention president John B. Knox explained, the delegates aimed “to establish white supremacy in this state. If we should have white supremacy, we must establish it by law — not by force or fraud.”
Because they could not explicitly ban Black voting without violating federal law, the resulting state constitution declared that persons “convicted of a felony involving moral turpitude” could not vote without having their rights restored. Alabama’s 1901 Constitution remains in force today, and felony disenfranchisement schemes of similar origin “still shape electorates throughout the country,”18 the Marshall Project reports. Alabama is one of those many southern states where former felons lose the right to vote forever.
The Brennan Center for Justice, which supports voting rights, similarly reports, “Felony disenfranchisement laws have a long, shameful history. Criminal disenfranchisement laws were part of the effort to maintain white control over access to the polls after Reconstruction. Over the next 100 years, Jim Crow laws prevented many people from casting a ballot. The 1965 Voting Rights Act helped reverse the tide, but many felony disenfranchisement laws remain on the books.”19
Proposed legislation called the John R. Lewis Voting Rights Advancement Act of 2021 would restore and strengthen parts of the 1965 Voting Rights Act that were struck down by two Supreme Court decisions, Shelby County v. Holder and Brnovich v. Democratic National Committee. The House passed the John R. Lewis bill in August 2022, but it failed twice to pass in the Senate. It will have to be reintroduced in the 118th Congress.20
“We Charge Genocide”
The extent of racial inequality in the United States was raised in 1951 when a domestic organization formed in 1946 and called the Civil Rights Congress (CRC) accused the American government of complicity against Black Americans. The CRC wanted to present its case to the UN to create international awareness of U.S. culpability for slavery and discrimination.21
The CRC wrote a document addressed to the United Nations titled "We Charge Genocide: The Historic Petition to the United Nations for Relief From a Crime of The United States Government Against the Negro People.”22
In the document’s words, “It is our hope, and… the hope and aspiration of every black American whose voice was silenced forever through premature death at the hands of racist-minded hooligans or Klan terrorists, that the truth recorded here will be made known to the world; that it will speak with a tongue of fire, loosing an unquenchable moral crusade, the universal response to which will sound the death knell of all racist theories.”23 The CRC cited more than 3,500 recorded instances of lynching, legal discrimination, and inequalities in health and quality of life, all with indisputable evidence.
The document quotes the UN’s definition of genocide from the 1948 Convention on the Prevention and Punishment of the Crime of Genocide: “The deliberate intent to destroy, in whole or in part, a national, ethnic, racial, or religious group,” and concludes that "the oppressed Negro citizens of the United States, segregated, discriminated against, and long the target of violence, suffer from genocide as the result of the consistent, conscious, unified policies of every branch of government. If the General Assembly acts as the conscience of mankind and therefore acts favorably on our petition, it will have served the cause of peace."
The document’s signatories included Black American lawyers, activists, politicians, and family members of Black Americans who had been lynched or executed after trial verdicts by white-only juries.
Unfortunately, “We Charge Genocide” struggled to see the light of day. The document was presented to the UN in 1951 but was subsequently suppressed and discredited. The UN never even acknowledged receiving the petition. But even though it was ignored by the mainstream press in the US, “We Charge Genocide” did receive international media attention because it documented the shocking conditions for Black Americans. The CRC ultimately disbanded in 1956.
But the document makes clear that the harms inflicted upon Black Americans were painfully evident even in the immediate post-World War II world in which it was written. One of those harms was the intent to deny voting rights, and the CRC statement is clear about the criminality of disenfranchisement:
“We shall show how terror, how ‘killing members of the group,’ in violation of Article II of the Genocide Convention, has been used to prevent the Negro people from voting in huge and decisive areas of the United States in which they are the preponderant population, thus dividing the whole American people, emasculating mass movements for democracy, and securing the grip of predatory reaction on the federal, state, county, and city governments.”24
Incarceration rates and disenfranchisement
A related issue is the intersection of changes in rates of incarceration in the U.S. criminal justice system and increased disenfranchisement.
“The United States is the world’s leader in incarceration,” according to a report by the Sentencing Project.25 The report goes on, “There are 2 million people in the nation’s prisons and jails – a 500 percent increase over the last 40 years. Changes in sentencing law and policy, not changes in crime rates, explain most of this increase.”
As the report states, “Sentencing policies of the Reagan-era War on Drugs resulted in dramatic growth in incarceration for drug offenses. Since the 1980s, the number of Americans incarcerated for drug offenses skyrocketed from 40,900 in 1980 to 430,926 in 2019. Harsh sentencing laws such as mandatory minimums have kept people convicted of drug offenses in prison for longer periods. In 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison. By 2004, people convicted on federal drug offenses served 62 months in prison, an increase from less than 2 years to more than 5 years.”26
The Sentencing Project reports that people imprisoned on drug convictions make up nearly half the population in federal prisons, while the percent of people incarcerated at the state level for drug offenses has increased ninefold since 1980, and most are not high-level offenders.27
There has been a similar sharp growth in the numbers of people incarcerated for felonies since 1980.28 A 2018 Pew report29 showed that the number of U.S. residents with a felony record rose sharply in every state between 1980 and 2010. As of 2010, around 19 million Americans had been convicted of a felony.
In Georgia, the state with the largest increase, 4 percent of adults were felons in 1980. Three decades later, 1 percent had felony records. Florida, Indiana, Louisiana, and Texas all had felony conviction rates above 10 percent in 2010. Across the country, every state has seen a significant increase in the percentage of residents with felony records.
The Pew report also illustrated the increasing gap in punishment between whites and blacks. In 2010, the percentage of all Americans with a felony record was 8 percent, but the percentage for black males was four times greater, at 33 percent. Additionally, while the absolute number of people with felony convictions increased threefold between 1980 and 2010, it increased fivefold for Blacks during that time.
A 2017 report30 documents that 3 percent of the total U.S. population, but 15 percent of the Black male population, have served time in prison.
The repercussions of a felony conviction can last a lifetime. When people are jailed for even a short time, they can lose their employment, their car, their savings, their residence, and even custody of their children.
Voting rights in Minnesota
The statistics in Minnesota are alarming.31 According to the ACLU-Minnesota, fully 53,000 people are currently disenfranchised. Although they have been released from prison following their felony convictions, they are living in the community on probation, parole, or supervised release, which prohibits the restoration of their voting rights in Minnesota.
A case was brought forward by former felons in Ramsey County District Court in 201932 alleging that Minnesota’s disenfranchisement violates the equal protection guarantee, the due process clause, and Article VII of the Minnesota Constitution. The appellants want voting rights restored once people are returned to the community.
Article VII of the Minnesota Constitution specifies conditions for voting rights. Persons must meet thresholds for age, residency, or citizenship. The only persons not entitled to vote are “a person who has been convicted of treason or felony, unless restored to civil rights; a person under guardianship, or a person who is insane or not mentally competent.”33
That language has not changed since the Minnesota Constitution was ratified in 1857. The history of Article VII shows that the framers adopted felony disenfranchisement as a given, a prevailing 19th-century practice like white-male suffrage. The framers did reject permanent felon disenfranchisement, specifying that disenfranchisement would end when the person was ‘restored to civil rights.’ However, the current systems of community supervision did not exist when Article VII was written. Today’s situation of almost-forever disenfranchisement could never have been foreseen.
Probation is a critical issue in disenfranchisement in Minnesota today, both in numbers of people on probation and in the length of the terms. Data from the Robina Institute shows that in 2015, Minnesota had the seventh highest rate of community supervision in the country, with 105,000 individuals on probation. In comparison, the number of people on probation in Wisconsin at the same time was 65,600.34 Some probation periods in Minnesota are more than 25 years. Although limits are now set at four years, these limits are not ‘grandfathered’ into the system.
In 2019, 17,335 people were sentenced for felony offenses in Minnesota.35 In the nine years from 2010 to 2019, the number of drug offenses grew by 56 percent, accounting for most of the 21 percent growth in people sentenced for felonies over that time.36
Minnesota sends minorities to prison at far higher rates than whites. While Black residents make up about 6 percent of Minnesota's population, nearly 37 percent of the state's prison population is Black.37 In Hennepin County, Minnesota’s most populous county, the population is 73 percent white, 14 percent black, yet the number of felony crimes is about equal, and Blacks constituted 49 percent of those charged with felonies.38
Restore the Vote, a coalition of faith, civic, government, and advocacy organizations, has lobbied unsuccessfully for years at the Minnesota Legislature to restore the vote to people living in community.
The Minnesota Court of Appeals issued its ruling in May 2021, upholding the disenfranchisement practice, and the ACLU-Minnesota argued the appeal before the Minnesota Supreme Court on November 30, 2021.39 It has been suggested that the Court delayed its decision in the hope that the issue will be dealt with in the Legislature and bypass the Court.40 The Secretary of State’s Office has said that this issue should be handled in the Legislature, claiming that changing the law is beyond the court’s authority. "The legal position we’re taking here is that, no, unless the Legislature acts, folks in that position can’t vote," said Secretary of State Steve Simon.
On February 15, 2023, the Minnesota Supreme Court decision was released, upholding the disenfranchisement scheme in Article VII, Section 1, of the Minnesota Constitution and Minn. Stat. 609.165.41 Justice Hudson issued a strong dissent:
“Today, we were called to act; today, we failed to do so. And with judicial redress largely foreclosed by today’s decision, the ball is now in the Legislature’s court, and it must decide whether it will continue denying the right to vote to over 53,000 Minnesotans. I regret that the court limits the ability of the Minnesota Constitution’s equal protection principle to address this injustice. The right to vote is too central to our democracy, and the constraints on that right are too perilous, for us to ignore. I dissent.”42
The issue finally came to a vote in the Minnesota Legislature. On February 2, 2023, the Minnesota House of Representatives voted 71-59 to restore voting rights to felons who have been released back into the community, and on February 21, the Senate also approved re-enfranchisement, on a 35-30 vote. Gov. Tim Walz has promised to sign the bill into law, to take effect in July 2023.43
The bill specifies that it is “the responsibility of the Secretary of State to procure accurate and complete information on rights restoration changes and the expectation for correctional facility officials to provide robust notice of voting rights as part of the re-entry process following incarceration.”44
Minnesota has taken an important step in reducing the legacy of Jim Crow. It is time to reverse this long, shameful practice at the federal level and in the remaining states with strict disenfranchisement practices.
ELLEN J. KENNEDY, Ph.D., is the founder and executive director of World Without Genocide, a human rights organization located at Mitchell Hamline School of Law in St. Paul, where she is also an adjunct professor.
TARA KALAR is an attorney with experience in the public sector. She is of counsel at World Without Genocide.
NOTES
1 https://www.amnesty.org/en/what-we-do/universal-declaration-of-human-rights/
2 Ibid.
3 https://treaties.un.org/doc/treaties/1976/03/19760323%2006-17%20am/ch_iv_04.pdf
4 https://www.globaldemocracycoalition.org/
5 http://archive.fairvote.org/media/rtv/kirshner.pdf
6 Ibid.
7 https://www.un.org/en/coronavirus/information-un-headquarters-new-york
8 https://www.themarshallproject.org/2021/09/29/the-marshall-project-wins-collier-prize-for-state-government-accountability
9 https://www.hrw.org/legacy/reports98/vote/usvot98o.htm
10 https://www.hrw.org/legacy/reports98/vote/usvot98o-03.htm
11 https://dailyillini.com/news/2018/04/26/illinois-leans-liberal-in-felon-voting-laws/
12 https://www.sentencingproject.org/reports/locked-out-2022-estimates-of-people-denied-voting-rights/
13 https://www.hrw.org/legacy/reports98/vote/usvot98o.htm
14 https://www.hrw.org/legacy/reports98/vote/usvot98o-04.htm
15 https://felonvoting.procon.org/international-comparison-of-felon-voting-laws/
16 Armenia, Belgium, Chile; the ban in Belgium is only for those whose sentence was for over 7 years
17 https://www.aclu.org/other/un-committee-says-us-bans-former-prisoner-voting-violate-international-law. Can vote while in prison: Austria, CA, Croatia, Czech Republic, Denmark, Finland, Germany, Iceland, Ireland, Israel, Latvia, Lithuania, Macedonia, Norway, Serbia, Slovenia, Spain, South Africa, Sweden, Switzerland, Ukraine. Some restrictions (14) Australia, Belgium, Bosnia, France, Germany, Greece, Iceland, Italy, Luxembourg, Poland, Portugal, Romania, US (some countries are in more than one category based on states or specific prison term lengths). Ban on voting while in prison but restoration on release: Argentina, Brazil, Bulgaria, Estonia, Hungary, India, NZ, Russia, San Marino, UK.
18 https://www.themarshallproject.org/2018/08/20/jim-crow-s-lasting-legacy-at-the-ballot-box
19 https://www.brennancenter.org/our-work/analysis-opinion/felony-disenfranchisement-laws-have-long-shameful-history
20 https://www.hrc.org/resources/voting-rights-advancement-act
21 “We Charge Genocide,” in https://www.minnpost.com/community-voices/2019/09/we-charge-genocide-still-no-justice/
22 Ibid.
23 https://depts.washington.edu/moves/images/cp/1.%20We%20Charge%20Genocide%201-28.pdf
24 https://www.blackpast.org/global-african-history/primary-documents-global-african-history/we-charge-genocide-historic-petition-united-nations-relief-crime-united-states-government-against/
25 https://www.sentencingproject.org/app/uploads/2022/08/Trends-in-US-Corrections.pdf
26 Ibid.
27 Ibid.
28 https://www.prisonlegalnews.org/news/2018/jun/8/percentage-americans-felony-convictions-increases-especially-blacks/
29 https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/01/02/felony-conviction-rates-have-risen-sharply-but-unevenly
30 https://news.uga.edu/total-us-population-with-felony-convictions/
31 https://www.aclu-mn.org/en/campaigns/voting-rights-restoration
32 No. A20-1264, State of Minnesota, In Court of Appeals, Schroeder et al. v. Simon.
33 Minn. Const. art. VII, § 1.
34 https://robinainstitute.umn.edu/news-views/it%E2%80%99s-time-rethink-probation-lengths-minnesota
35 https://mn.gov/sentencing-guidelines/assets/2019MSGCAnnualSummaryStatistics_tcm30-457007.pdf
36 https://mn.gov/sentencing-guidelines/assets/2019MSGCAnnualSummaryStatistics_tcm30-457007.pdf
37 https://www.house.leg.state.mn.us/comm/docs/b930ba62-979e-4714-9c4d-d9c708dddcf7.pdf
38 https://www.mncourts.gov/Help-Topics/Data-Requests.aspx
39 https://www.aclu.org/press-releases/aclu-responds-to-minnesota-supreme-court-ruling-against-restoring-voting-rights-to-minnesotans
40 https://www.fox9.com/news/voting-rights-in-minnesota-hanging-in-balance-whats-next
41 imap://ejkennedy%40worldwithoutgenocide%2Eorg@imap.gmail.com:993/fetch%3EUID%3E/INBOX%3E337255?part=1.2&filename=OPA201264-021523.pdf&type=application/pdf
42 Ibid.
43 https://www.democracydocket.com/news-alerts/minnesota-house-passes-bill-improving-voting-access-to-people-with-past-felony-convictions/
44 Ibid.