Double Jeopardy

Voting restrictions for people with felony convictions threaten American democracy

In the US general election this year, an estimated 6.1 million adults were ineligible to vote due to state-specific restrictions that revoke the voting rights of people with felony convictions. gregg newton / afp / getty images
01 December, 2016

SINCE HE WAS BORN, 35-year-old Tyler J Markwart has struggled to eat: he has liver and digestive-tract disorders that cause him severe nausea and intestinal pain. When he was a teenager, Markwart discovered that marijuana could alleviate these symptoms, easing his discomfort and boosting his appetite. The drug, whose recreational usage is illegal in most of the United States, became a life-altering medicine for him.

But that medicine also got Markwart into trouble. Over a phone interview in November, he told me, “In 2010, I was the first person in Washington State to receive a business licence to operate a medical-marijuana dispensary, and so that kind of put me as a target of the law-enforcement community at the time.” Though it was legal for him to grow cannabis in Washington, he could only sell it to patients who demonstrated, with documentation, that they required the drug for medicinal purposes. In April of 2011, Markwart was caught selling it to non-patients, who ended up being undercover police officers. He was convicted of three felonies—two counts of drug distribution and one count of drug manufacturing—and sentenced to eight years in prison. But he was released after less than two months, because, due to his disorders, he could not digest the food served in prison. He had lost 12 kilograms in just 52 days, he told me, and had he remained incarcerated any longer, he would have died.

Markwart is currently on probation, and, to complete his sentence, must pay off a $5,000 fine, which increases by 12 percent each year. “Because I am indigent, I can only afford to pay $100 a month, and so I rack up money each month,” he said. Even after he pays off the sum, Markwart will continue to face consequences for his felonies. He will never, for example, be able to legally own a firearm or live in certain types of government-sponsored housing.

In the US general election this year, when the Republican Party’s Donald Trump routed the Democratic Party’s Hillary Clinton, Markwart paid another penalty: he could not vote. This frustrated him immensely. “I’m very politically involved, and I’ve been involved in the political community for cannabis for ten or 15 years now,” he said. “The right to vote is a constitutional right, and should never be suspended or taken away in any manner.”

Markwart was far from alone. In a report published in October, the Sentencing Project, a non-profit organisation that supports criminal-justice reform, estimated that 6.1 million adults in the United States are unable to vote due to state-specific laws that disenfranchise people with felony convictions. In a country with an adult population under 300 million, these restrictions pose a major threat to the nation’s democracy.

Since Markwart lives in Washington, his disenfranchisement is much milder than that experienced by citizens in many other states. Washington only restricts the voting rights of people with felony convictions as long as they are serving their sentences. Once he has paid off his fines and finished his probationary period, he will be able to vote again.

This would not be the case if he lived in Florida, where I did most of my reporting for this story. Here, a felony conviction strips someone of voting rights for life. The Sentencing Project report claims that 1.5 million people in Florida are unable to vote due to felony convictions—a figure that amounts to 10.4 percent of the state’s adult population. Having a criminal record carries massive social stigma here, as it does in most other places. One Floridian I spoke to, who is engaged to someone with a felony conviction, told me, “It’s hard when people ask if I have ever googled my fiancé before. It’s like, yes—and yes, I’m aware of everything.”

Florida is a “swing state,” which means it is considered winnable for both Democrats and Republicans under the complicated electoral-college system by which votes are counted in presidential elections. This gives the state’s felon-disenfranchisement laws crucial political currency. In 2000, for instance, Florida became the electoral tiebreaker, with the Republican George W Bush beating the Democrat Al Gore by a razor-thin margin of 537 votes. According to the New York Times, that year, 600,000 people in the state were ineligible to vote because of felony convictions. The race in Florida was close this year as well, with Trump beating Clinton in the state by 119,770 votes—less than one-tenth the number of Floridians who are disenfranchised due to felony convictions.

Many perceive the issue of felon disenfranchisement as a partisan one, since those with convictions are often assumed to be predominantly Democrats. Earlier this year, Terry McAuliffe, the Democratic governor of Virginia, tangled with Republican legislators when he attempted to re-enfranchise thousands of people with felony histories in Virginia. While the governor said he believed restoring the rights was “an issue of basic justice,” the Republicans accused him of trying to add more Democrats to the electoral rolls. Trump even weighed in, saying in an April rally that McAuliffe was reinstating the voting rights of “people that have been convicted of heinous crimes, horrible crimes, the worst crimes,” because he knew “they’re gonna vote Democrat, and that could be the swing. That’s how disgusting and dishonest our political system is.” About a month before the election, Virginia’s supreme court declared McAuliffe’s actions incompatible with the state constitution, revoking the rights he had restored.

The disenfranchisement of people with felony convictions disproportionately affects racial minorities, especially black people—who, for generations, have been targeted by the machinery of the criminal-justice system at much higher rates than white people. According to a piece published by the American Bar Association, while, in 2005, black people comprised 13 percent of the black population and 14 percent of its drug users, they made up 53 percent of people who were sentenced to prison for drug crimes. Ken Adams, a professor of criminal justice at the University of Central Florida, told me that when such realities are combined with laws like Florida’s, which do not restore voting rights after sentences are served, racial divides become even starker. “So new people keep getting added to that group”—of ineligible voters—“and new people are not being subtracted. You can easily get to a situation where 35 percent of black males are not eligible to vote,” he said. The racial dynamics of felon disenfranchisement may be why many see the issue as partisan: black people overwhelmingly vote Democrat. In this election, Trump received only eight percent of the black vote.

The racial impact of these restrictions has its roots in history. Around the turn of the twentieth century, many states adopted new laws to disenfranchise and criminalise black people—whose recent emancipation from slavery many whites viewed as a social threat. When McAuliffe attempted to restore voting rights in Virginia, he cited the legacy of racist discrimination in the South as one of the reasons why the laws exist in the first place. According to the Sentencing Project’s report, more than 21 percent of black people in Florida, Virginia, Tennessee and Kentucky—all southern states—are ineligible to vote because of felony convictions.

There is one way for those with felony records to regain the right to vote in Florida: they can undergo an elaborate application for clemency, for which ultimate approval rests with the governor. Applicants must, among other things, have no debt related to a traffic infraction or a criminal conviction that is greater than $1,000, and must fill out reams of paperwork—both conditions that can be prohibitive to the poor, who are more likely to be in debt and have low literacy skills. “Even though my felony was 20 years ago, I can’t vote,” one Floridian told me. “I didn’t know there was a process of submitting paperwork,” he added. “I was a huge Hillary Clinton fan, and I wish I could vote for her.”

In the last six years, Florida has only restored voting rights for about 2,000 people, and there are currently 10,000 applications awaiting review. Nevertheless, Rick Scott, the state’s current Republican governor, has shown no intention of speeding up the process. “It is important that this form of clemency be granted in a deliberate, thoughtful manner that prioritises public safety and creates incentives to avoid criminal activity,” he said in 2011.

Some states are more forgiving. Maine and Vermont, for instance, impose no such restrictions, even allowing citizens to vote in prison. The other 48 states, however, impose at least some restrictions, with 12, like Florida, prohibiting people from voting even after they complete their sentences.

When you deprive someone of the right to vote, Adams said, “what you are basically saying to people is that because of what you’ve done, you can no longer effectively for the rest of your life contribute to the political process and you’ll have to be passive.” This, he said, undermines the nation’s proudly held value of equality. “It’s not a good position for a democracy to be in where such a large number of people are being excluded effectively for a lifetime.”