Understanding felon voting rights restoration

When felons leave prison, should they regain the right to vote?

That’s a question that many states have grappled with in recent decades. New York and Florida made recent headlines for policies on restoration of voting rights, and those policies have become campaign issues, especially in campaigns for governor.

Nationwide, about 6 million Americans can’t vote as a result of a felony conviction. About half have fully completed their sentences, another quarter are in the community under probation or parole supervision, and a quarter are still incarcerated.

Disenfranchisement disproportionately affects African-American voters. And while there is no data on the income status of the disenfranchised population, the prison population is generally low-income and working class, said Marc Mauer, executive director of The Sentencing Project.

There are arguments both for and against making it easier for felons to regain voting rights.

Proponents argue that after felons have paid their debt to society, they should regain the right to vote. Casting a ballot is one way to positively contribute to society, they say.

Others say restoration of rights shouldn’t be automatic.

"If you’re not willing to follow the law, then you should not have a role in making the law for everyone else," wrote Roger Clegg, who worked in the Reagan and H.W. Bush administrations, and Hans von Spakovsky, who worked in the George W. Bush Justice Department, in a National Review op-ed.

In New York, Democratic Gov. Andrew M. Cuomo announced an executive order that will lead to thousands of felons regaining the right to vote. In Florida, Republican Gov. Rick Scott has been fighting a court order to to make it easier for felons to regain voting rights. Florida voters, meanwhile, may end up changing the rules themselves through a constitutional amendment on the ballot in November.

In New York and Florida, the voting rights battles have tended to fall along partisan lines: Democrats favor voting restoration, while Republicans oppose it.

But in other states, we found that the system of restoring voting rights varies considerably. We wanted to explain how it works nationwide, as well as what is at stake in Florida and New York.

There is no federal law that dictates felon voting rights. States have the power to set rules for restoration of rights, and since the 1990s, more states have made the process easier.

The National Conference of State Legislatures has divided states into four general categories on their approaches.

States where felons never lose right to vote: In Maine and Vermont, felons never lose their right to vote, even while incarcerated.

States where felons lose rights only while incarcerated: In 14 states and the District of Columbia, felons lose their voting rights only while incarcerated, and receive automatic restoration upon release. Then they must go through the normal voter registration process.  

States where rights are lost until completion of sentence: In 21 states, felons lose their voting rights during incarceration and for a period of time after, typically while on parole or probation. Voting rights are automatically restored after this time period. Former felons may also have to pay outstanding fines, fees or restitution before their rights are restored. California is in this category, but in 2016, the state passed legislation allowing those in county jails to vote, but not those in state or federal prison.

States where felons lose rights beyond the completion of sentence: In 13 states, felons lose their voting rights indefinitely for some crimes, or require a governor’s pardon in order for voting rights to be restored, or face an additional waiting period after completion of sentence before voting rights can be restored.

On April 18, Cuomo issued an executive order that stated those on parole "will be given consideration for a conditional pardon that will restore voting rights without undue delay." The pardon will only apply to voting rights.

"In this state, when you're released from prison and you're on parole, you still don't have the right to vote," Cuomo said. "Now how can that be? You did your time, you paid your debt, you're released, but you still don't have a right to vote. At the same time, we're saying we want you to be part of society, we want you to get back into the community."

There are 35,000 people on parole with about 2,000 added each month. Cuomo expects to get through the initial list within six weeks.

Cuomo announced his order as he and his Democratic primary opponent, former Sex in the City actress and activist Cynthia Nixon, are vying for the African-American vote. Cuomo’s move is an end-run around the Republican-led state Senate and doesn’t change the state law that bars felons from voting while incarcerated or on parole.

Alphonso David, chief counsel to the governor, pointed to New York Constitution Article IV Section 4, which gives the governor power to issue pardons. State election law also says that felons can’t register to vote unless "he shall have been pardoned or restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has expired, or he has been discharged from parole."

New York Republican officials criticized Cuomo’s order. Senate majority leader John J. Flanagan told reporters that it ''circumvents the law.''

Down in Florida, voting rules could change either through the courts or a decision by the voters.

Under the Florida Constitution, a convicted felon cannot vote, serve on a jury, or hold public office until civil rights have been restored. There have been some past efforts to make the process easier, especially in 2007 under former Gov. Charlie Crist, a Republican at the time who is now a Democratic member of Congress.

But in 2011, Scott and the Florida Cabinet made the process more cumbersome and set a minimum five-year waiting period. Since then, about 30,000 have applied to restore their civil rights and 3,000 have been granted, according to the Florida Commission on Offender Review. There are about 10,000 pending cases.

The Fair Elections Legal Network challenged the state's policy in court. U.S. District Court Judge Mark Walker ruled that the state’s system is arbitrary because the state has unfettered discretion in restoring voting rights.

"Disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority," Walker wrote Feb. 1. "No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration."

In March, Walker ordered the Cabinet to create a new process. Florida’s Cabinet, which includes Scott, asked a federal appeals court to delay Walker's order pending appeal. They argued that a delay is necessary to avoid "chaos and uncertainty" in upcoming elections.

Scott is challenging Democrat U.S. Sen. Bill Nelson in November.

Finally, advocates in favor of restoring voting rights in Florida collected signatures to place a question on the ballot. Amendment 4 calls for restoring voting rights automatically for those who have completed their sentences including parole or probation, not including those convicted of murder or rape. The measure will be on the November 2018 ballot and requires 60 percent approval to become law.

Spot a claim about voting rights we should fact-check? Email us at [email protected].