U.S. Restrictions on Felon Voting Do Not Comply with International Law

International law regarding voting is found in the International Covenant on Civil and Political Rights (ICCPR or Covenant) that was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated.[1]

The Covenant’s Terms and Parties

This Covenant establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The Covenant forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.

Article 25 (b) of this treaty states, “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions: To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” (Emphasis added.)

On June 8, 1992, the U.S. finally became a party to the treaty, nearly 26 years after the Covenant had been approved by the U.N. The U.S. accession to the treaty was subject to five reservations, five understandings, four declarations and one proviso. Potentially relevant to the issue of voting rights for felons are the U.S. understandings that (1) distinctions based on . . . other status [felon?] are permissible if rationally related to a legitimate governmental objective; . . . (3) certain practices concerning accused and convicted individuals were preserved; . . . and (5) the obligation of the U.S. federal government to enforce the Covenant in the federal system were limited.”[2]

Earlier (on March 23, 1976), the Covenant had gone into force, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty. Now there are 168 states parties to the Covenant.

The Covenant’s Human Rights Committee

Article 28 of this treaty establishes a Human Rights Committee that is empowered under Article 40 to receive, analyze and comment on periodic reports from parties to the treaty regarding their compliance with its provisions, and the Committee may also issue authoritative “general comments” about the treaty.

The Committee’s General Comment No. 25 Regarding Voting Rights

On August 27, 1996, the Committee issued its General Comment No. 25: “The right to participate in public affairs, voting rights and the right of equal access to public service.”

It stated, in part, “The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, nor a ground of disqualification.” (Para. 10) (Emphasis added.)

The Comment added, “In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence [sic] is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence [sic] and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.” (Para. 14)

Proceedings Regarding the Most Recent U.S. Report to the Committee [3]

1. The U.S. Report to the Committee.

The U.S. has submitted four periodic reports to the Committee, most recently on December 30, 2011, which stated the following with respect to voting rights:

• “Criminal conviction and mental incompetence. The Fourteenth Amendment to the United States Constitution explicitly recognizes the right of states to bar an individual from voting ‘for participation in rebellion, or other crime.’ Accordingly, most states deny voting rights to persons who have been convicted of certain serious crimes. The standards and procedures for criminal disenfranchisement vary from state to state. In most states, this inability to vote is terminated by the end of a term of incarceration or by the granting of pardon or restoration of rights.” (Para. 457) (Emphasis added.)
• “Felony disenfranchisement is a matter of continuing debate in the states of the United States. It has been criticized as weakening our democracy by depriving citizens of the vote, and also for its disproportionate affects on racial minorities. As noted in the Second and Third Periodic Report, in August 2001 the National Commission on Federal Election Reform, chaired by former Presidents Carter and Ford, recommended that all states restore voting rights to citizens who have fully served their sentences. At the time of the previous report, a number of states had moved to reduce the scope of felony disenfranchisement or otherwise to facilitate the recovery of voting rights for those who can regain them.” (Para. 458) (Emphasis added.)
• “Since the submission of the Second and Third Periodic Report in 2005, modification of state laws and procedures has continued. For example, in 2005, the Governor of Iowa issued an executive order eliminating lifetime disenfranchisement for persons convicted of an “infamous crime” and making restoration of voting rights automatic for persons completing their sentences. This order, however, was revoked by a successor Governor in 2011. Also in 2005, the legislature in Nebraska repealed its lifetime ban on voting for all felons and replaced it with a 2-year post-sentence ban. In 2006, Rhode Island voters approved a referendum to amend the state’s constitution to restore voting rights to persons currently serving a sentence of probation or parole. In 2006, the Tennessee legislature amended its complex restoration system to provide a more straightforward procedure under which all persons convicted of felonies (except electoral or serious violence offenses) are now eligible to apply for a ‘certificate of restoration’ upon completion of their sentences. In 2007, the Maryland legislature repealed all provisions of the state’s lifetime voting ban and instituted an automatic restoration policy for all persons upon completion of a sentence.” (Para. 459)
• “In 2009, the Washington state legislature enacted the Washington Voting Rights Registration Act, which eliminates the requirement that persons who have completed their felony sentences pay all fees, fines and restitution before being allowed to vote. Florida, however, toughened its laws in March 2011, banning automatic restoration of voting rights for all convicted felons. Currently 48 states restrict voting by persons convicted of felonies in some manner; further information on felony disenfranchisement can be found in the Common Core Document.” (Para. 459)
• “In July 2009, a bill entitled the Democracy Restoration Act of 2009 was introduced in both the Senate (S. 1516) and the House of Representatives (H.R. 3335). This bill would establish uniform standards restoring voting rights in elections for federal office to Americans who are no longer incarcerated but continue to be denied their ability to participate in such elections. A hearing on H.R. 3335 was held in the House of Representatives on March 16, 2010, but the bills did not proceed further. This legislation has been reintroduced in the House in the 112th Congress (H.R. 2212).” (Para. 460)[4]

2. The Committee’s List of Issues for the U.S.

On April 29, 2013, the Committee issued its “List of issues” for response by the U.S. Its paragraph 26(a) stated, “Please provide information on: (a) The rationale for prohibiting persons with felony convictions from voting in federal elections once they have completed their sentence. Please provide information on steps taken to ensure that states restore voting rights to citizens who have fully served their sentences and those who have been released on parole. Please also provide information on the extent that the regulations relating to deprivation of votes for felony conviction impact on the rights of minority groups.” (Emphasis added.)

3. U.S. Replies to the Committee’s List of Issues

On July 5, 2013, the U.S. submitted its replies to the Committee’s list of issues. In paragraph 128, the U.S. stated, “The U.S. Constitution generally provides that governments of the individual states, not the U.S. Congress, determine who is eligible to vote in their state. Congress has the power to regulate elections for federal offices and has constitutional authority to eradicate discrimination in voting through the Fourteenth and Fifteenth Amendments. According to the Brennan Center of NYU Law School, 48 states restrict voting by persons convicted of felony offenses in some manner, although the majority of these states provide for restoration of voting rights to felons who have been released from prison and/or are no longer on parole or probation. A few states prohibit felons from voting for life. Legal challenges alleging that state felon disenfranchisement laws violate either the U.S. Constitution’s non-discrimination principle or other federal voting rights statutes have generally not succeeded absent proof of racially discriminatory purpose.” (Emphasis added.)

4. U.S. Attorney General’s Statement About Felony Disenfranchisement

Outside the context of the Committee’s review of the U.S. report, on February 11, 2014, U.S. Attorney General Eric Holder made extensive and powerful comments regarding felony disenfranchisement in his speech, “Criminal Justice Reform,” at Georgetown University Law Center. He said the following:

• “[W]e’ve seen that maintaining family connections, developing job skills, and fostering community engagement can reduce the likelihood of re-arrest. And we know that restoring basic rights – and encouraging inclusion in all aspects of society – increases the likelihood of successful reintegration.  We’ve taken significant steps forward in improving reentry policies and addressing the unintended collateral consequences of certain convictions.”
• “Yet formerly incarcerated people continue to face significant obstacles.  They are frequently deprived of opportunities they need to rebuild their lives. And in far too many places, their rights – including the single most basic right of American citizenship – the right to vote – are either abridged or denied.”
• “As the Leadership Conference Education Fund articulated very clearly in . . . [its] recent report, ‘there is no rational reason to take away someone’s voting rights for life just because they’ve committed a crime, especially after they’ve completed their sentence and made amends.’  On the contrary: there is evidence to suggest that former prisoners whose voting rights are restored are significantly less likely to return to the criminal justice system.  As . . . [this] report further notes, a study recently conducted by a parole commission in Florida found that, while the overall three-year recidivism rate stood at roughly 33 percent, the rate among those who were re-enfranchised after they’d served their time was just a third of that.”
• “Unfortunately, the [Florida] re-enfranchisement policy that contributed to this stunning result has been inexplicably and unwisely rolled back since that study was completed.  And, in other states, officials have raised hurdles to be faced by those with past convictions seeking to regain their access to the ballot box.  And that’s why I believe that . . . [it] is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision.”
• “These restrictions are not only unnecessary and unjust, they are also counterproductive.  By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes.  They undermine the reentry process and defy the principles – of accountability and rehabilitation – that guide our criminal justice policies. . . . At worst, these laws, with their disparate impact on minority communities, echo policies enacted during a deeply troubled period in America’s past – a time of post-Civil War repression. And they have their roots in centuries-old conceptions of justice that were too often based on exclusion, animus, and fear.”
• “The history of felony disenfranchisement dates to a time when these policies were employed not to improve public safety, but purely as punitive measures – intended to stigmatize, shame, and shut out a person who had been found guilty of a crime.  Over the course of many decades – court by court, state by state – Americans broadly rejected the colonial-era notion that the commission of a crime should result in lifelong exclusion from society.”
• “After Reconstruction, many Southern states enacted disenfranchisement schemes to specifically target African Americans and diminish the electoral strength of newly-freed populations.  The resulting system of unequal enforcement – and discriminatory application of the law – led to a situation, in 1890, where ninety percent of the Southern prison population was black.  And those swept up in this system too often had their rights rescinded, their dignity diminished, and the full measure of their citizenship revoked for the rest of their lives.  They could not vote.”
• “Yet – despite this remarkable, once-unimaginable [civil rights] progress – the vestiges, and the direct effects, of outdated practices remain all too real. In many states, felony disenfranchisement laws are still on the books.  And the current scope of these policies is not only too significant to ignore – it is also too unjust to tolerate.”
• “Across this country today, an estimated 5.8 million Americans – 5.8 million of our fellow citizens – are prohibited from voting because of current or previous felony convictions.  That’s more than the individual populations of 31 U.S. states.  And although well over a century has passed since post-Reconstruction states used these measures to strip African Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable.”
• “Throughout America, 2.2 million black citizens – or nearly one in 13 African-American adults – are banned from voting because of these laws.  In three states – Florida, Kentucky, and Virginia – that ratio climbs to one in five. These individuals and many others – of all races, backgrounds, and walks of life – are routinely denied the chance to participate in the most fundamental and important act of self-governance.  They are prevented from exercising an essential right.  And they are locked out from achieving complete rehabilitation and reentry – even after they’ve served the time, and paid the fines, that they owe.”
• “Fortunately . . . in recent years we have begun to see a trend in the right direction.  Since 1997, a total of 23 states – including Nebraska, Nevada, Texas, and Washington State – have enacted meaningful reforms.  In Virginia, just last year, former Governor McDonnell adopted a policy that began to automatically restore the voting rights of former prisoners with non-violent felony convictions.”
• “These are positive developments.  But many of these changes are incremental in nature.  They stop well short of confronting this problem head-on.  And although we can be encouraged by the promising indications we’ve seen, a great deal of work remains to be done.  Given what is at stake, the time for incrementalism is clearly over.”
• “Eleven states continue to restrict voting rights, to varying degrees, even after a person has served his or her prison sentence and is no longer on probation or parole – including the State of Florida, where approximately 10 percent of the entire population is disenfranchised as a result.  In Mississippi, roughly 8 percent of the population cannot vote because of past involvement with the criminal justice system. In Iowa, action by the governor in 2011 caused the state to move from automatic restoration of rights – following the completion of a criminal sentence – to an arduous process that requires direct intervention by the governor himself in every individual case.  It’s no surprise that, two years after this change – of the 8,000 people who had completed their sentences during that governor’s tenure – voting rights had been restored to fewer than 12.”
• “That’s moving backwards – not forward. It is unwise, it is unjust, and it is not in keeping with our democratic values.  These laws deserve to be not only reconsidered, but repealed.  And so today, I call upon state leaders and other elected officials across the country to pass clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines.”
• “And I call upon the American people – who overwhelmingly oppose felony disenfranchisement – to join us in bringing about the end of misguided policies that unjustly restrict what’s been called the ‘most basic right’ of American citizenship.”
• The “inconsistent patchwork of laws affecting felony disenfranchisement varies so widely between states – and, in some places, between cities and counties – that even those who administer the laws are sometimes unfamiliar with how to apply them. The New York Times noted in 2012 that this kind of confusion means that many who are legally allowed to vote erroneously believe that their rights are restricted.  And too often, those who do understand their rights are wrongfully turned away.”
• “[P]ermanent exclusion from the civic community does not advance any objective of our criminal justice system.  It has never been shown to prevent new crimes or deter future misconduct.   And there’s no indication that those who have completed their sentences are more likely to commit electoral crimes of any type – or even to vote against pro-law enforcement candidates.
• “What is clear – and abundantly so – is that these laws sever a formerly incarcerated person’s most direct link to civic participation.  They cause further alienation and disillusionment between these individuals and the communities . . . . And particularly at a time when our prisons are overflowing – and many who are serving sentences for nonviolent drug crimes find themselves trapped in a vicious cycle of poverty and incarceration – it is counterproductive to exclude these individuals from the voting franchise once their involvement with the corrections system is at an end.  It is contrary to the goals that bring us together today.”
• “Whenever we tell citizens who have paid their debts and rejoined their communities that they are not entitled to take part in the democratic process, we fall short of the bedrock promise – of equal opportunity and equal justice – that has always served as the foundation of our legal system.  So it’s time to renew our commitment – here and now – to the notion that the free exercise of our fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.”

5. Committee’s Hearings

At a Committee hearing on March 14, 2014, an U.S. representative (Roy Austin, Jr., Deputy Assistant Attorney General, Civil Rights Division, Department of Justice) said, “Persons convicted of crimes were not necessarily informed before sentencing that they would lose their right to vote.“

Austin also stated later at that hearing, “There was no national guarantee ensuring that defendants and prisoners were made aware of the loss of the right to vote. However, in practice, whenever defendants took a plea or were sentenced, they were informed of the fact that they would lose certain constitutional rights. Furthermore, the American Bar Association had launched a website entitled the National Inventory on the Collateral Consequences of Conviction as part of an effort to help defence [sic] lawyers fully inform their clients of, inter alia, any rights they would lose as the result of a conviction for a crime.”

6. Committee’s Concluding Observations

After reviewing all of the records regarding the U.S. report,[5] the Committee on March 26, 2014, adopted its Concluding Observations. Here is what it said in paragraph 24 about U.S. voting rights.

“While noting with satisfaction the statement by the Attorney General on 11 February 2014, calling for a reform of state laws on felony disenfranchisement, the Committee reiterates its concern about the persistence of state-level felon disenfranchisement laws, its disproportionate impact on minorities and the lengthy and cumbersome voting restoration procedures in states. The Committee is further concerned that voter identification and other recently introduced eligibility requirements may impose excessive burdens on voters and result in de facto disenfranchisement of large numbers of voters, including members of minority groups. Finally, the Committee reiterates its concern that residents of the District of Columbia (D.C.) are denied the right to vote for and elect voting representatives to the United States Senate and House of Representatives (arts. 2, 10, 25 and 26)”

“The State party should ensure that all states reinstate voting rights to felons who have fully served their sentences; provide inmates with information about their voting restoration options; remove or streamline lengthy and cumbersome voting restoration procedures; as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. The State party should also take all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters and result in de facto disenfranchisement. The State party should also provide for the full voting rights of residents of Washington, D.C.” (Emphasis in original.)

This very polite language is the way the Committee was saying the U.S. was not complying with the Convention’s provisions regarding voting.[6]

Conclusion

The U.S. problem of felon disenfranchisement still persists. The previously mentioned proposed federal Democracy Restoration Act has not been adopted. Only two states (Maine and Vermont) do not have any restrictions on voting by citizens convicted of a felony. Thirteen states and the District of Columbia restore voting after completion of the term of incarceration; four states, after incarceration and parole; 20 states, after incarceration and parole and probation. The other 11 states permanently ban voting by felons under certain conditions. In addition 10 states restrict some people convicted of misdemeanors from voting.

Therefore, the  U.S. is not complying with the Convention’s provisions regarding voting.

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[1] Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 141-43 (4^th ed. LEXIS-NEXIS 2009). The Covenant is baed upon the Universal Declaration of Human Rights of 1948, which states in Article 21(3), “The will of the people shall be the basis of the authority of government, this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage . . . .”

[2] The long, convoluted history of the U.S. accession to the Covenant is discussed in a prior blog post.

[3] The most recent Committee’s consideration of the U.S. human rights record has been discussed in prior posts about the Committee’s hearings, its concluding observations and felon voting. The actual U.S. report, the list of issues, the U.S. replies to that list of issues, a summary of the hearings, the submissions from Civil Society Organizations and the concluding observations are available on the Committee’s website.

[4] The Democracy Restoration Act also was introduced in the Senate (S. 2017) in the 112^th Congress, but it died in committees in both chambers.

[5] The record included several hundred submissions from Civil Society Organizations. Felony disenfranchisement was addressed by at least one such submission: the one from the American Civil Liberties Union, the ACLU of Florida, the Lawyers’ Committee for Civil Rights under Law, the Leadership Conference, the NAACP, the NAACP Legal Defense Fund and the Sentencing Project. It argued that U.S. felony disenfranchisement laws had a disproportionate impact on minorities, and it reviewed the history and rationale of such laws, the increasing international isolation of the U.S. on such laws, the terms of such laws and the legal challenges to such laws. This submission also criticized the U.S. reply to this issue on the Committee’s list of issues and suggested recommendations for the Committee to make to the U.S.

[6] Another treaty to which the U.S. is not a party–the Protocol 1 to the European Convention on the Protection of Human Rights and Fundamental Freedoms–has been interpreted to ban national laws that “applied automatically to convicted prisoners in detention, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence [sic] and their individual circumstances.” This was the decision in 2005 by the European Court of Human Rights, which said “the severe measure of disenfranchisement was not to be resorted to lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. “ (Hirst v. United Kingdom, 2005-IX Reports of Judgments & Decisions 195 (Eur. Ct. Hum. Rts. 2005),}