Sec. 1702. Findings

1,486 words·~7 min read·/bill/118/hr/11/ih/section-1702

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Congress makes the following findings: The right to vote is the most basic constitutive act of citizenship. Regaining the right to vote reintegrates individuals with criminal convictions into free society, helping to enhance public safety. Article I, section 4, of the Constitution grants Congress ultimate supervisory power over Federal elections, an authority which has repeatedly been upheld by the United States Supreme Court. Basic constitutional principles of fairness and equal protection require an equal opportunity for citizens of the United States to vote in Federal elections.

The right to vote may not be abridged or denied by the United States or by any State on account of race, color, gender, or previous condition of servitude. The Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments to the Constitution empower Congress to enact measures to protect the right to vote in Federal elections. The Eighth Amendment to the Constitution provides for no excessive bail to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

There are 3 areas in which discrepancies in State laws regarding criminal convictions lead to unfairness in Federal elections— the lack of a uniform standard for voting in Federal elections leads to an unfair disparity and unequal participation in Federal elections based solely on where a person lives; laws governing the restoration of voting rights after a criminal conviction vary throughout the country and persons in some States can easily regain their voting rights while in other States persons effectively lose their right to vote permanently; and State disenfranchisement laws disproportionately impact racial and ethnic minorities.

State disenfranchisement laws vary widely. Two States (Maine and Vermont) and the Commonwealth of Puerto Rico do not disenfranchise individuals with criminal convictions at all. In 2020, the District of Columbia re-enfranchised its citizens who are under the supervision of the Federal Bureau of Prisons. Twenty-five States disenfranchise certain individuals on felony probation or parole. During 2023, lawmakers in Minnesota and New Mexico expanded voting rights to citizens on felony probation and parole.

In 11 States, a conviction for certain offenses can result in lifetime disenfranchisement. Several States deny the right to vote to individuals convicted of certain misdemeanors. In 2022, over 4,600,000 citizens of the United States, or about 1 in 50 adults in the United States, could not vote as a result of a felony conviction. Of the 4,600,000 citizens barred from voting then, only 23 percent were in prison or jail. By contrast, 75 percent of persons disenfranchised then resided in their communities while on probation or parole or after having completed their sentences.

Approximately 2,200,000 citizens who had completed their sentences were disenfranchised due to restrictive State laws. Over 930,000 Floridians who completed their sentence remain disenfranchised because of a pay-to-vote requirement that was enacted by Florida lawmakers in 2019 to undermine the impact of a 2018 ballot initiative that eliminated the lifetime ban for persons with certain felony convictions. In 3 States—Alabama, Mississippi, and Tennessee—more than 8 percent of the total population is disenfranchised.

In those States that disenfranchise individuals post-sentence, the right to vote can be regained in theory, but in practice this possibility is often granted in a non-uniform and potentially discriminatory manner. Disenfranchised individuals sometimes must either obtain a pardon or an order from the Governor or an action by the parole or pardon board, depending on the offense and State. Financial restrictions may also inhibit individuals who have completed their sentences from re-enfranchisement.

Individuals convicted of a Federal offense often have additional barriers to regaining voting rights. Many felony disenfranchisement laws today derive directly from post-Civil War efforts to stifle the Fourteenth and Fifteenth Amendments. Between 1865 and 1880, at least 14 States—Alabama, Arkansas, Colorado, Florida, Georgia, Illinois, Mississippi, Missouri, Nebraska, New York, North Carolina, South Carolina, Tennessee, and Texas—enacted or expanded their felony disenfranchisement laws.

One of the primary goals of these laws was to prevent African Americans from voting. Of the States that enacted or expanded their felony disenfranchisement laws during this post-Civil War period, at least 11 continue to preclude persons on felony probation or parole from voting. State disenfranchisement laws disproportionately impact racial and ethnic minorities. In recent years, African Americans have been imprisoned at over 5 times the rate of Whites. More than 6 percent of the voting-age African-American population, or 1,800,000 African Americans, are disenfranchised due to a felony conviction.

In 9 States—Alabama (16 percent), Arizona (13 percent), Florida (15 percent), Kentucky (15 percent), Mississippi (16 percent), South Dakota (14 percent), Tennessee (21 percent), Virginia (16 percent), and Wyoming (36 percent)—more than 1 in 8 African Americans are unable to vote because of a felony conviction, twice the national average for African Americans. Latino citizens are also disproportionately disenfranchised based upon their disproportionate representation in the criminal justice system.

Although data on ethnicity in correctional populations are unevenly reported and undercounted in some States, a conservative estimate is that at least 506,000 Latino Americans or 1.7 percent of the voting-age population are disenfranchised. In 31 States Latinos are disenfranchised at a higher rate than the general population. In Arizona and Tennessee over 6 percent of Latino voters are disenfranchised due to a felony conviction. Women have been significantly impacted by mass incarceration since the early 1980s.

Approximately 1,000,000 women were disenfranchised in 2022, comprising over 20 percent of the total disenfranchised population. Disenfranchising citizens who have been convicted of a criminal offense and who are living and working in the community serves no compelling State interest and hinders their rehabilitation and reintegration into society. Models of successful re-entry for persons convicted of a crime emphasize the importance of community ties, feeling vested and integrated, and prosocial attitudes.

Individuals with criminal convictions who succeed in avoiding recidivism are typically more likely to see themselves as law-abiding members of the community. Restoration of voting rights builds those qualities and facilitates reintegration into the community. That is why allowing citizens with criminal convictions who are living in a community to vote is correlated with a lower likelihood of recidivism. Restoration of voting rights thus reduces violence and protects public safety.

State disenfranchisement laws can suppress electoral participation among eligible voters by discouraging voting among family and community members of disenfranchised persons. Future electoral participation by the children of disenfranchised parents may be impacted as well. The United States is one of the only Western democracies that permits the permanent denial of voting rights for individuals with felony convictions. The Eighth Amendment’s prohibition on cruel and unusual punishments guarantees individuals the right not to be subjected to excessive sanctions .

(Roper v. Simmons, 543 U.S. 551, 560 (2005)). That right stems from the basic precept of justice that punishment for crime should be graduated and proportioned to [the] offense . Id. (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). As the Supreme Court has long recognized, [t]he concept of proportionality is central to the Eighth Amendment . (Graham v. Florida, 560 U.S. 48, 59 (2010)). Many State disenfranchisement laws are grossly disproportional to the offenses that lead to disenfranchisement and thus violate the bar on cruel and unusual punishments.

For example, a number of States mandate lifetime disenfranchisement for a single felony conviction or just two felony convictions, even where the convictions were for non-violent offenses. In numerous other States, disenfranchisement can last years or even decades while individuals remain on probation or parole, often only because a person cannot pay their legal financial obligations. These kinds of extreme voting bans run afoul of the Eighth Amendment. The Twenty-Fourth Amendment provides that the right to vote shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax .

Section 2 of the Twenty-Fourth Amendment gives Congress the power to enforce this article by appropriate legislation. Court fines and fees that individuals must pay to have their voting rights restored constitute an other tax for purposes of the Twenty-Fourth Amendment. At least five States explicitly require the payment of fines and fees before individuals with felony convictions can have their voting rights restored. More than 20 other States effectively tie the right to vote to the payment of fines and fees, by requiring that individuals complete their probation or parole before their rights are restored.

In these States, the non-payment of fines and fees is a basis on which probation or parole can be extended. Moreover, these States sometimes do not record the basis on which an individual’s probation or parole was extended, making it impossible to determine from the State’s records whether non-payment of fines and fees is the reason that an individual remains on probation or parole. For these reasons, the only way to ensure that States do not deny the right to vote based solely on non-payment of fines and fees is to prevent States from conditioning voting rights on the completion of probation or parole.

Connections3 off-index

3 references not yet in our index

543 U.S. 551
217 U.S. 349
560 U.S. 48

Citation graph

cites case law

Sec. 1702

Findings

SCOTUS543 U.S. 551

SCOTUS217 U.S. 349

SCOTUS560 U.S. 48

Cites 3Cited by 0 across 0 sources