Blind v. Colorblind: The Injustice of State Felon Disenfranchisement Schemes

Abstract

State policies which disenfranchise ex-felons, those who have served their complete sentences, have a long history. While “civil death†was a common punishment for convicts in Europe prior to the colonization ofNorth America, ex-felon disenfranchisement statutes were adopted by several states, primarily in the South after the Civil War. There is substantial evidence that these statutes were created to exclude racial minorities. These discriminatory effects can still be seen today. Racial minorities in the United States, primarily African Americans, are incarcerated at a much higher rate than their white peers. Once convicted, these persons are often subject to disenfranchisement. Because of the racial disparities in conviction and incarceration, minority communities are often left with a diminished voice in the electoral process. Under theVoting Rights Act, as amended in 1982, any voting qualifications established by a state that result in disproportionate disadvantages for minorities are illegal. As a result, African American voters, who consistentlyvote for Democratic candidates 90% of the time, suffer from vote dilution due to felon disenfranchisement. Precedent suggests that courts analyzing such state statutes should consider a totality of circumstances, including the historical reasons for enactment and other harms suffered by the community. Because of this, ex-felon disenfranchisement schemes are not only a bad policy, but also are incompatible with equal voting rights as embodied in the 15th Amendment, and therefore invalid under law.