In 1901, delegates drafting a new constitution for Alabama knew their mission. “Within the limits imposed by the Federal Constitution,” convention president John B. Knox explained, the delegates aimed “to establish white supremacy in this state. If we should have white supremacy, we must establish it by law — not by force or fraud.”
Unable to explicitly ban black voters without violating federal law, the resulting state constitution declared persons “convicted of a felony involving moral turpitude” could not vote without having their rights restored.
Alabama’s 1901 Constitution remains in force today, and felony disenfranchisement schemes with similar origins still shape electorates throughout the country. According to the Sentencing Project, more than 6 million Americans cannot vote due to unprecedented mass incarceration and a patchwork of laws in 48 of the 50 states. Increasingly, debates over the practice of conditioning voting rights on criminal record reference the laws’ historically racist motivations.
Felony disenfranchisement has an undeniable racial present, not just past. Black Americans constitute 2.2 million of the disenfranchised, banned from voting at four times the rate of all other racial groups combined. Its history betrays a truth the nation has continuously refused to recognize in the experience of its most intimately reviled child: enslaved Africans and their descendants.
Yet Alabama has seen some progress. Facing federal litigation, legislators in May 2017 sent a bill to Gov. Kay Ivey easing the state’s disenfranchisement law by defining the phrase “moral turpitude” for the first time since it appeared in the 1901 constitution, and settling longstanding ambiguity about who could or could not vote. With little fanfare, Ivey signed the bill, limiting the designation to fewer than 50 crimes and potentially enfranchising thousands of people with prior convictions.
The change may have had an impact on the special election in December 2017 to fill Jeff Sessions’ U.S. Senate seat. The race culminated in Doug Jones’ dramatic and unlikely victory as the state’s first Democratic senator in a quarter century.
The lesson should not be overstated or misconstrued; no one can declare Jones’ win a direct or even partial result of the legislative reform, and we shouldn’t presume the Democratic Party to be the intended or automatic beneficiary of reductions in felony disenfranchisement. The votes of those enfranchised through these reforms should be continuously earned by all candidates and political parties.
Alabama’s re-enfranchisement is not yet complete, nor are similar efforts in other states. And reform efforts may not be easy.
Upon the 150th anniversary of the Fourteenth Amendment this July, scholars, celebrities, and political leaders lauded its historic and continued promise of “equal protection” and “due process” for all. Yet it also permits states to deny the vote for “participation in rebellion or other crime.” Section 2 of the amendment created a gaping constitutional loophole that has maintained felony disenfranchisement as voter suppression’s sturdiest tool.
The cost of that loophole became apparent in Richardson v. Ramirez, a 1977 decision upholding felony disenfranchisement in California. The United States Supreme Court held that the Fourteenth Amendment explicitly authorizes denying citizens’ voting rights due to criminal conviction — dealing a heavy blow to any hopes of using the constitution to overturn felony disenfranchisement laws.
“The Fourteenth Amendment is an amendment that was intended to give formerly enslaved people citizenship,” explains Ryan Haygood, who litigated landmark challenges to disenfranchisement as a civil rights lawyer with the NAACP Legal Defense Fund, and now leads the New Jersey Institute for Social Justice. “But it was also the same amendment that allowed, expressly, for those rights to be withheld if you were convicted of a crime. That conflict is a function of America at once being a place that has very high ideals of freedom and equality, alongside very low practices that undermine the very things that we say we hold dear.”
As long as the Fourteenth Amendment is interpreted to inoculate felony disenfranchisement from constitutional challenge, reform efforts rely heavily on state-by-state strategies.
Recent years have seen a growing reform trend in many states, including Virginia, Louisiana, and California. This fall, Florida voters will consider a ballot initiative that would end permanent felony disenfranchisement in the state and automatically restore voting rights after release from incarceration. Passage of the measure would transform one of the nation’s strictest and most infamous disenfranchisement schemes. Active grassroots campaigns have mobilized both to support and oppose the proposal.
A denunciation of disenfranchisement is not an ode to democracy. Voting alone will not save us. But the dissonance of idealizing freedom and democracy while maintaining an electoral caste system and the world’s highest incarceration rate will leave us little worth saving.
The real lesson is that times change, not in ways mysterious or unpredictable, but along a path we chart. This nation once embraced enslavement, then condoned lynching, then for generations maintained pervasive and crippling inequality through legal racial discrimination concocted in gatherings like the 1901 Alabama Constitutional Convention. The move from then to now was less a change in the definition of inhumane and more a shift in the definition of human. A shift still incomplete.
See the felony disenfranchisement laws in your state.
Jennifer Rae Taylor is a Senior Attorney at the Equal Justice Initiative in Montgomery, Ala. She may be reached at jtaylor@eji.org. This commentary is excerpted from a longer essay.
