Let's Back Up

Criminalization and felony disenfranchisement laws have cut millions of people out of the electorate. Forty-eight states put some incarceration- or conviction-based limitations on the ability to vote. In 2024 alone, criminal convictions locked an estimated four million Americans out of the ballot box. Half a million people held in jails pretrial have the right to vote while incarcerated but are largely unable to due to structural barriers like access to ballots, widespread misinformation about their eligibility, and mail delays.

Like literacy tests, poll taxes and gerrymandering, these policies are race-neutral on their face and racially precise in their impact and intent. Felony disenfranchisement laws expanded dramatically after the Civil War as a deliberate effort to prevent Black men from voting. Felony voting bans exclude one in 22 Black adults from the democratic process, more than three times the rate of other Americans. In five states, more than one in 10 Black adults are denied the right to vote. Felony disenfranchisement prevents a shocking 16% of Black Tennesseans from voting. It's no coincidence that the only states to place no voting restrictions on people with felony convictions — Maine and Vermont — are among the whitest in the nation.

We can’t really talk about threats to American democracy and Black representation in particular without talking about felony disenfranchisement. Systemically pushing huge populations out of the democratic process and a right to basic representation has massive consequences. So spend just a minute with us on why we should care now more than ever about the disenfranchisement of convicted and incarcerated people.

1. It impacts electoral outcomes

America has historically had some of the closest-margin elections among democracies, and over the past fifty years they have only grown tighter. So, it’s not hard to understand why removing millions from an electorate meaningfully impacts election outcomes. A 2002 study found that if not for felony disenfranchisement, Al Gore would have won Florida in the 2000 presidential election and seven U.S. Senate outcomes may have been reversed. 

Prison gerrymandering — counting incarcerated people in the census as residents of the place where they are incarcerated (and usually cannot vote) rather than their home communities— funnels political representation and government funding away from disproportionately Black and urban communities and redirects it to the predominantly white and rural areas where most prisons are built. A recent study found that 14 Black-majority districts could be created across 11 states if incarcerated people were counted in their actual home districts. 

2. The thin edge of the wedge

For decades, many have fought (often popular) fights to reenfranchise incarcerated and formerly incarcerated people. The massive opposition to these efforts has been a staging ground and a pressure test for some of the most flagrant and aggressive anti-democratic strategies and innovations to undermine voting rights and democratic participation.

In 2018, 65% of Floridians voted in favor of a constitutional amendment to automatically restore voting rights to people who had completed their sentences. In response, the legislature passed a modern-day poll tax, conditioning voting rights on full payment of all fines, fees, and restitution associated with their criminal conviction or incarceration and disqualifying nearly 730,000 otherwise-eligible Floridians from voting. 

The state's expanded use of criminal prosecutions as a voter suppression tactic also found an early target in formerly incarcerated people. Forty-one individuals arrested for voter fraud in Florida following the 2020 election were formerly incarcerated people caught in the widespread confusion these changes had created about voter eligibility.

In Louisiana in 2018, the legislature and the Governor restored voting rights for many people with felony convictions. This time, it was the state's registrar that erected burdensome paperwork barriers to undermine the effort, keeping tens of thousands of eligible voters disenfranchised. Organizations like Voice of the Experienced (VOTE) are still fighting the issue in federal court.

3. It doesn't have to be this way. 

Across the United States and around the world, there are plenty of models for how voting rights can be expanded rather than restricted. Maine and Vermont allow incarcerated people and formerly incarcerated people to vote without restriction. As of 2024, and after a lot of successful advocacy, nearly half of states allowed for the restoration of voting rights immediately upon release from prison. Just last week, Maryland Governor Moore signed legislation that automatically restores voter registration for eligible people returning home from prison, removing administrative barriers that kept eligible people from voting.  

Internationally, nearly half of European countries not only permit voting in prison and jails but also make it accessible for incarcerated people, and constitutional courts in both Canada and South Africa have affirmed that people with convictions cannot be denied the right to vote.  

There's a lot of chatter these days about our rapidly shrinking democracy, but we can't afford to act brand new about it. Allowing millions of Americans to be excluded from voting was always a slippery slope, a lesson we’re learning the hard way.