The battle for voting rights in the age of mass incarceration

Ex-prisoners are getting their voting rights back. But the backlash has already started.

Shauntelle Mitchell waited in her local polling station in Slidell, Louisiana, and contemplated leaving. The October primary election would be her first time voting in years — her criminal record had prevented her from casting a ballot since 2011. This year, re-registered and finally free to vote, she felt nervous.

“All eyes was on me,” Mitchell, 43, recalled. “I started to walk out, because I felt people was looking at me, and I was like, ‘Why go through the whole process to walk away? You came here to vote, to try to make a difference, even if the candidate you picked does not win.’” She stopped herself and turned around. “I stood my ground and voted.”

Mitchell’s vote came at a historic moment: the first state-wide election held after Louisiana restored voting rights to some 36,000 people convicted of felonies, as Mitchell had been. It was a significant win for criminal justice reform activists in a state that had the highest incarceration rate in the nation until last year.

Louisiana activist Norris Henderson has been in the fight for so long, he’s been dubbed “St. Norris” by other organizers. On a recent fall day, Henderson took the stage in a round room in Philadelphia’s Eastern State Penitentiary for the first presidential town hall hosted by formerly incarcerated people. Invitations had been extended to the entire field, and three Democratic candidates for president — Sen. Kamala Harris, Sen. Cory Booker, and businessman Tom Steyer — showed up.

Mark Makela/Getty Images

Mark Makela/Getty Images

Mark Makela/Getty Images

“This has been a journey for us to get here,” he said. The room’s rough stone walls and Gothic, arching doorways surrounded him, leading to America’s original cellblocks. “Some people question why would we do something inside a prison, particularly this prison. This was where America first experienced mass incarceration. This was the first prison built in America.”

Today, some 200 years since Eastern State opened, an estimated 2.3 million people are held across the nation’s criminal justice system in prisons, juvenile facilities, jails, and immigrant detention centers. Nearly 60 percent of this population are people of color.

The town hall’s setting spoke directly to an inherent contradiction in the democratic ideal of “one person, one vote” presented by the age of mass incarceration: For people drawn into the system, one conviction often equals no vote — sometimes for life. Even when voting rights gains are made, they can be precarious.

Laws banning former prisoners from voting in America date back to the colonial era and remain the norm in much of the nation. Only 16 states and DC automatically re-enfranchise people convicted of felonies when they’re released, and two states — Maine and Vermont — allow people to vote from prisons. During the 2016 presidential elections, more than 6 million people were prevented from casting ballots through the criminal justice system, according to the Sentencing Project.

In tandem with the growing movement to end mass incarceration, there is a building consensus that these laws disenfranchise huge swaths of the population from participating in representative politics. Between 1996 and 2008, seven states repealed lifetime disenfranchisement laws for at least some ex-offenders.

Nevada, California, New York, and Arizona have all expanded voting rights for ex-felons this year. In Wisconsin, activists and politicians pushed a bill in October to immediately return the vote to those leaving prison. When Democrat Andy Beshear won Kentucky’s gubernatorial race in early November, it was viewed in part as a win for ex-felon re-enfranchisement — Beshear had campaigned on restoring voting rights to an estimated 100,000 people.

Nowhere has this fight been more consequential than in Louisiana and Florida, where activists scored two enormous victories. Last year, voting rights were restored to an estimated 36,000 people convicted of felonies in Louisiana through bipartisan legislation and 1.5 million in Florida during state elections through the Amendment 4 ballot initiative. That such expansions took place in these Southern states has both practical and symbolic significance: Florida’s high incarceration rate meant that extending the vote to former felons is considered the largest voting rights advancement since the 1970s.

John Raoux/AP

But the gains have not gone uncontested. Across the nation, voting rights wins have been undercut by laws requiring fines and fees in order to vote, relinquishing voting restoration for felons of certain crimes, and otherwise placing former prisoners in webs of bureaucracy with little clarity over how to regain their rights. It’s a lesson in the fragility of even momentous political gains, and the likelihood of setbacks.

“The right to vote is a marker of our citizenship, a marker of who counts, of who matters, a marker of who is part of our community and who is excluded,” said Micah Kubic, executive director of the ACLU of Florida. It is, he added, “essential to protecting all other rights and freedoms we care about.”

Norris Henderson sports a thin mustache, a smooth bald head and dark-rimmed glasses that he keeps in the pouch of his collared shirt. He has a calm presence and a subtly scrutinizing gaze. Henderson began organizing for prisoner’s rights while incarcerated himself 40 years ago. He’s considered a national authority in the movement — in addition to leading Voters Organized to Educate, a network of the nation’s leading formerly incarcerated activists from 35 states, which hosted the town hall, he’s also the head of Voice of the Experienced (dubbed VOTE), a similar group tackling mass incarceration and helping imprisoned people and their families in Louisiana.

A few weeks before the town hall, Henderson, 65, sat in his beige office in a converted school attached to an African American Catholic church in New Orleans, the city where Henderson was born and raised. It’s the city he returned to in 2003 when he was released from Louisiana State Penitentiary after serving nearly 28 years for a second-degree murder that he maintains he didn’t commit. Decades later, his organizing was instrumental in expanding voting rights in the state. “You almost don’t exist in this country if you don’t have your right to vote,” he said in an interview with the nonpartisan law and policy institute the Brennan Center for Justice.

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Laws banning felons from voting have colonial origins, but they became entrenched after the Civil War as a tool to protect white supremacy. As states expanded their criminal codes to make felonies of crimes associated with African Americans, they also stripped those convicted of felonies of the right to vote, creating what Voters Organized to Educate describes as a class of “political refugees” that spans generations.

Virginia lawmakers, for example, made petty theft a felony and Mississippi politicians singled out forgery, burglary, arson, and perjury — laws considered more likely for African Americans to commit or be convicted of. In her excoriation of mass incarceration, The New Jim Crow, Michelle Alexander began the book with the story of a man in 2010 who can’t vote because of a conviction, whose father couldn’t vote because of poll taxes, whose grandfather or great-grandfather couldn’t because of the Ku Klux Klan, nor his great-great-grandfather, who was enslaved.

For Henderson, voting rights are just one more path to undoing the racist origins of mass incarceration. That October morning, his office walls were, like his desk, covered with papers, and he’d been miserable. Louisiana’s Democratic governor, John Bel Edwards, had failed to win reelection outright, sparking a run-off with a construction mogul named Eddie Rispone who ran a campaign big on Trump and short on policy specifics. If Rispone wins on November 16, Henderson will lose an ally and gain an unknown quantity a mere nine months after a law passed restoring the vote to tens of thousands of Louisiana’s formerly incarcerated population.

Henderson pointed to a printed spreadsheet outlining voter turnout in the heavily Democratic Crescent City, which hadn’t broken 40 percent (it was 46 percent statewide). “Our people didn’t show up,” he said. He scoffed at the idea that President Donald Trump, Vice President Mike Pence, or Donald Trump Jr. had made the difference — all three of whom descended up in the state in a glitzy trifecta to galvanize Republicans ahead of the election. Instead, political analysts concluded Democratic and black voter turnout was down, despite statewide get-out-the-vote efforts.

Of the potential 36,000 re-enfranchised felons, only 581 had registered to vote by early September. “Voter apathy is so real in our state,” Ashley Shelton, the executive director of a network of progressive groups called the Power Coalition, told me on election night. “We don’t have a lot of voter suppression laws because they don’t have to.”

Henderson had expected Edwards’s win to “send a message” to the nation, which was beginning to view the race as a bellwether for 2020, about the kinds of progressive policies even Deep South voters want. Instead, Louisiana’s runoff election and the legal battle in Florida underline the potential fragility of voting rights gains.

Akasha Rabut for Vox

They’re not the only examples. In Massachusetts, people in prisons could cast ballots until 2000, when voters made it illegal. Both Tennessee and South Dakota have expanded felon disenfranchisement over the last 10 years. And in Tennessee, the requirement to repay fines and fees before being allowed to vote has reportedly placed some in an unnavigable maze of bureaucracy with no clear way to regain their rights. Today, 32 states require various levels of completion of parole, probation, and/or repaying fines, fees and restitution, if voting rights are returned at all, according to an analysis by the National Conference of State Legislatures.

One year after Florida voters passed Amendment 4, the state’s legislature is fighting a lawsuit attempting to curtail the amendment’s historic expansion of voting rights. Amendment 4 stated that those convicted of felonies, with the exception those convicted of murder or felony sex offenses, can vote after they’ve completed “all terms of sentence.” The amendment’s proponents, including its creator Desmond Meade, had argued it could take immediate effect without the need of any new legislation. The state’s Republican politicians disagreed.

This summer, Republican Gov. Ron DeSantis signed a law passed along party lines stating that former felons can only vote once they’ve paid back all fines and fees ordered by a court during sentencing or as a condition of probation, parole or community service, for any felony conviction in the country. In Florida, such fees begin the moment of an arrest and extend until freedom: There is a fee for requesting a public defender, and fees for ankle bracelets and other monitoring during probation or parole.

One analysis by Florida political scientist Dan Smith found an estimated 82 percent of the 1.5 million people re-enfranchised by Amendment 4 would be denied the right to vote under the new law because they owe the state money, including a rate twice as high for those who are black compared to those who are white.

Smith found even small fees within $500 could present an insurmountable barrier, and noted that anyone working with a newly freed voter to help them to determine whether they have paid back all fines or fees “will have great difficulty” figuring that out in Florida’s “highly decentralized” system, let alone making that determination for crimes sentenced by another state or federal court. The move has been slammed by some critics, including the ACLU of Florida, as a poll tax.

“I think what the legislature did and what Ron DeSantis did is require people to pay in order to vote,” said Kubic, the ACLU of Florida’s executive director, which sued the state over the law along with the Brennan Center for Justice and other groups.

In October, a federal judge partly blocked the law, rejecting the poll tax claim but concluding that the state could not “deny the right to vote to a felon who would be allowed to vote but for the failure to pay amounts the felon has been genuinely unable to pay.”

Josh Ritchie/Washington Post/Getty Images

State Sen. Jeff Brandes, a Republican from Pinellas County who helped shape the new legislation, says he believes “being a felon shouldn’t be a scarlet letter that you carry around the rest of your life,” but that the new law follows “spirit and the letter” of Amendment 4. He added that it keeps with the testimony of John Mills, a lawyer who represented the proponents of Amendment 4 and told Florida’s Supreme Court that some fees were implied in the phrase “all terms of sentence.”

Meanwhile, Meade and his organization, Florida Rights Restoration Coalition, haven’t waited on the legal battle. This summer, they began fundraising hundreds of thousands of dollars to repay people’s fines and fees and launched an initiative to help them register to vote.

The group’s get-out-the-vote and Amendment 4 education bus tour was scheduled to hit more than a dozen cities in November, and FRRC says it identified 100,000 former felons still eligible to vote under the new law in Miami-Dade County alone. Numerous deadlines loomed: There were multiple November local elections, including Orlando’s mayoral election, where Meade himself had hoped to vote for the first time since the 1980s, when he was convicted on drug and firearms charges.

Amendment 4’s final interpretation — and its ability to expand voting rights — will likely lie with the Florida Supreme Court, which is expected to issue a non-binding opinion on whether fines and fees are rightly implied by the amendment’s language. In the meantime, Florida lawmakers face the challenge of creating an avenue for those who can’t afford to pay their fees to still vote, as ordered by the judge.

“It’s an open question what that looks like,” Kubic said, but he expects such a process to be in place before the 2020 presidential elections. If he’s right, the nation will be scrutinizing Florida’s election with more than the usual intensity, looking for signs that a new voting block could change the political fate of the state, and the White House.

Myrna Perez, who leads the Brennan Center for Justice’s voting rights and elections program, said this new phase of Florida’s Amendment 4 battle can’t undo what she’s called “the greatest civil rights advancement any of us will see in our lifetime.” But it is replete with lessons for activists. “We’re going to be doing calculations about how much you want to anticipate the backlash in the fight for these kinds of amendments,” she said.

The amendment proved that ballot initiatives can do in a single election what politicians can take decades to achieve. But she noted that ballot language itself is tricky. Floridian activists opted for the general phrase “all terms of sentence,” rather than using more specific, but perhaps also more complicated language, that could have avoided the entire debate on fines and fees.

“This is a data point about what can happen when you try for a policy that is easy for the average Floridian to understand,” Perez said. One needs to write a short statement that’s clear enough to be understood by average voters, but one that is also “detailed enough to forestall attempts to thwart it.”

Wilfredo Lee/AP

It is also, despite ongoing litigation, another example of the bipartisan appeal of criminal justice reform among voters — the same appeal that has made the need to tackle mass incarceration an unlikely unifying issue of the Trump era. In order for Amendment 4 to have passed in the first place, a significant chunk of Florida’s Republican voters had to approve it, even if many of the state’s Republican politicians were less enthusiastic.

In Louisiana, seven of the original 10 criminal justice reform bills passed as a package in 2017 were carried by Republicans. Donald Trump recently received a controversial award for signing the bipartisan First Step Act, which allows thousands of federal prisoners to earn an early release, and Democratic presidential hopefuls have each tried to own an animating issue for the left with detailed and sometimes ambitious criminal justice policy proposals.

Even so, most of the 2020 Democratic field candidates who were absent from Henderson’s criminal justice forum won’t easily be able to shake such a slight to a group with little historical reason to trust either party. Henderson had warned a few weeks earlier: “If you don’t show up for us in October 2019, don’t look for us in November 2020.” He nevertheless characterized the event as a success as he took the stage again to wrap the event. “We’re not begging nobody for anything,” he said. “Today is the beginning of us making demands.”

Among the Louisiana reforms, restoring voting rights has been one of Henderson and his fellow activists’ greatest achievements — the other being ending Louisiana’s Jim Crow-era practice of allowing convictions even when juries were split 10-2, created expressly to “establish the supremacy of the white race” in 1898.

The law, which re-enfranchised those who’ve been out of prisons or jails for five years beginning March of this year, passed the Republican-dominated house by just two votes last year. Now, its future depends upon the ongoing support of enough of the state’s politicians, some of whom have already moved to reduce its impact. In the last session, one lawmaker attempted to block those convicted of sex crimes against minors from voting, a bill that failed.

Jason E. Miczek/AP Images for Voters Organized to Educate

“It was little things like that, just the idea before these things even get implemented correctly,” Henderson said. “It was like, ‘It ain’t gonna work.’ Well, how do you know it ain’t gonna work? You gotta give it a chance to work.”

If Edwards loses, “it’s gonna be a whole bunch of ifa-woulda-shouldas,” Henderson said. “But that don’t get us nowhere, that just gets us into rolling back four years of progressive accomplishments. As opposed to fighting for new things, it’s kind of like trying to fight to hold onto things.”

What that means for elections in hotly contested states like Florida remains to be seen. Common speculation is that these newly enfranchised voters could have handed Hillary Clinton the Oval Office if they’d been able to vote in 2016, but that’s assuming a strong partisan lean among people convicted of crimes that some political scientists argue is likely false. One analysis of the impact of Florida’s Amendment 4 found that while black voters who’ve been imprisoned do tend to register as Democrats, their non-black counterparts —who are the majority — lean Republican. It could be that expanding voting rights to former felons won’t fit neatly into a partisan narrative — that it really will, simply put, expand democracy for democracy’s sake.

For millions of formerly incarcerated people, it’s a right that could matter immensely. Shauntelle Mitchell described it as a moment of power. “I’ve had a lot of people saying you know, you’ve been to jail before so your voting is not gonna count,” Mitchell said. “The thing I have to do is to not let no one put me down and tell me my voice doesn’t count. That’s what made me register and go vote. Even if the people I choose don’t win, I still made a difference.”

On November 16, when Louisianians decide whether they want four more years of John Bel Edwards — and criminal justice reforms — Mitchell will be one of them.

Rosemary Westwood is a writer in New Orleans and the publisher of the weekly newsletter on reproductive rights, the Roe Report. In past lives, she’s produced and reported radio news, created a podcast, and worked as a newspaper columnist.

Akasha Rabut is is a photographer and educator based in New Orleans. Her work explores multicultural phenomena and traditions rooted in the American South.