Episode 7: Felony Disenfranchisement

Over 4 million American adults are unable to vote due to a felony conviction. How did these laws come to be? And how do we see their widespread effects on our government? Keri Blakinger and Blair Bowie discuss.

Listen to this episode on Apple Podcasts or Spotify.

Transcript

Shannon Lynch: The U.S. stands out among modern democracies with its practice of disenfranchising certain formerly incarcerated individuals. According to the Sentencing Project, over 4 million Americans are unable to vote due to a felony record. How did these laws come to be? And how do we see their widespread effects on our government?

Welcome to Democracy Deciphered, the podcast where we explore the history, present, and future of American democracy. I'm your host, Shannon Lynch. And I'm delighted to be joined today by two experts on felony disenfranchisement.

First, we have Keri Blackinger. Keri is a reporter at the L.A. Times who covers the Los Angeles County Sheriff's Department. Before joining the Los Angeles Times, she spent nearly seven years in Texas covering criminal justice for the Houston Chronicle and prisons for the Marshall Project. Her work has appeared in the Washington Post magazine, BBC, Vice, the New York Daily News and the New York Times. She is the author of Corrections in Ink a 2022 memoir about her time in prison. She is also a 2025 Emerson Collective Fellow at New America.

Also with us today is Blair Bowie. Blair manages the Campaign Legal Center's Restore Your Vote project, which focuses on ending felony disenfranchisement by democratizing access to rights restoration services and working with directly impacted communities. Blair is a University of Pennsylvania Law School and Middlebury College graduate. At Penn Law, she served as a Toll Public Interest Scholar, founded the Democracy Law Project, and was granted the Dean Jefferson B. Fordham Human Rights Award.

Keri, Blair, thanks so much for being here.

Keri Blakinger: Thanks for having me.

Blair Bowie:Yeah, of course.

Shannon Lynch: So getting us started here, what is the current status of voting rights for people with felony convictions, and how does it vary from state to state?

Blair Bowie: Voting rights restoration and felony disenfranchisement laws vary significantly across the country. I think, as a starting place, it's important to know that the United States is an outlier amongst global democracies in terms of taking away and not giving back the right to vote to folks who are convicted of felonies. We're one of only a handful of world democracies that disenfranchises people who are not incarcerated. And we can talk a little bit more about the reasons why the US has these laws. But as it stands today, there are between four and five million Americans who under the law in their state are not able to vote because of a criminal conviction.

In addition, and in terms of the impact of these laws, we want to think more broadly than that, they are probably around 25 million Americans who have been convicted of felonies. And by some estimates, about a hundred million Americans have had some kind of contact with the criminal legal system, some kind of arrest or court case. And what we often find is that folks who do actually have the right to vote under law in their state often believe that their contact with the criminal legal system has taken away their right to. So in other words, a lot of people with felony convictions who actually could be voting wrongly believe that they can't. And that's because of some really persistent misinformation about loss of the right to vote.

Additionally, a lot of these laws have changed recently, and there's not always good public education campaigns to let people know that they may now have their voting rights restored. Nationwide, about half the states do not take away the right vote once people are out of prison. That includes Maine and Vermont, which never take away the right to vote. And additionally, DC and Puerto Rico also never take away people's voting rights for felony convictions. Of the remaining 25 states, most automatically restore people's voting rights once they've completed any parole or probation. So that period of community supervision after people leave prison.

And then there are about 10 states that have other laws that are really complicated. Some of those states require people to have paid off all fines, fees, and restitution before they can vote again. We consider that a modern-day poll tax because it basically just means that a rich person convicted of a crime can buy their right to vote back, but a poor person will be disenfranchised forever.

There are also some states that have requirements that you get additional documentation that you have to, like, apply for a certificate that says you've had your voting rights restored and some states that require you to go to court and ask a judge to restore your voting right. And then there are some states where the only way to get your voting rates restored is through the governor. And there's one state, Mississippi, where pretty much the only way you can get your voting rights for short is to get the legislature to pass a law that individually re-enfranchises you.

Shannon Lynch: Keri, is there anything you wanted to add?

Keri Blakinger: Yeah, so to some degree, I think it's a little hard to pinpoint how many states disenfranchise felons, because they do it in so many different ways that it's kind of hard to say at what point do you consider it disenfranchisement.

So in some states, for instance, you can actually vote while you're incarcerated, like in prison for a felony. In other states, you can vote as soon as you're released. In many states, you vote once you've finished your entire sentence, which can mean parole or probation. It can also mean sometimes having also paid all your fees. Like that's the case in, in Florida, you have to have paid all your fees and stuff first. And then I think Virginia is one that still does permanently disenfranchise people unless they actually get specific approval. So there's no sort of default re-enfranchisement.

Nebraska and Oklahoma in the past year have passed laws to restore voting rights. Nebraska. Erased a two-year waiting period, which ended up restoring voting rights to about 7,000 people. The prior law, they had to automatically restore them two years after they finished their sentence. Oklahoma made a, in some ways, I guess, smaller change. They had already restore voting rights, but they changed it so that if you got a pardon, you would immediately have voting rights restored automatically.

The year before that, Minnesota and New Mexico shifted to restoring voting rights immediately after incarceration, as opposed to waiting until you finished parole or probation. But there are still some states that ban larger swaths of the formerly incarcerated population from voting.

And Florida is kind of the worst defender on this front. They, I think as of last year, still had something like nearly a million people. Banned from voting in many cases because they hadn't fully paid their fines that would be needed to consider their sentences to be fully discharged.

Shannon Lynch: So now that we know a little bit more of the specifics of these laws and how they vary across the country, what is the historical context here? Why do we have these laws in the first place?

Blair Bowie: These laws disproportionately impact Black communities and other communities of color, and that's by design. The reason why the United States is such a global outlier in having broad felony disenfranchisement is because of the history of these laws.

Prior to the Civil War, there were some states that took away the right to vote for very serious crimes, usually things like treason, a handful of types of crimes, but we really saw the proliferation of these laws occur after the Civil War, and they were intentionally designed as a way of getting around the promises of Reconstruction and the promises of a political equality that were enshrined in the U.S. In the 13th, 14th, and 15th Amendments.

Felony disenfranchisement was basically used as a loophole to continue to disenfranchise Black communities in formerly Confederate States. As part of Reconstruction, Confederate States had to pass new constitutions that, on their face, complied with the new Reconstruction amendments, the 13th Amendment that abolished slavery, the 14th Amendment that guaranteed equal protection under law, and the 15th Amendment that guarantees the right to vote regardless of race.

I think there's been a lot of attention paid to the way that the Southern States found a loophole in the 13th amendment, which purported to abolish slavery by targeting black communities, targeting formerly enslaved people with the criminal legal system. And then using prison labor to effectively re-enslave people after the Civil War. Similarly, the Southern states used felony disenfranchisement to sort of layer on preventing folks in those communities from having the right to vote and to deny political equality. So effectively a loophole that they used in the 14th and 15th Amendments. And they did this really intentionally.

They designed felony disenfranchisement laws to pretty much exclusively apply to Black folks and to formerly enslaved folks. So they use the criminal legal system to target people for a series of newly invented crimes or crimes that they thought that black people might be more likely to get convicted of. And then they also in their constitutions, designated those crimes as the ones that would take away the right to vote. Or in the case of Alabama, they would use a very vague phrase for which kinds of crimes would take away the right to vote there. They call them crimes of moral turpitude. Other states called them infamous crimes. And that basically left the decision up to local officials as to whether or not somebody's felony or conviction would take away their right to vote. And then the officials could just discriminate based on race.

Shannon Lynch: Thanks for sharing that historical context, Blair. That's really interesting. So let's zoom out a little bit. What is the bigger picture here? What does disenfranchisement of people with felony records mean for our elections and our democracy as a whole?

Keri Blakinger: In some ways, it's a little bit hard to measure. I mean, there are certain demographics that we can look at, like, for instance, perhaps foreseeably, this eliminates a disproportionate segment of the Black voting population, one out of 22 of which are currently disenfranchised. But whether that would change election outcomes is a little harder to predict, because we don't really know how many disenfranchised people would vote. And we also really don't know how they would vote.

The Marshall Project did a survey last year, and I think they also did for the presidential election before that, and found that half of prisoners, so currently incarcerated people, obviously not formally incarcerated, but half of the prisoners that they surveyed would vote for Trump. So I think it's a little, I think, it's not readily apparent how disenfranchisement affects the outcomes, even if we can see which populations it affects more or less.

The other thing when we think about felony disenfranchisement that we don't talk about as much is how the inability of most people in jail and prison to vote can influence outcomes or potentially influence outcomes. In some states, like Texas, there is some amount of prison gerrymandering, which is when prisoners are counted as living in the places where they are incarcerated instead in the places that they are from. And that has the effect of adding voter power to rural areas and taking it away from urban areas, even though the people in question are actually not able to vote. So they're not actually influencing the outcome of the votes in these rural areas. They're just being added as voter power. Now, this effect isn't necessarily enough to sway elections like certainly not in a state like Texas. When you're looking at national elections, I mean, we know which way Texas is going and a few thousand prisoners is not actually going to make the difference. But it's hard to say exactly what sort of impact it has on statewide elections, which can obviously end up having national implications.

Shannon Lynch: Yeah, that makes sense. Keri, I'm going to turn it back to you again. Can you please share a little bit about your experience with the criminal justice system and how it affected your ability to vote?

Keri Blakinger: So when I was released from prison, I was in New York, and in New York, you got restoration of voting rights upon completion of parole. So I was able to vote two years after I got out, I was off parole, I was able to vote again. I then moved to New Jersey, where that had the same rules, I think. And then I moved to Texas, where you are also able to vote if you have a felony and are not under supervision anymore.

So I've been able to vote and it's been interesting that how frequently I run into other people who have done time and think that they can't vote. It's a very pervasive myth. I mean, I don't want to say myth. There's obviously some people who can't, but it's so common that people don't know that they probably can vote.

Of course, when I say this, I should also add a word of caution that I think weighs heavily on, on me and I probably on a lot of people who were formerly incarcerated, there are cases like, you know, the case of Crystal Mason in Texas several years ago, where she didn't know that she couldn't vote. I think she was on parole, might have been probation, but I think it was parole. And she voted and was prosecuted for it. And I mean, I think that's kind of terrifying in some ways because it's not as if she was trying to go commit election fraud. Like, this is someone who thought they could vote. And instead of just rejecting her ballot, they prosecuted her. And I think that that's frightening because if there's a lot of confusion around constantly changing laws as to who can or can't vote already when you're talking about formerly incarcerated people or rather at what point you can vote again, when you look at these cases like hers and there's been a few others. Where they've prosecuted people for simply not understanding the law well, I think that's very troubling, and it certainly has a chilling effect.

Shannon Lynch: Wow, yeah, I had never heard of that case before. I'm gonna turn things back over to Blair. And Blair, I'm wondering what kinds of reforms or actions are really being prioritized right now in addressing felony disenfranchisement.

Blair Bowie: So we believe that no one should lose the right to vote based on a criminal conviction. There's just not really any justification for these kinds of laws. Most democracies don't do this. And thinking about it from sort of different perspectives, there's no explanation for why we would still have these laws other than sort of their racist origins and the fact that they're still on the books and that maybe some people want them to continue to serve that role.

But from a democracy perspective, we want everyone to be participating in democracy. Folks who go through the criminal legal system work, pay taxes. Once they're on the outside, they're just like anyone else. There's really no reason why they shouldn't be allowed to have a say in the laws that affect them and their community.

Moreover, there's not really a legitimate criminal legal purpose behind these laws. They are not a deterrent to anyone committing crimes. They actually run counter to purposes of rehabilitation and reintegration for people coming back from prison. People want to feel like they're a part of their community again, they want to get involved. Allowing them to vote actually has a positive effect on rehabilitation and re-integration into the community. Shutting people out can continue to push them to the fringes of society.

So we don't really see any justification for these laws. So our belief is that the United States should abolish felony disenfranchisement, and that will have to be a state-by-state project. But there are lots of states that are considering legislation to do that, and that would be a huge step in the right direction for our democracy.

Shannon Lynch: Yeah, so with that last point in mind, what changes do you think we might see in the next ten years or so regarding felony disenfranchisement?

Blair Bowie: Within the next decade, I think we'll see a few states abolish felony disenfranchisement altogether, just sort of wipe these discriminatory and unnecessary laws off their books. I also expect that we will see some of the states that currently have policies of disenfranchising people who are serving community supervision, probation and parole, improve those laws and join the majority of states that only disenfranchises people while incarcerated. And I think the biggest fights are going to be in some of these states that have the most complicated laws, the states that modern-day poll taxes, the states where their constitution requires either a pardon or going to court to get your voting rights restored. But I think we'll see progress in some of those states.

I'd keep an eye on Virginia where there's a movement to amend their constitution. Right now Virginia's constitution only allows for voting rights restoration through the governor and various governors have had different policies on that. Both Democrats and Republicans have implemented blanket policies of restoring people's voting rights once they meet certain benchmarks up until the current governor, Youngkin. Who has basically halted all restorations, and that's catalyzed a movement there to amend the constitution and take that decision out of the hands of the governor, put it into the hands the legislature, and make sure that people who are in their communities have that right to vote.

Shannon Lynch: As it's been mentioned several times in this episode, it can be really confusing for formerly incarcerated people with felonies to navigate whether or not they can vote legally. So, what are some of the resources that are available to these folks to check to see if they're eligible to vote?

Blair Bowie: We have a free, easy-to-use confidential website called restoreyourvote.org where folks can go and just through clicking through their state, figure out if they have the right to vote already. If they have a more complicated situation or have questions, we also run a hotline and we're happy to help try to answer those questions.

Shannon Lynch: Well, Keri, Blair, thank you so much for being on today.

Keri Blakinger: Yeah, no doubt.

Blair Bowie: Yeah, of course.

Heidi Lewis: This was a New America production. Shannon Lynch is our host and executive producer. Our co-producers are Joe Wilkes, David Lanham, and Carly Anderson. Social media by Maika Moulite, visuals by Alex Briñas, and media outreach by me, Heidi Lewis. Please rate, review, and subscribe to Democracy Deciphered wherever you like to listen.