There are an estimated 4.6 million people prevented from participating in the electoral process, according to the Sentencing Project’s 2022 report Locked Out. These Americans, comprising 2% of the voting-age population, are often kept from exercising their fundamental right to vote due to post-Reconstruction-era laws that sought to maintain white supremacy in the lawmaking process.
In Mississippi, for example, a constitutional provision enshrined in 1890 and reaffirmed in 1968, has stripped one in 10 Mississippians of the right to vote.
This barrier — commonly referred to as felony disenfranchisement — is the denial of voting rights on the basis of a felony conviction. Most modern felony disenfranchisement laws originated in the time period after Reconstruction when post-Civil War constitutional amendments granted the right to vote to Black men. Southern states promoted felony disenfranchisement laws at the same time they were devising other tools such as poll taxes, literacy tests and grandfather clauses designed to prevent Black voters from accessing the ballot.
The long overdue reckoning with these racist laws has most often come through litigation as citizens fight to reclaim their right to the ballot box, but the fight for justice is multifaceted. Some lawsuits challenge the laws and rules that disenfranchise people with felony convictions, while others challenge the purposefully onerous, complicated processes by which people can regain their voting rights.
Currently, there is ongoing litigation concerning the improvement of rights restoration and dismantling of felony disenfranchisement in five states.
Florida — 1,150,944 people prohibited from voting
Florida disenfranchises nearly 13% of its voting-age population and leads the country in the absolute number of disenfranchised citizens. One lawsuit is challenging the state’s rights restoration process, which was enacted by voters through a constitutional amendment in 2018.
Florida Rights Restoration Coalition v. DeSantis
In July, the Florida Rights Restoration Coalition and four individuals with former felony convictions filed a lawsuit against the state challenging Florida’s onerous and inconsistent system for voting rights restoration as well as the state’s “election police” unit, which arrests people with former felony convictions for accidentally voting when they were not eligible.
The plaintiffs note that prior to 2018, Florida permanently disenfranchised individuals with former felony convictions. However, after the passage of Amendment 4 — which was approved by over 65% of voters — individuals with former felony convictions were allowed to be re-enfranchised after the completion of their sentence, including parole and probation.
Despite this voter-approved amendment, Florida’s Republican-controlled Legislature enacted a law, Senate Bill 7066, that hampered rights restoration under Amendment 4. In particular, the law requires individuals to pay all “fees and fines” related to one’s sentence in order to regain their voting rights as opposed to just completing their sentence.
The plaintiffs ask the court to declare the defendants’ implementation of Amendment 4 in violation of Section 11(b) of the Voting Rights Act, which prohibits voter intimidation, as well as the First and 14th Amendments. In addition, the plaintiffs ask that the defendants be required to create a centralized, statewide database for prospective voters to determine their eligibility. Trial is set for Sept. 9, 2024.
Mississippi — 239,209 people prohibited from voting
Mississippi disenfranchises more than 10% of its total voting-age population and its disenfranchisement of Black voters exceeds 15%. One lawsuit is challenging the state constitution’s “cruel and unusual” felony disenfranchisement provision.
Hopkins v. Hosemann
In March 2018, a class action lawsuit was filed on behalf of permanently disenfranchised individuals who have completed their sentences challenging the Mississippi Constitution’s felony disenfranchisement provision, Section 241. The constitutional provision — which was enshrined in Mississippi’s 1890 constitution with the express purpose of denying Black men the right to vote — strips the right to vote for life from anyone with certain felony convictions.
The lawsuit alleges that Section 241 violates the 8th Amendment’s prohibition on cruel and unusual punishment as well as the 14th Amendment’s Equal Protection Clause. It also challenges Section 253 of the Mississippi Constitution, which provides for an arbitrary and onerous rights restoration scheme for individuals convicted of Section 241’s disenfranchising crimes. Under Section 253, the Legislature can only restore voting rights on an individual basis via a two-thirds vote of both chambers, subject to approval by the governor. Under this section, very few individuals have had their voting rights restored: Between 2013 and 2018, the Mississippi Legislature restored the right to vote to only 18 individuals.
In a 2019 order, a federal district court held that the plaintiffs had standing to bring their claims, but ultimately rejected the merits of their constitutional arguments against Sections 241 and 253. The plaintiffs subsequently appealed the rejection of their claims to the 5th U.S. Circuit Court of Appeals.
On Aug. 4, 2023, a three-judge panel on the U.S. 5th Circuit Court of Appeals struck down Section 241, holding that it violates the 8th Amendment since it is a form of “cruel and unusual punishment.” However, the 5th Circuit also affirmed the district court’s rejection of the plaintiffs’ claims against Section 253, holding that they “lack standing to challenge the legislative process embodied in Section 253.”
On Aug. 17, the Mississippi attorney general filed a petition for the entire 5th Circuit to rehear the case and advocates worry that an appeal to the U.S. Supreme Court is possible. But as of now, Section 241 is blocked and tens of thousands of Mississippians with prior felony convictions stand to be re-enfranchised.
North Carolina — 29,461 people prohibited from voting
According to Forward Justice, “Black people constitute 21% of the voting age population in North Carolina, they represent 42% of the people disenfranchised under the current law.” One lawsuit is challenging the state’s rights restoration process.
North Carolina A. Philip Randolph Institute v. North Carolina State Board of Elections
In September 2020, a lawsuit was filed challenging a North Carolina law that imposes criminal penalties on residents who vote while on parole, probation or post-release supervision for a felony conviction — even if those individuals mistakenly believe or were told that they are eligible to vote. Under North Carolina’s felony disenfranchisement scheme, individuals with prior felony convictions can only be re-enfranchised upon the completion of their entire sentence following incarceration, including parole, probation, post-release supervision and payment of all legal fees and fines.
The plaintiffs argue that the challenged law — which was originally enacted in 1877 and subsequently amended in 1899 — was passed with the specific intent to “suppress the Black vote and reinstate white control throughout the state.”
The plaintiffs add that North Carolina lacks adequate “procedures for notifying individuals with felony convictions that they are ineligible to vote,” thus causing confusion about eligibility status and increasing the likelihood of mistakenly voting in violation of the law. The plaintiffs ask the court to block the law for being unconstitutionally vague and intentionally discriminatory towards Black North Carolinians in violation of the Due Process and Equal Protection Clauses of the 14th Amendment. On Jan. 15, 2021, the court denied the plaintiffs’ motion for a preliminary injunction. Litigation is ongoing.
Tennessee — 471,592 people prohibited from voting
Tennessee has the second-largest disenfranchised population with more than 9% of its voting population kept out of the polling booth and leads the country in the disenfranchisement of Black voters, which exceeds 15%. One lawsuit is challenging the state’s rights restoration process.
Tennessee Conference of the NAACP v. Lee
In December 2020, the Tennessee State Conference of the NAACP and five individuals — who attempted to restore their right to vote before the November 2020 election and were denied — filed a lawsuit challenging Tennessee’s inaccessible and non-uniform method for restoring voting rights to individuals with prior felony convictions.
The complaint argues that the implementation of Tennessee’s rights restoration process creates “an unequal, scattershot system across Tennessee’s ninety-five counties, causing disparate results for similarly situated individuals,” and at least one county, Rutherford County, charges a fee for the required Certificate of Restoration of Voting Rights (COR). The complaint asserts that this fee constitutes a poll tax and violates the 24th Amendment.
The plaintiffs ask the court to order the implementation of a uniform, formal method to request a COR (without a fee) “before an impartial decision maker” and to require the creation of voter “registration forms and policies that comply with the [National Voter Registration Act].”
Improving the rights restoration process in Tennessee is critical, as noted in the complaint of a separate recently decided out-of-state felony disenfranchisement suit Falls v. Goins, the state “likely has the highest rate of disenfranchisement in the United States. Of the estimated disenfranchised population in Tennessee, nearly 174,000 are Black, accounting for more than 21% of the Black voting age population – likely the highest rate of Black disenfranchisement in the United States.”
Virginia — 312,540 people prohibited from voting
Over 5% of Virginia’s voting-age population is prevented from voting due to the state’s felony disenfranchisement law and rights restoration process. Two lawsuits are respectively challenging both restrictive regimes.
Nolef Turns v. Youngkin
In April 2023, an individual who is disenfranchised due to a former felony conviction and a nonprofit organization that supports formerly incarcerated individuals filed a lawsuit challenging the state’s felony disenfranchisement policy. Specifically, the plaintiffs challenge the defendants’ termination of the commonwealth’s previous policy in which voting rights were automatically restored to Virginians with prior felony convictions in a non-discretionary manner.
Under the commonwealth’s new scheme, voting rights are restored to Virginians with former felony convictions by the governor on a discretionary, case-by-case basis as opposed to automatically upon release from incarceration.
With Gov. Glenn Youngkin’s (R) repeal of the previous restoration policy, the plaintiffs allege that “Virginians with felony convictions are once again subject to an arbitrary restoration scheme, under which the Governor grants or denies applications for voting rights restoration in his unfettered discretion, without objective rules or criteria.”
The plaintiffs ask the court to prohibit the defendants from enforcing the allegedly arbitrary, discretionary voting rights restoration scheme and to replace it with a non-arbitrary, neutral alternative.
King v. Youngkin
In June 2023, Bridging The Gap In Virginia and three Virginia residents who are disenfranchised due to former felony convictions filed a lawsuit challenging the Virginia Constitution’s felony disenfranchisement provision. The challenged felony disenfranchisement provision specifically denies the right to vote to all people convicted of any felony.
The plaintiffs allege that this provision violates the Virginia Readmission Act of 1870, a federal statute that enabled the Commonwealth of Virginia to gain federal representation in Congress following the Civil War. Specifically, the plaintiffs point to the part of the law that only allows Virginia to disenfranchise its citizens if they were convicted of crimes that were considered “felonies at common law” during the enactment of the law in 1870; these crimes included murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem and larceny.
According to the plaintiffs, “Virginia’s disenfranchisement of citizens with felony convictions for crimes other than those that were felonies at common law in 1870 has resulted in the disproportionate disenfranchisement of Black Virginians.”
The plaintiffs ask the court to declare the Virginia Constitution’s felony disenfranchisement provision in violation of the Virginia Readmission Act and to block its enforcement.
“Felony disenfranchisement laws have had a devastating impact on our communities, perpetuating systemic racism and undermining the principles of democracy.”
Democracy Docket guest author Arekia S. Bennett-Scott of Mississippi Votes argues that there is a “changing tide in public sentiment” as reflected in Mississippi last month when the U.S. 5th Circuit Court of Appeals struck down one of the state’s Jim Crow-era felony disenfranchisement constitutional provisions.
Due to the racial disparities in policing and sentencing, communities of color are disproportionately denied voting rights with one out of every 16 Black adults disenfranchised nationally. In seven states — Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia and Wyoming — the disenfranchised population comprises upwards of 15% of Black adults.
In Kentucky, a lawsuit filed by eight disenfranchised individuals with prior felony convictions challenging Kentucky’s voting rights restoration scheme was unfavorably decided and though the plaintiffs have said they will petition the decision to the U.S. Supreme Court, it is likely that 152,727 Kentuckians will remain locked out of the political process next year.
And in North Carolina, people with past felony convictions held the right to vote for 276 days before the state Supreme Court reversed its decision in a lawsuit challenging the state’s pay-to-vote scheme as a consequence of the North Carolina Republican Party’s decade-long mission to claim the state’s highest court.