Felon Disenfranchisement and
Democracy in the Late Jim Crow Era
Gabriel J. Chin *
JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON
DISENFRANCHISEMENT AND AMERICAN DEMOCRACY (Oxford University
Press 2006)
I. INTRODUCTION
When the history of American felon disenfranchisement is written, this book
and its authors will figure prominently. In 1998, Marc Mauer of The Sentencing
Project put the issue on the national agenda by publishing a careful survey of
American felon disenfranchisement laws. 1 The research in this book, in part new
material and in part revised journal articles, provides fresh insight by bringing
quantitative and qualitative social scientific tools to the legal and policy problem.
The result is a stinging critique—perhaps “indictment” also fits—of a practice the
book persuasively claims is unjustifiable and inconsistent with modern democratic
principles.
You do not have to take my word for this work’s persuasiveness. In article
form, this work has been an important part of the set of arguments that have
convinced governors and legislatures in several states to mitigate their felon
disenfranchisement laws in the last few years. 2 Although the authors are
sociologists, the book deals with cases, statutes, and legislative history in a way
that the law-trained will find reliable and trustworthy. The target audience clearly
goes beyond the academy; in acts of what Professor Manza’s curriculum vitae calls

*
Chester H. Smith Professor of Law, Professor of Public Administration and Policy,
Director, Law, Criminal Justice and Security Program, University of Arizona. Disclosure: The
authors of the book thank me in the acknowledgements and favorably discuss my work.
1
See THE SENTENCING PROJECT AND HUMAN RIGHTS WATCH, LOSING THE VOTE: THE IMPACT
OF FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES (1998), available at
http://www.sentencingproject.org/pdfs/9080.pdf.
2
See RYAN S. KING, THE SENTENCING PROJECT, A DECADE OF REFORM: FELONY
DISENFRANCHISEMENT
POLICY
IN
THE
UNITED
STATES
(2006),
available
at
http://www.sentencingproject.org/pdfs/FVR_Decade_Reform.pdf. Their work is also cited in the less
successful litigation on the felon disenfranchisement issue. See, e.g., Hayden v. Pataki, 449 F.3d 305,
356 (2d Cir. 2006) (Parker J., dissenting). Legal scholars also rely on Manza and Uggen. See, e.g.,
Daniel Katz, Article I Section 4 of the Constitution, The Voting Rights Act and The Restoration of the
Congressional Portion of the Election Ballot: The Final Frontier of Felon Disenfranchisement
Jurisprudence?, 10 U. PA. J.L. & SOC. CHANGE (forthcoming 2007) (discussing the work of Manza
and Uggen).

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“public sociology,” the authors have taken their research to the public through
dozens of editorials, media appearances, and interviews.
At its core, the policy of criminal disenfranchisement is close to uniform:
among the fifty states, Maine and Vermont stand alone in refusing to
disenfranchise those in prison. Beyond that, states vary widely over whether those
on probation or parole are disenfranchised, and whether fines and assessments
must be paid in full, even if that means an ex-convict, who typically will have
limited employment prospects, may be effectively disenfranchised for life. The
most important controversy is about those who have “paid their debt,” those
convicted of felonies but who are out, off parole and probation, and have paid all
fines and assessments. Florida, Kentucky, and Virginia disenfranchise such
persons with felony records for life; about ten other states have some limitation for
those who are completely free of correctional control—a waiting period before
rights are restored, lifetime disenfranchisement for repeat offenders, or lifetime
disenfranchisement for those convicted of certain crimes. Of course, each state
decides for itself how it treats a person with a conviction, even an out-of-state
conviction, so it is perfectly possible that a person who can vote in New York
despite a New York conviction will find herself disenfranchised if she moves to
Arizona, or vice-versa.
It might be said that felon disenfranchisement is a folkway rather than a
policy; it enjoys remarkably wide acceptance in codes across the country without a
well-articulated justification or rationale, particularly for the period after full
completion of sentence. The book is designed, I think, to reflect the authors’
conclusion that there is no reasonable justification for the policy; they would like
to see “reconsideration of all voting restrictions on disenfranchised felons.”
(Manza & Uggen, p. 228.) They believe that “even the disenfranchisement of
current inmates is problematic.” (Manza & Uggen, p. 231.)
Felon disenfranchisement lies at the intersection of three distinct areas of law.
First, while not regarded as “punishment” for due process purposes, it has a
criminal law/sentencing component, as part of the package of sanctions
automatically following criminal conviction. Accordingly, like loss of other rights
(e.g., to possess a firearm, to obtain or retain public benefits, licenses or
educational opportunities, and, for non-citizens, to live in this country), felon
disenfranchisement just happens upon conviction. 3 No one has to tell a defendant
about it before pleading guilty, or to put it another way, before deciding whether it
is really smarter to mortgage one’s house and fight the case even though the
prosecutor offered a walk-away deal. 4 (It is the allegedly non-punitive nature of
felon disenfranchisement that forecloses its legitimation on the ground that it is
3
See, e.g., AM. BAR ASS’N, CRIMINAL JUSTICE STANDARDS: COLLATERAL SANCTIONS AND
DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS (3d ed. 2004), available at
http://www.abanet.org/crimjust/standards/collateral_toc.html.
4
See, e.g., Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and
the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697 (2002).

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punishment for crime—if punishment, then the judge must disclose it at the time of
the guilty plea.)
The “gotcha” nature of disenfranchisement raises fairness issues. From a
sentencing perspective, the institution begs the question of what, exactly,
disenfranchisement is supposed to do to advance the goals of the criminal justice
system. Rather than being a natural, inevitable feature of any mature system of
criminal justice, denying large numbers of citizens with felony convictions the
right to vote is virtually unique to the United States. (Manza & Uggen, pp. 38–39,
235.) This question is all the more important given the practical problem of
reintegrating an increasing number of individuals who have served time in prison.
Second, felon disenfranchisement is part of race law. The disenfranchisement
laws of several of the former Confederate states in particular bear the clear imprint
of a purpose to maintain white supremacy. A remarkable example is the candid
decision of a unanimous Mississippi Supreme Court which, in Ratliff v. Beale, 5
explained the origins of the Mississippi Constitution of 1890, still in force today:
Our unhappy state had passed in rapid succession from civil war through
a period of military occupancy, followed by another, in which the control
of public affairs had passed to a recently enfranchised race, unfitted by
educational experience for the responsibility thrust upon it. This was
succeeded by a semimilitary, semicivil uprising, under which the white
race, inferior in number, but superior in spirit, in governmental instinct,
and in intelligence, was restored to power. 6
To cement its power, the dominant group structured the constitution to ensure
permanent white supremacy: “Within the field of permissible action under the
limitations imposed by the federal constitution, the convention swept the circle of
expedients to obstruct the exercise of the franchise by the negro race.” 7 This
included employment of felon disenfranchisement: Because the state constitution
could not discriminate against African-Americans directly, “the convention
discriminated against its characteristics and the offenses to which its weaker
members were prone. . . . Burglary, theft, arson, and obtaining money under false
pretenses were declared to be disqualifications, while robbery and murder and
other crimes . . . were not.” 8
Third, felon disenfranchisement is part of election law and voting rights
jurisprudence. Ideally, policies allowing some to vote and others not should be
based on legitimate and justifiable reasons. A glance at, for example, the postCivil War constitutional amendments shows that expanding access to the ballot
5
6
7
8

20 So. 865 (Miss. 1896).
Id. at 867.
Id. at 868.
Id.

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was the single most important reason the Constitution-in-being was found to be
unsatisfactory: The Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-third,
Twenty-fourth and Twenty-sixth Amendments expanded the franchise to new
groups, or, in the case of direct election of Senators, the ballot’s value. If the
unlamented demise of qualifications based on sex, race, and property begins to
suggest an underlying principle of universal adult franchise, then the exclusion of a
particular group, those with felony convictions, calls for a justification.
The book’s ambitious claim is that as criminal justice policy, as race policy,
and as electoral policy, felon disenfranchisement is not only unjustifiable, but
might well be affirmatively harmful measured against relatively uncontroversial
policy goals.
II. CRIMINAL JUSTICE POLICY
Reducing crime is the most important, or one of the most important, goals of
the criminal justice system. One of the book’s most startling suggestions is the
possibility that felon disenfranchisement actually increases crime. The book
proposes a link between civic participation in the form of voting and desistence
from crime. At one level, this makes perfect sense; those convicted of crimes have
transgressed the laws of society; they must “pay their debt” and in so doing restore
their place in society. In states allowing those who have paid their debt to vote, it
would seem to be a positive sign that an individual demonstrates attachment to the
community by performing his or her civic duty at the ballot box as well as in other
ways. Someone who has a stake in making the laws, common sense suggests,
might be less likely to break them.
The authors test this notion empirically by correlating voting and subsequent
criminal behavior. Their data for this conclusion come from the Youth
Development Study, a longitudinal examination of 1,010 individuals in St. Paul
Minnesota who where in the ninth grade when first surveyed in 1987-88.
Participants were surveyed repeatedly over time about their behavior and attitudes.
(Manza & Uggen, p. 256.)
For those with criminal records and without, voting reduced future criminal
involvement. Of those who voted in 1996, 5.2 per one thousand were arrested, and
4.7 per thousand were incarcerated in 1997-2000; of those who did not vote, the
arrest rate was 15.6 per thousand and the incarceration rate 12.4 per thousand.
Separating these statistics into those with and without prior criminal records
showed the same effect. Of those with prior arrest records, 26.6 per thousand of
non-voters were rearrested, while only 12.1 per thousand of voters were rearrested.
Of those with no arrest history, 10.1 per thousand of non-voters were arrested,
while only 3.5 per thousand of voters were arrested. The correlation between
voting and law-abiding behavior held when using self-reports of criminal behavior:
Those who voted were much less likely to admit having committed a property or
violent crime for which they were not arrested than those who failed to perform
their civic duty. (Manza & Uggen, pp. 132–33.)

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The authors acknowledge that their data are suggestive rather than conclusive,
and, as is characteristic of this book, they identify the potential infirmities of the
hypothesis; controlling for other characteristics such as race and sex explains much
of the difference of the criminal justice involvement between voters and nonvoters. Nevertheless, the potential connection is intriguing and intuitively
plausible. Just as, caeteris paribus, those who feel like they are part of society
may be more likely to follow its rules, individuals who get the message that they
are outsiders forever might feel less moral constraint from laws they can never
influence.
The data showed that those who had been arrested or incarcerated were less
likely to claim affiliation with any political party than those who had never had
contact with the criminal justice system; that is, a greater percentage were
independent rather than Republican or Democratic. (Manza & Uggen, p. 119.)
They were more cynical about government, their own role in influencing public
policy, and were less likely to talk politics with friends and family than those who
remained free of criminal entanglement. (Manza & Uggen, pp. 120–22.) Rather
than criminals tending to be uninterested in politics, the data raise the possibility
that political disengagement or exclusion breeds crime. “If those who vote are
actually less likely to commit new crimes, extending the franchise may facilitate
reintegration efforts and perhaps even improve public safety.” (Manza & Uggen,
p. 129.)
Another argument based on criminal justice policy has been that exclusion of
convicted persons is necessary to avoid radical, undesirable changes in our
criminal laws. Judge Henry Friendly rejected an equal protection challenge to
felon disenfranchisement on this basis: “A contention that the equal protection
clause requires New York to allow convicted mafiosi to vote for district attorneys
or judges would not only be without merit but as obviously so as anything can
be.” 9 There are many possible responses to this concern, the most obvious one
being that it is quite unlikely that even the most carefully orchestrated political
campaign by people with felony records would lead to repeal of RICO or reduction
of the age of consent.
Chapter 6 offers an additional reason why fear of a public policy oriented
toward the preferences and interests of criminals is unrealistic, based on the results
of a qualitative study consisting of interviews with individuals in prison, on parole,
or on probation. There was little support for radical changes to the criminal justice
system: “[N]one of our respondents expressed extreme views about eliminating or
fundamentally transforming the system. In fact, a number highlighted instead the
new knowledge they had gained in prison about just how bad other criminals are.”
(Manza & Uggen, p. 144.)

9

Green v. Bd. of Elections of the City of N.Y., 380 F.2d 445, 451–52 (2d Cir. 1967).

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There were also a surprising number of self-described conservatives. Said
one:
I was a liberal Democrat most of my life, but due to my problems I have
to be conservative ’cause I can’t cope with my problems and be liberal . . .
like when I got drunk and became sexual act-, sexually prone, you know?
. . . But being, switching to conservatism, now I, you know, I have to be
conservative ’cause I- With my medications and stuff, and my mental
problems, if—without being conservative, I’ll be in trouble. (Manza &
Uggen, p. 147.)
Similarly, a prisoner with a murder rap explained: “One thing that would
make me lean toward the Republican viewpoint is their, they think that, you know,
the government shouldn’t have so much money and, you know, shouldn’t be as big
as it is and have so much power and authority, which all really comes from money,
I guess.” (Manza & Uggen, p. 149.)
At bottom, “[f]ar from being the politically deviant or incompetent citizens
imagined by those who would protect the ‘purity’ of the ballot box, they expressed
the same types of political hopes and fears, and policy preferences, as other
enfranchised groups.” (Manza & Uggen, p. 151.) “Our interviews also suggested
an interaction between the right to vote and the willingness to invest in political
knowledge, awareness, or interest, which might stimulate participation in the first
place.”
(Manza & Uggen, p. 157.)
“They clearly felt the sting of
disenfranchisement and other collateral consequences of their convictions, which
marked them as outsiders.” (Manza & Uggen, p. 163.)
It is a profound decision to hold that those convicted of crime, even relatively
minor crimes a long time ago, can never regain their places as full and equal
members of society. As Justice Anthony Kennedy said in his remarkable speech to
the American Bar Association in 2003, in which he criticized mass incarceration,
mandatory minimum sentences, and the absence of discretion:
To be sure the prisoner has violated the social contract; to be sure he
must be punished to vindicate the law, to acknowledge the suffering of
the victim, and to deter future crimes. Still, the prisoner is a person; still,
he or she is part of the family of humankind. 10
III. RACIAL POLICY
A major contention of the book is that felon disenfranchisement is an artifact
of Jim Crow. Admittedly, the argument is not simple; Louisiana’s 1845 felon
10

Anthony M. Kennedy, Associate Justice, Supreme Court of the United States, Address at
the American Bar Association Annual Meeting (Aug. 9, 2003), in 16 FED. SENT’G. REP. 126, 127
(2004).

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disenfranchisement law, for example, cannot possibly have been designed as a
covert measure against African-Americans, because other provisions of law
disenfranchised them explicitly. Felon disenfranchisement clearly was not
invented as a tool of oppression of African-Americans.
However, traditional legal and historical techniques have generated strong
evidence of discriminatory intent in particular states at particular times, most
particularly in the former Confederate states. The authors recount some of this
history. In Hunter v. Underwood, 11 for example, a unanimous Supreme Court, in
an opinion written by then Associate Justice Rehnquist, invalidated Alabama’s
felon disenfranchisement provision because it was designed to disenfranchise
African-Americans. Other states’ disenfranchisement provisions also reflect
evidence of intent to disenfranchise African-Americans. “Disenfranchisement
based on criminal conviction provided a useful, and potentially permanent, way to
eliminate voters, particularly in light of corresponding changes to the criminal
justice system (which became both more expansive and more formalized during
the mid- to late nineteenth century).” (Manza & Uggen, p. 57.) “In Alabama, for
example, nonwhites made up just 2 percent of the prison population in 1850, but
74 percent by 1870.” (Manza & Uggen, p. 57.) “John Fielding Burns, sponsor of
the new disenfranchisement bill, boasted that ‘the crime of wife-beating alone
would disqualify sixty percent of the Negroes.’” (Manza & Uggen, p. 58.)
The authors’ special contribution here is a quantitative analysis. They
demonstrate racial motivation through equations, not anecdotes. Using “event
history analysis,” they identify the circumstances which led states to adopt a
disenfranchisement law in the period 1850 to 2002. They “developed a systematic
quantitative analysis that uses detailed information on the social and political
makeup of individual states over a long historical period to examine how various
factors affect the adoption and extension of state disenfranchisement laws.”
(Manza & Uggen, pp. 43–44.)
Their conclusion: “Racial threat, as measured by the percentage of nonwhites
in state prisons, is clearly associated with adoption [sic] of state felon
disenfranchisement laws.” (Manza & Uggen, p. 64.) That is, “[w]hen African
Americans make up a larger proportion of a state’s prison population, that state is
significantly more likely to adopt or extend felon disenfranchisement.” (Manza &
Uggen, p. 67.)
The authors are skeptical of an approach that I happen to love, namely, “legal
and doctrinal analyses of court decisions, or [examination of] anecdotal historical
evidence.” (Manza & Uggen, p. 43.) At least, they do not think these materials tell
the whole story. They are right, of course, but the reasons for laws include,
centrally, the reasons that can be gleaned from the legislative history and other
evidence of legislative motivation, legitimate or not; and the reasons for case law
often include those articulated in the court decisions. With laws passed or cases

11

471 U.S. 222 (1985).

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decided in the age of honesty about racism, there is little reason to discount frank,
proud, and unambiguous assertions of racial motivation.
Nevertheless, this research is a contribution: Although numbers and
correlations are bloodless, and therefore sometimes less appalling and startling
than a racist tirade by a Jim Crow-era chief justice or state constitutional
convention president, quantitative analysis presents less risk that conclusions could
be skewed by unrepresentative but dramatic incidents. In any event, the evidence
from traditional legal materials point in the same direction as the authors’
statistical analysis: Race drives felon disenfranchisement.
The racial motivation for the laws’ enactment is realized in their operation.
“[I]n 14 states, more than 1 in 10 African Americans have lost the right to vote by
virtue of a felony conviction, and 5 of these states disqualify over 20 percent of the
African American voting age population.” (Manza & Uggen, p. 79.)
Why not just apply for clemency or restoration of rights? In some
jurisdictions, that may be a realistic hope, but in others it is practically impossible.
In any event, the book offers empirical evidence that the system is stacked.
Another statistical analysis reports on the operation of Florida’s process:
African Americans are significantly less likely to have their rights
restored, as are those of lower socioeconomic status, those who are not
married, and those who do not own their homes. Further, people with a
history of mental health treatment are less likely to regain their rights.
Differences in criminal history account for some portion of these
differences, but do not fully account for the race and class effects on
restoration outcomes. (Manza & Uggen, p. 93.)
The authors look to racial politics for an explanation of larger trends in
criminal justice. Chapter 4 contends that the rise in imprisonment and prosecution
is not explained by increasing rates of crime. “If crime rates cannot account for
recent trends in punishment practice, then we must look to political and cultural
factors.” (Manza & Uggen, p. 105.) The major one: “[T]he reemergence of a
sharp link between race and crime.” (Manza & Uggen, p. 106.) In addition, the
War on Drugs explains why imprisonment has been going up while crime has not.
“Twenty years on, it is clear that the campaign has done little to influence actual
drug use, but it has been a remarkable political success story.” (Manza & Uggen,
p. 107.)
The nightly news programs aggressively cover crime stories,
exaggerating the problem and feeding public fears. And widespread
media depictions of the race of offenders are thus particularly important
in the overall story and in magnifying public fears. Although African
Americans may commit proportionately more crimes than whites, media
coverage vastly exaggerates the extent to which blacks are perpetrators.

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A political and cultural model that incorporates race is likely the best
explanation for rising levels of criminal punishment in the United States.
(Manza & Uggen, p. 109.)
IV. ELECTORAL POLICY
When men wore powdered wigs and knee breeches, felon disenfranchisement
was entirely consistent with an elite franchise, restricted as well by race, sex and
wealth. Now, however, voting is thought of as a “right” enjoyed by all adults.
Felon disenfranchisement still might not be discordant if crime was crime:
disenfranchising those committing a common law felony might be thought of as
almost liberal; rapists, robbers and murderers will always, mercifully, be a small
fraction of the population, so disenfranchising them does not raise a significant
practical challenge to universal suffrage. Moreover, for crimes that until recently
carried a sentence of death, 12 a term of years plus disenfranchisement is not
necessarily draconian. But people are disenfranchised for minor felonies as well as
grave ones, and business in the felony courts has been brisk. Disenfranchising a
substantial portion of the population for relatively trivial offenses is potentially
inconsistent with the idea of representative government.
Chapter 3 attempts to calculate the number of those disenfranchised because
of criminal conviction. The very exercise is a stark reminder of the ad hoc and
diverse nature of America’s electoral system. The book cannot merely pass along
information about the number of citizens ineligible to vote, from some government
source or collection of sources, because official statistics are not maintained,
anywhere, apparently.
The book recounts familiar yet still sobering statistics: In 2002, almost a third
of criminal convictions were for drug offenses; less than a fifth for violent crimes.
Eight percent involved rape, robbery or murder. (Manza & Uggen, p. 70.) In
1972, fewer than 200,000 people were in prison in the country and the rate of
incarceration was 94 per 100,000; in that year, the problem of felon
disenfranchisement could, whatever its merits, plausibly have been regarded as de
minimis in the context of the electorate as a whole. (Manza & Uggen, p. 71.) By
2006, over 2,000,000 were in custody, for a rate of 714 per 100,000. Of course,
these numbers are “highly concentrated among some subgroups.” (Manza &
Uggen, p. 71.) But to find the total number of disenfranchised individuals, one
cannot just add up the number of felony dispositions per year, because not all of
those convictions will be disenfranchising under the particular terms of that state’s
law, some of those individuals will already have disqualifying convictions, others
will have died after conviction and thus no longer be counted among the
12
Brookman v. Commonwealth, 145 S.E. 358 (Va. 1928) (affirming death sentence for
common law robbery); Boston & Worcester R.R. Corp. v. Dana, 67 Mass. 83, 97 (1854) (“By the
ancient common law, felony was punished by the death of the criminal, and the forfeiture of all his
lands and goods to the crown.”).

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disenfranchised, and others will move to states where their conviction is not
disenfranchising or will be granted clemency or have their rights restored.
With appropriate legal and factual adjustments, the book concludes that on
Election Day 2004, 5.3 million Americans were disenfranchised because of a
criminal conviction, namely, 2.5% of the voting age population. (Manza & Uggen,
p. 76.) Of these, 26% were in prison, and the largest group, 39%, had completed
incarceration, probation and parole. (Manza & Uggen, p. 77.)
If Americans as a whole are relatively apathetic about politics, one would
expect that the economically disadvantaged, minorities, and those with criminal
records would be even less likely to see casting a ballot as a fruitful expenditure of
time and money. Accordingly, conceivably the whole felon disenfranchisement
controversy is much ado about nothing: Even if allowed to vote, they would not,
and therefore, there is no practical import to the issue. Of course, in that event, no
harm could possibly come from allowing the few who wanted to vote to do so.
Chapter 7 attempts to calculate how many disenfranchised citizens would vote
if the law allowed. Chapter 8 looks at the effect of the current regime on important
elections over the past twenty years. “Compared with other postindustrial
democratic countries, turnout rates in U.S. national elections are shockingly low.”
(Manza & Uggen, p. 115.) Accordingly, the question is not why participation rates
are low among those with convictions but who are legally permitted to vote, but
rather why are they lower than the low rate at which persons without criminal
records vote.
Estimating voter turnout under counterfactual conditions is tricky. It begins
with an estimate, state by state, of disenfranchised individuals. The book then
attempts to identify the voter turnout in populations matched for all demographic
characteristics, except for the right to vote. Although the book concludes that the
felon turnout would be lower than that in the general population, it would be
substantial: 35% of convicted persons might vote in presidential elections
compared to an average of 52% of the population as a whole; and 24% in midterm
elections, compared to 38% of the population as a whole. (Manza & Uggen, pp.
170–73.) These estimates do not control for criminal conviction per se, and
therefore leave open the possibility that people who commit crimes, independently
of other circumstances, might be less likely to vote. However, analysis of the
Minnesota Youth Development Study dataset suggests that conviction independent
of demographic characteristics does not reduce turnout. (Manza & Uggen, pp.
174–76.)
If the numbers of disenfranchised citizens are large, they partially or
completely answer a major conundrum of modern American politics, namely, the
declining participation rate: “Between 1960 and 1988, official turnout figures in
national elections fell from 62.8 percent to 50.3 percent.” (Manza & Uggen, p.
176.) If those millions who are ineligible to vote are removed from the calculation,
apparently dismal rates of turnout do not look so bad; that is, felon
disenfranchisement explains a significant portion—some researchers claim all—of
the modern decrease in voter turnout.

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Chapter 8’s conclusions about the electoral consequences of
disenfranchisement received national attention when published in article form.
Using state-by-state estimates of the disenfranchised population, plus estimated
voter turnout, the authors examined how a series of modern elections would have
been affected had the laws been different.
First, if current rates of
disenfranchisement prevailed in liberal 1960, Nixon would have won the popular
vote over Kennedy; Carter also would have been in trouble in 1976. (Manza &
Uggen, pp. 192–93.) By contrast, if people with criminal records were allowed to
vote after completion of their sentence, Al Gore would have won in 2000 in
Florida. (Manza & Uggen, p. 192.) The trend here is apparent: “Many convicted
felons come from poor or working-class urban districts, with low incomes, few job
prospects, and low levels of formal education. The combination of these factors
tends to push the ‘average’ felon toward the Democratic Party in any given
electoral contest.” (Manza & Uggen, p. 183.) Seven close senate elections since
1978 and four gubernatorial elections might have gone from Republican to
Democratic in the absence of disenfranchisement of those out of prison. (Manza &
Uggen, pp. 195–97.)
T here is some tension between the contention in Chapter 8 that in American’s
polarized political climate where the margin of error decides many major elections
the felon vote would often change the outcome, and the argument in Chapter 6 that
the hopes, dreams and political views of those with felony convictions are not so
different than those of other Americans. If Chapter 8 is right, then felon votes are
not merely a reflection of the votes of those without criminal records; the felon
vote skews left. But if we accept the premise that votes for the progressive
candidate are not for that reason illegitimate, then the nature of the problem
becomes clearer. Felon disenfranchisement results not only in the dignitary harm
suffered by the person convicted. The injury is not to those favoring legalization
of hard drugs, or to NAMBLA, or other groups in hopeless, permanent minority
status holding perverse and anti-social views. The political harm is to those who
are a bit on the liberal side on such things as taxation and public support for
education, who might well have a stable working majority if African-Americans
wound up voting in elections at the same rates as whites. From a democratic
perspective, in a system attempting to create a government based on the will of the
people, the naked fact that a policy favors one party over another is a reason to
reject it, not a justification for it.
Chapter 9 explores public attitudes toward felon disenfranchisement. In 2002,
the authors had Harris Interactive include a series of questions about felon voting
in a telephone survey. Individuals in the mainland United States were called
randomly and asked their views. In order to ensure that the views received were
actual views, in addition to offering a “not sure/don’t know” choice, they included
“I haven’t thought much about this” as a possible answer. (Manza & Uggen, p.
213.)
The survey found that only 31% of respondents supported allowing prisoners
to vote, but 60% or more supported allowing probationers or parolees to vote.

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(Manza & Uggen, p. 215.) When asked about allowing a generic “ex-felon” to
vote, 80% supported enfranchisement, but when they were asked about those who
committed specific crimes, support went down. However, even for those who
committed sex crimes, 52% of those surveyed supported enfranchisement. (Manza
& Uggen, p. 216.)
V. CONCLUSION
Felon disenfranchisement makes little sense as a matter of criminal justice
policy, as a matter of electoral policy, and has a tarnished history as a tool of Jim
Crow. According to the survey evidence, most Americans do not support it. How,
then, can its persistence be explained?
One answer is that it can’t survive. Felon disenfranchisement is under serious
political pressure. Several legislatures and governors have acted to liberalize their
prohibitions in recent years or made it easier to get rights restored. Among the
major changes: Since The Sentencing Project started its work in this area,
Delaware, Iowa, Nebraska and New Mexico repealed lifetime voting bans, and
Maryland, Nevada, Rhode Island and Wyoming provided for automatic restoration
of rights for some offenders. 13 Also during this period, Utah and Massachusetts
disenfranchised those in prison. 14 So the nation may be heading toward a public
policy consistent with what the survey evidence suggested the public wants—no
voting by prisoners, but voting by all citizens who are out of prison.
The work in this book is original and persuasive, but in some respects,
admittedly inconclusive. More research, for example, on the connection between
the opportunity to vote and future offending would be welcome and help
definitively answer a conclusion that in this book is advanced tentatively. But one
thing is clear from the enormous, decades-long natural empirical test of the effects
of doing without felon disenfranchisement. For years, states as diverse as Hawaii,
Idaho, Indiana, Michigan, Oregon, Pennsylvania, Utah, and Vermont have allowed
persons to vote, at least once out of prison. In none of them, contrary to Judge
Friendly’s fears, have candidates for district attorney or judgeships been elected
based on a platform of support for the Mafia. It seems clear that no harm can come
to the state from allowing persons with criminal records to vote; perhaps some
good can.

13

KING, supra note 2, at 3.
THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES
(2007), available at http://www.sentencingproject.org/Admin%5CDocuments%5Cpublications%5
Cfd_bs_fdlawsinus.pdf.
14