In New York, and elsewhere, new bills would abolish felony disenfranchisement. That would mean law enforcement professionals are no longer the arbiter of who gets to exercise democratic rights.
A New York bill introduced by Democratic state Senator Kevin Parker in October would guarantee the right to vote of all voting-age citizens, including if they are in prison. “All New Yorkers should be able to exercise their foundational American right of voting,” it states.
Lawmakers have filed similar legislation this year in at least seven other states, as well as in Washington D.C.. Representative Ayanna Pressley of Massachusetts also introduced a federal bill last week to enable incarcerated people to vote, as is already the case in Maine and Vermont.
These bills would end felony disenfranchisement schemes. New York law, for instance, currently strips people convicted of felonies of their voting rights while they are incarcerated or on parole, though Governor Andrew Cuomo issued an executive order in 2018 to let people on parole vote. Parker’s bill would enable people in prison to vote absentee in their last county of residence.
Ending felony disenfranchisement would also mean that law enforcement professionals are no longer the arbiters of who gets to exercise democratic rights.
New York Assemblymember Steve Hawley, a Republican, took issue with this proposal. He called the notion “insulting” to “members of law enforcement and the criminal justice system who worked diligently to get these dangerous predators off the street.”
Anthony Michael Kreis, a professor at Chicago-Kent College of Law, tweeted in answer to Hawley, “The right to the franchise must not be subject to the whims of the personal feelings of police officers—or any other group for that matter.”
It’s questionable why any group should enjoy such a special say in whether their fellow citizens can vote. Yet we routinely accept that it is. Choices made by prosecutors or police chiefs constantly shape who loses the franchise. In deciding whether or not to charge someone at the felony level, or in disproportionately patrolling some communities over others, they are among a cadre of public employees with discretionary authority over who will be disenfranchised.
Hawley’s reaction reflects a system that has set them up as gatekeepers of voting rights, with the punitive expectation that effective law enforcement means cutting people off from the world.
But in Maine and Vermont, law enforcement’s decisions do not affect people’s voting rights, and that promotes a different dynamic. When I talked to the prosecutor of Vermont’s largest county in August about the fact that the state enables people to vote from prison, she expressed a very different sentiment than Hawley.
“I am very proud of Vermont for doing that, and I think every state should allow [incarcerated people] to vote,” Sarah Fair George, the state’s attorney of Chittenden County (Burlington), told me. She added that she wanted it to be easier still for incarcerated people to obtain ballots. “They are still a community member, and they should still have a say in the way their community is run, whether they’re in jail or not,” she said.
This week, after reading Hawley’s statement, I reached out to all the prosecutors in Maine and Vermont to ask for their reaction. I also contacted officials in each state’s Department of Corrections (DOC), the agencies that run state prisons.
Those who answered either defended prison voting as a boon to the criminal legal system, or shrugged it off as a non-issue. None expressed a sense of being disrespected.
“[F]elon voting in Vermont has been a rather uncontroversial topic and is not something that we as prosecutors and law enforcement regularly discuss,” said David Cahill, the state’s attorney of Windsor County, Vermont. An executive at Vermont’s DOC echoed that sentiment. Todd Collins, the district attorney of Maine’s Aroostook County since 2010, replied that he had not given this “any serious consideration before.”
George was direct when asked about Hawley’s view that Parker’s bill is “insulting.” “That quote is appalling,” she told me via email. “It’s a good reflection of how inhumane our system has become, that we can use language that likens human beings to animals, and imply that once we ‘get them off the street,’ they no longer deserve to be treated with dignity.”
She added that voting from prison “does not negate their incarceration or any work done by law enforcement to put them there” but that it could “force elected officials who played a part [to] think twice about likening them to animals. If more district attorneys, mayors, governors or attorney generals, knew that every inmate could vote in their elections, they may start seeing them in a different light…maybe even treat them with some respect.”
That gets to the crux of the matter. Protecting voting rights is just one piece of how the criminal legal system can make room for every person’s humanity and political agency. But it is a critical one.
Depriving people of this right invites public officials to think they can ignore other rights, too. But in states whose public officials have to contend with all citizens having some political voice, they have more of an incentive to not use them as easy scapegoats.
As Pressley told The Appeal last week: “Perhaps we would be further along in transforming the criminal legal system if people were held more accountable to those that are behind the walls.”
“All voices count,” the organizers of the 2018 prison strike wrote on their list of demands that summer. The fight for voting rights has since grown. Colorado, Florida, Louisiana, and Nevada implemented new laws this year that considerably cut disenfranchisement, restoring the voting rights of hundreds of thousands. In addition, bills to abolish disenfranchisement moved one legislative step in Hawaii and New Mexico, and U.S. Senator Bernie Sanders of Vermont injected the issue into the presidential election.
Still, Maine and Vermont remain the only states that give all people the right to vote regardless of their criminal record. Incarcerated individuals can vote in Puerto Rico as well. One thing this means in practice is that, in most states, prosecutorial discretion impacts who can vote.
Each time prosecutors decide whether to charge someone with a felony or a misdemeanor, or whether to offer someone a deal that avoids incarceration, or how long a prison sentence to seek, they are shifting the voting public.
Such decisions systematically skew against people of color. One study of New York City shows that African Americans were likelier to be offered deals that included incarceration, even when controlling for factors like the seriousness of the alleged offense; another showed that Black New Yorkers on probation were likelier to have their probation revoked and be incarcerated. Studies elsewhere have shown that African Americans are likelier to be charged at the disenfranchising felony level.
This is reflected in the population prevented from voting in New York. While African Americans make up 15 percent of the state’s voting-age population, 47 percent of the state’s disenfranchised population was Black as of 2016, according to the Sentencing Project. Black New Yorkers were an outright majority of those who could not vote specifically because they were incarcerated.
Felony disenfranchisement laws empower some public officials to exercise this vast control over the boundaries of the electorate.
This power validates the outlook of people like Hawley, who describe incarcerated people as though they were vanquished adversaries and who fight criminal justice reforms with a more rehabilitative outlook.
Laws in Maine and Vermont, by contrast, do not give public officials discretion to police who should vote. That sets a different tone, that citizenship doesn’t just stop at a prison’s doors.
Multiple officials in both states told me that voting rights are an important link between incarcerated individuals and the world beyond the prison.
“Our perspective is one of actively maintaining this important connection to society,” Derek Miodownik, the community and restorative justice executive at Vermont’s DOC. “We want them to become more constructive civic participants than some of their past behaviors have indicated, and we believe they can.” He added that the ability to vote helps incarcerated people not “opt out” of social institutions. Matthew Dunlap, Maine’s secretary of state, similarly told me in April that voting is a “sliver of light”: “They’re still people, they’re still human beings, they’re still American citizens, and… in no small way it helps keep them connected to the real world.”
Their perspective stands against practices that foster civil death and cut off incarcerated people from civil and political communities. It complements the nationwide work of activists, many of whom are disenfranchised or incarcerated, to give people inside prisons a say in elections.
Parker, the New York senator, has mentioned the benefits of such links in justifying his proposed reform. Voting from prison can “facilitate an easier transition back into society,” his bill states.
George agreed that voting can facilitate people’s re-entry. “We have to do everything we can to connect each of those individuals to their respective communities while they are incarcerated, so they are better adjusted when released,” she said. “Voting is one of the most important ways that someone can connect to their community. It allows them to have a voice, have a part in electing officials who reign over things that matter to them, that impact them and their families.”