The Florida election imbroglio was not just about dimples and chads, butterfly ballots and VotoMatics. It was about inept poll workers turning away droves of legitimate voters. It was about differential treatment of wealthy and low-income communities, and of white communities and communities of color. It was about a sloppy, blatantly partisan effort to purge registration rolls. It was about what happens when you let partisans referee election disputes. Most importantly, it was about a scandal that received virtually no attention: state laws stripping millions of citizens with past felony convictions of the right to vote, adding up to the most significant formal disenfranchisement of our time.
So, yes, we should certainly upgrade voting machinery, and soon. But as Stephen Ansolabehere acknowledges, in something of an understatement, “[t]echnology cannot save our democracy from all its ills.” Bluntly put, to emerge from the Florida fiasco with nothing but a technological fix is like emerging from Romeo & Juliet with nothing but a moral about saying “no” to drugs.
Our democracy is built upon the aspiration of a citizenry of equals. Some may be more powerful than others, or wealthier, or more persuasive, but we all enter the voting booth as equals. At the moment when we pull the levers or punch the cards, nothing matters but our status as citizens. Not our skin color, nor our creed, nor our occupation, nor our net worth, nor our history of good deeds or bad. Nothing matters but the basic human dignity we all possess, a dignity that entitles us to participate as equals in this singular act of our collective self-governance. This vision of equality is so overpowering that the leitmotif dominating the story of our democracy is the struggle to expand the franchise, encompassing ever broader categories of individuals whom we come to view as deserving equal dignity—non-landowners, then African Americans, then women, then citizens who were too poor to pay a poll tax or who couldn’t read, and so on.
Viewed through this lens, the most troubling flaws in our democracy are not vote-counting glitches, the inadvertent artifacts of this technology or that. More dire are the defects that systematically disadvantage large classes of citizens. And even more distressing are laws that flatly prohibit an entire category of citizens from voting.
If you thought that we long ago abandoned voting prohibitions, think again. Numerous states have clung to the last remaining formal vestige of our racist past: Reconstruction era laws barring anyone with a felony conviction from voting for life.
The felon disenfranchisement problem dwarfs the technological problem, not just in symbolic importance, but in sheer magnitude. The Caltech/MIT study revealed that we lost 1.5 million presidential votes nationwide—or 1.5 percent—due to machine error or voter mistakes. Felon disenfranchisement laws bar three times that number, almost 5 million citizens, from the voting booth. In Florida alone, the disenfranchised population—counting only those who are out of prison and beyond criminal justice supervision—is 670,000. That is almost 5 percent of the voting-age population, and more than 1,000 times the margin of victory in the last presidential election.
Worse yet, the bans yield a disturbingly discriminatory result. Fully 36 percent of the citizens disenfranchised nationwide are African American, and more than half are people of color. The consequence is astounding: One out of four African American men in Florida, and the same proportion in six other states, are barred from voting—forever.
The disparate racial impact is not exactly an accident. Felon disenfranchisement laws accomplish exactly what they were meant to accomplish way back when they were first adopted. They were among the favorite tools of racist state legislatures—up there with poll taxes, literacy tests, and residency requirements—bent on limiting the political power of former slaves in the wake of the Civil War. Some states, reluctant to disqualify all felons, singled out the sorts of felonies that they expected former slaves to commit with greater frequency. Alabama, for example, disenfranchised citizens for vagrancy or crimes of moral turpitude, but allowed convicted murderers to vote.
Most of these laws were repealed in the 1960s and 1970s, but thirteen states, mostly in the South, have clung to them. Meanwhile, our tough-on-crime politics, which has quadrupled the prison population, has also converted what once was a small blip on the election radar screen into a disenfranchisement of massive proportions.
The case for repealing the rest of these retrograde laws is irrefutable. We’re not talking about prison inmates, or even parolees or probationers who remain under law enforcement supervision. Nor are we talking about recidivists, who land back in prison or under supervision. We’re talking about people who have paid their debt to society and whom society has admonished to fulfill all the other obligations of citizenship. Many of them are being punished for youthful indiscretions committed decades ago—the very same sorts of missteps that some of our most popular politicians have confessed. Most lead productive, law abiding lives. They raise families. They work. They pay taxes. They raise money for the PTA. But they have one thing in common: When their family and neighbors go off to vote on election day, they sit at home, shorn of their dignity as full-fledged citizens.
One of them is Thomas Johnson, the lead plaintiff in a case the Brennan Center for Justice brought, along with the Lawyers’ Committee for Civil Rights Under Law, against the State of Florida, months before the 2000 election put Florida in the spotlight. Mr. Johnson is a model citizen. A lay pastor, Mr. Johnson has thrown himself into running the House of Hope, which is devoted to helping felons make a smooth transition from prison to productive lives in society. He knows something about their strife, having spent eight months in a New York prison on a drug charge stemming from a harrowing addiction.
Upon moving to Florida, Mr. Johnson tried to register to vote, just as he had in New York. “Not in the State of Florida,” Mr. Johnson recalls the registration official saying. “You can never vote here.” Ever philosophical, Mr. Johnson feels a combined sense of indignation and humiliation: “I’m a taxpayer. I help mold this community through my work. The sheriff is a friend of mine. But voting is the power by which you truly shape and mold, and I’m being denied that. I watch my sons see me stay home when my wife goes off to vote. I’m appalled by it.”
We should all be appalled. Stories like Mr. Johnson’s have begun to catch the attention of advocates and lawmakers, spurring renewed activity to roll back felon disenfranchisement laws in many states. Just in the past year, Delaware, Connecticut, and New Mexico have relaxed their felon disenfranchisement laws, and other states, including Florida, have felt increased pressure on that front. The remaining holdouts will cave if we keep up the pressure through litigation and public condemnation. Ultimately, they can hide only so long behind a technological fix, and it will be hard to resist the inevitable march of our history toward an ever-expanding franchise.
