Analysis | Ex-Felons Deserve the Right to Vote

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By Amit


Minnesota earlier this week became the latest state to restore voting rights to ex-felons once they are released from prison. Democrats around the US have been pushing to reduce or eliminate restrictions on voting, in particular fighting to extend voting rights to people on parole or probation. Many Republicans have been pushing back, arguing that rights shouldn’t be restored until all the terms of a sentence have been fulfilled, and perhaps not even then.

Some Republicans also might worry that expanding the voter pool will cost them at the polls. It turns out that any potential effects on election outcomes is small. But disenfranchising ex-felons is indefensible in a democracy.

Current law is a patchwork of state preferences. Vermont, Maine and the District of Columbia allow imprisoned felons to vote. Virginia and Kentucky impose a lifetime ban on anyone ever convicted of a felony. The other 46 states have a variety of policies, ranging from restoring voting rights as soon as people are out of prison to bans that can be overturned on a case-by-case basis. While the share of states blocking post-release felons from voting has been declining, Republicans have generally opposed these changes.

Yet  a close look at the numbers suggests there isn’t much for them to fear. Take the Minnesota law, which Governor Tim Walz, a  Democrat, has said he will sign. It would restore voting rights to about 50,000 people currently on parole or probation. That might sound like a lot, but nationally about two-thirds of those eligible actually voted in the 2020 presidential election. If all of those 50,000 people registered to vote and then turned out at the same rate as the rest of the population, the actual number of new voters would be closer to 30,000.

What percentage would vote for Democrats? Certainly not 100%, and their electoral clout as a group diminishes rapidly if they split their votes; if only 75% vote for Democrats — still a high estimate — then the party gains only 15,000 votes. The last time a presidential election in Minnesota was that close was in 1916, when the state’s population was a lot smaller. Also, it is far from clear that Democrats would benefit at all, given that many felons are white men without college educations, a group that increasingly supports Republican candidates.

Moreover, academic research suggests that turnout among former felons would be lower than the already-low US average and possibly only in the single digits. A separate study by journalists at the Marshall Project after the 2020 election found that in four states, fewer than a quarter of newly enfranchised ex-felons even registered to vote. In Minnesota, 20% turnout would mean only 10,000 new votes, and if they break 3-to-1 for Democrats then the party’s candidates would gain just 5,000 votes in a statewide election such as the 2020 presidential contest in which more than three million Minnesotans voted.

It’s possible for elections to be that close: In 2008, Al Franken beat Norm Coleman for a US Senate seat in Minnesota by only 312 votes. But outcomes that narrow are rare. 

Regardless of which party benefits, the policy can’t be justified in a democracy. The reason is simple: Elected officials pay more attention to voters, and when people are denied the right to vote their preferences and interests won’t be attended to.(1)

Sure, elected officials care most about their strongest supporters, followed by anyone who votes for them. But as political scientist Richard Fenno explained long ago, most politicians take seriously the idea that they represent everyone in their district. Congress took up civil rights legislation after Black citizens moved north and west, where they were able to vote, and politicians from those states started paying attention to the concerns of those voters.

Barring people from voting is the equivalent of excluding the interests and preferences of an entire group from the legitimate democratic process. That’s unacceptable in a republic.(2)

The act of voting, by itself, has all sorts of limitations. A single vote almost never determines an election result. There are many things one can do that have greater influence on election outcomes than casting one’s vote. Nor is voting a good way to send specific messages, such as a policy preference on abortion or tax rates or Russia’s invasion of Ukraine, because in most cases only candidates are on the ballot, not the dozens of policy positions and other things the candidates stand for. At best, a vote can indicate approval or disapproval of the candidate.(3)The meaning of one’s vote is subject to all sorts of interpretations that the voter might not have intended at all.

But whatever the limitations of voting, the right to vote itself is absolutely crucial.

Democracy is fundamentally about people governing themselves. When not everyone counts as a full citizen, the United States remains a system in which some of the people govern themselves and also govern everyone else. 

In practice, the policy of restricting felons from voting is irrational. Former felons retain other political rights. They are entitled to freedom of speech. They can electioneer on behalf of a candidate. They can donate money. It makes no sense to allow these democratic freedoms while denying them the right to vote. (The case for currently incarcerated felons, who obviously do lose important liberties while in prison, is more complicated, with valid arguments on both sides. I prefer to err on the side of enfranchisement, but I don’t think it’s clear that democracy requires it.)

The best way to make sure everyone, including felons, enjoy their full rights as citizens would be through a new amendment to the Constitution or a Supreme Court ruling recognizing that right within the existing text. But barring that, both the federal government and the states should do what they can to make voting as easy — and as universal — as possible.

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• The Roots of Trump’s Anti-Washington Politics: Francis Wilkinson

(1) In Fenno’s terms, we might add separate circles for the entire electorate and the entire population of the district – with politicians caring quite a bit more about those within the electorate. Yes, that matters to elected officials even if a group has very low turnout rates – because if they become sufficiently upset about things, they might become mobilized to vote the bums out. Those without the power of the vote simply don’t have that leverage.

(2) Following the political theorist Robert Dahl, I continue to use “democracy” and “republic” as synonyms outside of some specialized circumstances. The Framers of the Constitution used the words differently – for them “democracy” meant only direct democracy – but that’s no longer common usage. At any rate, they were for popular self-government, although they had what to us is a very limited idea of who counted as people.

(3) Even that is complicated: For example, a strong opponent of abortion rights might have voted for Donald Trump in 2020 despite strongly disliking him and disapproving of his performance in office. Voting itself can’t express any of that.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.

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