California Secretary of State Alex Padilla announced Tuesday that roughly 45,000 people on community supervision will be able to vote, reversing his predecessor’s policy. The decision, he said, was motivated in part by the vast racial disparities in the criminal justice system.
California’s announcement was the latest development in a growing movement to return voting rights to those with a criminal record. Presidential candidates on the right and left have made it a key element of their platforms. And in his big speech on criminal justice in July, President Obama said that “if folks have served their time, and they’ve reentered society, they should be able to vote.”
Lost in this political enthusiasm is the fact that many of those who have spent time in prison already have the right to vote. But state laws on voter disenfranchisement are a complicated patchwork of policies, with varying rules on whether those on parole or probation can vote, whether those convicted of certain crimes — like rape and murder — are ever eligible, and whether voting rights are reinstated automatically after release. (Voting rights for released federal offenders are determined by the laws in their home state.) Advocates and researchers say that confusion over state laws has kept many otherwise eligible voters from the polls.
Here, five key things to know about the complex state of inmates’ voting rights.
1. In two states, every prisoner has the right to vote.
As in Obama’s speech, most of the push to amend voting laws has been for those who “have served their time” and are already released. But in Maine and Vermont, everyone can vote — even current prisoners. Those in jails across the country (whether they are pretrial detainees or serving time for most misdemeanors or certain low-level felonies) still have the right to participate in elections, though many struggle to access registration or voting materials.
2. There’s an ongoing debate on when and how the right to vote should be reinstated.
Many states are considering whether those on probation or parole (which can last decades) can participate in elections, and whether those rights should be automatically restored or require an application process. Maryland governor Larry Hogan vetoed a bill in May that would have allowed those on probation and parole to vote, and a similar proposal was removed from a successful Minnesota public safety bill.
3. States tried, and mostly failed, to expand voting rights last year.
Eighteen states considered loosening voting restrictions for people with felony convictions in 2015, up from 13 the previous year. But only one of this year’s proposals passed: Wyoming amended its law so that those who complete prison, probation, and parole will automatically have their voting rights reinstated, instead of having to wait five years, post-release, to appeal to the parole board. In the past five years, six states have expanded access.
4. Many prisoners are still counted as constituents even if they can’t vote.
In what’s known as “prison gerrymandering,” inmates in some states are included in the population count of the cities they’re incarcerated in for districting purposes — even if those inmates cannot cast a ballot in local elections. (Other states have passed laws prohibiting the practice.) In March, the ACLU of Florida filed a lawsuit against Jefferson County for counting state prisoners as 43 percent of the voting population. Florida has one of the strictest voting laws in the country, under which those with felony convictions must wait five or seven years, depending on the crime, before applying to a state clemency board to restore their right to vote.
5. The Voting Rights Act — which turns 50 this week — hasn’t changed felony disenfranchisement.
A provision of the Voting Rights Act says that voting restrictions that have a discriminatory impact violate the law. Many have argued that because felony voting laws disproportionately disenfranchise people of color, they also violate the Voting Rights Act. But the circuit courts have split on whether that’s true. Most recently, the 9th circuit court ruled in 2010 that the Voting Rights Act did not apply to such laws, and the Supreme Court has repeatedly declined to take cases on the subject.