Gabriela Castellanos, Alisha Alam, Mona Alrazzaq, Sylvia E., Roshni Budhiraja
Vol. 3 No. 3
I. History of Voter Suppression
Voter suppression has been an issue plaguing the nation well into the core beginning of the foundation of this country. When diving in past the surface foundation of what initially established the roots of what we describe as our democratic nation, we discover barriers put in place and tactics utilized to suppress the public vote throughout history.
The 14th amendment defined itself as “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It was enacted into law in 1866, in order to protect every person’s right to due process of the law. Specifically in its time, it became a part of jurisdiction in order to grant citizenship and equal civil and legal rights to African Americans and slaves within the United States after being emancipated from the American Civil War. The 15th amendment followed in 1869, specifically stating that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” This amendment enabled the protection of citizens from having their rights vote abridged or denied due to their “race, color, or previous condition of servitude.” In theory, this amendment gave Black people the right to vote. However, there were key components of these amendments that continued to contribute to the structure of this oppressive system. While this amendment was placed to essentially ensure the rights of African American and Black individuals were validated, regardless of previous status, the wording of the amendment simply stated that these laws and policies were in place for men, not women. This later became fought during the Women’s Suffrage movement in the 1920s, years later, in which brought upon the establishment of the 19th amendment. The 19th amendment stated that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex” and therefore, granted the right to vote to millions of women across the country. Despite the idea that right to vote should truly never have been something that was “granted” to women or BIPOC, this amendment to the constitution protected the right to vote for all citizens, regardless of sex. However, despite the progressive sounding nature of these amendments and acts, the barriers and suppression tactics continued on through history.
Within the era of the 1890s, the first formal voter literacy tests became introduced. Literacy tests essentially were constructed as a way to test out literacy rates amongst African Americans, immigrants, and the poor, those who were all less likely to have been literate due the lack of educational opportunities and services provided to their communities in that time. They mandate that the qualification for voting in federal elections be administered “wholly in writing” and “only to persons who had completed at least six years of formal education.” They were known to be utilized as a way to disqualify foreign immigrants and the Black population, a key voter suppression tactic. Specifically, within the Southern region, the dense web of restrictions within this era continued to plague the freedom and continue to disenfranchise nearly all Blacks and many low-income Whites. Grandfather clauses were a clear example representing how such policies were simply made to be put in place to oppress the voices of the marginalized rather than truly serving as a prerequisite for all. The statutes allowed any individual who had been granted the right to vote before the year 1867 to continue voting without needing to take literacy tests, own any form of property, or pay the established poll taxes. The name “grandfather clause” came from how all individuals who were descendants of anyone who had been originally granted the right to vote. This only applied to the white majority as slavery was still legal and present during the time. Up until the 60s when the Southern states were forced to abandon the literacy test, the courts continued to support these literacy tests and deemed them legal and valid to be continued within the states. In part to curtail the use of literacy tests, Congress enacted the Voting Rights Act of 1965, which ended the use of literacy tests in the South in 1965 and the rest of the country in 1970. These actions we can recognize and understand today the unconstitutionality and infringement of individual rights yet continue to occur in different variations years after.
Right after the issuance of the 15th amendment, poll taxes popped up all across the country and were another roadblock that seemed to show up amongst nowhere. The Supreme Court case of Breedlove v Suttles in 1937 brought to the question whether it was legal for Georgia to require the payment of a poll tax in order to vote in state elections. The Court ruled in favor of Georgia’s ability to impose such policies and then began the active suppression tactics to try and control voter audiences. Including the states of Alabama, Arkansas, Florida, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia, poll taxes were being used and abused as a barrier benefiting those people in power through using monetary means in order to control the general public body’s liberties and freedoms. In Alabama, the Cumulative Poll Tax became written into their state constitution, in Georgia, their taxes ranged from $1-$5 to each year and all individually legally “shall have paid all taxes which may have been required of him.” Poll taxes required residents to pay taxes for simply registering to vote and then calling for them to provide proof of payment of the tax to vote. The effort to not only suppress African American votes in the 1960s, but also an effort to suppress all marginalized and low-income communities was apparent. As election officers were often left with the discretion to demand that a voter produce a poll tax receipt and tried to discredit those who complied with such policies by mandating that they could be purchased “only in cash” and/or at specific locations like police stations, places that would deterring those from coming in to pay such taxes and therefore silencing their votes and voices. In the state of Mississippi, fewer than 9000 out of the 47,000 voting-age African American citizens were registered to vote after 1890. In Louisiana, where more than 130,000 black voters had been registered in 1896, the number then plummeted to 1,342 by 1904.
Outside of simply poll taxes contributing to the steady decline in voter turnout from African American citizens, police intimidation and white terrorism were also steadfast contributors to the diminishing voter representation. White police officers intimidated and harassed African American who tried to register to vote, arresting them on false charges, physically attacking and beating them, and the psychological abuse that came with the fear that became instilled. Members of the Ku Klux Klan terrorized communities and served as “upholders of our glorious Southern heritage,” actively working to intimidate those who did not fit under such classification. With jurisdictions and counties that held such strong histories engraved into the roots of their communities, this racial discrimination was apparent as ever in their efforts of voter suppression.
During the time period between the 1920s to 1950s, many described it loosely as the “quiet years.” These decades constituted of relatively minimal interruption or uproar in terms of in the laws governing the right to vote. Despite the small and large skirmishes, whether it be partisan divide or ideological, there continued to be consistency within the voting policies with few major changes internally. It was relatively stagnant, and it was not until closer towards the 1950s to 1960s that progressive change began to be called for. There they created significant voting rights advancements and with those increases, there also began an increase in new arising voter suppression tactics. Issues ranged from components such as gerrymandering in which every 10 years, states go and redraw their district lines based on the census’ population data. These separated categories by these district lines would then be utilized by allocate the balance of representation within the state legislature and congress. While district lines are supposed to be redrawn to reflect population changes and racial diversity within communities, district lines become manipulated by states as a political tool in the election process. Voter ID law served as a historic issue and struggled during the mid-nineteenth century. With these yet not limited to solely these examples, these voting protocols served as disenfranchising laws and policies to restrict voters from actively engaging and participating within the election. Currently, approximately 36 states have photo identification requirements at their polls, and with over 21 million citizens not having a government issued ID themselves, voter turnout is reduced by two to three percentage points, creating a barrier within voting turnout. Strict identification laws suppress voters and create a hugely negative impact on the turnout of both ethnic and racial groups, creating a cyclical structure that continues to reinforce the suppression of thousands of eligible American voters.
The United States was constructed on the very principle that as a democratic society we must value the ideas and voices of all, which means ensuring there is a flexible line of accessibility for those to participate in their individual civic right of voting. Our country is built on the principle that each citizen should be given the right to vote and our system should not be built in a way that disenfranchises certain groups or people.
II. Disproportionate Effect of Voter Suppression Laws on Minorities
Procedures such as, but not limited to, voter purges, voter identification laws, and cutting early voting are all measures taken to make it more difficult for some citizens to vote. These measures “have been enacted and have a disparate impact on voters of color and poor citizens,” according to a 2018 Statutory Report conducted by the United States Commission on Civil Rights. All of these measures “wrongly prevent some citizens from voting,” according to the report. Voter purges, cutting early voting, and other procedures are forms of voter suppression that clearly have a disproportionate effect on minorities and will be thoroughly addressed below.
A. Voter Purges
Voting purges are instances in which voters who are ineligible to vote for reasons such as death or moving are removed from eligible voting, but much too often it has become used as a form of voter suppression. Voter rolls should remain updated in order to ensure effective administration of voting and provide a proper and fair democratic election. In cases mentioned above (death or moving), voting purges are justified. However, in cases where voters are purged incorrectly, it takes away somebody’s right to vote. A lot of people don’t even realize that they aren’t able to vote until it is the actual Election Day.
According to an article written by Kevin Morris for the Brennan Center of Justice, a study by the Election Assistance Commission (EAC) in June found that counties with a more prominent history of issues with voter discrimination purged citizens at a much higher rate than other counties. Section 5 of the Voting Rights Act of 1965 decided under Shelby v. Holder mandates fifteen specific states to require federal approval prior to enacting any policies that would change already existing voting policies. All of these states had an extremely long history of enacting discriminatory policies when it comes to voting.
According to the study conducted by the EAC, these states purged at a much higher rate than other states. This data also showed that if the rate that states in this Section purged voters at was consistent with the rate that other states purged voters at, 1.1 million less citizens would have been removed from the eligible voting lists.
Feder and Mill, in their journal Voter Purges After Shelby: Part of Special Symposium on Election Sciences, argue that the areas “covered” in the Voting Rights Act of 1965 actually had a strong increase in voting purges. A main reason cited for these purges was that people had moved, but the study conducted using the Census analyzing the migration rate in those areas has actually shown that migration rates actually decreased. The evidence found from this study shows that “registrars in formerly covered jurisdictions might be more likely to erroneously remove voters from their rolls since Shelby,” which means that incorrect voter purges were more prominent in the Section 5 covered areas after the Voting Rights Act of 1965.
In addition, purges disproportionately affected Black voters. African Americans in Milwaukee, Wisconsin comprise 70% of the state’s population, according to the Wisconsin Department of Health Services. “In Milwaukee, which is home to nearly two-thirds of the state’s Black population, one in eight registered voters was at risk of being purged.” For the 2021 elections, 1 out of 8 of each Milwaukee registered voter is on a purge list, or areas with large student populations were nearly twice as likely to be flagged for removal, according to The Guardian.
Fifty-five percent of the registration notices were sent to municipalities where Hillary Clinton had defeated Donald Trump, according to the Milwaukee Journal Sentinel, and 90% of the areas with the highest concentration of voters on the purge list cities and towns that had supported Hillary Clinton’s candidacy for President in the 2016 election. This clearly disproportionately affects minorities and is targeting their right to vote.
B. Cutting Early Voting
Many states have also either passed or are planning to pass legislation that would drastically cut early voting. This has been shown to disproportionately affect Democrats, as Democrats are more likely to exercise the early voting option than Republicans. Since minorities tend to vote under the Democratic party, this disproportionately affects minorities.
In addition, studies conducted in the past have led to the conclusion that the demographic of convenience voters usually consists of “relatively wealthy, politically informed, and educated individuals, and that White voters frequently possess these characteristics at higher rates than racial and ethnic minorities,” according to Weaver in his journal The Racial Context of Convenience Voting Cutbacks: Early Voting in Ohio During the 2008 and 2012 U.S. Presidential Elections.
Many states have attempted to introduce legislation in order to limit early voting. Among these states is Iowa, which recently introduced a bill that would significantly reduce both mail-in early voting and in-person voting, according to the Associated Press. The republican Senator of Iowa who supports this bill, Jason Schultz, has said that it is intended to confront the “shady dealings” of the heavily Black cities that voted for Joe Biden over Donald Trump in the 2020 election. The intention present with this bill that cuts early voting is clearly to limit Black votes.
In 43 states, Republican legislators have proposed around 250 laws that would limit mail, early in-person and Election Day voting, according to the Washington Post. This follows the 2020 election, where increased accessibility to mail-in and early voting led to an extremely high voter turnout.
C. Other Forms of Voter Suppression
Other forms of voter suppression that disproportionately affect minorities include precinct closures, strict voter ID laws, voter caging, and signature matching. An example of this would be how Georgia’s precincts closed over time. This made it much more difficult for people living in certain areas to get to the polls and made it more difficult for people living in certain areas to get to the voting polls for the election. Due to this, the average voter’s distance for polls doubled. In addition, the amount of time it takes to vote has lengthened. “The tens of thousands of Georgians whose voting precincts were closed forced them to endure six-hour lines to vote during a pandemic,” according to the Associated Press.
In addition to precinct closures, some states have denied people identification they need in order to vote. An example of this is Wisconsin, which denied people identification cards after implementing stricter voter ID laws. “It disenfranchised about 100 qualified electors—the vast majority of whom were African American or Latino—who should have been given IDs to vote in the April 2016 primary,” according to Ari Berman’s article in The Nation.
More uncategorized examples of voter suppression that targets minorities include not allowing Native Americans to vote because they don’t have a street address, language barriers/failing to accommodate, and not accommodating people with disabilities, which specifically worsened after the COVID-19 pandemic.
Voter purges, early voting cuts, and other actions that officials take in order to make voter laws stricter are all forms of voter disenfranchisement that systematically target minorities. As a true democracy, we should be encouraging voters to participate in elections, not attempting to restrict them from doing so. At the same time, it is important to ensure that nobody is casting any illegal votes. Re-evaluating and refining the system in order to ensure that it doesn’t take away anybody’s right to vote while also ensuring a fair election is necessary.
III. The Role of Language Inaccessibility in Voter Suppression
Despite the creation of multiple laws to make voting accessible for all, barriers to accessible voting still persist and create inequalities in America’s electoral process. One form of voter suppression often overlooked in the U.S. is language inaccessibility. Language inaccessibility is a form of voter suppression where American citizens in language minorities are excluded from participation in the electoral process due to a lack of accessibility to electoral materials in their native language. Given America’s diverse racial makeup, language inaccessibility affects up to 25.9 million people in the U.S. with limited English proficiency. Furthermore, 66.6 million people in the U.S. spoke another language other than English in the home. Groups most affected by language inaccessibility include American Indian, Asian American, Alaskan Natives, those of Spanish heritage, and Arab-Americans. To address this issue, Congress amended the Voter Rights Act in 1975, adding Section 203 and Section 4(f)(4) to create provisions for those in language minorities. In 2016, Congress amended Section 4(e) and 208 to create expanded provisions for language minorities. Given that there are language provisions in the VRA, why is language inaccessibility still a significant barrier to equality in the electoral process? As a form of voter suppression, language inaccessibility persists as a significant barrier to equality in the voter process because provisions to the VRA are unsuccessful in providing language assistance to language minorities and are unsuccessfully implemented. Section II will first address provisions in the VRA addressing language inequalities. Then, Section III will discuss how these provisions unsuccessfully address language inequalities. Section IV. will explain how these provisions have failed to be successfully implemented. And finally, Section V will address potential solutions to the VRA, and discuss extenuating factors that may contribute to language inaccessibility in the electoral process.
A. Language Provisions in the VRA & Failure to Mitigate Language Inequalities
The Voter Rights Act currently sets federal standards for equalizing the voting process. Within the Voter Rights Act, sections 203, 4(f)(4), 4, 5, and 208, attempt to solve for language inequalities.
Section 203 and 4(f)(4) set the conditions for when a state must provide language assistance. These conditions require:
“A jurisdiction is covered under Section 203 where the number of United States citizens of voting age is a single language group within the jurisdiction:
- Is more than 10,000, or
- Is more than five percent of all voting-age citizens, or
- On an Indian reservation, exceeds five percent of all reservation residents; and
- The illiteracy rate of the group is higher than the national illiteracy rate.”
When these conditions are met, states must provide electoral materials in the minority language, as well as the English language. If the language itself is unwritten, such as some Native American languages, then the state must provide oral language assistance throughout the electoral process. However, Section 203 & 4(f)(4)’s conditions are ineffective at solving discrimination because it still excludes members of smaller language minorities that don’t meet those conditions. “Only language groups whose members are of Spanish heritage, American Indian, Asian American, or Alaska Native are covered. Congress has chosen to omit limited-English proficient voters from other racial and ethnic groups from the act because discrimination against other groups has not been as serious and has not resulted in comparably depressed levels of political participation.” In turn, smaller language minorities such as Arab-Americans, are excluded despite an equally pressing need for language assistance. This problem is further exacerbated by the clause that jurisdictions are only covered if there are “more than 10,000” affected individuals, or if those individuals consist of more than “five percent of all voting-age citizens.” In instances where language minorities are too small to reach these thresholds, minorities are unfairly excluded from language assistance because the number of individuals is too small for the government to justify the cost of providing language assistance. In essence, the VRA discriminates on the basis of how much cost the government will have to output in order to equalize the electoral process and fails to mitigate language inequalities by continuing to exclude groups who do not reach the legal threshold.
Prior to the Shelby County v. Holder decisions, Sections 4 and 5 of the Voting Rights Act worked together to ensure states with histories of discrimination would be disciplined if they continued to discriminate against language minorities. Section 4 recognized which states and localities had a history of discrimination, while Section 5 required those states and localities to obtain approval before changing voting rules. Following the Shelby County v. Holder trials, the court struck down Section 4. The Shelby County v. Holder case questioned whether the renewal of Section 5 exceeded Congressional authority under the 14th, 15th, and 10th amendments, and have determined that it was, Section 4 was struck down. Without Section 4, Section 5 was unable to prevent states with histories of discrimination because there was no means to determine which states/localities had a history of discrimination. Section 4 had initially referred to fifteen states with histories of discrimination. Nine of those states now have new voting restrictions that restrict access to voting, some of which exclude language minorities and increase noncompliance with language accessibility guidelines in the electoral process.
Section 208 of the VRA is unique because it allows people to bring an individual to help them through the voting process. This clause is meant to give voters with limited English proficiency or disabilities to be assisted at the polls. The only restriction is that the person they bring cannot be the voter’s employer, an agent of the employer, or from a voter’s union. While the language of Section 208 is not problematic, its implementation often is.
B. The Unsuccessful Implementation of Language Provisions in the VRA
In addition to the ineffective language of provisions in the VRA, implementation of the provisions has been inconsistent, exacerbating inequalities.
Section 203 & 4(f)(4) often fail to be implemented in practice. Even in covered jurisdictions, some states fail to translate all relevant election materials. For example, ballots are translated, but not necessarily guides for how to vote. In addition, some states will choose between oral and written assistance, limiting language access3. Another issue with the implementation of sections 203 and 4(f)(4) is issues with the transliteration of Asian characters. In Asian media, it is common for political candidates to be referred to by transliterated names. These transliterated names often differ due to the preferences of different media and can cause confusion at the polls for Asian voters. In many cases, jurisdictions that qualify under section 203 cannot meet the demand for language assistance. A lack of bilingual poll workers has led to both the overworking of bilingual poll workers, as well as a lack of ability to sufficiently meet the demand for bilingual language assistance3. In some instances, there have been cases where translations on ballots, voting dates, or materials for voter-education events have been incorrect. This confused many non-English voters and prevented access to voting by inhibiting their ability to vote correctly.
Section 208 has similar issues with implementation. While Section 208 allows people to bring somebody to assist them to vote, not all individuals will have access to somebody who can assist them in the polling place. Additionally, polling places do not provide somebody who can remedy this issue and provide assistance to those who need it. While section 208 in writing provides highly individualized assistance, this means “the costs under Section 208 are borne almost entirely by the private assistor and the affected voter, who also bears the responsibility of arranging the assistance,” which then discriminates against those who are unable to.
In an attempt to remedy these issues, states have often issued consent decrees, which permits the Department of Justice to monitor states to ensure they are not violating the law. However, these have been found to be ineffective because they are only implemented after discrimination has already taken place, and often require an input of resources that results in little output for decreasing language discrimination. Without the monitoring clause in Shelby County v. Holder, states also have little ways to enforce or punish jurisdictions that fail to effectively implement language assistance.
C. Solutions for Issues in VRA Language Provisions
There are several proposed federal and/or state solutions to address the deficiencies of language provisions contained within the VRA.
Federally, it has been recommended that the government amend Section 203 of the VRA to change the coverage formula to include more language minorities, such as Arab-Americans. This could be accomplished by reducing the threshold of people required to trigger language assistance. In addition, it is recommended that this coverage formula be updated every 5 years in order to reflect changing demographic needs. Another suggestion has been to send federally certified translators, which would reduce the pressure on localities to fulfill needs. Lastly, it has been recommended that federal agencies implement penalties for states who fail to comply with the Voter Rights Acts. This could be in the form of financial sanctions, which would serve as a form of deterrence for noncompliance.
By state, it has been recommended that poll workers be more thoroughly trained, and states devote more resources to ensuring there is equality in the voting process. Because language accessibility in voting is often an overlooked factor in whether minorities have access to voting, attaching more priority to the issue could compel change in implementation that would more effectively address the needs of relevant constituents.
D. Extenuating Factors Related to Language Inaccessibility
Though the VRA is a large contributor to language inaccessibility, extenuating factors have also contributed to a lack of language accessibility for minorities.
Disparities in which polling places are available to certain minorities, especially language minorities affect the ability to vote. Polling place consolidation and relocation disproportionately affect language minorities such as the Latinx community in the form of wait times, accessibility to polling places, and insufficient amounts of polls to vote in. Analysis of cell phone geolocation data showed this “substantial and significant evidence of racial disparities in voter wait times.” The average voter of color faces significant barriers to voting.
The Help Americans Vote Act establishes funding through government grants/funds that facilitate language accommodations for states’ voting locations. It also requires through the VRA that voters be provided alternative language accessibility options. While this seems to resolve the issue between discrepancies in-state resources, HAVA has lacked Congressional appropriations that would allow it to be successfully implemented.
Title VI of the Civil Rights sets normative conditions for anti-discrimination laws, which contribute to language accessibility policies by establishing that inaccessibility is a form of discrimination. Because ethnic groups typically are those in a language minority, Title VI of the Civil Rights Act functions as a foundation for anti-discrimination language policies.
In some cases, racism has been a barrier to providing language assistance. There have been cases where voters in language minorities have been refused access to polling locations and/or assistance on the basis of their ethnicity or have falsely stated that there are minimum English language requirements to vote. Among the American population, there is also some ideological opposition to providing non-English voting materials for language minorities3.
Aside from existing barriers to voter registration, many non-English speakers do not register to vote because of difficulties with English. Language assistance for voter registration is also scarce, with only “132 of 361 surveyed jurisdictions covered by Sections 203 and 4(f)(4) provid[ing] bilingual voter registration materials”.
E. Unique Difficulties Presented by the 2020 Elections
The 2020 presidential elections presented unique difficulties for language minorities. Due to the COVID-19 pandemic, the number of polling stations available decreased, and most states switched to a mail-in ballot system. Accommodations provided by the VRA became ambiguous, and even more insufficient in the wake of such a unique voting situation. In Pennsylvania, ballot drop boxes and signs to ballot boxes only included instructions in English, despite a large number of Spanish-speaking voters in the jurisdiction. In Georgia, state officials sent out ballots that were exclusively in English. Despite attempts by a voting rights advocacy group to sue Georgia for violating section 203 of the VRA, they lost. Another unique challenge presented by the 2020 election was the prohibition by some states of prohibiting ballot processing before Election Day – this meant ballot errors, which often occur for language minorities, had fewer or no chances to correct their ballots. Furthermore, a shift to vote-by-mail caused many jurisdictions to shift focus away from minority groups, who typically are a smaller component of state populations. Jurisdictions lacked political incentive to provide language assistance to language minorities because they made less impact on the electoral consequences within a given state. Ballot rejection rates show that “younger, Black, and Latino voters in Florida have ballots rejected at higher rates, and those disparities increased during the 2020 primaries.” While mail-in practices have been shown to reduce disparities in voter turnout among minority voters, language access issues with mail-in ballots continue to reduce the ability of language minorities to have full access to voting.
Language inaccessibility persists due to a culmination of infrastructural issues, ineffective legislation, insufficient implementation of the Voting Rights Act, and insufficient penalties for states that fail to comply with the law. Addressing language inequalities barriers to voting is crucial to democratizing the electoral process and making voting more accessible for all.
IV. Felon Disenfranchisement
Felon disenfranchisement, the practice of denying voting rights to people convicted of felonies, has gone through transformations that have made it the widespread form of voter suppression that it is now. Nearly all states in the U.S. have felon disenfranchisement laws (Vermont and Maine are the only states that don’t disenfranchise felons under any circumstance). Given the size of the United States’ incarcerated population, felon disenfranchisement is a substantial form of voter suppression. Given the disparaging rate in which Black people are incarcerated, felon disenfranchisement is also a racial concern. The following subsections will address the history of felon disenfranchisement, examine landmark cases concerning felon disenfranchisement, felon disenfranchisement and race, and discuss the different harms that felons face with disenfranchisement.
Even though disenfranchisement was adopted from England and practiced in colonial America, felon disenfranchisement was solidified in the constitution through the 14th amendment. The 14th amendment, popularly known as the amendment that grants citizenship to anyone born in the U.S., contains a section that allows states to revoke voting rights:
“…when the right to vote at any election… is denied to any of the male inhabitants of such State, being 21 years of age, and citizens of the US, or in any way abridged for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens 21 years of age in such State.” (U.S. Const. amend. XIV, § 2).
Within their constitutions, states set their own rules and guidelines for felon disenfranchisement. The excerpt from the U.S. constitution above displays the infamous vague and ambiguous language of the Constitution that leaves the law up to the interpretation of judges. In this specific case, the language specifically states that felon disenfranchisement is allowed for “participation in rebellion, or other crime.” Nationwide, “other crime” has been interpreted to mean any felony-level offense, and the “tough on crime” ideologies of politicians of the last few decades has made it so that many non-violent crimes constitute felonies.
Alongside the foundational role that the 14th amendment plays into felon disenfranchisement, the 2000 presidential election also marks an important shift in the role of felon disenfranchisement in the U.S. The presidential race between Al Gore and George W. Bush is notoriously known for the closeness of the race that resulted in votes being recounted and Supreme Court cases. The highly debated election elevated the issue of voter suppression into the public consciousness, so much so that the public began to consider voter suppression as a consequential issue in politics. Regardless of whether felon disenfranchisement is a consequential form of voter suppression the perception of it as consequential by larger society resulted in a bipartisan split. Republicans are typically supportive of expanding felon disenfranchisement, and Democrats are typically supportive of restricting felon disenfranchisement because of the belief that felons will vote for Democratic candidates.
B. Race, Harms, and Felon Disenfranchisement
Given the importance of voting rights in a democratic society and considering the history of marginalized peoples fighting for voting rights, disenfranchisement is a harmful practice. To take away a right from an individual is to inflict harm, and Zeitlan argues that felons suffer three different types of harm: representational, integrational, and symbolic. Since felons and ex-felons lose their right to vote, they lose their ability to most directly translate their policy preferences into government action. Individuals interviewed by Zeitlan spoke of how losing the right to vote is symbolic of their status as outsiders. Citizenship is a defining feature of being an American—an illuminating example is the way in which undocumented immigrants are stigmatized and even referred to as “aliens”—and one of the defining features of being a citizen is having the right to vote. Understandably, ex-felons feel like outsiders without their right to vote. In some states, an overwhelming number of Black men are disenfranchised because of felon disenfranchisement. Ironically, the 14th amendment was passed in order to grant all children birthed by enslaved women citizenship, but it is the same amendment that allows for states to symbolically strip citizenship from the same people it granted it to. 1 in 13 Black Americans lose their right to vote due to felon disenfranchisement compared to the 1 in 56 non-Black Americans. This is in part due to the over policing of Black communities—Black people are incarcerated at five times the rate of White people and three times the rate of Latinxs. Erin Kelly argues that the exception in the Fourteenth Amendment “incentivized” states to create crimes that targeted African Americans, or crimes that “were believed to be common” of them. The Mississippi Supreme Court case, Ratliffe v. Beale supports the claim that criminal laws target the Black community. The Mississippi Supreme Court found that “the state legislature had expanded its felon disenfranchisement statute during the Reconstruction era” in order to target recently freed African Americans. Kelly points out the irony of the 14th Amendment: through the disenfranchisement exceptions, the amendment’s original purpose of liberty and freedom is subverted.
Another amendment that has failed to protect citizens’ voting rights is the 24th Amendment which prohibits poll taxes. In Howard v. Gilmore, a Virginia law that required ex-felons to pay a fee as part of a civil rights restoration process was upheld even though the restoration process included voting rights. The ironies in the amendments that are meant to expand human and voting rights work in creating the representational, integrational, and symbolic harm that Zeitlan discusses in his research.
C. Challenges to Felon Disenfranchisement
The topic of felon disenfranchisement has a significant judicial history in which cases challenging felon disenfranchisement are squashed. Foundational to felon disenfranchisement cases (and the blockading precedent preventing others from challenging felon disenfranchisement) is Richardson v. Ramirez. The plaintiffs were ex-felons that had completed their sentences and were being barred the right to vote. After the appeal, the U.S. Supreme Court deemed that states did not have to prove a “compelling state interest” within their felon disenfranchisement laws. This court case became the precedent that has barred any success from other judicial challenges to felon disenfranchisement statutes under the Equal Protection Clause of the 14th Amendment.
After Richardson v. Ramirez, another landmark case for felon disenfranchisement is Hunter v. Underwood. The plaintiffs in this case argued that Alabama had a racially motivated felon disenfranchisement scheme, which the Supreme Court upheld. Even though the Hunter v. Underwood case was a victory, it is still difficult to argue “racial animus” against felon disenfranchisement statutes. As Kelly puts it, “a state’s disenfranchisement scheme may stand if it has a discriminatory intent or discriminatory impact; it simply must not have both.”
Given the extent to which marginalized populations are disenfranchised due to the overwhelming population of people of color in prisons, discriminatory impact is a given when it comes to felon disenfranchisement laws. The extent to which felon disenfranchisement has grown should warrant judicial and legislative change in order to reverse the racially oppressive practice.
V. Voter Suppression in the COVID Era
With the drastic alteration of the average citizen’s lifestyle, the COVID-19 pandemic has also exacerbated the already existing issue of voter suppression. In one of the most divisive election years of American history the Coronavirus has added another variable to the voting process. Voter suppression is a continuous poison on a fair and just electoral process. It blocks the fundamental structure of a democracy and what America stands for. The negative effects associated with this deadly pandemic have aided in increasing voter suppression.
During the beginning of 2020 the world was ready for the primary election. The Coronavirus was distant, and many Americans were not too worried, nor did they anticipate what was to come. As the primaries began and the virus’s contamination held concern. Many states were beginning to realize the effects of the pandemic on the ongoing election process. Some states took precautions and offered accommodations to the voting process. Others were less sympathetic.
A. Voter Suppression and Primary Elections
In Democratic National Committee v. Bostelmann a couple of Wisconsin plaintiffs successfully obtained a preliminary injunction from the federal district court to extend the deadline for absentee ballots from April 7th to April 13th. They argued that the extension was necessary due to the risks of in-person voting. This was all done on April 3rd however, on April 4th Republican party lawyers had urged the supreme court to intervene. Justice Kavanagh requested a stay (suspension of a case). On April 6th the request for stay is granted and the initial extension will not be granted. Justice Ginsberg, Justice Breyer, Justice Sotomayor and Justice Kagan wrote the dissenting opinion.
The increase in use of mail-in ballots posed some problems as well. Due to the confusion and lack of adequate information of the vote by mail process. A good number of ballots were not counted in the primary among many battleground states. “Three states tossed out 60,480 ballots during the primaries.” These were thrown out in states that were already seeing a lower voter turnout this election. The rejection of ballots was written off as voter error or late arrival.
B. Voter Suppression and the Midterm Elections
Although many Americans felt the primary election process could have been handled better, the midterm elections that were to come held much more voter suppression. While in quarantine during much of 2020, the year became harder to handle both financially and mentally. The midterm elections, to many, was going to be a pivotal point in their lives. The 2020 midterm election was one of the most divisive elections in the country in a long while. Many had strong emotions and were reliant on their basic right to vote to make their voices heard.
The COVID-19 pandemic was at its worst point. Minority and lower income communities were hit the worst by COVID-19. Issues such as lack of adequate healthcare, food insecurity and crowded housing left many with much more things to worry about than voting. During the pandemic the essential workers were the ones on the front line aided many however, many if not most were jobs employed by minority workers. Workers who worked all hours of the day and had very tight schedules. These issues posed a higher number of obstacles for minority and low-income citizens when the time came to vote. In general minorities were being negatively affected by the pandemic and this unequal effect on minorities disproportionately affected their fundamental right to vote. Many states had allowed mail in ballots, but others required a critical reason to obtain an absentee ballot. And fear of contracting COVID-19 was not valid enough. Others did not believe they received sufficient information on how to vote by mail. In a survey done by the non-profit Voter Participation Center of Latinos and African Americans in battleground states “Over one-third of African Americans acknowledged that they do not have sufficient information from their state to know how to vote by mail.”
The in-person voting booths were also faced with issues. Many poll workers who often volunteer to assist the voting process were elderly people. Elderly people are at a higher risk of contracting the worst of COVID-19 and were therefore not showing up to the polling centers for their own protection. One can look at the demographics of the 2016 election. As claimed by the Federal Election Assistance Commission,
“53 percent of the poll workers who volunteered in 2016. Of that number, 32 percent were from 61 to 70 years old and another 24 percent were 71 or older.”
As per CDC guidelines elderly people were more cautioned than other demographics due to their increased risk of contracting the deadly virus. As a result, the polling booths of the 2020 election lacked sufficient volunteers to operate.
C. The Aftermath
After the announcement of the victory of President Biden many were joyous, and many were upset. While celebrations were occurring all over the country Protests on the integrity of the election results also took place. The use of mail in ballots and their validity were beginning to be questioned by republicans. This new feeling of distrust began to threaten the integrity of the electoral process. Some lawmakers began taking matter into their own hands. A new house bill sponsored by Barry Fleming was brought up by a special committee regarding election integrity. This bill would limit weekend early voting to one Saturday before election day and eliminate voting on Sundays – black churches hold get out the vote drives. “In the November general election, Black voters used early voting on weekends at a higher rate than whites in 43 of 50 of the state’s largest counties. Black voters make up roughly 30 percent of Georgia’s electorate, but comprised 36.7 percent of Sunday voters in 2020 and 36.4 percent of voters on early voting days Fleming wants to eliminate, according to Fair Fight Action, a voting rights group founded by Stacey Abrams.” Just recently Brian Kemp Governor of Georgia signed this bill into law. States all over the country have begun creating bills that restrict voting rights. As of now there are 55 bills in motion in 24 states. The goals of these bills are to make voter registration harder and make absentee voting stricter. Increasing voter intimidation by banning the extension of voting hours and closing polling places in minority communities. Many have said that these restrictive bills inadvertently target democratic areas. Stacy Abrams, an advocate for voting rights has even called it “Jim Crow in a suit and tie.”
D. A Note for the Future
While the future of voting rights seems dreary and many are appalled by the events taking place that will make voting more difficult, there is still hope. Protests are occurring all over the country, people of all ages, races, and gender standing together in solidarity with one message. Voting is a fundamental right and should be free of any restrictions. With the dedication given by these powerful advocates and awareness spread of the injustices occurring, many hope change is coming.
 Usccr.gov, https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf (2021).
 K. Morris, Voter Purge Rates Remain High, Analysis Finds. Brennan Center for Justice, https://www.brennancenter.org/our-work/analysis-opinion/voter-purge-rates-remain-high-analysis-finds (2021).
 Lawyerscommittee.org, https://lawyerscommittee.org/wp-content/uploads/2015/06/LCCRUL-Sec5-flyer.pdf (2021).
 Holder v. Shelby, 118 S.W. 590, 1909 Tex. App. LEXIS 854.
 C. Feder and M. Miller, Voter Purges After Shelby. American Politics Research, 48(6), pp.687-692 (2020).
 S. Anderson, 1 Out Of Every 8 Milwaukee Registered Voters Is On Purge List. [online] Milwaukee, WI Patch. https://patch.com/wisconsin/milwaukee/1-out-every-8-milwaukee-registered-voters-purge-list (2020).
 Jsonline.com. Wisconsin Voter Roll Purge would Hit Democrat Leaning Areas, https://www.jsonline.com/restricted/?return=https%3A%2F%2Fwww.jsonline.com%2Fstory%2Fnews%2Fpolitics%2F2019%2F12%2F12%2Fwisconsin-voter-roll-purge-would-hit-democrat-leaning-areas%2F4388832002%2F (2021).
 R. Weaver, The Racial Context of Convenience Voting Cutbacks: Early Voting in Ohio During the 2008 and 2012 U.S. Presidential Elections – Russell Weaver, 2015, SAGE Journals https://journals.sagepub.com/doi/full/10.1177/2158244015591825 (2021).
 Ryan Foley, GOP bill would slash voting by mail and early voting in Iowa AP NEWS, https://apnews.com/article/legislature-iowa-city-iowa-state-elections-coronavirus-pandemic-70884a8ce4834a87fcede7b81979d016, (2021).
 Amy Gardner, Kate Rabinowitz & Harry Stevens, How GOP-backed voting measures could create hurdles for tens of millions of voters Washington Post (2021), https://www.washingtonpost.com/politics/interactive/2021/voting-restrictions-republicans-states (2021).
 Kate Brumback, Georgia breaks turnout record for first day of early voting AP NEWS, https://apnews.com/article/virus-outbreak-election-2020-elections-georgia-atlanta-afa309fad367434a5bde9888fec89537 (2021).
 Ari Berman, Wisconsin Is Systematically Failing to Provide the Photo IDs Required to Vote in November The Nation, https://www.thenation.com/article/archive/wisconsin-is-systematically-failing-to-provide-the-photo-ids-required-to-vote-in-november/ (2021).
 Matt Vasilogambros, For Some Native Americans, No Home Address Might Mean No Voting Pewtrusts.org, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/10/04/for-some-native-americans-no-home-address-might-mean-no-voting (2021).
 Terry Ao Minnis & Adam Ambrogi, The Language Barrier in the Voting Booth Governing, https://www.governing.com/gov-institute/voices/col-improved-language-assistance-voters.html (2021).
 Maggie Astor, ‘A failed system’: What it’s like to vote with a disability during a pandemic chicagotribune.com, https://www.chicagotribune.com/coronavirus/ct-nw-nyt-people-with-disabilities-vote-pandemic-20200925-vhtxdql6q5blvouwrwk6nv3cwu-story.html (2021).
 Justice.gov. About Language Minority Voting Rights, https://www.justice.gov/crt/about-language-minority-voting-rights#coverage.
 Eac.gov, Language Accessibility, https://www.eac.gov/sites/default/files/eac_assets/1/6/EAC-ClearinghouseBrief-LanguageAccessibility.pdf (2019).
 Web.mit.edu. Language Challenges and Voting, http://web.mit.edu/supportthevoter/www/files/2013/08/Language-Challenges-and-Voting-Forbes-and-Shelly.pdf (2013).
 Supra note 17.
 Supra note 16.
 Supra note 19.
 Law.berkeley.edu. Language Accommodation and The Voting Rights Act. https://www.law.berkeley.edu/files/ch_11_ancheta_3-9-07.pdf (2007).
 Brennancenter.org. Voting Rights Act. https://www.brennancenter.org/issues/ensure-every-american-can-vote/voting-reform/voting-rights-act.
 Demos.org. Millions to the Polls: Language and Disability Access, https://www.demos.org/policy-briefs/millions-polls-language-disability-access (2014).
 Supra note 19.
 Supra note 23.
 Justice.gov. Voting Rights Act Section 203 Cases. https://www.justice.gov/crt/voting-rights-act-section-203-cases-10 (2007).
 Supra note 19.
 Naleo.org, Latino Voters at Risk. https://naleo.org/COMMS/2020/Annual%20Conference/Election%20Plenary/LVAR-Policy-Brief-2020.pdf (2020).
 Supra note 23.
 Whyy.org. Millions of U.S. voters risk missing the historic 2020 election because their English isn’t good enough, https://whyy.org/articles/millions-of-u-s-voters-risk-missing-the-historic-2020-election-because-their-english-isnt-good-enough/ (2020).
 Supra note 23.
 Blog.uscusa.org. Voting, Ballot Rejection, and Electoral Integrity in the 2020 Election. https://blog.ucsusa.org/michael-latner/voting-ballot-rejection-and-electoral-integrity-in-the-2020-election (2020).
 Edward M. Burmila, “Voter Turnout, Felon Disenfranchisement and Partisan Outcomes in Presidential Elections,” 1988-2012, Soc Just Res. 72 (2017).
 David J. Zeitlan, “Revisiting Richardson v. Ramirez: The Constitutional Bounds of Ex-Felon Disenfranchisement,” Alabama L.R. 259 (2018).
 Erin Kelly, “Do the Crime, Do the Time — and Then Some: Problems with Felon Disenfranchisement and Possible Solutions,” University of Toledo L.R. 389 (2020).
 E. Viebeck, “More than 500,000 mail ballots were rejected in the primaries. that could make the difference in battleground states this fall,” https://www.washingtonpost.com/politics/rejected-mail-ballots/2020/08/23/397fbe92-db3d-11ea-809e-b8be57ba616e_story.html (2020).
 “Latino and African American voters in battleground states express increased support for democratic ticket following Harris announcement, urgently need more information on how to vote by mail,” https://www.voterparticipation.org/latino-and-african-american-voters-in-battleground-states-express-increased-support-for-democratic-ticket-following-harris-announcement-urgently-need-more-information-on-how-to-vote-by-mail/ (2021).
 Voter suppression during covid-19. (n.d.), http://sites.utexas.edu/notleyvrp/voter-suppression-during-covid-19/
 Supra note 53.