Lock Them Up and Throw Away the Vote

I. INTRODUCTION "Injustice anywhere is a threat to justice everywhere."1 On March 30, 2004, the European Court of Human Rights ruled unanimously that laws in the United Kingdom barring inmates from voting violate their human rights. The Court expressed that "any devaluation or weakening of th[e] right [to vote] threatens to undermine [the democratic] system and should not be lightly or casually removed."' The European Court of Human Rights recognized the constitutional utility of prisoners participating in the democratic process, and that the denial of prisoners' rights can have a deleterious effect on democracy as a whole. The United Kingdom is not alone in this felon disenfranchisement dilemma. Despite a growing international consensus, nearly five million free US citizens are prohibited from casting votes by the laws of the states in which they live.4 While the right to vote is widely recognized as a fundamental political right, this right is not fully enforced for millions of individuals in the United States who are disfranchised for having committed a crime. In the United States, blanket disenfranchisement and disproportionate provisions that fail to consider individuals' circumstances are widespread. Today, fourteen American states permanently disenfranchise ex-felons. In forty-eight states and the District of Columbia, criminal disenfranchisement laws deny the vote to all convicted felons in prison.5 Thirty-five states also disenfranchise felons on parole; thirty-one of these states disenfranchise those on probation.6 And, unlike anywhere else in the world, in seven states ex-offenders who have fully served their sentences remain barred for life from voting.7 Overall, approximately two percent of the adult population in the United States cannot vote as a result of a felony conviction.8 American felon disenfranchisement laws were enacted with the intent to disenfranchise African Americans and have a disparate effect on minorities.9 As a result of felon disenfranchisement laws, at least two million African American citizens are legally prevented from casting their votes.10 Convicted felons essentially become noncitizens under current US policy, which works to further alienation among poor and minority voters, destroy minority communities, and undermine representative government.11 These millions of US citizens are denied the enjoyment of a fundamental political right: the right to participate in the political process. The emerging international consensus views broad felon disenfranchisement as illegitimate. Significant international treaties enshrine exfelon offenders' claims to "universal and equal" suffrage. In particular, Article 5, section (c) of the Convention on the Elimination of All Forms of Racial Discrimination and Article 25 of the International Covenant on Civil and Political Rights guarantee every citizen certain fundamental rights, including "universal and equal suffrage" without "unreasonable restrictions" and without regard to "race, colour, or national or ethnic origin."12 These international antidiscrimination laws set out basic principles for electoral democracy, condemning any voting law that yields a discriminatory racial impact. This Comment examines whether US felon disenfranchisement laws are consistent with international legal principles and concludes that international obligations to provide equality under law and equal protection of the law would be met by allowing felon offenders the right to vote. Section II gives a history of American felon disenfranchisement laws. Section III examines felon voting rights in the United States, which are often classified as the world's most restrictive. Section IV considers the basic principles for electoral democracy under international law. Finally, section V finds that electoral practices excluding ex-convicts from voting in the United States are unreasonably discriminatory and recommends amending the Voting Rights Act of 1965 to reform US voting law. …