A discussion on voting rights for parolees on the Campbell Conversations

May 12, 2018

A recent executive order from Gov. Andrew Cuomo has opened a path to voting for 35,000 ex-felons on parole. What are the arguments for and against this restoration of voting rights, and what are political arguments regarding citizenship and the formerly incarcerated? Joining Grant Reeher to discuss these issues are Marsha Weissman, a senior policy fellow and former executive director for the Center for Community Alternatives, and Elizabeth Cohen, a professor of political science at Syracuse University's Maxwell School of Citizenship and Public Affairs, and is the author of "The Political Value of Time."

Interview Highlights

Reeher: In April, Gov. Andrew Cuomo announced that he would use an executive order to restore voting rights to ex-felons who were on parole. And in New York, ex-felons automatically get their voting rights back when they complete their parole, but not before that time. After that announcement by the governor, there was a piece published in Justice Today by Victoria Law that contended that the wording of the executive order is not that there will be a blanket restoration of voting rights to all 35,000 ex-felons on parole in New York state, but that they will be eligible for a review by the governor’s office to restore their voting rights. And one speculation about that wording is that it’s there to avoid what happened to Virginia Governor Terry McAuliffe when he issued an executive order to restore voting rights to ex-felons that was subsequently overturned by the state’s Supreme Court. So, if that reading is correct on my part…how many felons who are on parole do you think will likely get their voting rights restored through this executive order?

Weissman: At this point, it’s too early to predict how many formerly incarcerated people on parole will get their voting rights restored. I would say one thing, that even at this moment, it is possible for a formerly incarcerated person on parole to get their voting rights restored by applying for and receiving something called a Certificate of Rehabilitation or Certificate of Good Conduct. So, in fact, there are some formerly incarcerated people who can vote, even if they’re on parole. But this will obviously open the doors and make it seemingly much easier for it to happen than to go through the application process for a certificate. I think it’s too soon to tell how many people will actually be approved. I would like to believe that the governor’s qualification on restoration is based solely on wanting to protect it and not wanting to make it blanket. But in the reality, he will, in fact, grant voting rights to anyone who is on parole. I would not understand a reason to distinguish between one person or another.

Reeher: Elizabeth, you write a lot about different limitations on citizenship and inclusion. How significant to you, or potentially significant, is this change that the governor has put forward?

Cohen: Any time where reducing the amount of time that a large portion of the population has been removed from exercising the franchise, it’s significant. I think if you look at history of important elections since 2000, we can see that sometimes, these things matter a lot. That’s also one of the reasons that people resist these types of changes—because they believe that it’s pandering or that the votes will go to people who are involved in restoring the votes. But, we’re a democracy, and the more people that vote, generally, the more legitimate the democracy is.

Reeher: What is…the most valid argument, that you would think, for barring ex-felons from voting?

Cohen: I think the standard argument that’s offered as part of the idea that even ex-felons shouldn’t vote is that these are people who have broken the social contract. And when you break the social contract, you lose the trust of the citizenry and, in some ways, disqualify yourself from participating in political decision-making. It’s probably a better argument for people who are still serving time than for people who’ve served their sentence and paid their debt to society, but it is sometimes applied to people as kind of a permanent civil disability that follows them, along with a few other disabilities that follow them after they’ve served their sentence.

Reeher: It is curious…that we have this idea of rehabilitation, supposedly, that happens in prison or because you’ve served a sentence, and then, you’re out. You’ve completed your parole, but somehow, this one piece of citizenship—voting—you don’t get back. Talk about that a little bit.

Weissman: I think there’s a huge contradiction between the rhetoric about what criminal justice system involvement is and what incarceration is in terms of rehabilitation and the reality that people face. The collateral consequences of a conviction don’t just attach to voting. So, there are many other rights that people lose through formal legal regulations and laws and many more that they lose just through informal practices. And I think, at the end of the day, the question of disenfranchisement of people convicted of crimes goes to the heart of who the people are—i.e. predominantly poor, black, Latino, people of color—the purpose of disenfranchisement, which is, I think, a very political purpose, and the long legacy of racism in this country that essentially defines people of color, particularly black people, as something less than human. So, the human right to vote doesn’t apply, if you will, to a population that has been excluded historically and at this moment and even though we’ve had to find new mechanisms for that exclusion.

Cohen: I think that it’s really important to take note of the history of felon disenfranchisement laws, which really date back to the period of time following the Civil War, during the institution of Jim Crow, when states were looking for ways to eliminate newly enfranchised African American citizens from their voting roles. And you can go back and look, state by state, at the discussions that the legislatures had about both defining what constituted a felony and then what the consequences would be. And you can very clearly, very explicitly, see that these were racialized discussions, and New York state is no exception. These rules were put into place to keep the voting population white, and they’ve worked.

Reeher: Elizabeth, you wanted to make a point about a dynamic in New York state, which you think adds to the complexity of this and maybe drives some of the politics. Tell us what that is.

Cohen: If you’re looking at the larger issue of whether or not people who’ve been convicted of crimes and are incarcerated get to vote, one thing that a lot of people don’t realize and you need to understand to understand the electoral politics is the purposes of apportionment—representation in Congress. People who are incarcerated count in the location where they are incarcerated. So, if you’re, for example, in perhaps a not densely populated area of upstate New York, but there’s a correctional facility there, all those bodies count for the purposes of apportionment. And, because they are prevented from voting, they don’t get to have say in the making of the laws. And so, it’s a real kind of double loss for people who are incarcerated, but it’s a scam. It’s a double win for [governmental] people in those areas. They have a lot of incentive to keep things the way they are, preventing people who are serving time from voting.

Reeher: Marsha, you’ve done work the broader impacts of these limitations and lack of rights. Pivot off of what Elizabeth said and tell us some of those things.

Weissman: The disenfranchisement of the person on parole does not just affect that person; it affects the family and the community. It affects the family by a sense of solidarity with the person who can’t vote. So, if you have someone in your family who can’t vote, particularly a parent, the other adults in the family also may not vote so as to not embarrass the person who’s disenfranchised or, in general, just to show a collective disdain for voting, like, “If he can’t vote, why should I? Why should I even care?” And then it has this broader community effect, particularly when you’re looking at elections that are driven by districts…If you look at the south side of Syracuse—a community that’s been horrifically over policed, where African American men have been locked up for offenses that white men would never be locked up for…upwards of 60, 70 percent of men in that community are disenfranchised. So, you’re having a huge effect on who can run and, ultimately, who gets elected.

Reeher: Can either of you give me a sense, thinking of the nation as a whole, of the scale of ex-felons not voting? How many people are we talking about across the nation that cannot vote because of this?

Weissman: I think over 6 million people.

Cohen: That’s the figure I’ve heard. And I know that, of course, where they are or where they’re from varies widely so that there are still districts for which this has just an immense impact, where 50 percent or more of the population can’t vote…Let’s not forget that when people can’t or are strongly discouraged and end up not voting, who’s representing their kids? That means populations of children have nobody speaking up for them because they can’t vote. And so, there are lots of downstream consequences in addition to just any specific election or person’s point of view not being represented.

Reeher: Are either of you aware of any studies that have been done that have tried to tease out, for ex-felons who have had their voting rights restored, what the percentage of them that votes—what’s their turnout rates, so to speak? Do we have any information on that?

Cohen: It’s actually really hard to tease that out on a broad scale because the different procedures for reinstating the vote vary so widely. In some places, they’re intentionally quite complicated or require [a] petition.

Weissman: In general, people don’t know what their rights are…For example, people on probation, who never lose the right to vote in New York state in any event, they don’t understand that. They don’t know that. They’re not aware of that. People, once they’re off parole, may not be aware of that. And at least in New York state, there are a number of campaigns by advocacy groups, often groups led by directly impacted people, to do voter education and voter registration…There has to be a proactive effort to bring people into the voting booth who actually can vote.

Reeher: How is this going to play out, do you think, for the governor on the national stage as a potential presidential candidate?

Cohen: I think there’s a lot of evidence that the Democrats have been neglecting groups that might be really strong supporters, and we’ve seen this is some of the special elections that have gone [on] and the surprising ways that Democrats mobilized voters that they’d been neglecting for a while in states they’d been neglecting for a while. And one of the things that the party will be required to do if it wants to follow up on that is take some tough stances and do things like back away from the more punitive version of enfranchisement rules. It would be a huge boon to Democrats if we were able to get even a substantial proportion, let’s not say all, [of] people who’ve been convicted of felonies on the voting roles and voting…It would prevent one of the sources of disenfranchisement that we know is happening, which is purging people who are vulnerable from voting roles when they actually do qualify to vote.

Interview highlights have been edited for clarity.