Holder’s call for repeal of ex-convict voting laws hits home

By Joanna Cuevas Ingram, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Do not Print or Redistribute without Permission from LCCR and Daily Journal

Published in the Daily Journal, California’s Largest Legal News Provider, Vol. 120, No. 31, Friday, February 14, 2014

On Tuesday, U.S. Attorney General Eric Holder sent a powerful message to the states, urging them to repeal state bans that prohibit formerly incarcerated citizens from voting, a move that would restore the right to vote to an estimated 5.85 million Americans across the country. Holder stated, “It is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision.”

This timely announcement does not solely impact officials in states such as Florida or Mississippi — two states with partial or complete bans — it also carries critical implications here at home. California is currently facing its own disenfranchisement crisis. Just last week a suit was filed challenging Secretary of State Debra Bowen’s directive, issued in December 2011, stating that people are ineligible to vote if they are on county-based criminal justice supervision — post-release community supervision or mandatory
supervision — and stripping up to 60,000 Californians of the right to vote. See Scott v. Bowen, RG14712570 (Alameda Super. Ct. filed Feb. 4, 2014).

Holder observed that felony disenfranchisement laws and policies “are not only unnecessary and unjust, they are also counterproductive,” and “not in keeping with our democratic values.”

The attorney general also directly addressed what most elected officials have not had the courage to admit: “Although well over a century has passed since post-Reconstruction states used these measures to strip African-Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable.”

Presently, Californians of color continue to bear the brunt of the disproportionate application and impact of California’s criminal sentencing regime, and remain overincarcerated in California’s prisons and jails. A recent Public Policy Institute of California study found that African-Americans, Latinos and other nonwhite populations make up 76 percent of California’s adult male jail and prison population, yet
comprise only 56 percent of California’s adult male population. See Ryken Grattet & Joseph Hayes, “California’s Changing Prison Population,” Public Policy Institute of California (June 2013).

Latino and African-American communities have both faced long, well-documented histories of discrimination and barriers to voting in the U.S. These populations together constitute a vast majority of California’s incarcerated population, and the rate at which they are over incarcerated also greatly exceeds their representation in the likely voting population. Based on these numbers, and another recent voting study, Latino Californians are 2.4 times more likely to be incarcerated than to have voted in California; African-American Californians, who are 4 times more likely to be incarcerated than to have voted, are at an even further disadvantage. See generally id.; cf. Mark Baldassare, Dean Bonner, Sonja Petek & Jui Shrestha, “California’s Likely Voters,” Public Policy Institute of California (August 2013).

Moreover, the effects of felony disenfranchisement extend far beyond the individual loss of the right to vote. Studies have shown that when individuals are deprived of their voting rights, it depresses the voting rates of those around them, further undermining the political power of affected communities.

Felony disenfranchisement rules also engender confusion and misinformation, even among those tasked with administering them, including local elections officials, sheriff’s departments and probation departments. As a result, many more people suffer de facto disenfranchisement, deprived of the opportunity to vote due to confusion over their rights.

With voting rights under attack across the nation — and the U.S. Supreme Court’s disappointing 2013 decision in Shelby County v. Holder, striking down a critical provision of the federal Voting Rights Act which protected the right to vote for people of color and language minorities — California needs more protection, not less, for voting rights.

The state Constitution clearly establishes a presumption in favor of the right to vote, with only limited and specific exceptions. The current disenfranchisement provision, passed by voters in 1974 to expand voting rights, establishes that only those who are in state prison or on parole are ineligible to vote.

An estimated 295,000 Californians on probation, and 81,000 incarcerated in county jails, were thus otherwise eligible to vote in 2012. The Scott v. Bowen case addresses the voting rights of another 60,000 Californians who have completed their sentences and who are neither in state prison or on parole.

California should heed Holder’s call. To strip otherwise eligible California citizens — many of whom are African-American and Latino — of this fundamental right, when they are neither in state prison nor on parole, is unnecessary, unjust and counterproductive. Our state should affirm and protect the right to vote for all Californians.

Joanna Cuevas Ingram is an attorney and Equal Justice Works Voting Rights Fellow at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. She works on impact litigation, scholarly study, policy advocacy and community engagement to strengthen state and federal voting rights protections.