Washington, D.C. Could Allow People in Prison to Vote

Whether people serving time in prison should be allowed to vote has become a subject of national conversation recently, with Democratic presidential candidates coming to different conclusions. At the center of that debate is a contentious question: Is voting a fundamental right or a privilege that should be revoked under certain circumstances?

D.C. Councilmember Robert White argues that voting is an inalienable right for all people, even those behind bars. “It’s a basic principle of democracy,” he said. “Not something we earn on the basis of good behavior.”

On Tuesday, White plans to introduce legislation that would restore voting rights to people from the nation’s capital who were convicted of a crime and are in prison, which would make the District the first jurisdiction in the country to give voting rights back after taking them away in 1955.

The District, along with 14 states, currently restores voting rights to people immediately upon their release from incarceration. Only two states, Vermont and Maine, allow people to vote in prison, but in those places, the right was never taken away. White said that D.C.’s restoration of rights would therefore be historic. “I think people assume that incarcerated folks have never had the right to vote in this country, but that’s not true,” he said. “Forty-eight states and D.C. at some point in time made the decision to disenfranchise our citizens who are or were incarcerated.”

Some of those decisions are ancient history by now, cemented in state constitutions from the early years of the country. In 1792, Kentucky’s constitution made it the first state to deny the right to those “convicted of bribery, perjury, forgery, or other high crimes and misdemeanors,” followed ten years later by Ohio, and ten years after that by Louisiana, which brought about a rush of imitations from other states.

Other states took away voting more recently. The 1970s and 1980s were shaped by a series of court battles to contest felon disenfranchisement, which were settled by two Supreme Court cases. In 1974, the Court ruled that denying the right to vote, even to those who had already completed their prison time, did not violate the Equal Protection Clause. A majority of justices in 1985 again ruled that criminal disenfranchisement was legal if there is no discriminatory intent.

The pendulum swung the opposite direction in the early 2000s, when Nevada, New Mexico, Nebraska, Alabama, Iowa, Florida, and Maryland all eased restrictions on ex-felons to allow voting after their release. But the whiplash continued in the early 2010s, when Iowa and Florida rescinded automatic voter registration upon release, South Dakota stripped voting rights from people on probation Kentucky took away the right of nonviolent offenders to vote after release.

The debate was most recently ignited in New Hampshire, which has been considering restoring voting rights to incarcerated people since March of 2018. Voters in  Florida last fall restored voting rights to those who have served their full prison, probation, and parole through a ballot measure, although lawmakers recently approved legislation that would require full payment of fees and restitution before people could again vote.

But for White, the battle that he now brings to the D.C. Council is about more than history—it’s personal. His brother was formerly incarcerated at Petersburg Federal Correctional Institute, and White said that seeing the criminal justice system first-hand made incarcerated and recently released residents a top priority for him. “I knew these folks needed a champion, and I determined that if I were ever an elected official, I would be that person,” he said.

White said he thinks this will also force elected officials to think about people in prison and how their decisions affect them. “I don’t think this will have a substantial impact on the outcome of elections,” he said. “But it will make people who are running for office pay more attention to the needs of incarcerated residents—something we should be doing anyway.”

Because D.C. doesn’t have a state prison, anyone convicted in the District is sent to facilities run by the Federal Bureau of Prisons. White said that when incarcerated residents see the deplorable state of their prisons, they recognize that they “have no real voice to make change,” because people in elected office know they can’t vote and therefore lack the motivation to investigate complaints.

The Federal Bureau of Prisons declined to comment on the legislation, but said that they already have an established policy that provides absentee ballots to people in federal prison who are from Maine or Vermont, where they have the right to vote. White noted that because of this, his legislation would not create an overly burdensome process. The Bureau does not engage in voter registration drives, as state prisons in Vermont do 90 days before elections.

White is sensitive to the fact that many people might oppose restoring the right to vote to some, if not all people in prison, and said that he paid attention to debates at the presidential level to learn about common concerns. “There are certainly people with hesitations over which types of criminals should get the right to vote, or believe that losing the right to vote naturally goes hand-in-hand with committing a crime,” he said.

While Sen. Bernie Sanders has said he would support restoring voting rights to people in prison, South Bend Mayor Pete Buttigieg said recently in a town hall that losing certain rights is a “part of the punishment.” (Several other candidates have not taken firm positions, but said they are open to talking about the idea.)

Buttigieg’s stance echoed one of the most vocal opponents of voting rights for incarcerated people, Roger Clegg, the president of the conservative think tank the Center for Equal Opportunity. In a New York Times op-ed, Clegg said that disenfranchisement is justified because “if you won’t follow the law yourself, then you can’t make the law for everyone else, which is what you do—directly or indirectly—when you vote.”

White said that he hears these concerns, but urges critics to see voting as a basic tenet of democracy. Because of this idea, White is introducing a blanket right to vote, meaning it won’t bar people convicted of violent crimes from voting. “I really believe that people who commit crimes should be held accountable for their actions, but it’s a slippery slope to say folks with certain crimes can vote and others can’t,” he said.

Mayor Muriel Bowser did not respond to a request for comment about the proposal. White said that he received six co-introduction requests from fellow councilmembers when he brought it to them individually before introducing it to the full council. The D.C. City Council has 13 members.

If it does pass, White said that he hopes it will inspire a waterfall effect in other places, so that the 1.5 million people in federal and state prison, along with the several million more on parole and probation, have their rights restored. “I do think this bill will be a turning point for the country, because this will force people to reexamine their preconceived notions about what rights incarcerated people deserve. Because of these laws, one in 13 black people has lost the right to vote in this country,” he said. “And in D.C., 92% of incarcerated people are African American, so we know these policies are having a disproportionate impact. There are millions of people who could be and should be able to play a role in the political process.”