The right to vote is currently under attack from all angles. The Supreme Court gutted the Voting Rights Act, state legislatures across the country are passing laws that will remove voting rights from many Black Americans, and trust in election processes and democracy are historically low. There is a strong national effort to strip Black people of their citizenship rights, primarily voting, using a variety of methods. The most efficient method is felon disenfranchisement, a denial of voting rights to those who previously served time in prison.
Although Kentucky seems mostly removed from the public debate surrounding “election security” efforts and was touted for making voting quite easy during the COVID-19 pandemic, the state cannot escape criticism for the stark racial discrimination in its election rules. 15% of its Black population cannot cast a ballot legally. 20% of Black men within its borders, incarcerated at higher rates, are denied the franchise. Felon disenfranchisement must end so every Kentuckian’s voice can be heard.
A Brief History of Felon Disenfranchisement
Felon disenfranchisement laws are nothing new. Both the Ancient Greeks and Romans prohibited convicted criminals from voting as part of a process called “civil death.” Civil death was the removal of rights and liberties from those who previously served time in prison. It carried over to Europe, especially England, later on through the legal tradition. The American colonists inherited civil death from English common law but quickly dispensed with most of its aspects. Felon disenfranchisement was not one of them.
By 1869, 29 of 37 states had instituted laws banning felons from the ballot. During the Jim Crow Era, these laws were a small part of the bureaucratic maze that disenfranchised the Black South. After the Civil Rights movement convinced Congress to pass the Voting Rights Act of 1965, many of the disenfranchisement tools utilized by state governments were handicapped. Literacy tests and all-white primaries were gone, but felon disenfranchisement remained by virtue of a clause in the second section of the 14th Amendment leaving the door open for states to deny the franchise for ex-felons.
When mass incarceration and the new “civil death” levied on convicted felons replaced Jim Crow as the prominent racist system, felon disenfranchisement became a far more effective tool than it was before. According to author Michelle Alexander in The New Jim Crow, only two decades after the War on Drugs began, 1 in 7 Black men could not vote. In some states, the rate was as high as 1 in 4. Today, 48 states revoke voting rights from those currently in prison, 16 states remove rights until completion of sentence, probation, and parole. 11 permanently remove voting rights for at least some ex-felons. 3 states permanently remove them from all ex-felons.
What Does This Have to Do With Kentucky?
Kentucky is one of the three states that ban all ex-felons from voting for life. Felon disenfranchisement was originally written into Kentucky’s constitution in 1891. This stain on the state’s charter denies access to the ballot box to a few hundred thousand Kentuckians, disproportionately Black.
In 2019, Governor Andy Beshear restored voting rights to most non-violent ex-felons, a total of 178,000 citizens. Unfortunately, this is not a permanent reversal. Kentucky’s constitution allows the Governor to unilaterally restore voting rights via executive order, but those decisions can be reversed by future governors. This is exactly what happened when former governor Matt Bevin reversed his predecessor Steve Beshear’s executive order when he took office in 2015, arbitrarily rescinding the franchise from those Kentuckians.
Playing political ping-pong with such a fundamental right is disgraceful. Leaving a decision over the rights of hundreds of thousands up to just one person is destructive to democracy, and hurtful to those whose rights are at stake. A permanent solution is required to safeguard ex-felons from discrimination, and Kentucky’s constitution offers one.
An amendment to the Kentucky constitution is necessary to ensure everyone has the right to vote in the state. In Kentucky, a constitutional amendment must pass both houses of the General Assembly with three-fifths support. Then the amendment will be presented to Kentucky voters at the next election, where citizens will get the opportunity to accept or reject it. In fact, in 2020 the Kentucky Senate passed a proposed constitutional amendment to grant felons their voting rights unless they committed certain felonies. Disagreements over the specific text of the amendment resulted in the House never voting on that proposal.
It’s now 2022, and the General Assembly shows no signs of reconsidering those amendment proposals. This is inexcusable when 197,000 Kentucky citizens cannot vote, and another 178,000’s eligibility to vote depends on the whims of the governor. Even more so when one realizes the next governor of Kentucky will not likely be Andy Beshear, and if Matt Bevin was any indicator in 2015, it is probable the next Republican governor would reverse Beshear’s restoration upon entry into office in 2023.
Free men and women in Kentucky are taxed without representation, regulated without a voice, and policed without political presence. Yet the General Assembly is ignoring this undemocratic, un-American crisis. In a Courier Journal report outlining what issues would be important in the upcoming legislative session, criminal justice ranked a low six out of seven major focuses. Worse, felon disenfranchisement was not specifically mentioned as an aspect of criminal justice reform efforts in the state.
The reluctance to consider voting rights restoration from state representatives is not representative of the will of Kentucky’s citizens. 67% of Kentuckians support the automatic restoration of voting rights upon completion of prison sentences. A vast majority of adults aged 18-34 support restoration, totaling 84%. Our elected officials, chosen by us to represent our interests, have ignored the people’s voice, resulting in a diminished popular will, one that does not fully encompass or reflect the people’s desires. As long as one in five Black men in the state cannot participate in electoral processes, every decision made by our elected representatives cannot fully mirror the wishes of those they govern.
Until Kentucky amends its constitution, it will continue to lag behind the rest of the nation and the free world. Until its racist, archaic felon disenfranchisement clause is expunged from the law, those whose rights hang in the balance will continue to hold little hope of achieving full citizenship. My older brother, an ex-felon in Kentucky, had this to say, “It’s the way of the world, it’s not going to change. But it’s dead wrong, especially if you have paid your debt to society. You should make a man whole again, not leave him partial because of a mistake he made. Treat me equally. You treat me equally when you tax me.”