By Jon Shure and Rashida MacMurray
October 2000

EVERYONE BUT...

To vote in New Jersey, relatively little is required. A person must have registered with election officials and be a United States citizen at least 18 years old, reside in this state and have lived at his or her address for at least 30 days.  There is just one more thing, and it never comes into play for most potential voters: you cannot vote in this state if you are serving a prison sentence, on probation or on parole, according to the laws of New Jersey.

While the federal government leaves it to states to determine the rules for voting, electoral qualifications that states set up cannot violate a person's fundamental rights.  And so it is that bans on voting by persons of a particular race or gender or such thinly disguised barriers as poll taxes or "grandfather clauses" all have been struck down over the past 150 years.  Serious blots on the nation's democracy have been removed. But for the most part, efforts to extend the franchise and remove discriminatory obstacles have not included consideration of those who are incarcerated, on probation or on parole. Convicted criminal offenders, then, are the only example in this country of an entire "class" of citizens being denied voting rights.

New Jersey's original statute on the topic dates to 1799. It bars voting rights to anyone "convicted of blasphemy, treason, murder, piracy, arson, rape, sodomy, or any infamous crime against nature, bigamy, robbery, conspiracy, forgery or larceny." This notion was upheld in a 1948 state Supreme Court ruling which found that "this particular category of crimes and its intent was to maintain the purity of our elections by excluding those would be voters whose status was deemed to be inimical thereto." In its modern form, the law bars anyone from voting "who is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this state or another state or the United States" (19:4-1 of the New Jersey statutes.)

Not every state is as restrictive as New Jersey. Indeed, three states place no voting restrictions on convicted felons. Another 15 plus the District of Columbia deprive convicted offenders the right to vote only while they are in prison, and 3 states deny the vote to offenders while they are in prison or on parole. New Jersey is one of 14 that bar voting by anyone sentenced to prison, on parole, or on probation In 15 states, disenfranchisement can last even beyond parole and is in some cases permanent.

NO DENIAL OF VOTING RIGHTS
Maine, Massachusetts, Vermont

DENIAL ONLY WHILE in PRISON
District of Columbia, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah

DENIAL WHILE in PRISON or on PAROLE
California, Colorado, New York

DENIAL WHILE in PRISON, on PROBATION or on PAROLE
Alaska, Arkansas, Connecticut, Georgia, Minnesota, Missouri, Nebraska, New Jersey, North Carolina, Oklahoma, Rhode Island, South Carolina, West Virginia, Wisconsin

(Of the 138,300 persons of all races and genders currently disenfranchised in New Jersey, 27,500 are in prison, 69,200 are on probation and 41,500 on parole.)

DENIAL DURING PRISON, PAROLE, or PROBATION and BEYOND
Alabama*, Arizona**, Delaware*, Florida*, Iowa*, Kentucky*, Maryland**, Mississippi*, Nevada*, New Mexico*, Tennessee, Texas, Virginia*, Washington, Wyoming*

(States marked by * permanently bar offenders from voting; those marked by ** impose permanent disenfranchisement after second offense; Tennessee bars voting for those convicted before 1986 and Washington before 1984; Texas restores right to vote after 2 years)

The groupings above show that New Jersey's law is among the more restrictive states in the nation and certainly among the most restrictive in the region.

RACIAL REPERCUSSIONS

According to Losing the Vote, the first state-by-state survey of the impact of criminal disenfranchisement laws, of the 3.9 million Americans ineligible to vote due to felony disenfranchisement, 1.4 million - a little more than a third - are African American males. The result is that 13 percent of black men in the US cannot vote. The report was released in 1998 by The Sentencing Project and Human Rights Watch.

When it comes to the racial impact of New Jersey's laws, the bottom line is that 16-18 percent of African American males currently are disenfranchised. That places New Jersey 14th in the nation in terms of the highest percentage of African American males currently denied voting rights. So great is the magnitude of disenfranchisement for this particular group, that the issue becomes more than one of punishing individuals. This is large-scale disenfranchisement of a community - at a time when politicians, pundits and civic-minded people and organizations wring their hands about the lack of participation in our system.

ROOTS AND RATIONALE

Some believe criminal disenfranchisement has its origin in the medieval concept of "civil death," under which certain offenders lost all of their rights and property. It dates to colonial times in this country. In the 1700s and 1800s and even into the 20th century there was little effort to change the laws. Indeed, when all African Americans and women of any race were barred from voting there would not have been sentiment for opening the doors to criminals. According to the report cited earlier, some southern states in the late 19th and early 20th centuries went so far as to tailor their disenfranchisement laws to bar those convicted of crimes thought to be disproportionately committed by blacks while retaining rights for those whose crimes were thought to be committed more by whites.

At least a dozen countries on four continents-Israel, Sweden, Peru and Zimbabwe among them-allow offenders to vote while in prison. In Germany prison officials are encouraged to help convicts exercise their right. In some countries, whether or not an offender can vote depends on the severity of his or her crime or whether the right specifically was taken away by court order as a stipulation of punishment. In some cases, disenfranchisement is limited to those whose crimes involve election fraud or political corruption.

The policies of these nations and the three US states that don't deny voting rights to offenders seem to recognize that bringing people back into society is a more important aim than cutting them off from it.

CHALLENGING THE STATUS QUO

When the facts are known it is hard to argue with this passage from Losing the Vote: "felony voting restrictions in the U.S. are political anachronisms reflecting values incompatible with modern democratic principles. At the edge of the millennium these laws have no purpose. To the contrary, they arbitrarily deny convicted offenders the ability to vote regardless of the nature of their crimes or the severity of their sentences..."

Is suspending the right to vote necessary? Does it serve a real purpose as far as punishment or rehabilitation is concerned? Can it in any way be described as promoting the reintegration of offenders into the mainstream? Unfortunately, these questions are far removed from today's debate over what constitutes a "civil society" and how to promote it. In today's lock-'em-up political climate disenfranchisement's supporters rarely are called on to defend their position. When they must, they often fall back on issues like protecting against voter fraud or, using a nearly ancient phrase, "the purity of the ballot box." Yet disenfranchisement remains a selectively denied right. People who, for example, don't lose the privilege to drive or the right to go to court and sue someone, do lose the right to vote even though the connection seems tenuous.

Indeed, Rep. John Conyers (D-Mich.) who has introduced legislation in Congress to ease up on felony voting restrictions, argues potently: "If we want former felons to be good citizens, we must give them rights as well as responsibilities, and there is no greater responsibility than voting."

There has been recent activity in several states regarding voting rights for offenders. A state trial court in New Hampshire recently restored voting rights for inmates only to be reversed on appeal. A similar case has been launched in the state of Washington. Virginia's legislature created a subcommittee to examine issues regarding disenfranchisement of convicted felons. In some states efforts have centered on taking away voting rights. A Utah legislator won approval to place on the ballot a proposal to ban inmate voting and it passed with 80 percent of the vote. In Massachusetts, the legislature was considering a constitutional amendment barring inmate voting.

An issue tied to the loss of voting rights for offenders is getting back those rights. According to the state Division of Elections, in New Jersey an offender must re-register upon finishing his or her obligations to the criminal justice system (probation, prison or parole) in order to vote, and no notification is sent reminding them to do this. In four states, legislators have proposed making restoration automatic instead of a system in which former offenders must proactively get their rights back.

An organization in Connecticut called Democracy Works this year succeeded in getting one house of the legislature to pass an "end of incarceration" standard that would limit denial of voting rights only to those offenders actually in prison. A report arguing the restoration case eloquently stated the rationale: "When a person leaves prison, we as a society want, hope and expect that they will get a job, a place to live, pay taxes and become functioning members of society. A part of that is unquestionably taking again their place in the democratic process. People who are part of the decision-making process have more stake in the decisions that are made, and less automatic alienation from them. Like a job and a home, voting roots people in communities and in society."

CONCLUSION

It's time to revisit the thinking behind denial of a basic citizenship right to people who, if anything, we ought to be encouraging to become more assimilated. Two factors make the time right: One is that alienation from the system is so widespread that we ought to look at anything that can broaden participation, especially when the argument for denial has as little grounding in logic as is the case here. The other is the overwhelming over-representation of minorities - and minority males in particular - in a process that denies voting rights to offenders.

This is an area of policy and participation given very little thought today. Longstanding rationales remain unchallenged. To change this, debate over the archaic denial of voting rights should take place. The state of New Jersey should consider:

• Denying voting rights to no offenders.
• Limiting the denial of voting rights to those actually serving prison sentences, not those on probation or parole.
• Establishing a connection between the severity of a crime and denial of voting rights, so that only the "worst" offenders lose the right. Though it could be argued that even they should be allowed to participate, this would restore voting rights to those who have committed relatively minor, non-violent crimes.
• Allowing judges to have discretion in taking away voting rights.
• Either granting automatic restoration of voting rights upon completion of an offender's obligation or creating a system under which those about to complete their obligation are notified of the need to re-register, encouraged to do so and sent a registration form.

  New Jersey today has an opportunity to join the least restrictive states or, at a minimum, step away from the more restrictive ones. Doing so would send a strong signal that democracy is alive and well here, and that when it comes to voting we know our future should be tied more closely to participation than punishment.

Two reports were valuable resources in preparing this analysis. They are:

Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, by The Sentencing Project and Human Rights Watch, 1998 (http://www.hrw.org/reports98/vote/)

Regaining the Vote: An Assessment of Activity Relating to Felon Disenfranchisement Laws, by Patricia Allard and Marc Mauer of The Sentencing Project, 2000

ABOUT the AUTHORS

Rashida MacMurray is enrolled at Rutgers-Newark Law School and currently is a visiting law student at the Franklin Pierce Law Center in Concord, N.H. She dedicates her work on this project to all the men and women who are now incarcerated without the ability to vote.

Jon Shure is President of New Jersey Policy Perspective.

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