The Shallow Ballot

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

By: Mykayla Milchling

How democratic is a country that excludes thousands of its citizens from voting every year? Are the desires of the populus truly reflected through local and national voting when there is an astounding amount of people whose political voices are silenced? Federal law requires that, in order to vote, you must be above 18 and you must meet your State’s additional requirements. Of many various additional requirements that states might have, the majority of them have a restriction on the ability to vote while incarcerated and post-incarceration—this restriction is called voter disenfranchisement. Voter disenfranchisement, sometimes referred to as just disenfranchisement, is the act of restricting or completely stripping a person’s voting rights. This happens to two main groups in the U.S.: felons and ex-felons.

Despite being one of the acclaimed core values of the U.S., there is little to no protection against these restrictions as voting requirements were left up to the states by the Constitution. In 2023, the  National Conference of State Legislatures released a document detailing the voting laws in each state. Only two states in the U.S. allow everyone to vote, regardless of criminal record; Maine and Vermont. There are only two states in which all people with felony convictions are permanently disenfranchised; Virginia and Kentucky. The rest of the states have a mixture of laws with different restrictions based on factors such as the type of crime that was committed, the length of the sentence, and whether the sentence has been completed. Arkansas’ law, Ark. Const. Amendment 51, §11(d) for example, allows convicted felons to vote once they can provide proof that they have been discharged from probation or parole, have paid all fees and fines, or otherwise satisfied their terms of imprisonment. While they serve their time, however, they are prohibited from voting.

Studies have shown that people of color, particularly Black people, disproportionately occupy prisons and, by extension, have become the most disenfranchised. In chapter 26 of The African American Electorate: A Statistical History, Walton, Puckett, and Deskins elaborate on the relationship between African Americans and the electorate.  They discuss felon and ex-felon disenfranchisement in depth, beginning with what they view as its modern spark: the 2000 elections. Theyalso note some jarring statistics, stating that the United States Commission reported that, “Over 31 percent of the disenfranchised population in Florida are African American men. Of all the disenfranchised former felons in the United States, one-third are found within the borders of Florida”. The authors make the bold yet valid argument that the 2000 elections would have turned out differently but for the glaring disparity caused by the disproportionate incarceration of Black people in Florida. Once there was identifiable proof that there was a significant difference in the outcomes of elections when there were less Black voters, a number of U.S. domestic policies were put into place in order to perpetually disenfranchise Black people through mass incarceration.

The Bureau of Justice Statistics (BJS) mapped out the demographics of the imprisonment rates of sentenced prisoners under jurisdiction of state or federal correctional authorities in 2021. There were approximately 1.1 million people in the prison population. In terms of gender, there were a little over a million men incarcerated and almost 79 thousand women incarcerated. Examining the racial demographics, BJS reported 356,000 white people included in the sentenced prison population while the total number of Black people was 378,000. The Hispanic prison population totaled 273,800 and the Asian population 14,700.

The disproportionate incarceration becomes clear when you compare the demographics of the U.S. population and the prison population. The Census Bureau reported in 2020 that white people accounted for 61.6% of the people living in the U.S. while Black people make up only 12.6% of the population. Additionally, they reported that Hispanic people made up 42.2% of the population and Asians, 6%. The disparity is glaring—Black people make up 49% less of the U.S. population than white people, but make up about 6% more of the prison population.  This, in turn, suggests that Black people are disenfranchised at a higher rate than anyone in the country.

The political and societal effects of disenfranchisement are critical to the discussion. Studies show that there are tangible political consequences of felon disenfranchisement. “Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States”, by Jeff Manza and Christopher Uggen, discussed predictions of  voter turnout and political preference for felons and ex-felons. They not only found heavy Democratic political preferences in felons for presidential elections, but also for senatorial elections, although it is less prominent. Additionally, a study titled, “Civil Death” or Civil Rights? Public Attitudes Towards Felon Disenfranchisement in the United States”, by Jeff Manza, Clem Brooks, and Christopher Uggen, provides the results of a survey given to a nationally representative sample of 1,000 adults ages 18 and above. There was around 80% support for the restoration of voting rights for ex-felons. It also was found that between 60 and 68% of the public maintained that felony probationers should have their voting rights restored. Surprisingly, 66% of survey takers supported voting rights for ex-felons convicted of a violent crime who have served their time.

The law in Maine provides that residents living in Maine prior to incarceration may register and vote in Maine elections during incarceration. This can be done through requesting an absentee ballot to their facility or through a family member. Although it is not a perfect system, Maine has given thousands of citizens access to their civil rights through simply allowing absentee ballots; it most certainly can be a blueprint for other states to abolish their disenfranchisement laws.

Ultimately, regardless of the demographics and predictions, stripping a citizen of their voting rights is an injustice and does our country a great disservice—particularly if that restriction continues after someone has served their time. The voices of people with felony convictions are actively being silenced, resulting in a political landscape that does not truly reflect the desires of the people.


About the author: Mykayla Milchling is a 3L at Bowen with a passion for advocacy, born and raised in Baltimore, Maryland. Along with having been the Black Student Union President in undergrad, she is currently the President of the Black Law Student Association. She has been an aspiring lawyer since childhood and values authenticity above all else.

Posted in: Blog Posts, Legal Comentary

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