It takes more than good intentions to transform the South. It takes money.
What the hell is a Scalawag?
A bill is headed to the desk of Louisiana Governor John Bel Edwards that would expand voting rights for people with felony convictions, allowing them to vote while on probation or parole after a five-year post-release waiting period. Currently, felons in Louisiana are disenfranchised until they have completed their entire sentence, including probation and parole periods that can last much longer. The law, which currently affects an estimated 70,000 residents on probation or parole, is also being challenged in federal court. It's part of a movement to restore voting rights across the South, led by formerly incarcerated people in states like Virginia and Florida.
The legislative win in Louisiana didn't come easy. Democratic Louisiana Representative Pat Smith has five times authored bills to re-enfranchise parolees and probationers. This year, for the first time, the bill, HB-265, passed out of committee, though it included a compromise: a five-year post-release "cleansing period" before one can register to vote. After three votes in the House and a lot of persuasion from supporters, it passed with 61 votes.
In the bill's Senate Committee hearing, one senator expressed concern. Republican Senator James Fannin argued that voting "is the greatest privilege we have and it was to be a deterrent," adding that he thought the post-release waiting period should be longer: "I'm not opposed to it ever happening. I just think five [years] is too soon."
On Wednesday, May 16th, the Senate passed the bill but added an amendment excluding felons convicted of election fraud and another amendment clarifying how felons will document that they're eligible to vote. That version passed in the House on Thursday May 17 with bipartisan support, and the governor is expected to sign it.
Louisiana's long struggle for voting rights
The number of people immediately affected by the bill when it goes into effect in 2019 is small, some 3,500, but the symbolic victory is huge.
Bruce Reilly spent 12 years in Rhode Island Maximum Security Prison, and upon release, he began working on a campaign to enfranchise Rhode Island parolees and probationers. In 2006, he registered to vote under the law he'd helped pass, but in 2011, when he loaded up his hatchback and drove to New Orleans to attend law school at Tulane University, his voting rights stayed behind.
"I have never sentenced a person to never vote again," says a Louisiana judge.
Seven years later, Reilly – now the Deputy Director of Voice of the Experienced (VOTE), a membership group of formerly incarcerated people – is part of a movement of disenfranchised people poised to change these laws in two Southern states. They're asking what good comes from locking 6.1 million Americans out of the democratic process.
To understand the (disputed) legal basis felon disenfranchisement, look no further than the Fourteenth Amendment. Ratified in 1868 as the second of the three "Reconstruction Amendments", it gave citizenship and "equal protection under the law" to anyone born or naturalized in the U.S. The consequences of ignoring the amendment were described in Section 2: reduced congressional representation for states disenfranchising any man "except for participation in rebellion, or other crime." This was just three years after the Civil War had ended.
Legal scholars debate whether the authors intended to allow disenfranchisement for crimes not related to rebellion, but the Supreme Court has so far let states set their own rules. As a result, felon voting laws range widely, from states like Vermont and Maine that disenfranchise no one to three states (Iowa, Kentucky, and Florida) that permanently disenfranchise everyone with a felony conviction unless they're granted clemency.
In Louisiana, felons can vote after completing their sentence, including probation or parole. Syrita Steib-Martin works as a clinical laboratory scientist in a hospital, where she matches blood products for blood transfusions and organ transplants. She also pushes for criminal justice reform as the founder and executive director of Operation Restoration, but she can't vote until her parole ends in 2020. "I've been out of prison for nine years now," she says. "I have a really critical job at the hospital. I save lives on a regular basis, and I can't even vote."
Miriam Waltzer, a retired New Orleans judge and proponent of felon enfranchisement, insists this isn't what judges want. "I have never sentenced a person to never vote again. And I have always hoped that people come out of their legal predicaments and they become contributing citizens," she says.
Louisiana's current policy dates back to the 1970s. In 1974, Louisiana ratified a new Constitution, eliminating Jim Crow provisions and extending the vote to everyone not in a mental institution or "under order of imprisonment for conviction of a felony." Two years later, the legislature passed a law interpreting "under order of imprisonment" to include people on probation or parole.
VOTE has joined with the DC-based civil rights organization Advancement Project in a lawsuit contending that the 1976 law conflicts with the state's Constitution.
The plaintiffs have rallied support from unexpected corners. The American Probation and Parole Association told the court that "providing released offenders with the right to vote gives them an important stake in the community," while a group of historians researched the law's context and concluded that the 1974 voters intended to give the vote to everyone except prisoners and escapees.
Last September, State District Judge Tim Kelley said he agreed with the plaintiffs but couldn't change the law, a ruling upheld by a panel of the Louisiana Court of Appeals. The case now heads to the Louisiana Supreme Court.
Reilly sees Louisiana as a key battleground. "State violence, Klan violence, prisons… Not to diss the oppressions elsewhere, but damn, the history of Louisiana is dark," he says. "If we can change things in Louisiana, we can change things anywhere."
He hopes the 70,000 Louisianans on probation and parole will look to that beacon, though he knows that, given the many challenges people with records face, they have a lot on their minds. "Many of them are deep in the struggle. And we just hope that when they come out of it… that there's something for them to come out to."
Felon re-enfranchisement in the most disenfranchised state in the nation
Several hundred miles to the east, a parallel movement is underway. Florida is home to more disenfranchised Americans than any other state — an estimated one-quarter of the national total. It's one of three states with what voting rights advocates call a "civic death penalty," restoring voting rights only for those who are granted clemency. To apply for clemency, one must complete probation or parole, wait at least five years, and then submit a request to Gov. Rick Scott and a three-person board, who can reject the request for any reason. Applicants often wait years for a decision. According to the Fair Elections Legal Network, as of March 1, 2017, 10,513 applications were awaiting review, with the board hearing an average of 52 cases per quarter.
Despite Florida's long history of disenfranchising felons, it did briefly experiment with alternatives. In 2007, Gov. Scott's predecessor, Charlie Crist, streamlined the rights restoration process, automatically restoring the rights of most people with felony convictions upon completion of their sentences. The experiment ended in 2011 when Gov. Rick Scott dismantled Crist's system. Scott's policy was drafted by his attorney general, Pam Bondi, who was, according to her spokeswoman, "philosophically opposed to the concept of automatic restoration of civil rights."
In March, 2017, the Fair Elections Legal Network (now called the Fair Elections Center) sued, arguing that this policy was unconstitutionally arbitrary. "It's a rare thing for a voting rights lawyer to be able to say this, but we just want Florida to do what Texas and Georgia have done," says Jon Sherman, Senior Counsel for the Fair Elections Center, "and that's to just restore people's right to vote at a specific point in time…so it's not an arbitrary governmental decision."
A federal judge ruled in their favor and in March issued an injunction mandating that Gov. Scott devise an alternative to the current "standardless scheme." But just hours before the deadline, a panel of judges in the 11th Circuit Court of Appeals in Atlanta issued a motion to block the injunction. The full case is tentatively scheduled to be heard in the 11th Circuit Court in July, says Sherman.
"I think you've gotta give people a chance to change their mind… Anyone who's changed themself has to believe in other people changing."
Like their counterparts in Louisiana, advocates in Florida are playing two hands at once. In November, Floridians will vote on Amendment 4, a ballot initiative to automatically restore voting rights to most felons when their sentences end. In February, a Quinnipiac University poll found that 67 percent of Florida voters supported the amendment. If it passes, says Sherman, every plaintiff on Florida's Hand v. Scott case will regain the right to vote, rendering the case moot. The amendment still excludes people convicted of murder or felony sex crimes, so Florida could see another re-enfranchisement push in the future.
It's a long road, but advocates say that comes with the territory. "You know, voting rights is a very, very unique strand of history in America," explains Reilly. "It's bloody and it's ugly and it's nasty."
He sees the felon enfranchisement struggle as part of the same legacy as women's suffrage and the Voting Rights Act: "The idea that you're gonna support or oppose people's voting rights based on who they are, what they are, what they think, is just totally antithetical to democracy."
He says the movement has kept its momentum because it's powered by people who know the pain of disenfranchisement, which Reilly says is a wound that won't heal on its own. And it's not just about voting rights — it's about changing how legislators think about people convicted of felonies. "We've come a long way," Reilly says. "I think five years ago, they probably thought we wanted to legalize murder."
He hasn't given up on those who voted against the bill: "I think you've gotta give people a chance to change their mind… Anyone who's changed themself has to believe in other people changing."
At the end of one interview, Reilly's phone rings, and I hear a robotic voice announcing a call from an inmate. "It's my homie up in the joint," he tells me. As I pack my things, they begin discussing the friend's upcoming parole hearing, where he'll need to prove that he has a stable place to go after prison. He's thinking to go to Florida, where his sister lives. Reilly tells him, optimistically, that Florida will soon let people like him vote.
From across the room, I hear his response: "I can't wait to vote."