Voting Rights for Immigrants & the Incarcerated; The Case For Inclusion

Sara Grossman

Campaigns Coordinator

Wednesday, May 11, 2016

This is the feature article of our Fall 2015 newsletter. Download full issue here.

He pays taxes, volunteers in his community, and is gainfully employed, but still his voice remains unheard. 

Although today he could be on a politician’s reelection campaign poster, Gary Malachi Scott was once on the wrong side of the law. At 13, he joined a gang in South Los Angeles, and by 15 was convicted of murder, ultimately spending more than a decade in prison. 

But Scott has come a long way since his troubled adolescence, which was an all-too-familiar story of poverty and violence. It’s been three years since his release, and Scott is dedicated to staying out of trouble and helping others do the same.  

Scott is one of nearly six million American citizens who are not allowed to vote as the result of criminal convictions. While this may seem like a normal part of modern society, the United States stands alone amongst its western counterparts in barring former and current offenders from voting. In fact, for about a century, most states in the United States had no restrictions on prisoner voting. A 2003 study by Angela Behrens, Christopher Uggen, and Jeff Manza, for example, found that state felony voting bans only became widespread in the 1860s and 1870s—just after the 15th Amendment was passed, strengthening  Black Americans access to the right to vote. And the two states that currently allow prisoners to vote without restriction, Vermont and Maine, are also two of the whitest.  

As with many things, the US is exceptional in its commitment to denying basic civic rights to those deemed unworthy of inclusion in society.  “At the end of the day, we pay taxes, and are in some ways considered citizens,” Scott reflected during a recent phone call. “But in the specific way of voting, we are not recognized.”

It’s not just prisoners. Many immigrant voices are also denied the right to be heard, particularly in local policy decisions that directly affect them, such as those involving school boards or city councils. While they may not have been born in this country, immigrants are deeply intertwined with American society. 

Like incarcerated populations, excluding immigrants from voting in local elections has not been the historical norm throughout much of US history. Immigrants enjoyed a strong voice in America’s early history in helping decide policy decisions. According to Kathleen Coll, Assistant Professor of Politics at the University of San Francisco, starting in colonial times, non-citizens had the right to vote at the local and state level in 42 states and territories. 

“This was because in many parts of the US, immigrants were regarded as future citizens,” Coll said. “The practice of voting at the local level was seen as a way to train future citizens to vote on national level and also seen as a way for citizen-born children of immigrant parents to learn democratic practices in the home.”

By expanding access to basic democratic norms to some of society’s most marginalized, including immigrants and felons, a state or municipality can better meet the needs of all its residents, no matter their status. Such policy moves are not merely ideological—inclusion and acceptance are two important steps towards a safer and healthier space for all.

“We live in a democracy that is predicated on the notion that the most important good that we distribute or withhold in our society is membership,” said Haas Institute Director john a. powell, who is also a civil rights scholar and professor of law at UC Berkeley. “What we’ve done with certain populations is to say, ‘You don’t belong. This is not your system.’” 

“And when people don’t belong, all kinds of bad things happen,” powell added.

As an undocumented immigrant from South Korea, the life experiences of Ju Hong illustrate the negative things that can happen when one feels like they don’t belong. A few years ago, Hong came home to find his windows shattered and his belongings gone. 

“I freaked out,” Hong recalled. “I was really terrified about what was going on, which was clearly a burglary, and told my family to call the cops to report the incident.”

Yet a deep fear of authorities—and specifically law enforcement—stopped Hong’s mother from making that call. She would rather live in fear of crime than face the possibility of separation from her children.

Her fear is shared by millions of immigrants nationwide.

“In the community there are people that are afraid to ask for help because they are enormously insecure about the consequences that [might] come,” said Teresa Gutierrez, a volunteer leader for Faith in New York, an interfaith federation of congregations that supports social justice causes. Gutierrez works with the largely immigrant Spanish-speaking community in the Sunset Park neighborhood of New York.

A number of states have recognized the problems with the enforcement of exclusion, and have taken steps to ease these complications. As of July 2015, 10 states, along with Puerto Rico and Washington DC, have issued driver’s licenses without limitation based upon immigration status.

These policies have had a direct and positive impact on the lives of people like Hong.

“Because I have a state ID, even if I get stopped I have less fear when dealing with police officers,” Hong said. “I’m more comfortable going to police stations, and going to council meetings. [Without it], I would try to not contact police officers and would feel less protected.”

Inclusive policies are to the benefit of everyone, immigrants and citizens alike.

Although the United States is currently witnessing a disturbingly high-pitched resurgence in xenophobic rhetoric, male immigrants enjoyed the privilege of state voting rights for nearly a century.  In the eighteenth and nineteenth centuries, for example, male immigrants from places like Germany were granted automatic state voting rights upon arrival. Ironically, such voting rights for immigrants existed even as a majority of American citizens lacked such a right. Women and people of color would not be granted the right to vote for over a century. 

However, as immigrants from “less desirable” places (read: less white) began to enter the country in greater numbers, a number of states began rolling back or restricting access to the vote. In some cases, as in certain Midwestern states, restricting the right to vote was in reaction to the possible enfranchisement of women and men of color, Coll said. In other cases it was related to concerns that immigrants were less favorable towards slavery and might vote to end the practice. Perhaps most tellingly, Alabama was the last state to restrict immigrants’ right to vote, probably because immigrants did not play a large role in that region, Coll said.

“Citizenship and voting have never been synonymous, despite contemporary belief that it is an exclusive right of citizenship,” Coll said.

Today’s immigrants, both legal and undocumented, find themselves voiceless, even as they contribute heavily to the economic, cultural, and social richness of their communities.

However, a number of forward-thinking states and cities have started realizing the value of expanding inclusion for immigrants, and have begun to make steps towards this end.

“An increasing number of towns and cities see the full integration of immigrant residents as a positive good for the whole community,” Coll said. “For example, increasing parent involvement and community support for public schools is seen as benefiting everyone. Sharing the vote at the local level is a positive way to increase civic engagement amongst citizens and future citizens alike.”

The Chicago School Board is perhaps one of the clearest examples of the benefits of inclusive policy. The Chicago School Reform Act of 1988 established local school councils for every school in the city and ensured that all parents, regardless of citizenship, be eligible to participate and vote. In Chicago, non-citizens have a seat at the table.

Such forms of “local citizenship” emphasize residency, participation, and the right of community members to participate fully. “If children are in school and their parents are engaged, school quality will be better,” Coll said.

The “radical” notion of immigrant voting is not so radical in other parts of the world. Lithuania, Slovenia, Belgium, Sweden, and the Netherlands allow all resident foreigners, no matter their country of origin, to vote in local elections. 

Other forms of non-citizen voting also exist elsewhere within the European Union, such as the United Kingdom’s policy of enfranchising Commonwealth citizens for all national elections.

According to a 2008 paper from the Transatlantic Council on Migration, proponents of non-citizen voting have put forward a number of compelling arguments in favor of extending such rights.

Some of the most persuasive points include the (very American) notion of not taxing people without allowing them representation, and promoting greater political participation for the whole community. Furthermore, the paper concludes, there is no evidence that allowing non-citizens to vote in such a matter leads to negative outcomes.

“Once governments grant local voting rights, these rights never appear as a source of serious conflict. Apparently, most politicians in the countries concerned find that the advantages outweigh any disadvantages,” wrote the author of the paper. “Sharing political power with an additional group may be symbolically painful, but in reality power sharing only marginally reduces the power of old voters.”

“We have people who have been here for decades who are in our schools and our hospitals—we should acknowledge their humanity, that they are part of us,” noted john a. powell. “Institutionalized exclusion has been the scourge of this country. Our history can be written about who belongs.” 

If any group exemplifies those who current US policies treat as not belonging, it’s prisoners.

It is often accepted that those who have wronged deserve the greatest degree of humiliation and dehumanization. Perhaps, some may think, “this is what they deserve.”

But both historical references and examples set by our closest allies would urge us to reexamine the logic behind this thinking, which is largely based on retribution. Many studies point to another philosophy on criminal justice which is often based in the opposite spirit—that of rehabilitation and prudence.

In Europe, most nations either allow all prisoners to vote or disqualify only a small percentage. Some countries like Germany actually encourage prisoners to exercise their right to vote, either in the district of their previous residence or the district in which they are incarcerated. Both approaches recognize the inherent human right of prisoners to participate in civic life despite their incarcerated status.

Berkeley Law Professor Jonathan Simon is an expert on mass incarceration and has studied civil rights and prisons. He can recall his own skepticism towards the policy of allowing prisoners to vote, when he encountered it in Europe. Yet Simon quickly saw the value of allowing such expression, for both the larger society and individual prisoners, many of whom will eventually be released back into society, like Gary Malachi Scott.

“When you recognize people’s human dignity in an expressive way, the research suggests that not only do people express greater satisfaction with the legal system, but research has shown that it seems to produce a robust positive motivation to obey the law,” he said. “In this way, people see the law as more legitimate.”

Malachi Scott echoed this perspective, adding that enfranchisement can be a form of acknowledgement and investment in those behind bars. 

“When people from the outside invest in the incarcerated, it tells the incarcerated that they’re still connected, that they still belong to the community,” Scott noted.

Furthermore, Simon said, contrary to what many assume, “Most prisoners don’t support crazy policies—most are just as oriented towards law and order as anyone else. In fact,” he continued, “most prisoners in Europe vote for the same parties that people with their same ethnic and class background vote for outside of prison. We could expect the same here. Prisoners don’t have a class interest; no politician could put together a winning electorate by appealing to the prison class.” 

The disenfranchisement of prisoners and ex-prisoners cannot be discussed without also including an exploration of the racial dimensions. Felons only began to lose the right to vote as the Black prison population began to increase (often due to unfair sentencing laws), and states looked for new ways to silence the Black voice.

According to Brett Staples of the New York Times, the white supremacists who introduced such disenfranchisement policies were quite open with their intentions. According to Staples, in 1894 a newspaper in South Carolina claimed that voting laws needed to be changed to address the burgeoning Black vote. In 1901, Alabama’s constitution was amended to disenfranchise all those who had been found guilty of crimes involving “moral turpitude.”

After the Civil War, Congress passed amendments to the US Constitution that were meant to prevent the return of slavery or the denial of civil rights to former slaves, Simon added. “These amendments forced the white elite to abandon their early effort at entirely unequal legal codes for Blacks and whites and instead to rely on the unequal application of formally equal laws,” he said.

Whites might face felony charges for murder, robbery, and rape, but Black Americans were singled out for enforcement of these low level felonies. “The result was not only lifetime voting bans on the people felonized, but the opportunity for white capitalists to exploit a new pool of slave labor made available by the new system of ‘convict lease,’ which spared the state the expense of building prisons and instead rented out prisoners as slaves,” Simon added.

The racialized dimension of disenfranchisement is backed up by the data. According to the 2003 paper on state felony bans, “large nonwhite prison populations increase the odds of passing restrictive laws, and, further, that prison and state racial composition may be linked to the adoption of re-enfranchisement reforms.”

Today, one in every thirteen Black adults is disenfranchised nationwide. If America’s rates of mass incarceration continue, it is estimated that three in ten Black men will lose the right to vote at some point during their lifetimes, as reported by the Sentencing Project. More broadly, the American Civil Liberties Union has estimated that more than  million Americans who are not currently behind bars cannot vote because of past criminal convictions.

Fundamentally, questions of voting rights are emblematic of larger issues surrounding who should be included in our society and if it should matter that people are treated as if they belong.

According to Kathleen Coll of the University of San Francisco, notions of enfranchisement and inclusion speak to what it means to be “a flourishing democracy in a world that is multicultural.” 

“Just looking at peer nations in Europe and Australia, there are many examples where newcomers or long-term residents are included in democracy,” she said. “Civic engagement is positive for the entire community.”

john powell expanded on that notion, adding that such inclusion is a “radical notion of the system.”  “If we are equal and we self govern, the system belongs to us,” he said. “That’s the way we structure not just our politics, but the whole idea of democracy. The whole idea of democracy is that it serves the people.”