In recent years the idea of voting rights has become so tied to the question of racial districting - with its complex jargon, Rorschach-like maps, and inscrutable case law - that it's easy to forget how morally compelling the struggle for universal suffrage once was. Some might say this actually isn't such a bad development, to the degree that it reflects the absence of any remaining outright barriers to voting in the United States. This is the stuff of textbook pride: Constitutional amendments secured the right to vote for blacks, women, and 18-year-olds. Supreme Court rulings and the Voting Rights Act did away with other restrictive provisions such as literacy tests and property qualifications. We've even made registering and voting easier with the federal motor-voter law. So now everyone who wants to can vote.
Or can they? One group of adult citizens is still legally barred from participating in the electoral process: those four million or more people who have been convicted of a crime, usually a felony. All but four states - Maine, Massachusetts, Utah, and Vermont - disenfranchise incarcerated offenders. (It may soon be all but three states: In August, Massachusetts Acting Governor Paul Cellucci proposed a constitutional amendment banning prisoners in his state from voting.) Thirty-five states disqualify parolees and probationers. And, remarkably, 13 states deny felons the vote for life - even after they have been fully released from correctional supervision. Since voting qualifications are generally set by the states, these laws deprive felons of the right to participate in federal as well as state elections.
Not surprisingly, given their disproportionate representation in the criminal justice system, a disparate share of disenfranchised convicts are African-American and Latino. In fact a report released last January by the Sentencing Project noted the disturbing fact that one in seven black men in America cannot vote because of laws that disenfranchise convicts and ex-cons. Whether the impact of these statutes on minorities is accidental or partly deliberate, it is important to note that there is a history in this country of intentional use of such laws to deprive blacks of the vote. Indeed, it's a history that should tell us something about the distinct injustice of permanently disenfranchising ex-felons, whatever their race.
RACIAL EXCLUSION AND THE BALLOT
Laws denying criminals the vote have origins in Roman and English legal code, under which a felon literally could be banished from the body politic. But during the Reconstruction era in the South, disenfranchisement provisions were often tailored so that their effect would be to exclude mostly, or only, blacks. This selective exclusion was part of a larger assault on black suffrage that was codified by state legislators at constitutional conventions during the decades following the Civil War. Looking for ways to disqualify blacks without running afoul of the newly ratified Fifteenth Amendment, which prohibited blatant exclusion on racial grounds, these legislators adopted a host of ostensibly neutral voting barriers to achieve their desired end. In addition to adopting discriminatory literacy tests and poll taxes, they rewrote their felon disenfranchisement laws to subtly disqualify blacks.
Mississippi led the way in 1890 by replacing a constitutional provision disenfranchising citizens convicted of "any crime" with a narrower section barring only those convicted of certain petty crimes that blacks were supposedly more likely than whites to commit. As the Mississippi Supreme Court explained it in 1896, blacks were more prone to "furtive offenses than to the robust crimes of the whites." Thus, "furtive offenses" such as bribery, perjury, and bigamy were disqualifying offenses, while "robust crimes" like rape and murder were not. Only in 1968 did the latter become disqualifying offenses.
Alabama, Louisiana, South Carolina, and Virginia also disenfranchised criminals selectively in order to keep the electorate white. …