Did States Restrict the Voting Rights of Felons on Account of Racism?

On September 17, Brent Staples published an editorial in the New York Times sharply criticizing the felon disfranchisement laws that will keep as many as five million persons from voting in this year’s election. Pointing to the fact that many other nations permit ex-felons (or even those in prison) to vote, he understandably asked why America treats “ex-felons so much worse than other democracies.” The answer he offers, attributed to “legal scholars,” is “the racist backlash in the South during Reconstruction.”

Staples is not the only person to put forward the view that the felon disfranchisement laws originated in efforts to deprive newly enfranchised freedmen of the vote after the passage of the Fifteenth Amendment. I too have heard this claim stated by legal scholars and by voting rights activists, on many occasions. I’m also in complete agreement with Staples’s political perspective: I do not think that any ex-felons (or even those serving prison terms) should be disfranchised, and I think that these laws have often been used with racist, as well as partisan, intent.

But the history of felon disfranchisement laws is, in fact, far more complex. Many states, north and south, passed such laws (or constitutional provisions authorizing such laws) long before the Civil War and for reasons that had little or nothing to do with race. Connecticut did so in 1818, for example, as did New Jersey and Wisconsin in the 1840s. In some southern states, moreover, felon disfranchisement provisions were first enacted not by the racist redeemer governments that came to power in the 1870s, but by their predecessors: the Republican governments that supported black voting rights. By 1900, felon disfranchisement laws were in place in a majority of states, with widely varying ethnic and racial compositions (including even Vermont!). (The data for all these assertions can be found in the appendices to my book, The Right to Vote.)

To be sure, it is true that felon disfranchisement laws were utilized in the South in the late nineteenth and twentieth centuries as a means of disfranchising African Americans. And some states, such as Alabama and Georgia, altered their laws over time in order to target African Americans and reduce their voting strength. Felon disfranchisement laws, especially in the South, did become part of the fabric of racial discrimination and exclusion.

But the idea of disfranchising felons and ex-felons did not originate in the post-Civil South, and most laws that disfranchised felons had complex and murky origins that still await thorough historical investigation.