According to multiple studies, there’s been a modest rise in “democratic backsliding” in recent years. The shift towards authoritarianism is most evident in places like Hungary, Poland, Brazil, and the United States. Here, Democrats at the federal level tried to address this regression, partially driven by changes to voting laws at the state level, by introducing the Freedom to Vote Act. That effort failed. Still, progress can be made. In 2018, through a citizen-initiated referendum, Florida voters showed the nation there’s broad support, even in states that are otherwise moving to restrict voting, to restore voting rights to many of the 6.1 million Americans currently barred from voting due to a felony conviction. In states like Arizona, voters have a unique opportunity to leverage the same process Floridians did to make progress where legislators — at both the federal and state levels — have failed.
In recent years, the number of Americans barred from voting due to a felony conviction has skyrocketed. Though the country’s population has grown by roughly 50% in the last 40 years, the number of people barred from voting by way of felony conviction has increased by nearly 500%.
The problem is not just that more people are in jail, it is that unpaid fees and fines keep felons from voting long after they exit the prison walls. Only about 25% of the 6.1 million currently barred are actually in prison, but state laws often require felons to repay any fines or fees before their voting rights are restored. These payments are often never completed.
It’s no coincidence that the rapid increase in people barred due to a felony coincides with the War on Drugs. When President Reagan entered office, only nine states disenfranchised more than 5% of their Black population for a past felony. Today, 23 states meet or exceed that threshold.
Arizona’s voting restrictions for felons have an even bigger impact on people of color. Not only is it comfortably in the club of 23 states that disenfranchise more than 5% of their Black population — 13% of the Black voting-age population in Arizona is barred from voting due to felony convictions — but the state also disenfranchises 7% of its large Latine population due to felony convictions.
Two unique specifications in Arizona’s felon disenfranchisement statute play a prominent role in its disproportionate impact. Those convicted of a first-time, single-count felony in Arizona automatically get their voting rights renewed after completing their sentence. The state made progress in 2019 by allowing first-time felons to regain voting rights before paying off all fines and restitution. Those who are hardest hit by the Arizona law are persons convicted of two or more felonies, who are permanently barred from voting unless they have their voting rights restored through a gubernatorial pardon or by a judge. While they also must complete a two-year waiting period, the stipulations around the pardon make it nearly impossible for most people convicted of multiple felonies to vote ever again. Limited data suggest that almost no one receives the pardon necessary to vote. Complex requirements around seeking pardons from courts also make it too confusing and time-consuming for most to go that route.
Examining the racial differences in sentencing illuminates how the permanent ban on those convicted of multiple felonies targets people of color. Research from across the country has shown Black people are more likely than white people to be prosecuted under habitual offender statutes, controlling for criminal history and crime type. In 2017, data from Arizona shows 28% of eligible Black people sentenced to prison for drug possession received a “repetitive offender” enhancement versus 18% of white people. This disparity not only leads to disproportionately long sentences for Black people but, in Arizona, also contributes to the disproportionate amount of Black people permanently barred from voting.
The story likely sounds familiar to many Black Floridians. After the Civil War, Florida classified many crimes as felonies, and quickly afterward, 95% of the state’s felons were Black. In 2016, 20% of the state’s voting-age Black population could not vote due to a felony conviction. Using the citizen-initiated referendum process, 65% of voters in 2018 approved Amendment 4 — which restored voting rights to felons — in a clear attempt to remedy the injustice. Unfortunately, the Republican-led Florida Legislature passed a subsequent statute requiring felons to pay all fines and fees before they can vote. Despite the clear statement by Florida voters, in an election in which Republicans won a Senate seat and the gubernatorial race, multiple studies indicate that only around 8% of former felons are now registered.
Opponents of felon voting rights restoration may point to that as an indicator that many felons are not interested in registering. An analysis shows that out of the 325 people in Hillsborough County, Fla., who have had their fines and fees paid off by the Florida Rights Restoration Coalition, and whose records were made available, only 56 registered to vote. Many, including Republican Senate Minority Leader Mitch McConnell, seem to believe that the right to vote should be reserved for law-abiding citizens. “States have a significant interest in reserving the vote for those who have abided by the social contract that forms the foundation of representative democracy … those who break our laws should not dilute the votes of law-abiding citizens,” McConnell said.
While it is true that not every felon would register if the state restored their voting rights, Arizona could remedy this issue and several others by learning from Florida before initiating its own changes. Arizona is one of the few states that both, essentially, permanently bar some felons from voting and allow for citizen-initiated statutes. Furthermore, the state’s purple-red electorate is similar to Florida’s, where felon voting restoration passed by a wide margin. The Brennan Center offered guidance on how to fix several of the issues Florida experienced after passing Amendment 4. First, voting rights restoration should not be contingent upon payment of fees, fines, restitution, or other legal financial obligations. Second, requiring the Department of Corrections and probation and parole authorities to educate felons on voting rights restoration and making them responsible for assisting with voluntary voter registration can help alleviate the low registration rates seen in Florida.
In 1774, Ben Franklin noted that “They who have no voice nor vote in the electing of representatives do not enjoy liberty, but are absolutely enslaved to those who have votes.” Permanently barring felons from voting runs counter to both common sense and the core values on which our country was founded. It serves no legitimate purpose. Felons who have served their sentence and re-enter society deserve to regain their most fundamental right. Arizona’s “two-strike” system, which is both arbitrary and disproportionately impacts people of color, makes the injustice even more intolerable. The result is an electorate that does not reflect the community and its will, all due to laws rooted in the Jim Crow era.
As a nation, our democratic backsliding may seem relatively minor. Still, we have room to make significant improvements, considering nearly half the people in the world barred from voting due to criminal history live in the United States. To credibly champion democracy over authoritarianism, we must address this injustice.