CRIMINAL STATUS AND VOTING IN MICHIGAN

Richa  -December, 2004

            This paper looks at voting rights where they intersect with the criminal justice system, with the focus on Michigan. It starts with a listing of present voting rights in Michigan, narrowing to some voting rights issues in my home county (Kent County) and city (Grand Rapids). Some context is then provided, including a brief historical overview as well as a comparison both nationwide and worldwide. A discussion of issues raised follows. Finally, some recommendations are made.

Michigan

            This information focuses on voting, and assumes that one is registered to vote or able to register, unless otherwise stated.

            You are legally allowed to vote if:

·       You have been charged with a crime, but not convicted[1] and sentenced. This is true whether or not you are in jail. If you have been convicted but not sentenced, you may still vote.[2]

·       You have been released from confinement after serving a sentence.[3]

·       You are on probation or parole.[4]

You may not vote if:

·       You have been convicted and sentenced for a crime, and are in confinement as a result of that conviction and sentencing. Whether the conviction and confinement are for a state or federal crime makes no difference, nor does it matter if the conviction and sentence are in another state.[5]

·       You are under house arrest, on a tether, or in a work release program. These are all considered “confinement” by the Michigan Department of prisons (Department of “Corrections” in current doublespeak) for the purpose of voting.[6], This has recently been questioned among elections officials,[7] and apparently there has been no Attorney General opinion or court ruling on it, which leaves it susceptible to legal challenge.

Note that one’s previous voter registration is not canceled by confinement following from a conviction and sentence.[8]

            Statewide, Michigan provides no monitoring or enforcement mechanism to assure that those not legally allowed to vote due to the above reasons do not, in fact, vote. Any such enforcement is left up to each jurisdiction in the state.[9] Nor does the Secretary of State’s office attempt to impose any requirements in that regard on the criminal justice system. They will work with jail officials where needed.[10]

            Also unresolved is the legality of a judge’s order which prevents or hinders voting, absent actual incarceration (however defined). I have been arrested repeatedly for activity connected with being homeless (sleeping in a public place). In some of those instances a judge attempted to impose release conditions prohibiting me from being at or near the City/County building. Had i submitted to those conditions, i would not have been able to go to my city or county clerk’s office to obtain election information.

            I do not know of similar orders applied to others in Kent County in connection with bond, probation, or similar restrictions. However, i have heard of such orders applied elsewhere, mostly against other people who were homeless and/or were considered “undesirable” by authorities. In some cases this means that they cannot legally vote, because they are prohibited from going to the polls.

            Present law allows one to obtain an absentee ballot for any of six reasons, one of which is confinement while awaiting trial or sentencing. However, it does not address a situation in which one is unsure if they will be able to vote on election day. I applied twice for an absentee ballot when i knew that i might be in jail on election day. The first time, it was given me without question. The second time, it was first denied me. After i argued and appealed, i was given one the second time as well. At this point i do not know of others who have dealt with this particular situation.

            Another unresolved issue is whether an inmate otherwise eligible to vote can do so if they have registered by mail and have not previously voted. Regulations generally require such first-time voters to vote in person, though they make exceptions for seniors, the disabled, and those overseas. No specific exception is made for those unable to vote in person due to incarceration.[11]

            According to the Michigan Secretary of State’s office, an unexpected arrest does not qualify as an emergency for the purpose of obtaining an emergency ballot,[12] which may be simply because legislators did not think of that when they passed legislation authorizing such ballots. However, not all local election officials are clear on this.[13] In any case, it will be difficult for jail inmates to obtain and return such ballots in time unless more support is given both by clerk’s offices and by jail administrations.

Kent County

            There is no monitoring or enforcement whatsoever regarding voting by jail or prison inmates in either Kent County[14] or in the City of Grand Rapids,[15] which is the county seat.

            The person at the Kent County Jail who handles voting requests says that there have only been a very few that he knows of, and those have been recent. He notes, however, that he would only know about it when inmates make a request, and that those who know how can go ahead and vote without help from him or other jail personnel. It may be easier to start the process through him, however, as he keeps the application forms available that are necessary to obtain absentee ballots. He has been supportive, and at times gone out of his way to facilitate inmate voting at the jail.[16] But the administration has not been very supportive.[17]

            The Kent County Director of Elections is unaware of the issue of voting by jail inmates even arising.[18] The person at the Grand Rapids Clerk’s office who has dealt with this issue echoed the jail spokesperson, saying in 2003 that there had only been two or three requests in the ten years she had been there, and those were recent.[19]

            In practice, the laws and regulations can only take one so far. For instance, as a candidate for public office in 2003, i encountered about a dozen people who, usually right away, told me they could not vote due to a felony conviction. They were almost all Black, and all but one had fully completed their sentences. I did not discover where this misinformation originated, but it was clearly pervasive.

            There has been some conflicting information from official sources. For instance, i have heard or seen a number of opposing statements on whether parolees are allowed to vote in Michigan. At one point someone in the Grand Rapids City Clerk’s office told me that they are not, as did a lawyer. While at present most officials and others are saying that parolees are allowed to vote, that question is still not definitively settled legally.

            There is also plenty of less credible information circulating, especially on the street, as indicated previously. Additionally, one recent local report indicated that not only parolees, but even probationers, are not allowed to vote in Michigan. While this came from a source that lacks much credibility,[20] most people cannot be expected to know that.

            Further, while half or more of those in jail at any given time may be eligible to vote, there are reasons that very few do. First, many don’t care, but beyond that, few are aware that they can. In addition, it takes time to go through the process, and many do not have enough time. One must first send for an absentee ballot, then it must be received, marked, and returned. Faxing could reduce the time required, but the Grand Rapids City Clerk’s office will only send absentee ballots by U.S. mail or via an immediate relative (though a third party, such as a jail employee, might be deputized to do so),[21] and inmates must then generally return the ballots by mail. In jail mail is frequently delayed an extra day or more. It may be difficult to obtain the needed paper, envelope, stamp, and writing implement (that has often been true for me), especially after just arriving at the jail (it may take a week or more to be able to fill out and receive a commissary order). If one does not know where to write or otherwise how to go about it, it can take several more days to find out. The usual way is to write a kite (note) to the Inmate Services Director, who is pretty good about responding after he receives the kite, but cannot always get to it right away. He says to allow two weeks for the process, to be safe.[22] There is also the uncertainty for many – not knowing how long they will be there, which can discourage one from trying.

Context

            Nationally, only two states allow incarcerated felons to vote. Fourteen other states, including Michigan, allow both parolees and probationers to vote.[23] According to one knowledgeable source, felon disenfranchisement laws do not generally apply to those convicted of misdemeanors,[24] though a report by his institution does mention one state (Mississippi) where someone was disenfranchised for life for a misdemeanor conviction . But that was overturned in a court ruling.[25] Pennsylvania, at least, does allow those incarcerated for misdemeanors to vote.[26] Apparently New York[27] and Iowa[28] do as well. However, Michigan does not allow those incarcerated for misdemeanor convictions to vote. I do not have information on that for other states, nor have i found figures for other states on other forms of “confinement” such as tethers and work release.

            Fourteen other states go to the other extreme, placing voting restrictions on those who have completed their sentences.[29] The type, duration, and permanence of those restrictions vary widely. Most of the processes for getting such restrictions lifted “are so cumbersome that few ex-offenders are able to take advantage of them.”[30] Even where they do, evidence indicates racial discrimination in that process in at least one state.[31]

            Historical evidence clearly shows that limiting the right to vote of those deemed Black was a major reason, if not the driving force, for passing felony disenfranchisement laws. Those states with the highest proportion of Black prison inmates were typically the states that passed such laws.[32] Disenfranchising those considered Black was known to have been explicitly stated in at least three states: Alabama, Mississippi,[33] and New York.[34]

            But this is not mere history; it carries over to the present, in which 1.4 million men considered Black, according to one recent estimate, are disenfranchised – seven times the national average.[35] In an even more recent estimate, a total of two million people – men and women – deemed Black are disenfranchised as of 2004 due to felony convictions.[36] In six states that deny ex-felons the right to vote, one of every four men deemed Black are permanently disenfranchised.[37] “No other democratic country in the world denies as many people – in absolute or proportional terms – the right to vote because of felony convictions.”[38]

            This has numerous consequences, not least of which are skewed election results at all levels. For instance, if just those ex-felons who had fully completed their sentences had been allowed to vote in Florida in the 2000 Presidential election, it is clear that Al Gore would have won that election.[39]

            Another consequence may be the unnecessary failure to reintegrate some ex-prisoners back into society. Voting is one important means of including people in a democratic society, and is often considered the touchstone of citizenship. Its symbolic value, to those who participate, can be important. Conversely, and perversely, it can be just as important, if not more so, to those who are excluded.[40] Note that roughly 1,000 or slightly fewer state and federal prisoners are released back to Kent County in a given year,[41] while an estimated 22,000 people are released from the Kent County Jail – the great majority of them directly into the community – yearly.[42]

            Worldwide, no democracy is so restrictive of voting rights for those convicted of crimes as is the USA. Many nations permit prisoners to vote. South Africa, for instance, joined that list in 1999. Various measures are taken, such as deputizing volunteers to act as poll clerks and to return ballots in Canada, to make this work effectively while maintaining security.[43] Of 51 other countries surveyed recently, 21 have no restrictions on inmate voting, another 12 have selective restrictions (usually based on length of sentence, type of crime, or type of election), and 13 more ban voting by inmates but do not extend that ban to those released. Only five have any post-release restrictions, and none of those approach the extent to which such restrictions are imposed in the USA.[44]

            The international treaty that most specifically deals with voting rights for those convicted of crimes, whether or not imprisoned (as well as institutionalized disabled persons), states that allowing voting and other civil and political rights “not only guards against the erosion of institutional conditions which threaten society as a whole, but also provides a meaningful tool for rehabilitation and preparation for future contributions as members of free society”[45]

Discussion

            There are some unfair aspects to limiting the vote as we in the USA do. For one thing, those convicted of crimes but not sentenced to a term of imprisonment generally retain their right to vote. That is the case in Michigan. There are some exceptions, particularly for probationers, in some states. This ties in with the fact that both minorities and poor people are more likely to be sentenced to incarceration than are those who are considered White and/or who are financially well off.

            For another thing, even for those sentenced and incarcerated, voting rights often have a lot to do with timing, especially with misdemeanors. One who serves a sentence in between elections does not miss the opportunity to vote, whereas one whose sentence happens to coincide with one or more elections does miss that opportunity. Thus the “punishment” is, to a degree, totally arbitrary. Such punishment is counterproductive – to have a chance of being effective at all, punishment must clearly correlate with the act or acts being punished.

            Denial of citizenship rights to those convicted and imprisoned for crimes reinforces the exclusion of some from the mainstream of society. Those not excluded tend to feel freer to ignore or abuse those who are excluded. Those who feel excluded have little incentive to abide by the norms of those doing or allowing the exclusion. If you have no possible influence upon making the laws, then why should you obey them?

            This common sense idea is reflected in a 2002 decision of the Canadian Supreme Court, which, in upholding the right of all prisoners to vote, noted: “…denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values. The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. To deny citizens the right to vote is to lose an important means of teaching them democratic values and social responsibility….”[46]

            The first Black Supreme Court Justice, Thurgood Marshall, made a similar point regarding those who had fully served their sentences, “…the denial of a right to vote to such persons is hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.”[47]

            Those who retain basic citizenship rights, including the right to vote, may have a stake in society at least to that extent. Voting is a form of participation in society, reinforcing bonds with others in the society. Teaching about and reinforcing those citizenship rights is a positive response to negative acts, just like working to rebuild broken relationships is a positive act. Such approaches have far better potential for habilitation than purely punitive approaches.[48]

            In one study, voting was compared with criminal activity. There was a strong correlation, but other factors accounted for at least most of that correlation. However, the study suggested a possible positive relationship; that is, that voting may have some effect in reducing crime.[49]

            Voting also provides an outlet for frustrations and concerns. Generally in our society, it is considered an acceptable, even highly appropriate, outlet. Considering that those incarcerated are particularly likely to have unresolved frustrations and concerns, providing an acceptable outlet for them may be even more important than for the rest of us.

With rights come responsibilities. Some say, in fact, that it is the duty of every citizen to vote. Thus teaching about voting provides an excellent opportunity to teach about responsibility – exactly the sort of teaching that may be appropriate and beneficial for many who have been convicted of crimes.

            Nationwide over 630,000 state and federal prisoners are released back into society each year.[50] There may be around 10 million or more people released back into society from jail yearly.[51] The stake they feel they have in society when they are released can not only affect their chances of making it, but can affect everyone’s safety. Those who feel they have little or nothing to lose will always present a danger to others.

            Felons and ex-felons, probably because they are overrepresented by racial minorities and those who are poor, tend to lean Democratic. This fact can be used to deny them the right to vote, as Republicans can claim (certainly with some justification) that Democrats may want to include such potential voters for partisan purposes. But this argument obscures the basic issue – that a democracy must be inclusive to even be a democracy. By that logic, economically well-off White men – who tend to lean Republican – could also be excluded from voting, as could any number of groups who lean one way or another in their voting.

            Felons retain some other citizenship rights, including the right of access to the court system, the right to petition public officials, and the right to be treated with at least a minimum of human dignity. Denying voting rights, in that context, is somewhat arbitrary.

            In addition, there are few among us who have not committed crimes, even if that is only not making a full stop at a stop sign or some similar technical or very minor violation of law. Regardless of the severity of the crime, some of us are caught, some not. Some of those are prosecuted, some not. Some of those face tougher charges than others. Some of those are convicted, some not. Some of those are sentenced to incarceration, some not. Some of those are sentenced to longer terms than others. At every stage of this process, those deemed Black tend to be treated worse than those deemed White. This greatly adds to the arbitrary and unfair nature of restricting the right to vote based on incarceration.

            The fact that different states have very different criteria that apply to federal elections also violates the sense of fairness we should expect in an electoral system.

            The purpose of incarceration has never been to deny or restrict citizenship rights. There have generally been two related purposes for incarceration: to protect society by removing those who pose a danger, and to deter crime by punishing those who commit crimes.

            If the purpose is to deter election fraud, restrictions on voting might be appropriate. In that case the punishment would at least correlate to the crime. Missouri, for instance, permanently disenfranchises people convicted of election fraud, whether the conviction is for a felony or a misdemeanor.[52] But voting fraud has often not even been a consideration, as the USA Supreme Court has noted.[53]

            One related point: The US Census Bureau, for population purposes, counts inmates as living at the place where they are held, rather than where they came from before they were incarcerated. This impacts funding, with the result that more funds go to rural areas that are predominantly considered White than to the inner city areas considered largely Black or Hispanic where the inmates typically come from. This is essentially a modern variation of the “three-fifths rule” which provided the antebellum South with greater voting power due to its population of slaves considered Black, even while denying those slaves any citizenship rights. Thus rural areas considered predominantly White areas get significantly more government funding at the expense of inner city, predominantly minority (especially “Black”) areas. And the mostly minority inmates, like in the South during times of slavery, have absolutely no say in this.[54]

Recommendations

            Consider full accessibility and use of mail-in ballots for those in jail who are eligible to vote. Also proxy voting, which may be authorized by fax. Note that judge’s orders are presently accepted at the jail by fax.

            Have a voting station, and/or deputize one or more employees, at the jail. This would allow those recently arrived, who otherwise would not have time, to vote.

            A strong educational effort in jails, prisons, and poor and/or minority area is called for. The State has done a little of this, but it and some local jurisdictions need to put much more effort into assuring that those who have been imprisoned, and those who are presently in jail, know their voting rights.

            All considered, it makes sense to extend the right to vote to all prisoners, as a number of other countries and two states do. But, given that public opinion presently runs against this, such a possible reform should be a subject for further discussion at this time.

            However, those who are trusted enough to be unescorted in the community at least part of the time, whether under work release, house arrest, or any similar program, should be allowed to vote right away. A legal ruling could accomplish this, or perhaps even an administrative ruling. It makes no sense to exclude people from such a basic (and unthreatening) function as voting who at the same time we are trying to reintegrate back into society’s mainstream.

            Following that, we should mount a campaign to allow those sentenced to jail for misdemeanors to vote. Some further research would be helpful in this effort, to give a better idea of which states allow this and which do not, and their reasons.

            We should emphasize the responsibility to vote, perhaps as much as we emphasize the right to vote. This can be an important, appropriate, and safe way to help those coming out of prison or jail better understand that with rights come with responsibilities.

            More broadly, we must reach across all sectors to build a coalition that will deal decisively with the more serious flaws and inequities in our voting system. For voting to be meaningful for anyone, it must have credibility as an effective means of peaceful change. That credibility has long been in doubt, and recently has been seriously eroded even further.

            This means assuring that everyone has reasonable opportunity to vote, that all votes will be accurately counted, that information on all choices will be readily available, and that no undue influence or manipulation will be tolerated. Voting cannot be an effective tool to help ex-prisoners reintegrate into society, or to accomplish anything else, if it lacks that basic integrity.

            Thus registration should be allowed in person, by mail, by fax, and electronically at any time, including in person at the polls on election day[55]. All voters should have the option of mailing in, faxing, or delivering their ballots before the voting period ends. Absentee ballots should be allowed for any reason; this will give another option to those who are aware that they might be incarcerated on an election day. As soon as electronic voting can be guaranteed secure, that should be allowed too. Partisan influence on the election process must be curbed. Campaign finance and media access must become more equitable. And more recent concerns, including the integrity of electronic voting, as well as assurance of a verifiable paper trail, while being addressed in Michigan, must be addressed everywhere. We should plug into existing efforts to address these and related concerns, and start our own efforts where necessary.

NOTES

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