Kentucky’s Felons May Enter into the Pool of Eligible Voters in 2014

Michael Hill

In the 2012 presidential election, only 57.5% of eligible voters in the United States cast a ballot. In the Kentucky General Election the same year, 59.7% of eligible Kentucky voters went to the polls. That’s slightly better than the national presidential voter turnout, but nevertheless about 4 out of every 10 Kentuckians decided they would rather stay home than exercise one of their fundamental civil rights. Perhaps many take the right to vote for granted. Maybe it’s one of those “you don’t know what you’ve got until it’s gone” type of things. That could be especially true for felons in Kentucky.

Kentucky currently imposes a lifetime voting ban on convicted felons. It is part of a distinct minority of only two states in the entire country that bar all felons from voting, regardless of the type of crime, even after the completion of their sentence. Put simply, if you commit a felony in the Bluegrass State, you are automatically stripped of your right to vote, for life.

This policy, known as felony disenfranchisement, has an enormous impact on the pool of eligible voters in Kentucky. More than 180,000 Kentucky residents are currently barred from voting due to felony convictions. Approximately 69% of those disenfranchised have fully completed their sentences, meaning that in all other states but one, those citizens would have already had their right to vote restored. The impact is acute, but also disparate. Kentucky has the second highest rate of African-American disenfranchisement in the nation: almost one in four African-Americans in Kentucky are ineligible to vote due to this policy.

The only way a person convicted of a felony may regain the right to vote in Kentucky is by petitioning for an executive pardon from the Governor. This requires the submission of a rather ominous sounding “Application for Restoration of Civil Rights,” which the Governor must approve. As the application itself notes, a felon who registers to vote prior to receiving an official restoration of their civil rights faces up to five years in prison.

A felony conviction is certainly not something to be taken lightly. But neither is a lifelong punishment. Comparatively, Kentucky’s current policy treats felons far more harshly than nearly every other state in the union. Kentucky is one of 48 states that do not allow incarcerated individuals to vote. However, Kentucky and Virginia are the only states that continue the voting ban beyond the end of a felon’s sentence.

The policy has been quite firmly entrenched in Kentucky. §145 of the Kentucky Constitution expressly prohibits any person convicted of a felony from voting. Thus, a change in the Kentucky rule on felony disenfranchisement would require a constitutional amendment. The process to amend the Kentucky constitution begins with a legislative proposal. If a three-fifths majority of each House approves the proposal, it is placed on the ballot in the next general election during which members of the state legislature are up for election. If the proposed amendment is approved by a simple majority of voters, the amendment takes effect.

Representative Jesse Crenshaw (D-Lexington) often begins the process by annually submitting a proposed constitutional amendment that would restore the voting rights of certain felons convicted of nonviolent and nonsexual crimes. Crenshaw’s proposed amendment would not restore voting rights for felons convicted of intentional murder, rape, sodomy or sex offenses with a minor. Such felons would still have to petition the Governor. Each session the proposal fails to get the required three-fifths approval of the state Senate.

However, 2014 could be a different story, as the proposal now has a new supporter- Senator Rand Paul. This year’s version of Representative Crenshaw’s proposal passed the state House on January 16th with an 82-12 margin. Backed by Paul, the proposal is showing signs of life in the Senate. “The right to vote is a sacred one in our country and it is the very foundation of our republic,” said Paul. “I urge the Kentucky Senate to act on this very important issue.”

Rather interestingly, a 2002 study estimated that Senator Paul’s counterpart, Mitch McConnell, might not have been elected to the United States Senate if Kentucky automatically reinstated voting rights for felons upon completion of their sentences. In their article in the American Sociological Review, Uggen and Manza pointed out that ex-felons are far more likely to vote for a Democratic candidate and therefore argued that McConnell may have lost the close 1984 election if ex-felons were permitted to vote. Uggen and Manza point out that McConnell won in 1984 by only 5,269 votes, which is less than one half the number of Democratic votes the authors estimate were lost in Kentucky to disenfranchisement that year.

On the other hand, another more recent study suggests the effect would not have been as dramatic in other elections. A 2009 study clearly demonstrated that full participation by felon disenfranchisees would not have altered the outcome of the 2008 senatorial election in Kentucky. This study concluded, “Political concerns about disenfranchisees having significant, sizable effects on election outcomes are unfounded. While very close elections could be swayed by the votes of currently disenfranchised persons, this is likely to occur in only very rare instances.”

Perhaps one of those “rare instances” is on the horizon, as McConnell prepares to defend his seat against Democratic challenger Allison Lundergan Grimes. While a change in the law would not affect this election cycle, the tightness of the race could remind Republican lawmakers that a change in Kentucky’s felony disenfranchisement policy would not benefit their party on Election Day.

Regardless of the election consequences, the Kentucky Senate appears more open to the proposed amendment this year. Senate Majority Leader Damon Thayer floated the idea of possible success, stating, “This may just be an issue whose time has come, with a few minor changes, if people are willing to compromise.” Thayer elaborated that he doesn’t support the proposal in its current form, but raised the possibility of changing the proposal to include a waiting period between the end of a felon’s sentence and the restoration of voting rights. Thayer also revealed that the Senate might hold a hearing on the Bill.

A Senate hearing would likely feature vigorous arguments from critics of Kentucky’s harsh brand of felony disenfranchisement. The ACLU of Kentucky, The League of Women Voters of Kentucky and other groups point out that permanent felony disenfranchisement hinders rehabilitation. As felons attempt to rejoin society, the lifelong voting restriction lingers on as an “invisible punishment.” Furthermore, research indicates that felons who have their voting rights restored have lower recidivism rates. Perhaps by denying voting rights permanently, the State perpetuates a feeling among felons that they are unwelcome as they attempt to reform. Arguably, reinstating the right to vote would encourage at least some ex-felons to refrain from re-offending.

Critics of Kentucky’s current policy are quick to point out that the vast majority of states have adopted a different stance on this issue. While that should be taken into account, it does not necessarily mean that Kentucky must follow suit. There is no need for change simply because Kentucky is part of a minority. But the trend is undeniable. While felony disenfranchisement has its roots in ancient Greece and Rome, was carried from Great Britain to the Colonies and expanded following the Civil War, over the last decade almost every state has abandoned disenfranchisement following the completion of a felony sentence. The fact that so many other states have opted to scale back their felony disenfranchisement policies should spur Kentucky to seriously assess this issue, no matter the outcome. Do those who commit felonies forfeit the right to vote, period? Have they given up that right because of their actions? Or, should some felons’ voting rights be restored after they have paid their debt to society? Is there a better alternative that isn’t currently on the table? Is a post-sentence waiting period a valid compromise?

This is not a debate centered on job reports, the GDP, healthcare or other topics clouded by easily manipulated statistics. Paul has admirably crossed party lines to support a proposal that typically fails in the Republican controlled state Senate, demonstrating that this issue need not be decided along partisan lines. This is a question about fundamental civil rights. It is a relatively straightforward issue on which nearly every person in the Commonwealth is able to form his or her own opinion. I simply urge Kentuckians to evaluate their own feelings on the matter, one way or another, as they may be called upon to weigh in sooner rather than later.