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A Tribute to Our Conscience: The Case for Universal Voting Rights (Op-Ed)

This blog post is now published (12/10/2020) by The Progressive. The published version includes a post-election reflection. View the article here!


It was from a cell in Sing Sing that I watched the home-going service of Congressman John Lewis at Ebenezer Baptist Church in Atlanta. It did something to me. Despite the distance, the love and respect for him was so palpable that I could feel their warmth and the unity of purpose being expressed on his behalf. I could not help but feel the unmistakable call to action, the call to vote, as well as my own reinvigorated desire to be enfranchised, being made at a time when voting could not be more important. What could be a more fitting tribute to a man who nearly lost his life protesting for the right of Black people to vote than exercising that very right, especially when the loudest voice from the world's most powerful office shouts for us to be silent?


Congressman John Lewis with his mugshot photos. Photo: Getty Images

Unfortunately, as an incarcerated person, I am acutely aware of my own marginalized status. It occurs to me that even as the civil rights icon is being honored, I represent a segment of the population that is actively being denied the right to exercise the franchise. I think about the more than 6 million people who continue to be disenfranchised, including the formerly incarcerated, and how that has limited their ability to shape their lived reality, to challenge how the State functions in relation to their existence. My emotional reaction aside, I also recognize that the disenfranchisement of incarcerated people represents a broader initiative to undermine the will of the Black electorate as a whole, long before the pandemic president took office.


Conscious of this continuous effort, it has been interesting to note the fervor with which reasonable people oppose Trump's baseless and self-serving attempts to suppress votes. The president presents an easy target drawing our ire, a convenient symbol of disenfranchisement easily refuted, at least rhetorically. Claiming there was cheating in 2016 simply because he lost the popular vote by millions strikes us as pathetic, a sentiment compounded by the delusion of having had a larger inaugural audience than Obama. In awe, we observe his calls for an official investigation to provide some substance to his claims and register exasperation when even his own administration could not discern any such malady. The nonsense continues and now it is absentee ballots that present the obvious common sense possibility of widespread cheating.


Not surprisingly, his "common sense" articulation also becomes unreasonable under close scrutiny. In the last 20 years, the Heritage Foundation, which maintains a database on voter fraud, has found a total of 1,200 cases out of 250 million ballots cast. Absentee ballot fraud accounted for only 204 of these cases. According to the New York Times, out of 100 million vote-by-mail ballots cast since the year 2000 there were only 12 cases of fraud. But why should this matter? Why consider evidence or even the lack of evidence? Just look, they found ballots with his name on them in a wastebasket. As shiny an object as Trump presents though, we should not allow ourselves to become distracted. Never mind the foolish and flawed rationalizations of a clearly insecure individual, or that some of us think that a wastebasket is where ballots with his name on them actually belong. The more important and enduring concern is the history of disenfranchisement where any restriction on voting disproportionately affects Black voters. The reality is that long before even Trump's grandparents came to these shores, suppressing the voting rights of minoritized groups has been par for the course.


Photo: Chuck Burton/Associated Press

At the founding of this country, voting was largely the province of wealthy white landowners. Massachusetts alone allowed universal male suffrage but aside from that nowhere in the original colonies were Black people allowed to vote. It would not be until 1870, when the 15th amendment to the Constitution was ratified, that restrictions to voting on the basis of "race, color, or previous condition of servitude" would be prohibited. Marking a substantial advancement of civil rights, it was quickly followed by backlash — part of the pattern of advancement and retrenchment that continues to characterize the political and social landscape of America. For example, immediately after the prohibitions outlined by the 15th amendment became the law of the land, the Black electorate was confronted with poll taxes, absurd literacy tests and outright domestic terrorism; all nefarious tactics elicited to suppress their right to vote. According to Andrea Flynn et al, by 1911 the vast majority of federal electoral regulatory codes protecting voting rights were repealed and voter registration and "all black political and public participation dropped precipitously."


By 1965, the Voting Rights Act (with the support of men like John Lewis), was enacted to contend with this precipitous drop. An important advancement, the VRA was eventually weakened by retrenchment efforts culminating in the 2013 Shelby County vs. Holder decision which curtailed VRA mandated oversight of states known to actively produce roadblocks to voting. Today, these States are implementing new restrictions to voting through, among other tactics, strict voter ID laws and the strategic placement of voting locations. In addition, these states have long erected herculean hurdles for incarcerated and formerly incarcerated people, who are disproportionately Black. These hurdles can only be seen as mere extensions of an enduring strategy to weaken the Black electorate. Democracy in all its glory.


Sadly, only the states of Maine and Vermont currently permit incarcerated people to vote. The remaining states prohibit voting under varying criteria ranging from an absolute ban for life to bans only while incarcerated. Between these two extremes, voting rights can be arbitrarily curtailed for those on probation or parole or some other strangely construed combination. Because of the hyperincarceration, or mass incarceration if you prefer, targeting Black bodies since the end of chattel slavery and exploding voraciously during the 1980s, these state laws unduly undermine the Black electorate. According to the Sentencing Project, 1 in 13 Black adults cannot vote due to a felony conviction, and although representing only 14 percent of the population, Black people represent 1/3 of all disenfranchised persons. Even some 746,000 people in jails across the country who have not been convicted have been improperly excluded from voting due to logistical issues according to the October 2nd Prison Policy Initiative report "Eligible but Excluded."

Considering presidential elections alone, the results of such widespread suppression cannot be overstated. From the beginning of this millennia alone, we can recount several important examples. Bush versus Gore still elicits sore memories. In that case, tens of thousands of Black voters were purged from the voter rolls under the false pretext of having felony convictions. Under these repressive circumstances, Bush narrowly won Florida and the presidency by only 537 votes. If formerly incarcerated people were allowed to vote the pretext for purging goes away and as Danielle Sered, author of "Until We Reckon," points out the "election would have ended in a different result."


Gore v. Bush. Photo: Bill Greenblatt | Hulton Archive | Getty Images

As Ibram X. Kendi recounts in "How to Be An Antiracist," in 2004, Bush again benefited from the repression of the Black electorate. In the crucial state of Ohio, county board officials "were falsely telling former prisoners they could not vote." Along with this misdeed, various tactics (such as providing fewer voting machines in Democratic cities resulting in substantially longer wait times for Black voters) led to the potential loss of over 174,000 votes, well above Bush's 118,000 margin of victory.


Kendi continues by outlining the suppression that occurred in 2016. In the state of Wisconsin, some 200,000 largely Black votes were repressed through strict voter ID laws targeting Black Americans. Trump went on to win the State by 22,748 votes. In the same year, a similar attempt in North Carolina was struck down by the 4th Circuit Court of Appeals, but many other states were able to escape censure. In any case, NC is still finding ways to check the Black electorate in its state. During this election, CNN reported that Black voters in NC, although 16 percent of the electorate, represented 40 percent of the absentee ballots under review. In Florida, formerly incarcerated people cannot even register to vote until they have paid all outstanding fines and fees.


These unsavory tactics proferred by the GOP, especially in support of someone like Trump at the top of their ticket, should give rise to a deep and lingering shame. Beyond the short term gains realized by allowing themselves to be led by a populist conspiracy theorist, not only do they betray their own principles and undermine any attempt at broadening their base but they also betray the unfulfilled ideals of the democracy that they claim to cherish. Of what value is a democracy that actively seeks to silence the voices of its most vulnerable citizens? To that end, consider the supreme paradox of an administration claiming to have solved "criminal justice" reform issues while simultaneously silencing the base of support for those activists and reformers most intimately familiar with the institutions at the heart of the criminalizing apparatus. Even given the bipartisan clamor for change, the minimization of incarcerated voices only serves to preserve the most egregious inequities of the legal system and renders reform efforts largely inconsequential.

As an incarcerated person, I continue to have an uncomfortable front row seat to the macabre and grotesque picture that is our criminal legal system. The arbitrary use of power rooted in division and producing disparities in arrest rates, convictions and sentencing is ever present. The reduction of human beings to state-issued uniforms, identification numbers or cell locations is normal operating procedure. Together these dehumanizing constants pave the way for the extremes of solitary confinement and violence at the hands of those charged with the "care, custody and control" of incarcerated people. Premised upon the belief that incarcerated people are monsters, they preclude the greater implementation of restorative justice models. Why include these dangerous elements into the discourse of healing? Monsters don't change or say sorry. They don't reconciliate or make amends. Monsters only feed on the grief, regret and anger of the people they have traumatized.


Those who are closest to the problem are closest to the solution.

In New York, it is only with decades of organizing by incarcerated and formerly incarcerated people that challenges to the prison as an institution have influenced change. Greater programming opportunities, including higher education or Department of Labor certifications; Family Reunion Programs helping to keep families together; mechanisms for challenging psychological, physical and sexual abuse at the hands of staff; limited use of Special Housing Units, among other gradual improvements, are examples of stakeholder-driven change. To be sure, more needs to be done but there is little incentive for elected policymakers to respond to those most affected, the men and women who by State law are largely disenfranchised due to their incarceration. But those who are closest to the problem are closest to the solution and excluding those incarcerated voices slows the pace at which even basic reforms take place.


Long before my own incarceration, parole decisions improperly serving as sentencing courts and the absence of Merit Time for violent felony offenders have been important issues for the incarcerated in New York State. Part of a regime of control, retribution and punishment, they were never intended to bring healing to harmed parties or accountability for those who inflicted that harm. With respect to the parole board, it has only been in recent years that the replacement of former Governor George Pataki appointees with more liberal-minded appointees by Governor Andrew Cuomo and the near filling of the 19 parole commissioner positions has improved release rates without compromising public safety. With respect to Merit Time, despite a democratic senate and assembly, there is still no political will to see it through.


In an attempt to provide that political will, incarcerated people conferred with one another and their families about the pros and cons of the bill sponsored tirelessly by Senator Velmanette Montgomery. They considered whether allowing violent offenders the opportunity to earn time off of their sentences would be an effective enough remedy for politically-based, that is racially-based, sentencing that treated every defendant as part of some black criminal monolith. They attempted to form a voting monolith of their own through their families to pressure their elected representatives into supporting the bill until it became law. But despite the merits of this organizing effort there is no substitution for having your own voice heard through the franchise.


Indeed, the silencing of incarcerated voices by suspending their voting rights reflects the deeper dysfunction of exclusionary politics. It suggests that some people are not qualified to speak to their own issues, to point out inequity and how it affects them, or even to provide solutions that serve not just themselves but the entire society. It is emblematic of the divide largely along racial lines between who is properly designated a citizen and who is not. It is under this pervasive divide that citizenship and its attendant rights can be selectively subverted by the worst mistakes people have made. And yet no one would suggest revoking citizenship on the basis of a felony conviction as a matter of course. Under what constitutionally ambiguous rationale then do states restrict the voting rights of incarcerated and formerly incarcerated people?


Patrick and the BPI Debate Union vs. Morehouse Photo: BPI

When I debated for BPI's (Bard Prison Initiative) debate team, I posed this very question to our coach and even Bard's vice president who came to visit the team in advance of our upcoming debate with students from Brown University. It was the fall of 2016, months before the election and we had to argue affirmatively that the President of the United States should be elected by the Electoral College. Mired in the Constitution, constitutional law analysis, the Federalist papers, and books by scholars from across the political spectrum in preparation for the debate our team realized a terrible truth — there is no positively articulated constitutional right to vote.


Accordingly, the authority of states presides that they do not deny or abridge the right to vote "on account of race, color, or previous condition of servitude" or "on account of sex" or "by reason of failure to pay any poll tax or other tax" or "on account of age," as long as the person is eighteen years old. But the question of when states may restrict voting rights gets complicated when measured against the 14th Amendment which prevents states from denying "any person within its jurisdiction the equal protection of the laws." Without the right to vote, how can any person articulate that they are not being equally protected? And to what extent do elected officials bring the grievances of the voiceless to whom they owe nothing? The question of when states may restrict voting rights becomes ridiculous considering the rights granted to corporations who through their dollars speak louder than the citizen who is disenfranchised.


At the home-going service of John Lewis, former President Barack Obama suggested in his address that in the face of recent retrenchment efforts, more needs to be done:


"You want to honor John? Let's honor him by revitalizing the law that he was willing to die for. And by the way, naming it the John Lewis Voting Rights Act, that is a fine tribute. But John wouldn't want us to stop there, trying to get back to where we already were. Once we pass the John Lewis Voting Rights Act, we should keep marching to make it even better. By making sure every American is automatically registered to vote, including [formerly incarcerated people] who have earned their second chance."

Congressman John Lewis. Photo: nymag.com

I would suggest that honoring John Lewis and everyone else who has fought, and continues to fight, to preserve our voting rights means eliminating the constitutional loopholes forming the basis upon which states abridge the franchise. What is needed, once and for all, is a constitutional amendment positively asserting without exception the right of all citizens to vote. Such an amendment would not only give the federal government the authority to intervene in unscrupulous disenfranchisement schemes, but also signal to those of us who have felt excluded long before our convictions that our voices matter. The extent to which our rights are preserved speaks loudly the extent to which we are valued as citizens. It speaks to a politics of inclusion rather than the exclusion that motivates the ugly underbelly of the world's oldest democracy. Moreover, such an amendment lays the legal and moral groundwork for challenging gerrymandering and replacing winner-take-all electoral vote counting with proportional vote counting in each state. Designed to concentrate power by leveraging the votes of some voters relative to others; these tactics have no place in a democracy of the people.


Undoubtedly, voting is important, but this November it will be terribly important and it seems that with over 55 million votes cast with 9 days to November 3rd, America agrees. To my thinking, voting is important not simply because the 45th President of the United States is a walking contradiction, except when touting his own genius. Nor is it because he thinks the faithful disbelief reflected by kneeling during the National anthem, or protest in general, is un-American. It even goes beyond his general incompetence in the face of COVID-19 or his casual floating of the idea of using sunlight, disinfectants or bleach to treat the virus by injecting them inside of the body. Never mind that he thinks systemic racism doesn't exist in America while showing reluctance to condemn white supremacy. Although these are all good reasons, what should really motivate us to vote is his brilliance at dividing, his talent for obfuscation, his creating an environment where truth is lost in the rhetorical presumptions of white privilege and social Darwinism.


Beyond this, voting is necessary if this country is going to make a statement about what it wants to become, to redeem the soul of this nation in the words of John Lewis. In this climate of social awakening, culminating in few plans to undo the harms of a racist system, restoring voting rights to all citizens regardless of their incarceration or previous incarceration represents one opportunity for substantial change. The legal and moral rationalizations for depriving citizens of their inalienable rights are suspect, to put it mildly, and serve the more enduring privilege of whiteness that is harmful far beyond the white supremacy that the Trumps of the world represent. It is only in this democracy where the franchise is universally and unequivocally available to every citizen that social justice can begin to become a reality. It is the type of democracy that even the least of us can embrace.


“Get in good trouble, necessary trouble, and help redeem the soul of America.” - Congressman John Lewis


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