By Jon Sherman and Ben Carter | October 18, 2021
The national conversation over voting rights and voter suppression bills has largely focused on partisan debates in states that are likely to prove decisive in future presidential elections, including Georgia and Florida. But one state not on the national radar — Kentucky — is ground zero for a crucial fight over the future of our democracy: whether and how people with felony convictions who complete their sentences should regain their right to vote.
The disenfranchisement of Americans with a criminal record is a national crisis. While most states deny people with felony convictions their right to vote during at least some portion of their sentences, Kentucky is particularly severe because it permanently disenfranchises many Kentuckians unless the governor restores their voting rights. The state’s League of Women Voters chapter estimates that as many as 200,000 Kentuckians cannot vote because of a felony conviction in their past, more than 127,000 of whom have completed their full sentences.
State laws like Kentucky’s that disenfranchise people with felony convictions originate in racist, Jim Crow practices, and the over-policing of communities of color means that today Black Americans are disenfranchised at a rate four times higher than other racial communities combined. Kentucky’s Democratic governor, Andrew Beshear, issued an executive order soon after taking office in December 2019 that automatically restored the voting rights of an estimated 140,000 individuals convicted of Kentucky felonies who have finished their full sentences. But, even though the state’s law has metastasized to disenfranchise hundreds of thousands of Kentuckians of all races, including a disproportionate number of Black Kentuckians, the governor expressly and broadly excluded people convicted of federal offenses, felonies in other states, and certain Kentucky offenses.
Restoring voting rights for the formerly incarcerated has actually garnered support from both major political parties. Last year, the Governor of Iowa Kim Reynolds, a Republican, restored voting rights for all state residents who have a felony conviction with far narrower exclusions than Gov. Beshear’s order.
To end the shameful state of affairs in Kentucky, we are leading a lawsuit that seeks to end arbitrary restoration and ensure many Kentuckians will regain their voting rights once they have served their sentences. The case contends that giving the governor unlimited discretion to grant or deny a person’s application to vote again is unconstitutionally arbitrary. The federal trial court previously dismissed the case, saying that Gov. Beshear’s executive order rendered the restoration scheme no longer arbitrary, even though the voting rights of more than 100,000 Kentuckians—including our three clients — are still subject to the governor’s whims. This week, the U.S. Court of Appeals for the 6th Circuit agreed with us that the case was not over and sent it back to district court.
For the Kentuckians Gov. Beshear has left behind, their only chance of regaining their right to vote is to apply for a permission slip from the governor, because Kentucky is one of the very few states that still requires people to petition the governor or a state body to secure the restoration of their voting rights. These Kentuckians have served their time and worked hard to achieve rehabilitation, but they are still excluded from participating in our democracy unless they receive the governor’s personal approval to vote once more.
Having done the easy thing — automatically restoring the voting rights of people convicted of only select Kentucky crimes — Gov. Beshear apparently regards the issue as over. It is not, and real people are seeing their fundamental rights denied as a result of his and the legislature’s failure to restore their freedom to vote by neutral laws, rather than a single official’s decree.
Gov. Beshear believes he has the sole prerogative to grant or deny petitions from individuals seeking to have their rights restored, like a king. But the power of clemency exists to shield against unjust or erroneous convictions, not to perpetuate mass disenfranchisement, and Kentuckians know this system is unjust and unacceptable. Polling shows broad, bipartisan support for restoring voting rights for Kentuckians who have completed their sentences.
Gov. Beshear should expand his executive order to immediately restore all Kentuckians once they have completed their sentences. This would bring Kentucky’s voter restoration practices in line with the overwhelming majority of the nation’s states. Then, legislators should place a constitutional amendment on the ballot so that Kentuckians have the chance to remove future governors from the process altogether by adopting restoration upon sentence completion.
While lawmakers in other states work to make voting more difficult or more convenient, Kentucky’s governor continues to cling to disenfranchisement practices born out of our racist past and made worse by our racist present. It is well past time for Gov. Beshear to order a fair and nonarbitrary restoration process for all Kentuckians who have completed their sentences.
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Jon Sherman is Litigation Director and Senior Counsel at Fair Elections Center. Ben Carter is Senior Litigation and Advocacy Counsel at the Kentucky Equal Justice Center.
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