By Cecilia Aguilera, Jon Sherman and Ben Carter | November 21, 2019
On Nov. 5, the nation focused its attention on Kentucky’s gubernatorial election. Although pundits seemed primarily interested in speculating on what Matt Bevin’s defeat might mean for the 2020 federal elections, the race also garnered attention because the voting rights of hundreds of thousands of Kentuckians with felony convictions hung in the balance.
With the election of Andy Beshear, who pledged to restore the rights of 140,000 nonviolent offenders using the governor’s clemency power, now is the time to make much-needed reforms to Kentucky’s rights restoration process.
Kentucky is one of just a few states that force people with felony convictions to beg state officials to restore their voting rights. Adopted in 1891, Kentucky’s ban is a vestige of a shameful period when several state legislatures implemented felon disenfranchisement laws to circumvent the 15th Amendment’s ban on racially motivated vote denial.
Today, some 312,000 Kentuckians are denied the right to vote due to felony convictions, and over a quarter of African American adults in the commonwealth remain disenfranchised.
Kentuckians with felony records can regain their right to vote through clemency, but the governor has sole discretion to grant or deny these applications unconstrained by any rules or criteria. As a result, the governor can provide a neutral public reason for denying clemency, while actually basing his or her decision on an impermissible reason like the applicant’s race, religion or political beliefs.
The U.S. Supreme Court has held that giving officials carte blanche to grant or deny permission to engage in protected speech or expression, which includes voting, violates the First Amendment.
That is why Fair Elections Center and Kentucky Equal Justice Center have filed a First Amendment suit in federal court, and the parties will soon complete briefing. The plaintiffs, one of whom has not committed a crime in 40 years, only ask that their clemency applications be processed under objective rules and criteria, independent of the governor’s whims. The overwhelming majority of states, including Texas and Georgia, already restore voting rights using this kind of fair, transparent system.
Nothing about this policy is controversial. According to a statewide poll, two-thirds of Kentuckians support restoring voting rights by law, not by a politician’s grace. Sen. Rand Paul introduced a bipartisan bill in 2015 that would have restored the vote to nonviolent offenders upon the end of incarceration or probation. Rights restoration also enjoys backing from faith leaders. According to the National Association of Evangelicals (NAE), 93% of evangelical leaders support restoring voting rights to returning citizens. NAE’s president, Leith Anderson, explained: “Evangelicals believe in second chances. ... Voting is an important piece of restoring ex-offenders so they may become productive members of our society.”
The commonwealth need not wait on the courts, though. Each year, Kentucky legislators have introduced a proposal that would give voters a chance to approve a constitutional amendment restoring voting rights upon the completion of probation or parole. It would exclude individuals convicted of murder, sex offenses or bribery in an election. Lawmakers should give voters the opportunity to amend the state constitution to reflect Kentuckians’ commitment to fully welcoming people with felony convictions back into society after they have completed their sentences.
In 2018, Sen. Mitch McConnell said, “Voting is a privilege. Those who break our laws should not dilute the vote of law-abiding citizens.” With all due respect, the Supreme Court has repeatedly held that voting is a right and a fundamental one at that. “Other rights, even the most basic, are illusory if the right to vote is undermined,” the court observed in 1964.
Furthermore, rights restoration is fiscally responsible and good for public safety, at a time when Kentucky’s prison population continues to grow. At least two studies in Florida and Virginia found that rights restoration may contribute to lower recidivism rates. The nonpartisan Brennan Center for Justice determined that, of Florida offenders re-enfranchised between 2012 and 2015, only 0.4% reoffended.
Returned citizens are taxpayers, workers, veterans, and business owners. They are parents and caretakers. Simply put, they are contributing members of our communities. After they have served their sentences, Kentuckians with felony convictions deserve a voice in the decisions affecting their families, livelihoods, and rights.
Cecilia Aguilera and Jon Sherman are attorneys at the Fair Elections Center. Ben Carter is an attorney at the Kentucky Equal Justice Center.
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