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A recently released report from the Sentencing Project shows a record 6.1 million Americans will be prohibited from voting due to laws restricting certain felons from pulling the lever.

In critical swing states like Florida and Nevada, where felons in prison, on parole, probation, and post-sentence are prohibited from voting, nearly 1.7 million and 89,267 people, respectively, will be unable to vote due to their criminal record. Florida has a 10.4% Felony Disenfranchisement Rate while Nevada has a 4% Rate, according to the report.

North Carolina, which prohibits felons in prison, parole and probation from voting, has a 1.2% Rate, which accounts for restrictions on 91,179 convicted felons. Ohio, which only prohibits felons in prison from voting, has a 0.6% rate that accounts for 52,837 non-voters.

Marc Mauer, executive director of the Sentencing Project said it’s hard to make real-world electoral predictions based off of the statistics, but the magnitude of those impacted is notable.

“Overall, we know that 6 million people will be ineligible to vote in the election, and in a number of swing states the proportion of disenfranchised citizens is quite substantial,” he said. “It's difficult to estimate how many of these people would have voted if able to, or how they would break down on a partisan basis, but clearly the outcomes in some states could be affected by these policies.”

The more than 6 million residents ineligible to vote represents a stark contrast to the mid 1970’s, when an estimated 1.17 million people were prohibited from voting. That number rose to 3.34 million people in 1996, and 5.85 million people in 2010, according to the report from the Sentencing Project.

Mauer said these restrictive laws are bad for democracy. “It's difficult to see any positive outcomes from these policies,” he said. “One prominent supporter, Roger Clegg, is fond of saying that ‘those who break the law shouldn't make the law.’ While that sounds catchy as a bumper sticker, its implications are quite disturbing since he's essentially suggesting there should be a character test to determine voting eligibility. That seems like a rather slippery slope and if we started to employ such character tests we might have a very small electorate. We just don't do that in a democracy.”

Mauer explained that disenfranchisement creates a “significant barrier to full democratic participation,” and there are already “legitimate punishments” for those who commit crimes. “… We don't normally take away fundamental rights of citizenship as an aspect of punishment.”

Mauer also said these policies send a bad message to felons upon reentering society. “When people come home from prison we tell them that they have all the responsibilities of other citizens, but if they are disenfranchised then we are essentially saying that they are second class citizens,” he said. “If state legislators feel that such laws are necessary, this should be limited to the time of imprisonment. Disenfranchising those on probation or parole, or who have completed their sentence, provides no social benefits, but harms our democracy.”

Clegg, president and general counsel of the Center for Equal Opportunity and cited by Mauer, defended laws restricting felons from voting, and pointed to the benefits of a narrower electorate.

“We really don’t let everybody vote,” Clegg said, as children, non-citizens, and those who are mentally incompetent are restricted from voting. In each case, he said, that restriction may be lifted if certain qualifications are met, and the same standard should be applied to voters convicted of a felony. There is a degree of responsibility and trustworthiness expected of the electorate, he said, and “some people can’t be assumed to meet these requirements.”

Clegg said the rate of recidivism for felons is high, and it may be unwise to assume they will be responsible voters immediately upon being released from prison. He said, perhaps, felons who show they have meaningful employment and are giving back to the community could earn back a chance to weigh in at the ballot box. One tactic he advocated is using the opportunirty to regain voting rights as an incentive for ex-convicts to stay out of trouble.

A formal ceremony upon the restoration of the ability to vote, much like a naturalization ceremony with ones friends and family in attendance, might also make the benefits of regaining the ability to vote resonate, he said.

Clegg also contests that laws aimed at preventing felons from voting are inherently racist, as some have suggested. So long as the laws are not passed with the intention of suppressing the voting rights of any particular racial or ethnic group, they are constitutional, he said. He pointed out voting restriction laws for felons disproportionately impact men, as they are more likely to be felons than women, but that doesn’t necessarily make them sexist.

“The unfortunate fact is a disproportionate number of felonies are committed by African Americans … but that doesn’t make the laws racist,” Clegg said, adding, other laws that impact farming subsidies and the internal revenue code sometimes impact certain racial and ethnic groups more than others, but that fact on its own does not make a law racist. He also noted many of these laws existed before African Americans were allowed to vote as further evidence the intent is not disenfranchisement.

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