Defeating De Facto Disenfranchisement of Criminal Defendants

In a democracy, voting is not only an important civic duty but also a right that governments owe to their citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on criminal convictions. Activists and scholars attack de jure disenfranchisement as an improper collateral consequence that disproportionately impacts people of color. Although recent years show substantial reforms to reenfranchise defendants, an estimated 5.17 million defendants remained ineligible to vote in 2020. While efforts to address de jure disenfranchisement remain necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants who have the legal right to vote but are prevented from exercising it. De facto disenfranchisement applies to defendants who have regained their voting rights as well as defendants who have never lost their rights. Although de jure disenfranchisement excludes millions from voting, confusing restoration requirements, lack of information, misinformation, and physical barriers prevent millions of eligible voters from voting. For example, while most of the nearly 750,000 people in jail have the right to vote, they face informational and access hurdles to exercising their voting rights. Moreover, distrust of the political system and fear of arrest for voting exacerbates the issue. As with de jure disenfranchisement, de facto disenfranchisement disproportionately impacts people of color. As states decide to restore voting rights to more individuals, de jure disenfranchisement will fade, but de facto disenfranchisement threatens to keep the same restrictive policies alive. As a result, more progress is necessary to go beyond merely providing criminal defendants with the right to vote and instead actually empowering them with the ability to vote. This Article addresses the problems associated with de facto disenfranchisement. Further, this Article suggests and analyzes the national, state, and local reforms and practices necessary to ensure that defendants with voting rights have meaningful notice of their rights and access to voting