Documentary Disenfranchisement

Abstract

In the generally accepted picture of criminal disenfranchisement in the United States today, permanent voting bans are rare. Laws on the books in most states now provide that people with criminal convictions regain their voting rights after serving their sentences. This Article argues that the legal reality may be significantly different. Interviews conducted with county election officials in New York suggest that administrative practices sometimes transform temporary voting bans into lifelong disenfranchisement. Such de facto permanent disenfranchisement has significant political, legal, and cultural implications. Politically, it undermines the comforting story that states’ legislative reforms have ameliorated the antidemocratic interaction of felony disenfranchisement and the “war on crime’s” high and racially disproportionate conviction rates. Even if confined to only a few states, permanent disenfranchisement in a postwar-on-crime society may be politically significant in those jurisdictions. Legally, such disenfranchisement challenges the doctrinal impenetrability of a United States Supreme Court decision that has long blocked federal challenges to voting bans based on criminal conviction. Culturally, the local election practices I describe reveal something about the role of written text in our legal system. The permanent enforcement of nominally temporary voting bans is accomplished through election officials’ demands for nonexistent eligibility documents from people with criminal convictions — the practice I call “documentary disenfranchisement.” I propose that those demands both reflect and construct a deep cultural understanding that law enacts status changes through the vehicle of written text, changes that can only be undone by more positive text. This performative view of legal language is recapitulated in recent federal court decisions blocking challenges to felony disenfranchisement. Ironically, those courts’ constitutional interpretations look more like the county election boards’ demands for documents than the reasoning of the Supreme Court decision they purport to follow.

Keywords: voting rights, felon disenfranchisement, jurisprudence, law & humanities, law and humanities, constitutional law, new legal realism, textualism

JEL Classification: K19, K39, K40, K41, K42, K49, J78