I interviewed Daniel Nichanian of The Appeal, a national publication that focuses on criminal justice policy issues, about Gov. Andy Beshear’s decision to restore voting rights to people who committed nonviolent offenses and have served out their sentences. We looked at how this policy might work, what some of its pitfalls are and how it fits in with similar initiatives around the country.
This is a lightly-edited transcript of our conversation.
LEO: First question — put Kentucky in the broader context of policy in terms of voting rights for people who have committed felonies but served their time. We have been one of the worst states by this measure, right? Daniel Nichanian: Oh, absolutely, especially since Florida voters overwhelmingly adopted a constitutional amendment expanding the right to vote there in 2018. States set their own rules regarding who loses the right to vote and when they regain it. But until today, Kentucky was one of just two states (alongside Iowa) that were enforcing a permanent ban on voting on people convicted of any felony.
And that meant in practice that hundreds of thousands of Kentuckians have been stripped of the right to vote for life — more than 9% of the state's adult population. (I'm relying on these statistics on a very comprehensive study the Sentencing Project released in 2016.)
And here's an element that's absolutely crucial to answer your question: The racial inequality in who gets convicted of a felony, and so who loses the right to vote, is just staggering. In fact, this may be one of the single most-staggering statistics in U.S. politics: More than one in four black adults in Kentucky were stripped of the right to vote for life because of these rules.
That's why Gov. Beshear's order today is so important. It's going to massively change this landscape and significantly expand the electorate. We're talking about roughly 4%of the state's adult population regaining the right to vote in one stroke of the pen.
Can this be revoked by the next governor, particularly if he or she is a Republican? And is it possible Kentucky Republicans in the legislature undermine this voting provision as happened in Florida? This is an executive order, so yes, the next governor could rescind it and reinstate a lifetime ban moving forward. In fact, that's exactly what happened in 2015, when Gov. Matt Bevin came into office and canceled an executive order issued by his predecessor (Steve Beshear, Andy's father), which was very similar to today's. One big difference is that the father waited until the final days of his term to issue this, while this is the third day of the son's governorship. One sign of how urgent voting rights have become!
The solution to that is to codify this reform in the state constitution. Andy Beshear called for just that today! In fact, such amendments have been introduced for years in the state legislature, and they were passing the state House earlier this decade when Dems still had control, only to die in the GOP Senate.
How complicated is the procedure for people to get their voting rights restored? Related to that, do we have any reason to think that lots of the people who get their rights restored will vote or alternatively, very few of them will? I haven't gotten a chance to confirm the answer to the first question. The executive order specifically says restoration will be automatic, and what that has usually meant is that the people who are eligible can register to vote without having to complete additional legal steps. Again, to confirm.
But what's really most important is your second question there: What we've seen in many states is just considerable confusion about the rules of who can vote. You need to know what counts as having completed your sentence, what exact statutory category your offense falls under — and most states have next to no effective communication with their residents who may be eligible to vote but think they are not. Studies have shown this 'de facto disenfranchisement' has a very large impact. This really is a major reason why the rules have to be as simple as possible, and this executive order simply isn't it. What's also been disappointing is to see states recently that have expanded voting rights but where state officials have done little to convey reforms to residents. Local organizations like VOTE in Louisiana have taken on some of that burden, but we're talking about considerable resources that has to be up to public authorities. So, what Kentucky officials do next is as important as what happened today.
So, you think this order is too complicated, and there will be confusion for voters? That seems really important. I think any policy that relies on distinctions between people based on what statute they were convicted under, or what stage of re-entry they are at, is bound to contribute to the pernicious confusion that makes many people who are eligible to vote think they are not. And I say pernicious because there have been cases in recent years of people who vote by mistake but who were disenfranchised, landing considerable punishments. That degree of criminalization of voting is rare, but it makes news, and it's on people's minds who may not be sure just what their own status is and what they could face if they get it wrong.
That leads to my next question. Beshear's order was very distinctly about nonviolent offenders. Is that typical or do many/most states allow all offenders (even violent ones) to get their voting rights back? And do you have a view on whether distinction makes sense, in a normative sense (putting aside the complexity of it?) That is not the norm, no. About 40 states don't disenfranchise anyone once they've finished their sentence, no matter the offense for which they were convicted. (And of the states that do have lifetime bans for some people, they tend to have narrower carve-outs than in Beshear's order.)
In fact, many states don't disenfranchise anyone at all who is not incarcerated — even if they're on parole and probation — no matter their offense! That includes red states like Indiana and Utah.
Here's one way to think of your question: Even if you support coupling voting rights to the criminal legal system and so disenfranchising people who have felony convictions (which itself has huge problems), where's this idea coming from that the state can be even harsher than the judges or juries and decide that the person should remain excluded even once they're done with the sentence decided by the court system?
Beshear has decided that court-ordered sentences are insufficient, that some people should remain disenfranchised beyond that. And that has a big impact: About 100,000 people who have fully completed their sentence will remain permanently disenfranchised. That's enough to make Kentucky one of the most restrictive states in the country, even after today's order.
There are other important considerations as well here. One, ‘violent offense’ is a much broader category than people realize. And on top of it, people of color face harsher categories of charges for similar acts (that holds for the line between felonies and misdemeanors too, not just ‘violent’ and ‘nonviolent’ offenses) because of the documented racial patterns in policing and prosecutorial decisions.
So, it always goes back to the same normative issue: Why are we making distinctions between which citizens are and aren't deserving of the right to vote? And why are these decisions entrusted to government officials whose decisions we know are biased (whether this is deliberate or not is beside the point) but who get to be gatekeepers of who should vote?
Finally, what’s happening in the rest of the country on this issue? I am actually writing a series on state reforms on this issue … Just thinking about that question makes me realize how we're living in a totally different world than just two years ago! Then, we were mostly talking about some governors issuing executive orders to enfranchise people who'd completed their sentence.
Then, in 2018, a popular initiative organized by Florida groups significantly changed the law there, with the approval of 65% of voters, and that set up an effervescence of activity around this issue this year. It's really just been remarkable to watch. There's been big movement on this issue around the country, including in states that had already enfranchised everyone with completed sentences and are now looking to go beyond that and question why anyone at all should be losing the right to vote.
Colorado and Nevada adopted new laws this year that enfranchised anyone who is not incarcerated (including if they are on parole or probation). New Jersey is about to do the same, probably next week. Louisiana implemented a new law, passed by the Republican legislature and signed by the Democratic governor, that lets some people on probation and parole vote there as well. And on top of all that: There's been real legislative movement for the first time in a while, on top of the activist demands that have long existed, to abolish disenfranchisement altogether, which would mean letting people vote from prison as well. And some of those calls are coming from public officials who say this is helpful for re-entry and rehabilitation.
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