The emergence of literature on democratic erosion in the early 2000s highlighted the propensity for authoritarian practices to exist in democratic regimes, and vice versa. In the United States, these practices often take the form of legislation that continues historical patterns of voter disenfranchisement. In this essay, I focus on felon disenfranchisement as an example of an undemocratic practice within a democratic regime. While these laws look neutral on their face, they in fact have harmful effects on electoral integrity. Additionally, official expert surveys of states’ electoral integrity may not reflect the impact of laws regulating felon disenfranchisement. For example, comparison between Louisiana and Mississippi reveals dramatically different integrity rankings despite similar disenfranchisement laws.
This apparent oversight in expert evaluations of electoral integrity makes it difficult to diagnose and address the democratic deficiencies that these laws cause. I therefore suggest that expert surveys on democratic integrity should reflect the full range of laws that affect access to the polls. They should also include more detailed questions about the laws they seek to evaluate than they have to date.
Undemocratic practices in democratic regimes“As election laws—including laws that regulate felon disenfranchisement—vary by state, so do the levels of electoral integrity.”
Ozan Varol found that authoritarians learn how to use the same rules as democratic governments for antidemocratic outcomes.1Ozan Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 1673 (2015). Leaders cloak obvious oppressive measures, such as the deployment of massive security forces or the rigging of elections, and as such have rendered authoritarian practices harder to detect—a practice he refers to as stealth authoritarianism. In the United States, for example, laws that inhibit equal access to the rights of citizenship—particularly the right to vote—appear neutral and are implemented with sensible intentions. While the laws do not operate on the basis of race explicitly, they affect African Americans at a higher rate than whites, often denying many the right to vote. Felon disenfranchisement laws are a prime example of this dynamic: a shift in imprisonment demographics in the 1980s and the redaction of preclearance for many southern states seeking to amend voter laws following the 2013 US Supreme Court decision Shelby County v. Holder, 570 U.S. 2, greatly impact equal access to political participation. As election laws—including laws that regulate felon disenfranchisement—vary by state, so do the levels of electoral integrity.
Expert assessments of electoral integrity
In an effort to quantify differences in electoral integrity at the state level, the Electoral Integrity Project (EIP) conducts a worldwide yearly Perceptions of Electoral Integrity survey in a series of interviews with political science experts in their states of residency. Data on the 2016 US presidential election evaluate states’ electoral integrity via the views of 726 US-based political scientists from each of the 50 states. There are 49 indicators of electoral integrity, clustered by the 11 stages of the electoral cycle, each receiving an overall score on the “Perception of Electoral Integrity” (PEI) 100-point index. According to the EIP, “Electoral laws and voter registration procedures were classified by state, as well as their levels of party competition and voting turnout, facilitating multilevel analysis to determine whether perceptions of electoral integrity vary according to types of context.”2“PEI-US-2016,” Electoral Integrity Project, https://www.electoralintegrityproject.com/pei-us-2016/. PEI performance indicators for the integrity of electoral laws measure (1) whether electoral laws were unfair to smaller parties, (2) whether electoral laws favored the governing party or parties, and (3) whether electoral laws restricted citizens’ rights. Surprisingly, states sharing regional geographies and political patterns demonstrated vastly different measures of electoral integrity.
The scores of two states in particular, Mississippi and Louisiana, do not appear to accurately reflect the repercussions of state policies that are not considered by the survey. Louisiana and Mississippi not only share borders, but also similar historical and political features. Former members of the Confederacy, both were once entrenched in a slave-based economy and subsequently employed Jim Crow laws between the end of Reconstruction in the 1880s and the height of the civil rights movement into the 1960s.3It may be of interest to note that both states required statewide preclearance under Section 5 of the 1965 Voting Rights Act—approval on behalf of the federal court or Department of Justice necessary to make changes to voting laws—as a result of their histories of racial discrimination dating back to the Civil War. The states provide a valuable comparison for measurements of electoral integrity, because they represent polar ends of the PEI 100-point index at every moment of the election cycle. As ranked by the PEI, Louisiana rounds out the top 10 states for perceptions of electoral integrity at ninth place, while Mississippi ranks near the very bottom of the list at 47th out of 50. For every cluster during the electoral cycle, Louisiana ranked higher in electoral integrity than Mississippi. Upon examination, it appears as though the Electoral Integrity Project’s format overlooks state laws—particularly felon disenfranchisement policies—that have devastating effects on the sanctity of free and fair elections in the United States.
The implications of felon disenfranchisement for the quality of democracy
Universal suffrage is a key component of democracy in both theory and practice. Sociologists Jeff Manza and Christopher Uggen argue that “to proclaim democratic governance today means, at a minimum, universal suffrage for all citizens.”4Christopher Uggen and Jeff Manza, “Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States,” American Sociological Review 67, no. 6 (2002): 777–803. Yet, despite a legal guarantee of universal suffrage via the Fifteenth Amendment and the heightened protection of those rights with the passage of the 1965 Voting Rights Act, exceptional incarceration rates and varied policies concerning the disenfranchisement of convicted felons prevent many US citizens from exercising their right to vote. A 2016 report by the Sentencing Project found that 1 in 13 African Americans of legal voting age are disenfranchised; this is more than four times the rate for non–African Americans. By 2016, over 7.4 percent of adult African Americans in the United States were disenfranchised compared to 1.8 percent of non–African Americans.5Christopher Uggen, Ryan Larson, and Sarah Shannon, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016 (the Sentencing Project, October 6, 2016). These patterns highlight a disconnect between an inscribed right to universal suffrage and the actual access to civil and political rights for racial minorities in the United States—especially African Americans.“Research indicates that patterns of incarceration and felon disenfranchisement laws have altered federal-level election outcomes and contribute to partisan advantage.”
While conventional wisdom suggests that soaring crime rates are responsible for rising incarceration rates and subsequent disenfranchisement rates, criminologists have found that crime and incarceration rates move independently of each other.6Michelle Alexander, “The New Jim Crow,” Ohio State Journal of Criminal Law 9, no. 1 (2011): 7–26. Moreover, the combination of mass incarceration and historical laws preventing felons from voting has emerged as a major impediment to universal suffrage.7Uggen and Manza, “Democratic Contraction?,” 779. Not only do felony disenfranchisement policies restrict the right to vote for a staggering population of US citizens, but they do so in a way that may be more effective in practice than prior to the ratification of the Fifteenth Amendment. As of 2016, 6.1 million Americans are prohibited from voting due to felon disenfranchisement; of these, 2.2 million are African American, which breaks down to 1 out of every 13 African American eligible voters compared to 1 out of every 56 nonblack voters.8Jean Chung, Felony Disenfranchisement: A Primer (the Sentencing Project, July 17, 2017). Such a stark contrast in racial differentiation points to a partisan advantage, favoring one political party over another.9Manza and Uggen refer to research that suggests African Americans are overwhelmingly Democratic Party voters. See Michael Dawson, Behind the Mule: Race and Class in African-American Politics (Princeton, NJ: Princeton University Press, 1994); Robert Huckfelt and Carol Kohfeld, Race and the Decline of Class in American Politics (Urbana, IL: University of Illinois Press, 1989); and Katherine Tate, From Protest to Politics: The New Black Voters in American Elections (Cambridge, MA: Harvard University Press, 1993). Research indicates that patterns of incarceration and felon disenfranchisement laws have altered federal-level election outcomes and contribute to partisan advantage.
By focusing on specific federal elections and testing whether the inclusion of felon voters, at predicted rates of turnout and party preference, had an impact, Manza and Uggen demonstrate that greater enfranchisement would have altered election outcomes: “Felon disenfranchisement has provided a small but clear advantage to Republican candidates in every presidential and senatorial election from 1972 to 2000.”10New York: Oxford University Press, 2006More Info → The Republican Party seemingly benefits from the reduced political competition that comes from excluding Democratic-leaning felons from the polls.
If political participation and the right to vote are necessities for elections with integrity, then one might expect that the disenfranchisement of felons in the United States negatively correlates with the EIP’s performance indicators. Differences in disenfranchisement policies at the state level and the magnitude to which certain populations are affected allow for a comparison of variation in electoral integrity: states with stricter policies and a higher rate of disenfranchised citizens would, one might presume, have electoral laws with less integrity than those states that lack such policies. Yet, that may not be the case in practice.
Electoral integrity scores and felon disenfranchisement in Louisiana and Mississippi
Louisiana and Mississippi, Southern companions, both enforce strict policies of disenfranchisement: Louisiana denies the vote to convicted felons in prison, on parole, and on probation, while Mississippi disenfranchises during all of those periods in addition to post-sentencing, with minimal mechanisms for restoration beyond sentence completion. Louisiana has the highest state imprisonment rate in the country with 776 per 100,000 people incarcerated in state prisons. Mississippi is the fourth-highest-ranking state at 609 per 100,000 people. When comparing rates of disenfranchisement, as of 2015, Mississippi had the second-highest ranking at 9,360 per 100,000 state residents while Louisiana comes in at 11th highest with 3,040 per 100,000. Both states exceed the US average imprisonment rate (458 per 100,000) and disenfranchised rate (2,470 per 100,000). Around 15.9 percent and 6.3 percent of eligible African American voters in Mississippi and Louisiana are disenfranchised, respectively.11Uggen, Larson, and Shannon, 6 Million Lost Voters. Significant numbers of citizens are barred from voting in Louisiana and Mississippi as a consequence of felon disenfranchisement policies, thus impacting the partisan composition of eligible voters to some degree.
Similar disenfranchisement laws in Mississippi and Louisiana raise an important question concerning the PEI’s indicators and methodology: why the difference of 15 points in overall Index of Integrity and 28-point difference in electoral laws (the largest of any difference), according to the PEI’s 2016 Electoral Integrity report? While Mississippi does in fact employ more antidemocratic statutes of felon disenfranchisement and voter identification, Louisiana has enacted policies that differ by only one ranking of relative strictness. Are Mississippian experts overestimating the state’s antidemocratic policies while Louisianans underestimate? I argue that one explanation concerns stealth authoritarianism: it is possible that while Mississippians have detected the state’s disenfranchisement laws as antidemocratic, expert reviewers in Louisiana have not recognized them as such. In surmising that felon disenfranchisement policies are important indicators of electoral integrity, one would expect to see Louisiana and Mississippi closer in overall ranking, differing more overall with states that enact opposite policies.“These results suggest the questions asked by the PEI may not encapsulate the totality of differences in policies or laws at the state level.”
These results suggest the questions asked by the PEI may not encapsulate the totality of differences in policies or laws at the state level. To account for such differences in the future, I propose that the EIP include questions relating to specific policies directly, such as: “At what stage does the state allow convicted felons the right to vote?” (ranging from time of conviction to never). Alternatively, the survey could include a baseline of standardized, objective information on laws relating to each phase of the election cycle and their implementation on a state-by-state basis. Political scientists surveyed would then be able to use their expertise and judgment in determining whether policies relating to forms of disenfranchisement affect their perceptions of the state’s integrity.
The historical implementation of felon disenfranchisement represents a form of stealth authoritarianism in the United States, as strict policies profoundly and disproportionately restrict minorities’ access to political participation and subsequently may shift the outcomes of elections to the benefit of one party. This research further elicits a discussion on the validity of data presented by the Electoral Integrity Project, which seeks to measure the difference in perceptions of state electoral integrity during the 2016 US election. Two states with vastly different overall rankings of electoral integrity, Mississippi and Louisiana, implement state policies of felon disenfranchisement that vary minutely in legislation. This example dramatically illustrates a need for further research on the harmful effects of felon disenfranchisement policies in the implementation of free and fair elections.