During a recent discussion about the long-term implications of sexual-predator laws, the conversation was hijacked by a friend of mine who was interested in the issue of felon disenfranchisement. Such provisions frequently provide that convicted felons are barred forever from participating in the electoral process. My friend wondered if ex-convicts who had served their time and had paid their debt to society should have their voting rights reinstated. In fact, he openly wondered whether such laws essentially constituted a form of racial discrimination. He asked whether I thought the the US should follow the lead of many other nations in dismantling this form of voting-rights apartheid.

When the subject of felons and voting rights arises, some activists suggest that felon-disenfranchisement laws got their start in the post-Civil War Reconstruction period and were designed as a form of racial discrimination. Consequently, the theory goes, it is the only form of voting-related discrimination still permitted; literacy tests, poll taxes, and Jim Crow laws have been abolished, but stripping felons (the majority of whom are minorities, including a sizeable number of African-Americans) of their voting rights remains. As Susan Marquardt noted in "Deprivation of a Felon's Right to Vote: Constitutional Concerns, Policy Issues and Suggested Reform for Felony Disenfranchisement Law," 82 U. Det. Marcy L. Rev. 279 (Winter 2005), each year some four million Americans are not permitted to vote in elections as a result of felony disenfranchisement. Felons lose their voting rights automatically upon conviction in 48 states (this would include, for example, both Winona Ryder and Martha Stewart), although only in 13 states do they lose their voting rights permanently (in the others, they lose their voting rights during incarceration and/or during parole as well). Many former felons, however, reside in states which feature permanent voting restrictions; some 500,000 felons, for example, are affected by Florida's permanent disenfranchisement provision.

While felon disenfranchisement and the post-Reconstruction South do have deep (and often overlooked) ties to one another, the history of felon disenfranchisement is a fascinating one. I want to start with a brief historical overview before plunging into the modern-day debate. Far from emerging suddenly in the wake of the Civil War, the concept actually stretches back into antiquity. Felony disenfranchisement laws originated in the politics of the early democracies of Greece and Rome, where criminals were stripped of a number of rights, including the right to participate in the assembly (one must remember that in the democracy of Athens, for example, all eligible citizens voted on measures, rather than "through" elected representatives; this "pure" form of democracy also tended at times to manifest itself as the tyranny of the majority, which could often be cruel, capricious, and arbitrary).