By Laleh Ispahani, Senior Policy Counsel at the ACLU Racial Justice Program
In Geneva this week, the American Civil Liberties Union and other NGOs told an international body what we’ve been saying here at home for years – there are far too many barriers preventing Americans from exercising their constitutional right to vote. Our explanation of who can or cannot vote in this country was to U.N. committee members reviewing U.S. compliance of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), a treaty prohibiting voting laws that are racially discriminatory in intent or effect.
Based on reports submitted to the committee by the ACLU and US Human Rights Network, the organizations explained that, although civil rights era legislation eradicated most overt voting rights discrimination, discriminatory policies and practices persist — and have a profoundly disproportionate impact on racial and ethnic minorities. In fact, millions of Americans are still shut out of the political process as a result of disfranchisement and the government’s neglect and under-enforcement of voter-protective legislation. But they want to be heard.
An anomaly among western democracies, state laws disfranchise over 5.3 million Americans because they have criminal records. Most of these people are no longer in prison and millions completed their sentences long ago. Given current trends, 40% of black men will soon be unable to vote in some states. State laws vary and some are complex, but 48 states ban people with felony convictions from voting for some period, and 10 states ban some or all people with felony convictions forever. Five states even bar people with misdemeanor convictions from the ballot box. (Crimes punishable by one year or more are generally classified as felonies.) The fact that the laws are also shoddily implemented only makes matters worse. Grossly erroneous "purges" of voters, burdensome and confusing voter restoration procedures, and poorly trained elections personnel also take away the franchise from large numbers of eligible voters.
Disturbing trends have emerged with respect to the indigenous population. In the 2004 national elections, 24 Native Alaskan villages accessible only by air did not even have polling places. Alaska also continues to administer "English-only" elections, despite federal legislation requiring the state to offer minority language assistance to the indigenous. A Cheyenne River Tribe council member in South Dakota, testified to similar effect before a National Voting Rights Commission that poll workers on the Pine Ridge Indian Reservation failed to provide the required minority language assistance to Lakota speakers. And, in 2002 a South Dakota state legislator stated on the floor of the Senate that he would "lead[] the charge . . . to support Native American voting rights when Indians decide to be citizens of the state by giving up tribal sovereignty."
Equally troubling is that a wide variety of deceptive voting practices continues to be used to suppress minority votes. For example, in the 2006 national elections, there were efforts to keep voter participation low for political gain; to mislead and deceive voters by advising them the date of the election had shifted or that their polling place had changed. In Virginia, registered voters received recorded calls that falsely stated that the recipient of the call was registered to vote in another state and would face criminal charges if they came to the polls.
The Bush administration has compounded the problem of disfranchisement through chronic neglect and under-enforcement of federal voting laws. Since 2000, enforcement of the central anti-discrimination provision of the Voting Rights Act is at a virtual standstill. In addition, the government has only prosecuted a handful of claims of discrimination against African-American voters in recent years. And lamentably, enforcement of the National Voter Registration Act has been biased in favor of reducing the number of voters rather than enfranchising new voters.
Advocates advised the CERD committee that the U.S. must immediately remedy this widespread disfranchisement in order to fulfill its treaty obligations. It could do so by calling upon states to pass legislation that, at a minimum, allows people with criminal convictions to vote upon release from prison and ensures adequate enforcement of federal voter protections. That would send a strong message to the people of this country that voting is not a privilege, but a fundamental right.