Felonies, Voting, and the Weight of History

American states are — literally and figuratively — all over the map on the issue of whether convicted felons should be permitted to vote.

Many states bar all convicted felons from voting, even after release from prison. Other states allow released felons to vote, as long as the sentence has been completed (sometimes called “discharged”).

What the law is on voting by ex-felons, and how it is enforced, raises a set of weighty issues about power, privilege, and political expediency.

For me, Exhibit A illustrating the power dynamics involved in disenfranchising felons is still the disputed Florida vote in the 2000 presidential election. State officials initiated an ill-fated effort to supposedly “cleanse” the Florida voter rolls of convicted felons. Unfortunately, the process was riddled with errors, resulting in hundreds and perhaps thousands of legitimate voters being removed from the rolls.

More recently, in Minnesota last summer, a political action group with ties to the Republican party tried to claim that voter fraud involving felons occurred in the 2008 Minnesota Senate race. The claims never got any traction from reputable observers, much less the secretary of state.

So where does this notion come from, that being convicted of a felony should have collateral consequences affecting the future exercise of the offender's civil rights?

The answer goes deep into the early common law. Back then, in feudal England, a felony was an offense for which conviction meant the death penalty, as well as forfeiture of personal property and escheat of land to the felon’s lord.

That’s right, the felon’s lord. The feudal language is jarring to modern American ears, but this is where our conceptions of “felony” have their origin.

The escheat of land did not occur immediately. According to Black’s Law Dictionary, the land first spent a year and a day in the possession of the king.

If the one-year-or-more duration sounds familiar, it should. Even today, most American jurisdictions mark the difference between a felony and a misdemeanor — or between jail and prison — as whether the sentence is over or under a year.