Erica Hellerstein, Dylan Petrohilos, Shutterstock

The Last Gasp Of Jim Crow: The High-Stakes Battle To Restore Voting Rights To 350,000 Virginians

Mercedies Harris strolls down the halls of the Hollaback and Restore Project, a felon rehabilitation center in rural Virginia, and points to a baby-faced 18-year-old with a timid gait. “This is a fine young gentleman who got into a little trouble,” he explains. “And we are working with him to try to stop him from being a statistic and being incarcerated and having a record. He’s going to learn to be a barista. And if he gets good, he’ll be known for it,” he chuckles. “People will be coming here to get his coffee.”

At age 54, Harris is what voting rights advocate Mike Edwards calls a ‘voice to be reckoned with.’ A straight-talking Brooklyn native, Harris spent more than a decade in prison on drug possession and distribution charges in Virginia, and recently restored his voting rights after more than four years of petitioning the state. In 2011, when he was on the cusp of getting his vote back, he founded the Hollaback and Restore Project, a ministry created to help Virginians convicted of felonies successfully navigate the challenges of reintegrating into society: finding a job, living quarters, medical coverage, and of course, regaining the right to vote.

Harris displays an “InsideOut Dad Training” certificate from the National Fatherhood Initiative.

Harris displays an “InsideOut Dad Training” certificate from the National Fatherhood Initiative.

CREDIT: Erica Hellerstein

On a cool afternoon in October, he shows me around the Hollaback’s headquarters; a former bar and nightclub dubbed Club Caribe, with cavernous, breezy rooms and walls draped in tropical paintings. He waxes philosophic about his relationship with state politicians — “we’re trying to be on the same page but we don’t come from the same book” — and wears navy snakeskin dress shoes, scuffed ever so slightly at the toe, perfectly ironed grey slacks, and a large silver cross pendant.

Harris’s battle, though situated in Virginia, underscores a national debate about the ethics of disenfranchisement – often dubbed the last gasp of Jim Crow – and their impact on election outcomes. Virginia’s case is particularly interesting. Recently, the state has been inching towards rights restoration reform: Virginia’s constitution strips felons of voting rights for life, but the Governor can take executive action to restore felons’ voting rights. Former Governor Bob McDonnell and current Governor Terry McAuliffe both made significant – and highly praised – changes to the rights restoration process. In May 2013, McDonnell granted what’s known as “automatic restoration” (but is actually only truly automatic for people currently incarcerated or on supervised probation) to people convicted of nonviolent felonies; and last April, McAuliffe reduced the mandatory waiting period for offenders with violent offenses to apply for rights restoration from five years to three years, and removed drug offenses from the violent crime categorization.

Despite the changes, Virginia (which has the 8th highest incarceration rate in the country) still has remarkably high levels of disenfranchisement, and ex-offenders report that it’s not an easy process to get back onto the voter rolls. It’s currently tied with Kentucky for the second-highest number of disenfranchised citizens in the country — at 450,000 — greater than the voting age population of Wyoming, more than 350,000 of whom have completed their prison time. Until a rights restoration constitutional amendment is passed (the General Assembly has repeatedly rejected proposals to amend the constitution, and last year the Republican-controlled House eliminated proposed funding for rights restoration work), changes to voter restoration policies will fall entirely on the shoulders of the governor. This is a shaky path to progress. Because Virginia’s constitution gives complete discretion to the governor to decide whether or not to restore rights, says Rebecca Green, a Professor of Law at the William and Mary School of Law, “you could have a governor who says nope! I’m not going to approve any applications, and that could be the process because the governor has complete discretion.”

Harris’s success story is far from the norm. As of 2010, less than three percent of Virginia felons had restored their rights throughout history – as opposed to 20 percent in Florida (which has the highest disenfranchisement rate in the country). The complete dependency on each Governor’s use of executive powers to change the rights restoration process, which has fluctuated over the years, has led to inconsistencies and confusion. Advocates cite a long list of reasons for the state’s high disenfranchisement rate: a tedious application process for people convicted of violent felonies, mandatory payment of court fees and fines that are beyond the means of many people, slow application processing, apathy and alienation among eligible voters, and general confusion about the rights restoration process due to years of shifting gubernatorial policy.

To root out these systematic problems, Harris and others have long been pushing for a constitutional amendment. “Other states have successfully overturned the law,” he remarks. “There’s no reason that once you’ve paid the price for the crime, you should be held accountable for the rest of your life.” But so far, they’ve had no luck: Any sort of effort to restore the voting rights for felons who committed violent crimes is seen as a political hot potato. After all, most politicians are not interested in advocating the exoneration of felons with violent stains on their record – and such a measure is unlikely to pass the House anytime soon.

The paradox –the gainfully employed ex-felon, paying taxes but barred from the voting process – is inconsistent with basic principles of American democracy, says S. David Mitchell, an Associate Professor of Law at the University of Missouri. “I think about those first rebels, those first criminals who were so upset about paying taxes, no taxation without representation, and yet we’re doing the exact same thing,” he says. “We have this very odd framework of saying ‘get out here and work, pay your taxes, but don’t have a voice’…We strip the fundamental right of their citizenship, the right to vote, upon conviction.”

Losing His Right To Vote

Harris has been on both sides of Virginia’s criminal justice system: as a former felon, incarcerated for years on drug charges, and as one of the state’s fiercest advocates for a system reform. His tough resolve can certainly be traced back to his childhood: He grew up far from rural Waynesboro, Virginia, flanked by rolling hills and sprawling pastoral meadows, where he now lives. He was born in 1960 in the hardscrabble neighborhood of Brownsville, Brooklyn, to a no-nonsense single mom who struggled to provide him and his siblings with the basics. “My whole life I’ve lived below the poverty line,” he nods, “but we always made do.”

His mother – a tough, hardworking type – did her best to keep Harris out of trouble. And for the most part, her efforts were successful. During the summers, Harris left the city and headed to camp in upstate New York, where he did “typical American things;” fishing, boating, and hunting. “I came back home and was different,” he says. “I knew more.” At age 17, Harris enlisted in the marines and later joined his uncle, also a marine, in Virginia where he was stationed. He was hopeful that the move would be fruitful. “I came to Virginia for a better life without knowing that I stepped right into the pot,” he says.

When he was 25 years old, his life dramatically shifted course after his brother was killed in a tragic hit-and-run car accident. Harris was left to pick up the pieces, blighted by grief and anger. Because there was no formal police investigation (authorities claimed Harris’s brother was drunk with a blood alcohol level of 2.5), Harris spiraled into a destructive cycle of depression, self-medicating himself through drugs. The police’s inaction drove him down a retaliatory road, he claims. “I said, you know what, you guys gonna pay. And that’s when I got into drugs,” – specifically, cocaine distribution in Virginia — “and I started importing people from New York, and I started taking over.”

prisonsugh

CREDIT: Dylan Petrohilos

In 1990, Harris was arrested for drug possession and distribution in Fairfax, Virginia. But while he was in prison, his anger started to simmer (“the vengeance that I wanted from Virginia for what they did to my brother started to die and burn out — I got tired,” he says), and his mother’s death dealt him a blow. “I never got to say goodbye to my mother because I was in prison,” he laments, “and that was a changing point.” Determined to forge a new path, he earned a GED in prison and began focusing his attention positive ways to channel his energy upon his release. “I wanted to help people like me not get stuck like I did. I wanted to help others broaden their minds and see that you can make it and you can make your own resources out of what is there. But you have to forget your past and forgive yourself.” In 2003, he was released — and has been helping his peers navigate the rights restoration process since founding Hollaback and Restore in 2011.

To Harris, regaining the right to vote meant securing his place in the American democracy after being cast aside for years. Until he regained the vote, though, Harris was part of a growing national trend: one of the millions of disenfranchised ex-felons. Throughout the country, the prison industrial complex has yielded a dramatic increase in the number of people disenfranchised: from 1.17 million in 1976 to 5.85 million in 2010. Of the nearly six million Americans disenfranchised today, 75 percent are out of prison or jail — under probation, parole supervision, or have completed their sentences. And, among these, nearly three million people are disenfranchised in states that continue to restrict voting rights even after their sentences are completed — when their debt to society, in principle, has been repaid.

A growing consciousness about the nation’s punitive justice system has ushered the issue of felon voting rights into the political conversation, but many states — including Virginia — still have a ways to go in enacting or implementing legislation that confronts the true scale of disenfranchisement in the United States. Only two states in the country (Vermont and Maine) grant full voting rights to prisoners; while 48 states including the District of Columbia prohibit voting while incarcerated for a felony offense. Most require some type of application, including payment of fines, and more than 30 states prohibit people on probation and parole from voting.

The cumulative impact of these laws is dramatic. And, it disproportionately plays out along racial lines. “The Jim Crowe is alive and well,” says Harris. “The mechanics of it are just more technical now.”

Nationally, 2.2 million — or one in every 13 — black adults is disenfranchised, and black adults are four times more likely to lose their voting rights than the rest of the adult population. If current rates of incarceration don’t let up, it’s estimated that three in ten black men will be disenfranchised at some point during their lifetimes. Virginia ranks particularly highly in this regard: One in five black adults is disenfranchised in the state, third only to Florida and Kentucky.

Those numbers, Mitchell says, “are catastrophic. If any community had that kind of disenfranchisement and lack of political power, that would be viewed as ‘oh my god, look at this oppressive government that’s silencing a large swath of this population!’ “But it doesn’t raise that because folks say, well if you’ve been convicted then you must be guilty, and thus you don’t deserve to have this right back. The racialized impact of it is quite clear.”

When A Chicken Goes Missing, A Black Man Loses His Vote

As a concept, disenfranchisement has roots in Greek, Roman, and medieval law. In many ancient societies, “civil death” was used as a punishment for violating social contract; but, viewing the laws as “antiquated,” most European countries began moving away from them in the 1820s and 1830s — precisely when they began gaining traction in the United States.

The U.S. brand of disenfranchisement began in the wake of Reconstruction, a not so subtle nod to concerns over the potential power of black men with voting rights. The law was shrouded in race-neutral language, but its undertones were bluntly acknowledged by a few mouthy lawmakers. During the Virginia Constitutional Convention of 1901-02, delegate Carter Glass declared: “This plan will eliminate the darkey as a political factor in this State in less than 5 years, so that in no single county . . . will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

In the late 18th and early 19th centuries, as states began writing their constitutions, many included prohibitions that disenfranchised citizens for very serious and particular crimes, like election offenses. While some Northeastern states, like Maine and Vermont, opted out of or limited disenfranchising provisions, many Southern states embraced — and legislated — the concept much more enthusiastically. Pippa Holloway, a Professor of History at Middle Tennessee State University, says it isn’t a coincidence that slave states “were the ones that had the most wholehearted endorsement of this idea of lifelong punishment. I argue that this is connected to slavery.”

But Virginia holds a unique place even among many of its neighbors in its unabashedly racist enforcement of the laws, says Holloway. That’s because Virginia made a strategic amendment to its constitution in 1876 (which, in 1830 established criminal disenfranchisement) that was rooted in anxiety about the empowerment of the black male voter after the civil war and their participation in the 1868 election. By enacting a constitutional amendment that expanded the reach of disenfranchisement to include “petty larceny” — or misdemeanor theft — legislators could limit the political power of black men, who were much more vulnerable of being convicted of small crimes than their white counterparts, and whose innocence was exceedingly difficult to prove. Sometimes, sharecroppers would even go so far as to round up a group black men in the run-up to an election and accuse them of stealing things, effectively stripping them of the right to vote.

“Some people even joked about it, saying things like ‘every time a chicken goes missing a black guy can’t vote anymore,” Holloway says. (She noted at that time, the phrase ‘black man’ would not have been used – but rather, a more bigoted term.)

1 in three african american men will end up behind bars

CREDIT: Dylan Petrohilos/Shutterstock

The process wasn’t just unfair, it was important: it impacted electoral outcomes. In a hotly contested 1888 election, Democrats in Richmond, Virginia, plotted a scheme to obstruct the black vote by planting Election Day “challengers” in the city’s three predominantly black precincts. In an intentionally slow process, the challengers interrogated black voters on their eligibility and credentials; the spelling of their name, place of residence, age, and criminal conviction.

The challengers had a list of around 2000 black voters with felony convictions, and each time a black voter would arrive at the front of the line to sign in, the judges would pore over the list, making sure that they weren’t among the ineligible voters – resulting in a delayed process for black voters. While the white line moved along quickly, the black line moved extremely slowly, so that by the end of the day, there were hundreds of black men who hadn’t been able to vote. “The election ended up being extremely close, about 700 votes. A subsequent Congressional investigation found that this process had helped alter the electoral outcome,” says Holloway.

What happened that day in Virginia isn’t just a relic of the past. But contemporary conversations about felon disenfranchisement laws tend to gloss over their political ramifications, which could explain why the rights restoration process has hardly moved toward reform in the modern era. Disenfranchisement laws are seen to impact a small percentage of the general population, so they’re generally viewed through a legal and philosophical prism — with arguments of fairness overriding discussions about their impact on the political system.

But research suggests that felon disenfranchisement laws actually played an influential role in a number of important elections. Sociologists Christopher Uggen and Jeffrey Manza identify seven Senate elections between 1979 and 2002 that may have been reversed if felons and ex-felons had not been disenfranchised. “Assuming that Democrats who might have been elected in the absence of felon disenfranchisement had held their seats as long as the Republicans who narrowly defeated them,” they write, “we estimate that the Democratic Party would have gained parity in 1984 and held majority control of the U.S. Senate from 1986 to the present.”

If voting rights had been extended to the approximately 827,000 disenfranchised felons in Florida in 2000, they found, Gore would have been victorious.

Not-So Automatic Rights Restoration

The rights restoration process in Virginia is undeniably unwieldy. Under the current state system, there are two different routes for rights restoration, because the state differentiates between people convicted of “more serious,” (often referred to as “violent”) crimes, and those convicted of “less serious” (“nonviolent”) crimes.

edited prison image

CREDIT: Dylan Petrohilos

For people convicted of “more serious” crimes, the process is arbitrary and capricious, says Edward Hailes, the General Counsel of the Advancement Project, a national civil rights organization. “It makes it hard for people to get their rights restored, too few people know about it, and it compromises their privacy.” They’re required to wait three years after their finishing their sentence in order to be eligible to apply, and they must meet a list of requirements: no misdemeanor convictions and/or pending criminal charges, DWI, or DUI in the three years preceding the application; paid all court costs, fines, penalties, and restitutions; and have no felony or misdemeanor charges pending. Finally, they must submit a lengthy application to the Secretary of the Commonwealth, which requires three letters of reference from non-family members, a personal letter to the Governor, a letter from their most recent Probation or Parole officer, a copy of their pre-Sentence report, and proof of current employment.

For people convicted of “less serious” crimes, the process is called “automatic.” But it’s only really that way for people who are currently incarcerated or on supervised probation. Their rights are automatically restored (via letter and grant order mailed to their last known address) if they fit the eligibility criteria; which include supervised probation and the payment of court fines, restitutions, and fees.

People with non-violent felony convictions who have been released and paid off their fines, restitutions, and fees, are eligible to get their rights back by submitting a mail or online restoration of rights request form to the Secretary of the Commonwealth. If the state doesn’t have a person’s name and contact information, it’s a no-go; they can’t process the person until the office is contacted, which excludes a lot of people from the process. “If you have a person convicted of a felony forty years ago, no one’s mailing him a grant order,” says Green.

Virginia doesn’t have a process for reaching out to people who might be eligible, and the current online application process, while streamlined, “doesn’t work well for people who lack easy access to computers, or aren’t sophisticated about computers. It also doesn’t work well when there’s some confusion about the conviction history or problems with proving that the person has paid their fines, fees, and restitutions.”

To put it simply: It’s complicated. And for many people, the expediency of the process hinges on a violent-nonviolent conviction dichotomy that “doesn’t make any sort of logical sense,” S. David Mitchell argues. “It all goes back to that notion of who’s deserving and who’s undeserving, and we’ve drawn an arbitrary line on the violent ex-offender with respect to the right to vote, when there’s really no relationship.” And so, it plays out destructively: Fearful of “soft on crime” branding, lawmakers tenaciously hold on to a slave-state, Jim Crow legacy of keeping marginalized groups from voting.

There are technical problems blocking efficient rights restoration, too. In the lead-up to this year’s Virginia’s October 14 voter registration deadline, advocates say that the state struggled to process many of the applications for “automatic” rights restoration submitted to the Secretary of the Commonwealth’s Rights Restoration Office.

“Please note that due to the large amount of interest, we have a backlog of received petitions,” reads a box of text on the Restoration of Rights page of the Secretary of the Commonwealth’s website.

Thus far, over 4,000 applications have been processed since January, according to Levar Stoney, Secretary of the Commonwealth, and Anne Forsythe, Assistant Director of the Rights Restoration Office. This is more than has ever been done: 8,000 applications were processed during McDonnell’s term and 4,500 during Gov. Tim Kaine’s previous term. But, judging by the website’s statements and advocate’s claims, it appears as though they have more to process. When asked about the backlog, Forsythe says: “The backlog is a bit ambiguous. We don’t really look at the number because our focus is on restoring people’s rights. We try not to count that number because we’re trying to protect the interests of Virginia citizens who have to have their rights restored, but we’re working through them as diligently as we can.”

The lag time wasn’t necessarily for lack of effort on the part of the Rights Restoration Office, says Green. “They are working their tails off. But it appears that the office is short-staffed and underfunded.” That’s largely a function of the Republican-controlled House, which didn’t provide former Governor McDonnell with the funding requested for the 2014-2016 budget to sustain restoration work. According to HB 5002, they approved Amendment item # 62 3s, which eliminated funding from the Secretary of the Commonwealth to conduct restoration of rights work, specifically one full-time employee at $60,070 for FY 2014-2015 and 2015-2016. They also passed item 413 #3s, which eliminated $137,239 for FY 2014-2015 and $182,982 for FY 2015-2016 and three annual positions requested to address increased workload. The fate of the restoration system, at least for now, seems to rely on a House that is unwilling to acknowledge its budgetary needs.

“There was a part that the General Assembly could have played and they chose not to,” said Hope Amezquita, Staff Attorney and Legislative Counsel at the Virginia ACLU. “And that’s a travesty. That office needs a lot more money to process restoration of rights. If we’re not going to get an automatic executive order, if they’re not going to support a constitutional amendment, then at least fund the process that you have approved.”

Becoming A Full Citizen Again

For some ex-felons like Harris, voting is a top priority; but for others, there are more pressing concerns than the ballot — like finding housing and a job. Mike Edwards, who was convicted for marijuana distribution in 1979, says voting may not be number one on the list for felons dealing with the everyday challenges of reintegration. Some may have gone decades without voting; while others, who struggle with the broader culture of disenfranchisement — landing a job, insurance, and finding a place to live, to name a few — feel excluded and excommunicated from the community.

“They keep getting beat down by society,” he says. Disclosing felony history on job applications makes finding long-term, non-temp work nearly impossible (One man recalled being transferred to the dial tone of a Red Lobster phone-in application after disclosing his conviction.). George, a 44-year-old man incarcerated on breaking and entering charges, characterizes the job hunt “very discouraging. I was down to any hard labor. A lot of temp services would have me work until my 90 days were up and then I was always let go because of my conviction.”

George is one of the millions of Americans dealing with the day-to-day consequences of disenfranchisement. And as such, there are many ways to interpret the laws. There are the sheer numbers involved: over 5.5 million American citizens. There is the core ideal of U.S. constitutional democracy: no taxation without representation. There is the inarguable legacy of racism and racial disenfranchisement behind these laws. There is the interplay with a culture of alienation and distrust among many ex-felons. And, finally, there is the impact on elections from these fundamentally undemocratic laws that persist in modern America.

For Harris, it’s about the political optics: Having a say in the electoral process, plain and simple. Back in his office in sleepy Waynesboro, he’s putting the final touches on an upcoming rights restoration campaign to be rolled out before Virginia’s voter registration deadline. When asked about the progress that’s been made in recent years, he leans back in his chair and arches his brows skeptically. “It’s one step closer to something that was humane that should have been done from the beginning…This is about being part of the democracy.”

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