Criminal Convictions, Incarceration, and the Right to Vote in South Carolina

Abstract

In a democratic society characterized by near-universal suffrage, like the twenty-first century United States, stripping a citizen of the right to vote is an extreme measure, requiring the strongest of justifications. It is generally accepted that denial of the vote to minors and mentally incompetent persons is justified because of their impaired capacity for reasoned decision-making. However, no such agreed-upon justification exists for the widespread denial of the vote to citizens who have been convicted of crimes. Indeed, the scope of what is generally referred to as “felon disenfranchisement” varies widely among states, and does not exist at all in two. Because of questions about the rationale for felon disenfranchisement, many jurisdictions have begun to re-examine laws that restrict the voting rights of persons with criminal convictions. In the last twenty years, in particular, a number of states have made legal and administrative changes aimed both at expanding the voting rights of ex-offenders and at assuring that ex-offenders whose voting rights have been restored are not excluded from the franchise by misinformation or unnecessary administrative hurdles. South Carolina, however, has not revisited the issue since the current law was adopted in the early 1980’s. That law, in turn, was hurriedly adopted to replace a Jim Crow-era statute that had been challenged on equal protection grounds. Nor has implementation of the current disenfranchisement statute been carefully examined to assure that restoration of voting rights following the period of disenfranchisement is actual and not merely theoretical. As a class project, Professor Elizabeth Patterson’s spring 2018 Voting Rights Seminar at the University of South Carolina School of Law undertook a wide-ranging study of law, policy, and practice affecting the voting rights of South Carolinians who have been convicted of crimes, or who are otherwise incarcerated. Based on interviews with state and local officials and other interested persons, examination of state statutes from all 50 states, and review of a wide range of published material, the class identified three issues that should be addressed in order to assure that the voting rights of persons who have been convicted of crimes or are otherwise incarcerated are limited no more than is necessary to serve legitimate policy goals. The three issues, which are discussed more fully in the report that follows, are: 1. The scope of disenfranchisement under current law. Conclusion: The scope of disenfranchisement under current South Carolina law is broader than can be justified by legitimate policy goals, impedes successful re-entry and rehabilitation of ex-offenders, and has an unacceptable disproportionate effect on black voting rights. The state should consider relieving probationers, parolees, and misdemeanants (other than those convicted of election offenses) of the burden of disenfranchisement. 2. Practical and administrative obstacles to ex-offenders’ participation in the electorate following restoration of voting rights. Conclusion: Substantial misunderstanding and misinformation concerning ex-offenders’ voting rights exist among both ex-offenders themselves and among local election officials. Restoration of voting rights as provided for by South Carolina law will not be a reality without more intensive efforts to inform affected persons of their voting rights and how to exercise the, together with full implementation of the system of guidance and oversight for county boards of voter registration and elections mandated in the 2014 Election Reform Act. 3. Whether the voting rights of eligible voters who are incarcerated are adequately protected. Conclusion: The state has a duty to assure that inmates who retain the right to vote are provided with information and assistance necessary to exercise that right.