Kentucky May Soon Restore Voting Rights To 200,000 People With Felony Convictions

For most of 2020, Savvy Shabazz traversed the state of Kentucky to help register Kentuckians like him, with prior felony convictions that had left them permanently barred from voting. All the while, he kept one eye on his cellphone, waiting for a call that would allow him to register and cast a ballot in November too.

After winning election in 2019, Kentucky Gov. Andy Beshear (D) immediately signed an executive order restoring the right to vote to many people with felony convictions. Since then, more than 180,000 Kentuckians have had their rights restored. But the order failed to include just as many people, and Shabazz, who had served more than five years in prison on felony drug charges and still had to complete his parole, was among those who remained ineligible.

To vote, he’d need a pardon that Beshear had personally promised to deliver. But as the election approached, his application still hadn’t found its way across the governor’s desk.

“It would’ve meant a lot for me to do a lot of the work, and for me to get to participate myself,” he said on Election Day. “I can continue to make communities better, but I don’t have the rights that everyday citizens do.”

Two weeks later, Beshear granted the pardon. And Shabazz already knows what he’d like to vote for when he returns to the polls next year for the first time in two decades: a constitutional amendment that would open the door for restoring voting rights to nearly 200,000 other Kentuckians like him.

The 2019 executive order restoring voting rights exempted people who had committed certain violent crimes, and also did not apply to people whose felony convictions occurred in other states or in federal courts. And unlike laws in other states that grant voting rights to people as soon as they are no longer incarcerated, the order required that people like Shabazz fully finish their sentences, including parole and probation, before they can apply for restoration. As a result, as many as 197,000 Kentuckians still cannot vote because of crimes they committed, according to the League of Women Voters of Kentucky.

But this year, a bipartisan group of Kentucky lawmakers introduced legislation that would automatically restore voting rights to people with felony convictions upon the completion of their sentences. A narrower bill advanced last year, only for the COVID-19 pandemic to consume the state Legislature before it could fully pass. Now, with the end of Kentucky’s 2021 legislative session fast approaching, Shabazz and a coalition of voting rights groups are pushing lawmakers to bring the bill to the floor again, so voters can decide whether to approve it via ballot referendum next year.

Until the 2019 order, Kentucky was one of the last three states that permanently stripped voting rights from some people with felony convictions, and remains one of just 11 that does not automatically restore them in most cases. Only six states disenfranchise a larger share of their voting-age population because of felony convictions, according to The Sentencing Project, a Washington D.C.-based organization that advocates for criminal justice reform.

The gaps in Beshear’s order mean that “Kentucky probably has the largest percentage of its disenfranchised population subject to an arbitrary, discretionary restoration system,” said Jon Sherman, senior counsel at the Fair Elections Center, which argued in a 2019 lawsuit against the state that its restoration process violates the First Amendment. (A judge dismissed the suit after Beshear issued his restoration order, but Sherman and the lawyers behind it appealed, arguing that the current process still leaves many restoration cases subject to “the pure whim of the governor,” Sherman said.)

Kentucky’s bill does not go as far as other states may this year. State legislatures in New York and Washington have passed bills to restore voting rights immediately after a person is released from prison, and Nebraska’s Legislature is considering similar legislation. Four states ― Colorado, California, Nevada and New Jersey ― have passed similar laws in recent years, and the Washington, D.C., city council last year allowed people to vote even while they were incarcerated, joining the nation’s capital with Maine and Vermont as places that never take voting rights away.

Two states that lagged the rest of the nation alongside Kentucky are also moving forward: In Virginia, where former Gov. Terry McAuliffe restored thousands of peoples’ voting rights via executive order in 2016, Democrats are trying to pass a law that goes even further this year. Iowa’s Legislature will at least consider a bill to codify Gov. Kim Reynolds’ restoration order into law.

But if it passes and voters approve it, the Kentucky legislation would still mark a major victory for voting advocates, especially at a time when many Republican-controlled legislatures are trying to roll back voting rights instead of expand them — and in one of the nation’s most punitive states, no less. And it would be a huge victory for the Bluegrass State’s racial justice movements: More than 38,000 Black Kentuckians ― or about 15% of Kentucky’s voting age Black population ― still lack voting rights because of felony convictions, the League of Women Voters says.

House Bill 232, which has support from both Republicans and Democrats, would also shift the national picture on felon disenfranchisement, advocates say, if one of the nation’s most historically restrictive states finally moved into the mainstream.

“We’re an outlier, and we’ve been an outlier for a long time,” said Ed Monahan, the chair of the Felony Disenfranchisement Committee at the League of Women Voters of Kentucky, which supports the legislation. “It’s long past time that we get this permanently solved in Kentucky.”

Beshear took a massive step toward solving the problem in 2019, and his executive order also helped boost the restoration movement nationwide. Over the last decade, states have restored voting rights to nearly 1 million people with felony convictions, and Kentucky, Virginia and Iowa ― the three states where recent executive orders ended the practice of permanently stripping voting rights for felony convictions ― are responsible for the vast majority of the recent progress in the states that remain the most restrictive.

Still, Shabazz’s case and Beshear’s order illuminate the depth of the disenfranchisement that has taken place, and the piecemeal nature of the progress that has been made. Nationwide, nearly 5 million other people still lack voting rights because of felony convictions, the Sentencing Project data says. Many of them have been left in the lurch by laws that did not go far enough to close the massive gaps that a web of restrictive voting laws, the expansion of felony statutes, rampant oversentencing and mass incarceration have created.

The proposed legislation would still require Kentuckians to fully complete their sentences. But it would apply to nearly every category of felony conviction, excluding only rare cases of treason and election fraud. By doing so, it would fill the most glaring gaps in Kentucky’s existing restoration practice. More than 127,000 of the people with felony convictions who cannot vote in Kentucky have already completed their full sentences, including probation and parole, according to The Sentencing Project. So roughly two-thirds of the Kentuckians currently disenfranchised because of prior felony convictions would regain their rights.

The bill’s backers say the idea is popular: 67% of Kentuckians support the idea of restoring rights to people with felony convictions once they’ve finished sentences, a February poll conducted by Mason-Dixon and the League of Women Voters of Kentucky found. The idea enjoys majority support from Democrats, Republicans and independent voters, the poll found. And there’s sufficient support for it among lawmakers, at least in the state House of Representatives, said state Rep. Jason Nemes, the Republican leading the effort to pass HB 232.

“If it comes to the floor, I’m pretty confident it will pass,” Nemes said.

But Kentucky’s legislative session is shorter in odd years, and the Republicans who hold supermajorities in both chambers have stacked the agenda with other priorities. Nemes, meanwhile, suggested to the Lexington Herald-Leader last month that some members of his caucus may be wary of supporting the bill this time around because they are hesitant to vote on a criminal justice reform issue less than a year after Black Lives Matter protests erupted across the state in the wake of the police killing of Breonna Taylor, a 26-year-old Black woman, in Louisville last March. Republicans in Kentucky initially tried to acknowledge the anger beneath the protests. But as they wore on, the GOP and conservative media chose to demonize them and prey on the fears of white voters ahead of last year’s election instead, and it now seems possible that they’ll devote more time to creating new crimes than to addressing the problems created by the current excess of them.

To Nemes, the case for broad re-enfranchisement is clear. The punishment for committing a felony crime ― even one that is violent in nature ― is incarceration; taking away voting and other constitutional rights is just another capricious penalty layered on top. Plus, he argued, stripping a person’s right to participate in their democracy inhibits their ability to reintegrate fully into society and their community.

“If you’re going to have somebody that’s rehabilitated and served their time and you want to get them back into the fold, so to speak, then it applies to all those crimes,” Nemes said. “These people have already served their time. And so unless they’ve shown an indication that they’ll cheat in an election … folks who were formerly convicted and served their time should get their civil rights back, including the right to vote.”

Shabazz sees himself as living proof of that argument. During his time in prison, he developed a reentry program to improve peoples’ job and education prospects upon release. Since his own release in 2011, he has earned his college degree and poured himself into community work and political advocacy, lobbying for criminal justice and voting reforms alongside the American Civil Liberties Union and The Bail Project. Last year, even as he knew he likely wouldn’t be able to vote, he and a voter outreach team he was a part of helped contact more than 15,000 people across Kentucky ― many of whom had their rights newly restored ― to help them register and then to persuade them to go to the polls.

Not all of them were people with prior felony convictions. Shabazz is particularly proud that he persuaded his 68-year-old mother to vote for the first time in her life. Shabazz and his sister drove her to the polls last November, but his own inability to vote once they got there was a reminder that for all his work, he still didn’t feel like a full participant in his community, his state or his democracy.

What troubles Shabazz most, he said, is that no one can provide a logical explanation for why people should lose voting rights for committing crimes.

“Why does it have to be the vote?” he asked. “No one can give us an answer.”

Kentucky has banned people with felony convictions from voting since the 19th century, and the state’s earliest felony statutes were targeted primarily at crimes white lawmakers thought Black people committed disproportionately. Its disenfranchisement laws, like many voting restrictions past and present, are rooted in racist efforts to thwart Black people’s political power, and the practice persists for no reason other than it’s the way things have always been done ― not because anyone can provide an actual justification for it. (Studies, in fact, have begun to suggest that restoring voting rights may help reduce recidivism rates.)

Current law has also had an outsize impact on largely white rural populations in Kentucky, a point restoration advocates have stressed in the hopes of trying to win more support from Republicans who are uninterested in ― or actively opposed to ― racial justice efforts. They have also pointed to analyses showing that restoring rights to people with felony convictions would have no partisan impact on the state’s elections, which Republicans have dominated in recent years.

Lawmakers could ultimately decide to delay consideration of the restoration bill until next year’s legislative session with little practical consequence. Because voters won’t have a chance to approve it until Kentucky’s next general election in November 2022, it couldn’t be implemented for the upcoming election cycle anyway. But quick passage is vital, said Keturah Herron, a policy strategist at the ACLU of Kentucky. Despite its broad popularity, advocates say they need time to develop campaign messaging and educate voters ahead of a referendum, when opponents are sure to demagogue the issue.

“It’s a huge issue,” Herron said. “If you’re talking about it not passing till next year, we would only have from April until November to educate people on what this really means. It’s going to be difficult to fully educate folks.”

Two decades after he lost his right to vote seemingly for the rest of his life, Shabazz registered just a couple weeks after Beshear finally granted his pardon. Not long after, he was back at work. Shabazz, who lives in Louisville, sometimes drives to Paducah, in the far western reaches of Kentucky, to help people in his hometown navigate the restoration and registration process. Other days, he goes to Frankfort, the state capital, to push lawmakers to further expand voting rights.

Kentucky’s legislative session is almost over, and the restoration bill now appears unlikely to move this year. But its biggest proponents haven’t lost hope.

“There’s a moral force behind it,” Monahan, from the League of Women Voters said, “so it’s inevitable.”

Whenever it finally advances, Shabazz will hit the road to campaign for restoration’s victory at the polls. Then, he’ll start fighting for even more.

“There’s no reason for me to have a pardon if we can’t open up the door and assist other people,” Shabazz said. “We should be looking at restoring everybody’s right to vote. There’s nothing that should be able to take your right to vote away.”