New York State has a shameful history of intentionally suppressing the Black vote. It is a very long one, starting in 1777 when the drafters of the state’s first constitution gave voting rights only to free men and property holders. Almost a half century later, the constitution was amended again to apply higher property requirements that applied only to Black men, and to deny voting rights to any man convicted of an “infamous crime.”
By 1846, thirteen times as many Black men as white men were in that category. And while the 15th Amendment to the United States Constitution nullified the “infamous crime” disqualification after the Civil War, New York reenacted the provision in 1894, effectively barring the vote to anyone convicted of a felony. New York restored the vote in 1971 to individuals convicted of felonies who had completed their sentences, but not to those completing their sentences in the community – i.e., those on parole. This provision remains on the books today.
This disenfranchisement regime was challenged in a pair of federal lawsuits: Muntaqim v. Coombe, brought by an incarcerated individual; and Hayden v. Pataki, brought by an individual on parole and which my organization, the Community Service Society, helped litigate. Litigation briefs uncovered New York’s shameful history of suppressing the Black vote. Yet despite valiant efforts by some of the nation’s brightest minds, the suits failed on en banc appeal in 2006. By 2013, 156,000 New Yorkers – the overwhelming majority Black and brown – were serving their sentences in the community and, unless in possession of a conditional Certificate of Relief from Disabilities or Certificate of Good Conduct, were ineligible to vote. Racial equality and simple fairness were not served.
Advocates pressed Governor Cuomo to legislate a solution. Instead, in April 2018 he created a work-around in the form of Executive Order 181, through which he would issue “conditional pardons” to individuals released to community supervision, allowing them to vote. While the simple message was that individuals could register to vote on release to community supervision, the reality was more complicated: conditional pardons were not actually granted upon release, but often several weeks later. Parole officers were to notify individuals once the pardon had been issued, but many did not. Boards of Elections were to check the state’s “parolee lookup” to determine whether indeed a pardon had been issued before accepting a registration form, but the website was not kept strictly up to date. And even where the system worked as intended, individuals who violated parole and were returned to prison, even for a technical issue, lost the newly-conferred pardon.
Voting rights advocates, including many of the groups and individuals that had supported the Muntaqim and Hayden plaintiffs, recognized that individuals under community supervision might not fully grasp the intricacies of EO 181, or – conversely – know of its existence. They formed a new coalition to help get word out as well as to support legislation codifying the order, because the work-around did not do away with the need for a permanent fix. Though the coalition worked hard to provide necessary information, even visiting parole offices to speak to newly-released persons individually, many of those returning home from prison remained confused about their voting rights. Legislation languished, introduced year after year but never moving beyond committee.
It is quite possible that at this point thousands of New Yorkers who have been granted conditional pardons do not know they can now register. Few had done so in the run up to the Presidential election, and tens of thousands lost the opportunity to weigh in on who should govern our nation for the next four years.
Legislation to codify EO 181 is essential. Shockingly, legislation to restore the vote has stalled in committee since it was first introduced in the 2009-2010 legislative session. Supporters of the current bill (S. 830; no number yet assigned to Assembly counterpart), including sponsoring Senator Leroy Comrie and Senate Elections Committee Chair Zellnor Myrie, are pushing hard for its passage this year. It is imperative that this legislation be a top priority as the session intensifies. California, Colorado, Nevada, and New Jersey have all changed their policies to allow everyone in the community to vote. New York must do the same.
In the words of Martin Luther King, whose birthday we just honored, and whose guidance continues to be arrow-sharp decades after his murder, “[n]o nation can long continue to flourish or to find its way to a better society while it allows any one of its citizens to be denied the right to participate in the most fundamental of all privileges of democracy – the right to vote.” King spoke these words in 1965 when referring to the need for legislation ensuring the right of all Black persons to vote. Today, more than 55 years later, these words apply with equal weight to New York’s discriminatory disenfranchisement law. Our legislature must put Dr. King’s words into action.
David R. Jones, Esq., is President and CEO of the Community Service Society of New York (CSS), the leading voice on behalf of low-income New Yorkers for more than 170 years. The views expressed in this column are solely those of the writer. The Urban Agenda is available on CSS’s website: www.cssny.org.