When the American Civil War ended, states which had joined the Confederacy were required to accept conditions in order to remove the Union. Included in these conditions were ratification of the 13th, 14th, and 15th Amendments to the US Constitution, which ended legal slavery except as punishment for a crime; ensured that anyone born within the United States or its territories was a citizen of both the country and the state where they resided; required due process in order to deprive any citizen of life, liberty, or property; required states to allow all citizen men age 21 and up to vote unless convicted of a crime, on penalty of losing representation in Congress; dealt with various matters regarding insurrection (the Confederacy); and prohibited limiting or denying the right to vote on the basis of race, color, “or previous condition of servitude” (enslavement). As you might suspect, states leapt upon those loopholes with enthusiasm.
After the Civil War, the white Confederates who still controlled Florida had a problem: The state had been forced to accept the 13th, 14th, and 15th amendments, which guaranteed equal rights for newly freed slaves, in order to rejoin the Union, and now black registered voters outnumbered white ones. White Floridians responded by adopting a constitution in 1868 that disenfranchised anyone with a felony conviction and added to the felony roster a variety of crimes they believed African Americans were likelier to be convicted of. One Republican leader said the law would keep the state from becoming [led by African Americans, voted in by the new majority of Black voters]. A decade later, more than 95 percent of people in Florida’s convict camps were African Americans. (Mother Jones, 2018)
Florida was far from alone in its newfound enthusiasm for turning “crimes” (some of them questionable in being defined as crimes) into felonies in order to prevent Black men from voting (women wouldn’t get the right to vote for another several decades). Nor was this practice limited to states of the former Confederacy. Black men around the US found themselves in convict camps, doing hard labor without pay, barred from voting for life, for actions as innocent as being in a town without proof on them that they had gainful employment. That could get them convicted of felony vagrancy, a “crime” essentially unheard of for white men.
White people, most especially those who had been directly involved in enslaving people, catching runaways, or acting as enforcers for the enslavers, were very much afraid of retaliation by the newly-freed men and their allies among already-free Black men and white abolitionists. They felt confident that they would want revenge if they were the ones who had been enslaved (and all that carries within it), and projected that expectation onto those who were newly free.
Fearing for their future in a country where Black men could both vote and hold office, especially in states where there were enough Black residents to sway an election, they set about creating rafts of laws to prevent Black men from voting during the day and ran campaigns of terrorism at night, including lynching, threatening, destroying property, burning crosses, raping the wives or daughters of men they suspected of intending to vote or run for office, and otherwise doing everything they could to intimidate their Black neighbors.
Among the laws created were those to disenfranchise felons, usually for life, those to create dozens or hundreds of new crimes (or elevate them from misdemeanors to felonies) which were expected to be enforced almost entirely against Black men (and usually were), and new literacy tests and poll taxes in order to register to vote. These literacy tests didn’t just check whether a potential registrant could read the ballot, but might have questions of mathematics, literature, or logic, some of which were designed to be ambiguous so that the registrar could declare any answer wrong.
In short order, huge numbers of Black men who had been freed just a few short years before, their sons, and even Black men who were free before the Emancipation Proclamation, found themselves felons working off extended sentences of hard labor at prison work camps for no pay and little to eat, with guards behaving just like plantation overseers who could beat or kill inmates with impunity, and teams of trackers and hunting dogs ready to return them if they attempted escape. Without their families, no doubt many found their situation even worse than before, with only the promise of eventual freedom to give some small measure of hope. Meanwhile, most newspapers were busily ensuring their readers that these men were dangerous criminals who were a real threat to public safety and that the laws, their enforcers, the “Night Riders” and KKK, and the prisons were all that prevented society from becoming a free-for-all of mayhem, murder, and rape of fragile white women.
In this way, public support was built for adding so many new laws to “maintain law and order” and protect the public from Black men repeatedly portrayed as animalistic brutes. While the language and images used to build and shore up public support have evolved over time, the core message has not: Black men are dangerous, and the public must be protected from them.
Modern day crime reporting does this by reporting more crimes committed by Black people than by white people (though white people commit more crimes), mentioning the race of Black suspects more often than other suspects, using photos which depict Black suspects in mugshots or in other contexts meant to imply criminality (such as wearing a hoodie or flashing a wad of cash) while non-Black suspects may be shown in graduation photos or family photos, and using language to describe the suspect or crime which is sensational and implies considerable threat to public safety. In many cases, this current editorial and reporting bias may be unconscious bias resulting from more than 100 years of American crime reporting patterns established in the wake of the Civil War, but that neither excuses it nor reduces its impact.
When you see reporting about the efforts to restore voting rights to people with felony records, as in Florida, (see Mother Jones, 2020, for example), or about voter roll purges, as have been done notoriously by the Secretaries of State of Kansas and Georgia in particular, or about closures of polling places and resistance to absentee voting by mail or extended voting hours, consider who these are intended to disenfranchise and why. Even efforts which might appear, on their surface, to be impartial and not driven by race, such as purging voter rolls of people with similar names to those who either have died or failed to vote in a certain number of years or elections, are driven by race. Black families, especially, but also other minoritized groups including Latinos, are more likely to give sons the same name as their father, in particular, and to reuse family names in general, and the people running these purges are well aware of that fact.
Our justice system, such as it is, is supposed to be both punitive and rehabilitative. The vast majority of inmates throughout the system are incarcerated for drug possession charges (another racist “law and order” ploy), with many more in for other nonviolent crimes such as intent to distribute drugs or violation of probation, and all of them who survive will eventually be released back into the community.
At no time do any of them lose their humanity or interest in how our country and their state and community are run, nor do they lose their citizenship, so they should not lose their access to their right to vote. The only times American citizens should lose their right to vote are when they die, are adjudicated incompetent (which must be done according to due process, including the right to appeal), or when they lose their citizenship. Anything else is a setup for abuse, and in this country, that abuse is bound to be based on race and driven by racism.
Call to action: If you’re able, consider donating to the Fines and Fees Program which helps those with Florida felony records pay off their fines and fees so that they can access their right to vote, while the district court revisits the case challenging the law that the Florida legislature enacted to undermine the will of the people that voting rights should be restored to former felons, other than those convicted of sex crimes or murder. As in 2000, this year’s election in Florida could come down to a few votes and the difference between Trump-supporting white retirees or forward-looking workers and former felons.