Beshear Can Take a Major Bite Out of Disenfranchisement in Kentucky by Following These Steps

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Kentucky state capitol building
The Kentucky State Capitol. Photo by Kittugwiki via Creative Commons.

Kentucky Governor Andy Beshear has said he “will sign an executive order that automatically restores voting rights for Kentuckians who complete their sentences after being convicted of a nonviolent felony.”

This would be a major victory for the rights restoration movement, but the order must be well-crafted to meet its goals.

Kentucky has one of the most restrictive felony disenfranchisement laws in the country. It is one of only two states where all felony convictions strip you of the right to vote and where the only path to rights restoration is through the good graces of the governor.

This law silences the voices of over 9% of the total voting age population, including over 26% of the black voting age population. One in four African Americans in Kentucky cannot vote. The vast majority of these individuals have completed their sentences.

In the long term, Kentucky needs a constitutional amendment to purge this restrictive felony disenfranchisement from its laws.

Activists from groups like Kentuckians for the Commonwealth, the League of Women Voters, the Central Kentucky Council for Peace and Justice, the ACLU, the Catholic Conference, Kentucky Conference of Churches, the Poor People’s Campaign, and the NAACP are working hard to pass such an amendment through the legislature and qualify it for the ballot in 2022.

However, in the short-term, Beshear’s promised executive order could move Kentucky towards a more representative and fair democracy. By restoring the right to vote to those who have completed their term of sentence, Beshear could re-enfranchise more than 243,000 people: 7% of the statewide voting age population, including 20% of potential black voters.

When Beshear’s father was governor, he issued an executive order that could have restored the right to vote to over 100,000 Kentuckians. It did not. Here are some of the pitfalls that the new governor should avoid:

  • Clearly define sentence completion to mean time served.

A major lesson coming out of the ongoing fight over Amendment 4 in Florida is that the order must clearly define completion of sentence to encompass incarceration, parole, and probation but not fines and fees. Laws that require people to pay off legal debt before they can vote again are modern-day poll taxes.

They shut people out for being poor while allowing rich people to buy their right to vote back. That would significantly blunt the impact of an executive order in Kentucky where there is a 16% poverty rate statewide and a 22% poverty rate in the African American community.

  • Do not distinguish between convictions.

Polling shows that 2/3 of Kentuckians support rights restoration after sentence completion. Rights restoration resonates with supporters because they believe in second chances. Judges and juries already consider the severity of a crime at the time of sentencing. Once that sentence is served, the rights of citizenship should be restored.

Moreover, rights restoration schemes that distinguish based on type of conviction create an extra layer of confusion and administrative difficulty at the implementation stage.

  • Make restoration automatic.

An effective executive order will lay out clear eligibility criteria and then declare that anyone who meets those criteria is eligible to vote as of the date of the order and going forward on the date they meet those criteria.

A person who has served their time should not have to jump through additional hoops to establish their eligibility. They should be entitled to certify their eligibility on a registration application like all other voters.

  • Provide official assistance to Kentuckians seeking to determine their eligibility.

Election officials should provide individualized assistance to people with convictions seeking to understand how the executive order applies to them. Kentucky officials have full access to criminal records but the state has no free publicly available statewide criminal records database.

If the executive order will require people to know the details of their convictions – for example, whether they still owe fines, fees, or restitution – there will be no easy way for impacted individuals to ascertain that information.

  • Launch a robust public education campaign alongside the executive order.

Felony disenfranchisement and rights restoration laws are confusing.

There are nearly 23 million people with felony convictions across the United States. While about 5 million of them have lost the right to vote under law, many believe they cannot vote because the myth of universal disenfranchisement persists.

That is why Campaign Legal Center (CLC) launched RestoreYourVote.org in 2018 to provide reliable information on rights restoration in all 50 states. Still, the state must play a central role in educating its voters and providing access to the ballot.

To make re-enfranchisement a reality, Beshear should devote resources for a robust public education campaign on rights restoration.

Beyond general public education, election officials have the resources and data to conduct individualized outreach to every citizen who has had their registration purged or rejected in the past because of a felony conviction.

Corrections, parole, and probation officials all must play a role in ensuring that individuals completing their sentences are informed of their eligibility and receive voter registration materials.  

The lesson is plain: Andy Beshear must issue an order with all of these features as soon as possible, to ensure that his promised reform is realized.

Blair is a Skadden Foundation Fellow at CLC focusing on overbroad felony disenfranchisement laws.