The racist origins of voting bans for 'returning citizens'

Twelve people in Alamance County, North Carolina, could go on trial as soon as next month for the crime of voting while ineligible. One of them, Whitney Brown, is arguing that the state's longstanding ban on people voting while on probation or parole for a felony conviction is discriminatory and unconstitutional. Brown makes the case that the ban was enacted by white supremacist legislators in 1900 with the goal of erasing African-American voters' gains in political power after the Civil War.

In fact, North Carolina's law continues to disenfranchise black citizens at a higher rate than whites. A brief filed by Brown's lawyers at the Southern Coalition for Social Justice noted that eight of the 12 Alamance County defendants are black, though the county's population is only 19 percent black. Across North Carolina, where black people make up 21.5 percent of the population, they accounted for more than two-thirds of the voters flagged by the state elections board as potentially violating the ban during the 2016 election.

Two similar lawsuits are challenging Mississippi's ban. Enacted in 1890, it was struck down six years later by the state's Supreme Court, which found the ban was intended to "obstruct the exercise of suffrage by the negro race." However, the U.S. Supreme Court overturned that decision in 1898, so the ban remains in the Mississippi constitution, permanently barring people with felony convictions from voting unless they obtain a pardon from the governor or legislature. Since 1994, 61 percent of the people disenfranchised by this ban have been black though African Americans constitute only 36 percent of the state's residents.

In Florida, people who have completed felony sentences — some of whom prefer the term "returning citizens" — must wait five years and then apply to the governor and his cabinet to regain their right to vote. The governor has no guidelines or standards for granting clemency, and there's a backlog of thousands of petitions. The 11th U.S. Circuit Court of Appeals will hear arguments in a case challenging Florida's rule next month, and in November voters will consider amending the state constitution to narrow the ban on voting to those convicted of murder or felony sex crimes.

And in Louisiana, the state Supreme Court could soon hear arguments challenging that state's ban on voting by returning citizens. Gov. Jon Bel Edwards (D) recently signed a law easing the ban and restoring voting rights to an estimated 2,000 people. Meanwhile, Texas' strict ban has drawn national attention since a recent case in which a woman was given a five-year prison sentence for ineligible voting.

Jim Crow laws target black voters

In the wake of the Civil War, the 14th Amendment to the U.S. Constitution guaranteed every American "equal protection of the laws." The federal government oversaw the reorganization of state governments and constitutions in the South. Several states held constitutional conventions in 1868 that included former slaves and excluded former Confederates. Most of these conventions resulted in state constitutions that gave black men the right to vote for the first time.

The federal government's commitment to Reconstruction eventually waned, and white majorities in Southern states rewrote state constitutions and elected legislatures dedicated to white supremacy.

The Alamance County lawsuit describes the motivation of the North Carolina lawmakers who banned people with felony convictions from voting until completing probation or parole. The North Carolina Democratic Party stated in 1898 that its mission was to "rescue the white people … from the curse of negro domination." The same document warned of illegal voting by African Americans and promised to "protect the white voters … against having their honest votes off-set by illegally and fraudulently registered negros." So-called "Red Shirts" — a white-supremacist paramilitary group — rode on horseback through black communities in a campaign of intimidation during that year's election.

A majority of North Carolina voters backed the Democratic Party in 1898, and the new legislature passed laws making it harder for black citizens to vote, imposing a poll tax and a ban on voting while on probation. A new literacy test requirement included a grandfather clause making an exception for those whose ancestors could legally vote before the Civil War. When black voters triumphed in a local election in Wilmington, then North Carolina's largest city, a white mob killed dozens of black residents and overthrew the local government — the only successful coup d'etat ever carried out in the U.S.

For decades thereafter, Jim Crow governments in North Carolina and other Southern states made it practically impossible for black voters to participate in elections. And even after the civil rights movement succeeded in breaking down many barriers to vote, states passed harsh criminal laws that were disproportionately applied to black men. As North Carolina began incarcerating more and more black men, its ban on voting while on probation stayed on the books, mostly unchanged.

Unequal justice for ineligible voters

The conservative Heritage Foundation published a list, which was posted to a White House website, of more than 1,000 cases of voter fraud and election fraud. Although the list is not exhaustive, those who believe there is widespread voter fraud have latched on to it as proof. It lists only a few cases in which states imposed prison sentences for ineligible voting.

In the recent high-profile Texas case, Crystal Mason was sentenced to five years in prison for casting a provisional ballot in 2016, while she was on supervised release for a federal felony tax crime. Mason has maintained that she was not aware that she couldn't vote. Her request for a new trial was recently denied.

Critics have compared the sentence imposed on Mason, who is black, with a much more lenient sentence given to a white elected official in the same county who forged signatures to get on the ballot for reelection. The white official was given a fine, probation, and a suspended two-year sentence. The Texas Civil Rights Project said that "the disparate treatment of these individuals is stark and clearly related to race."

Elsewhere around the country, other white voters have avoided jail sentences for casting ineligible ballots. In North Carolina, for example, officials declined to prosecute a woman who confessed to casting a vote for President Trump in the name of her deceased mother.

"This woman is 67 years old and has never run afoul of the law for anything more serious than a speeding ticket," said District Attorney David Learner (R), chief prosecutor for Catawba, Burke and Caldwell counties. "It is not in the public's interest to charge her with this felony offense."