San Diego Law Review


Ellen Atkinson

Library of Congress Authority File


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Betty McKay served twenty-seven years in prison. During her past three years on parole, she became a motivational speaker, justice advocate, and organizer. Similarly, John Windham served thirty years in prison. Since his release from prison to parole in 2018, he became a motivational speaker and consultant, and works with nonprofits providing reentry services to others formerly incarcerated. But that is not all Ms. McKay and Mr. Windham have in common: Neither has ever been able to vote. They are among the 50,000 parolees in the State of California that, despite having served their prison sentences, have been barred from voting by the California State Constitution until completion of their parole.

Last November, that changed. Californians voted to amend the State Constitution to permit parolees to vote after completion of their prison sentence. Known on the ballot as “Proposition 17,” the measure re-enfranchised an estimated 50,000 parolees who were prohibited from registering to vote until the completion of their parole. However, this modification to the State Constitution preserved denial of the right to vote for convicted felons while still incarcerated. In California, that means approximately 95,000 felons remain ineligible to vote, and nationally, more than 5 million people with prior felony convictions remain ineligible to vote as the direct result of state felon disenfranchisement laws.

California is now the twentieth state to either automatically restore voting rights upon release from prison, or not revoke voting rights in the first place, joining a national trend toward restoring voting rights to people with past convictions. However, these changes take place on a state-by-state basis, and the gradual restoration of rights to some––but not all––convicted felons distracts from the role some state felon disenfranchisement laws may play in race-based vote denial.

As a Black man, Mr. Windham is among the 75% of men leaving California prisons that are Black, Latino, or Asian American, who comprise less than 28.5% of the state’s population. Data from 2017 shows the imprisonment rate for Black men in California was ten times more than white men, and imprisonment rates for Black women ten times that of white women. The disparity begs the question: Do state felon voting disenfranchisement laws impermissibly deny the right to vote in a racially discriminatory manner?

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