Democracy Restoration Act of 2023

II 118TH CONGRESS 1ST SESSION S. 1677 To secure the Federal voting rights of persons when released from incarceration. IN THE SENATE OF THE UNITED STATES MAY 18, 2023 Mr. CARDIN (for himself, Mr. SCHATZ, Mr. PADILLA, Mr. CASEY, Mrs. FEIN- STEIN, Ms. WARREN, Mr. MARKEY, Mr. MENENDEZ, Ms. SMITH, Mr. WELCH, Ms. BALDWIN, Mr. BOOKER, Mr. BLUMENTHAL, Ms. KLO- BUCHAR, Mr. SANDERS, Mrs. MURRAY, Mr. WYDEN, Mr. VAN HOLLEN, Ms. HIRONO, Mrs. SHAHEEN, Mr. KAINE, Mr. BROWN, and Mr. DURBIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To secure the Federal voting rights of persons when released from incarceration. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Democracy Restoration 4 Act of 2023’’. 5 SEC. 2. FINDINGS. 6 Congress makes the following findings: 7 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1677 IS (1) The right to vote is the most basic constitu- 1 tive act of citizenship. Regaining the right to vote 2 reintegrates individuals with criminal convictions 3 into free society, helping to enhance public safety. 4 (2) Article I, section 4, of the Constitution 5 grants Congress ultimate supervisory power over 6 Federal elections, an authority which has repeatedly 7 been upheld by the United States Supreme Court. 8 (3) Basic constitutional principles of fairness 9 and equal protection require an equal opportunity 10 for citizens of the United States to vote in Federal 11 elections. The right to vote may not be abridged or 12 denied by the United States or by any State on ac- 13 count of race, color, gender, or previous condition of 14 servitude. The 13th, 14th, 15th, 19th, 24th, and 15 26th Amendments to the Constitution empower Con- 16 gress to enact measures to protect the right to vote 17 in Federal elections. The 8th Amendment to the 18 Constitution provides for no excessive bail to be re- 19 quired, nor excessive fines imposed, nor cruel and 20 unusual punishments inflicted. 21 (4) There are 3 areas in which discrepancies in 22 State laws regarding criminal convictions lead to un- 23 fairness in Federal elections— 24 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1677 IS (A) the lack of a uniform standard for vot- 1 ing in Federal elections leads to an unfair dis- 2 parity and unequal participation in Federal 3 elections based solely on where a person lives; 4 (B) laws governing the restoration of vot- 5 ing rights after a criminal conviction vary 6 throughout the country and persons in some 7 States can easily regain their voting rights 8 while in other States persons effectively lose 9 their right to vote permanently; and 10 (C) State disenfranchisement laws dis- 11 proportionately impact racial and ethnic minori- 12 ties. 13 (5) State disenfranchisement laws vary widely. 14 Two States (Maine and Vermont) and the Common- 15 wealth of Puerto Rico do not disenfranchise individ- 16 uals with criminal convictions at all. In 2020, the 17 District of Columbia re-enfranchised its citizens who 18 are under the supervision of the Federal Bureau of 19 Prisons. Twenty-five States disenfranchise certain 20 individuals on felony probation or parole. During 21 2023, lawmakers in Minnesota and New Mexico ex- 22 panded voting rights to citizens on felony probation 23 and parole. In 11 States, a conviction for certain of- 24 fenses can result in lifetime disenfranchisement. 25 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1677 IS (6) Several States deny the right to vote to in- 1 dividuals convicted of certain misdemeanors. 2 (7) In 2022, over 4,600,000 citizens of the 3 United States, or about 1 in 50 adults in the United 4 States, could not vote as a result of a felony convic- 5 tion. Of the 4,600,000 citizens barred from voting 6 then, only 23 percent were in prison or jail. By con- 7 trast, 75 percent of persons disenfranchised then re- 8 sided in their communities while on probation or pa- 9 role or after having completed their sentences. Ap- 10 proximately 2,200,000 citizens who had completed 11 their sentences were disenfranchised due to restric- 12 tive State laws. Over 930,000 Floridians who com- 13 pleted their sentence remain disenfranchised because 14 of a pay-to-vote requirement that was enacted by 15 Florida lawmakers in 2019 to undermine the impact 16 of a 2018 ballot initiative that eliminated the life- 17 time ban for persons with certain felony convictions. 18 In 3 States—Alabama, Mississippi, and Tennessee— 19 more than 8 percent of the total population is 20 disenfranchised. 21 (8) In those States that disenfranchise individ- 22 uals post-sentence, the right to vote can be regained 23 in theory, but in practice this possibility is often 24 granted in a non-uniform and potentially discrimina- 25 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1677 IS tory manner. Disenfranchised individuals sometimes 1 must either obtain a pardon or an order from the 2 Governor or an action by the parole or pardon 3 board, depending on the offense and State. Financial 4 restrictions may also inhibit individuals who have 5 completed their sentences from re-enfranchisement. 6 Individuals convicted of a Federal offense often have 7 additional barriers to regaining voting rights. 8 (9) Many felony disenfranchisement laws today 9 derive directly from post-Civil War efforts to stifle 10 the Fourteenth and Fifteenth Amendments. Between 11 1865 and 1880, at least 14 States—Alabama, Ar- 12 kansas, Colorado, Florida, Georgia, Illinois, Mis- 13 sissippi, Missouri, Nebraska, New York, North Caro- 14 lina, South Carolina, Tennessee, and Texas—en- 15 acted or expanded their felony disenfranchisement 16 laws. One of the primary goals of these laws was to 17 prevent African Americans from voting. Of the 18 States that enacted or expanded their felony dis- 19 enfranchisement laws during this post-Civil War pe- 20 riod, at least 11 continue to preclude persons on fel- 21 ony probation or parole from voting. 22 (10) State disenfranchisement laws dispropor- 23 tionately impact racial and ethnic minorities. In re- 24 cent years, African Americans have been imprisoned 25 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1677 IS at over 5 times the rate of Whites. More than 6 per- 1 cent of the voting-age African-American population, 2 or 1,800,000 African Americans, are disenfranchised 3 due to a felony conviction. In 9 States—Alabama 4 (16 percent), Arizona (13 percent), Florida (15 per- 5 cent), Kentucky (15 percent), Mississippi (16 per- 6 cent), South Dakota (14 percent), Tennessee (21 7 percent), Virginia (16 percent), and Wyoming (36 8 percent)—more than 1 in 8 African Americans are 9 unable to vote because of a felony conviction, twice 10 the national average for African Americans. 11 (11) Latino citizens are also disproportionately 12 disenfranchised based upon their disproportionate 13 representation in the criminal justice system. Al- 14 though data on ethnicity in correctional populations 15 are unevenly reported and undercounted in some 16 States, a conservative estimate is that at least 17 506,000 Latino Americans or 1.7 percent of the vot- 18 ing-age population are disenfranchised. More than 2 19 percent of the voting-age Latino population, or 20 560,000 Latinos, are disenfranchised due to a felony 21 conviction. In 31 States Latinos are disenfranchised 22 at a higher rate than the general population. In Ari- 23 zona and Tennessee over 6 percent of Latino voters 24 are disenfranchised due to a felony conviction. 25 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1677 IS (12) Women have been significantly impacted 1 by mass incarceration since the early 1980s. Ap- 2 proximately 1,000,000 women were disenfranchised 3 in 2022, comprising over 20 percent of the total 4 disenfranchised population. 5 (13) Disenfranchising citizens who have been 6 convicted of a criminal offense and who are living 7 and working in the community serves no compelling 8 State interest and hinders their rehabilitation and 9 reintegration into society. Models of successful re- 10 entry for persons convicted of a crime emphasize the 11 importance of community ties, feeling vested and in- 12 tegrated, and prosocial attitudes. Individuals with 13 criminal convictions who succeed in avoiding recidi- 14 vism are typically more likely to see themselves as 15 law-abiding members of the community. Restoration 16 of voting rights builds those qualities and facilitates 17 reintegration into the community. That is why allow- 18 ing citizens with criminal convictions who are living 19 in a community to vote is correlated with a lower 20 likelihood of recidivism. Restoration of voting rights 21 thus reduces violence and protects public safety. 22 (14) State disenfranchisement laws can sup- 23 press electoral participation among eligible voters by 24 discouraging voting among family and community 25 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1677 IS members of disenfranchised persons. Future elec- 1 toral participation by the children of disenfranchised 2 parents may be impacted as well. 3 (15) The United States is one of the only West- 4 ern democracies that permits the permanent denial 5 of voting rights for individuals with felony convic- 6 tions. 7 (16) The Eighth Amendment’s prohibition on 8 cruel and unusual punishments ‘‘guarantees individ- 9 uals the right not to be subjected to excessive sanc- 10 tions.’’ (Roper v. Simmons, 543 U.S. 551, 560 11 (2005)). That right stems from the basic precept of 12 justice ‘‘that punishment for crime should be grad- 13 uated and proportioned to [the] offense.’’ Id. 14 (quoting Weems v. United States, 217 U.S. 349, 15 367 (1910)). As the Supreme Court has long recog- 16 nized, ‘‘[t]he concept of proportionality is central to 17 the Eighth Amendment.’’ (Graham v. Florida, 560 18 U.S. 48, 59 (2010)). Many State disenfranchisement 19 laws are grossly disproportional to the offenses that 20 lead to disenfranchisement and thus violate the bar 21 on cruel and unusual punishments. For example, a 22 number of States mandate lifetime disenfranchise- 23 ment for a single felony conviction or just two felony 24 convictions, even where the convictions were for non- 25 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1677 IS violent offenses. In numerous other States, dis- 1 enfranchisement can last years or even decades while 2 individuals remain on probation or parole, often only 3 because a person cannot pay their legal financial ob- 4 ligations. These kinds of extreme voting bans run 5 afoul of the Eighth Amendment. 6 (17) The Twenty-Fourth Amendment provides 7 that the right to vote ‘‘shall not be denied or 8 abridged by the United States or any State by rea- 9 son of failure to pay any poll tax or other tax.’’ Sec- 10 tion 2 of the Twenty-Fourth Amendment gives Con- 11 gress the power to enforce this article by appropriate 12 legislation. Court fines and fees that individuals 13 must pay to have their voting rights restored con- 14 stitute an ‘‘other tax’’ for purposes of the Twenty- 15 Fourth Amendment. At least five States explicitly 16 require the payment of fines and fees before individ- 17 uals with felony convictions can have their voting 18 rights restored. More than 20 other States effec- 19 tively tie the right to vote to the payment of fines 20 and fees, by requiring that individuals complete their 21 probation or parole before their rights are restored. 22 In these States, the non-payment of fines and fees 23 is a basis on which probation or parole can be ex- 24 tended. Moreover, these States sometimes do not 25 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1677 IS record the basis on which an individual’s probation 1 or parole was extended, making it impossible to de- 2 termine from the State’s records whether non-pay- 3 ment of fines and fees is the reason that an indi- 4 vidual remains on probation or parole. For these 5 reasons, the only way to ensure that States do not 6 deny the right to vote based solely on non-payment 7 of fines and fees is to prevent States from condi- 8 tioning voting rights on the completion of probation 9 or parole. 10 SEC. 3. RIGHTS OF CITIZENS. 11 The right of an individual who is a citizen of the 12 United States to vote in any election for Federal office 13 shall not be denied or abridged because that individual has 14 been convicted of a criminal offense unless such individual 15 is serving a felony sentence in a correctional institution 16 or facility at the time of the election. 17 SEC. 4. ENFORCEMENT. 18 (a) ATTORNEY GENERAL.—The Attorney General 19 may, in a civil action, obtain such declaratory or injunctive 20 relief as is necessary to remedy a violation of this Act. 21 (b) PRIVATE RIGHT OF ACTION.— 22 (1) IN GENERAL.—A person who is aggrieved 23 by a violation of this Act may provide written notice 24 VerDate Sep 11 2014 04:08 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1677.IS S1677 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1677 IS of the violation to the chief election official of the 1 State involved. 2 (2) RELIEF.—Except as provided in paragraph 3 (3), if the violation is not corrected within 90 days 4 after receipt of a notice under paragraph (1), or 5 within 20 days after receipt of the notice if the viola- 6 tion occurred within 120 days before the date of an 7 election for Federal office, the aggrieved person 8 may, in a civil action, obtain declaratory or injunc- 9 tive relief with respect to the violation. 10 (3) EXCEPTION.—If the violation occurred 11 within 30 days before the date of an election for 12 Federal office, the aggrieved person need not provide 13 notice to the chief election official of the S [Text truncated for display. Full text available on Congress.gov.]