In the Wake of Amendment 4: Spotlight on Disenfranchisement in Kentucky

"What kind of state is Kentucky, truly?" asked an organizer. "What kind of democracy, if you take away folks, Black and brown folks?"

Daniel Nichanian   |    December 6, 2018

The Kentucky State Capitol Dome in Frankfort.

This article originally appeared on The Appeal, which hosted The Political Report project.

This article is part of a state-based series on disenfranchisement.

Florida’s Amendment 4, the initiative to automatically restore the voting rights of Floridians who complete most felony sentences, is making waves in Kentucky. “We love what Florida did,” Tayna Fogle, an organizer with the grassroots organization Kentuckians for the Commonwealth (KFTC), told me. “Florida was a big deal and it was a big deal in Kentucky because it leaves us with Iowa at the bottom of the justice barrel,” said Judy Johnson, a member of the League of Women Voters of Kentucky (LWVK) who has worked on disenfranchisement in the state.

Kentucky and Iowa are the two states that disenfranchise people convicted of all felonies for life. (Virginia law provides for this as well, but recent governors have mostly gotten around it with executive orders. Other states, like Mississippi, also permanently disenfranchise many people.) To get their rights restored, Kentuckians must apply to the governor, and few are enfranchised this way. Governor Matt Bevin restored no one’s rights during his first year in office in 2016, even though more than 300,000 Kentuckians lacked the right to vote that year, according to a report by the Sentencing Project. That’s over 9 percent of Kentucky’s voting-age population.

Alternatively, individuals convicted of some low-level felonies can apply to have their conviction expunged because of a 2016 law. But they must wait years and pay a prohibitive $500 fee, one of the country’s costliest expungement fees.

Kentucky also stands far and above all other states in terms of excluding African Americans. 26 percent of Black adults were deprived of the right to vote in 2016, according to the Sentencing Project. This colossal racial disparity is tied to Kentucky’s unequal justice system, documented in this article by Ashley Spalding for the Kentucky Center for Economic Policy (KCEP). One manifestation is in charging decisions. According to the state’s Department of Public Advocacy, a majority of juveniles charged with misdemeanor theft in 2016 were white; a majority of those charged with felony robbery were African American.

The latter charge comes with a lifetime ban on voting, but not the former.

“What kind of state is Kentucky, truly?” Fogle asked. “What kind of democracy, if you take away folks, black and brown folks?” Fogle herself lost her rights because of a felony conviction before getting them restored in 2006. “The hoops are just enormous,” she said of her experience. “We are a bunch of people who have made mistakes, and we got caught, but we are not mistakes. We had dreams before we were arrested, and we’re just trying to get back to our dreams.”

Kentucky advocates point to a range of reform paths.

Fogle and Johnson called on Kentucky to imitate Florida and enable automatic rights restoration for people who complete a sentence. (Their organizations, the KFTC and the LWVK, also work toward this goal.) But Kentucky, unlike Florida, has no initiative process. The legislature would need to adopt a constitutional amendment, which would put the measure on the ballot for already-enfranchised Kentuckians to decide.

When Democrats ran the House (until 2016), the chamber repeatedly adopted constitutional amendments to this effect with wide bipartisan majorities. The GOP-run Senate typically ignored them. In 2014, with U.S. Senator Rand Paul testifying in favor of some rights restoration, the Senate did pass a tighter version that had a five-year waiting period and excluded people with multiple convictions; the Senate’s Republican leader Damon Thayer has resisted broader reform. Democratic State Senator Morgan McGarvey said last month that he will introduce a new constitutional amendment providing for automatic rights restoration in the upcoming session.

A governor could also use his or her executive powers. In 2016, in the final weeks of his second term in office, Democratic Governor Steve Beshear issued an executive order that enabled an estimated 180,000 Kentuckians to get their rights restored upon filing a form. But a month later, just two weeks after he succeeded Beshear, Bevin rescinded the order.

Johnson mentioned “baby steps” that state officials could take absent more sweeping action, including eliminating the $500 expungement fee and making the “cumbersome” process by which individuals apply for an executive order streamlined and less arbitrary.

Some advocates are targeting what even counts as a felony in the first place. “In many cases Kentucky’s felony thresholds are quite low, too low,” Spalding told me. Many drug possession cases and thefts exceeding a value of $500 count as felonies, for instance. This has grave effects beyond disenfranchisement, driving incarceration upward. “Kentuckians can be locked up for years for relatively minor offenses—not to mention the collateral consequences they face as returning citizens,” Spalding said. Legislation reducing some felonies to misdemeanors failed in 2018, in part because of opposition by prosecutors.

To achieve reform, organizers are looking for ways to exert pressure on elected officials in a context where those most affected are stripped of direct electoral voice. “Some of the folks have lost the meaning that they work for us, and that’s because they have taken the power of the vote away,” Fogle said.