Episode 19 - Should incarcerated people be allowed to vote?

Transcript, Web links and Credits below.


Hey Everybody. It’s Friday, April 26th, and today I am going to break down something that we should all be embarrassed to have to still defend in 2019 — I’m talking about voting rights. So many people have given so much for our right to vote, but it’s all still so fragile. Should incarcerated people be allowed to vote? How about formerly incarcerated people? What if they committed violent crimes? Should you be allowed to vote if you are in jail but haven’t been convicted yet? Aren’t you innocent until proven guilty? Where did all of these laws come from? And do we even have a constitutional right to vote in the first place?

Let’s dig in.

This is Shaun King and you are listening to (THE BREAKDOWN)


I think what I am about to say is going to shock you.

It shocked me, to be honest.

We don’t actually have a constitutional right to vote. We don’t. The Constitution gives us a lot of rights, but the right to vote is not one of them. This isn’t me being crafty with my words. Not a single constitutional amendment was ever authored guaranteeing American citizens the right to vote.

In fact, according to our Constitution, our federal right to own a gun is stronger than our federal right to vote.

And I think we all fundamentally misunderstood this. We do not have a constitutional right to vote. And over the past few days, as people have raised questions about who should or should not be allowed to vote — and presidential candidates have been asked whether or not they support people being able to vote while incarcerated — the one thing that stood out most to me is that it appears most presidential candidates haven’t even thought about this before.

Let me break it down.


From the technical founding of the United States in 1776 all the way until today, right here, right now, the very moment you are hearing these words come out of my mouth, the Constitution, by purposeful design, has not guaranteed people the right to vote. They left it out on purpose. So that document, the United States Constitution, that is so often held up as the standard bearer of global democracy, didn’t even guarantee people the right to vote. It didn’t when it was written and it doesn’t now.

It granted some rights to assemble, some rights to speak, some rights to own guns, but it didn’t give voting as a fundamental right. It could have. It should have. The framers of the Constitution could have easily made that the 1st, 2nd, or 3rd amendment, but they knew that if they did, it would immediately mean that white landowning men might have to cede their power over to other people who would eventually rise up and vote.

And above all else, the Constitution was written as a document to protect and empower white men. Who wrote it? It was written exclusively for white men by white men. And so they left the right to vote out of the Constitution and left it up to all of the states to create their own rules and guidelines and laws and policies on who could vote and who couldn’t.

And guess what? It got ugly, racist, sexist, and classist right away. And state by state started creating a series of complicated hurdles on who they determined could and could not vote. It was pretty much anything goes. Cities, counties, and states started making up all types of wild restrictions on who could vote and it was all legal.

Right away people wanna say no, no, no, no — the 15th Amendment granted Black people the right to vote or the 19th Amendment granted women the right to vote, but sometimes we have to actually go back and read the fine print.

(Some type of music shift here)

As you know, from 1861-1865, the United States fought in a brutal Civil War. No war before or since has been deadlier for Americans. Nearly a million Americans died and nearly a million more were critically injured. That’s more American casualties and injuries than every other American war combined. Entire cities were destroyed. And let’s be real for a moment please.

The deadliest, most brutal, most devastating war in American history was all about slavery. Half of the nation wanted it and needed it so badly — and refused to allow the other states to determine if they could or couldn’t have it — that they decided to go to war over it. And truthfully, I don’t think this nation has ever properly recovered.

But after Abraham Lincoln issued the Emancipation Proclamation, and the 13th and 14th amendments were passed and ratified by enough states, in 1870 the 15th Amendment passed. And when I grew up, I was always taught something, I bet you were taught it too.

I was taught that the 15th Amendment granted Black people the right to vote.

And that’s almost true. The spirit of it is true, but I need you to understand that law does not operate by spirit. It operates by every single letter, word, and phrase.

The 15th Amendment did not grant African Americans the right to vote.

Let me read it to you. It’s short, but you have to catch what it says and what it doesn’t say.

It says the following, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

That’s it. Now let me translate that for you.

First, it doesn’t give anybody the right to vote. The 15th Amendment simply said that the federal government and state governments cannot deny access to voting based on race, color, or previous condition of servitude.

Secondly, the Amendment doesn’t say that it was for men, but until this point it was assumed that everything in the Constitution was for men and men alone. That’s crazy right. It was a full 50 years later until women received voting protections with the 19th Amendment in 1920, but even it doesn’t say women have the right to vote, it just says you can’t keep a woman from voting because she’s a woman alone.

So, in 1870, the 15th Amendment didn’t say, “If you are Black, you have the right to vote.” Because that’s still not true. It just said that the government was no longer allowed to tell you that you couldn’t vote because you are Black or that you can only vote if you are white.

And that’s the turning point.

In 1870 — after it was made illegal to tell Black people that they couldn’t vote because they were Black — cities, counties, and states began making up not dozens, but hundreds, then thousands of stipulations on who could and couldn’t vote. And since they couldn’t technically say that it was about Blackness, they coded it and disguised it however they could. That’s when we started seeing what we call poll taxes — where Black people would show up to vote and you’d have to do things like guess the number of bubbles in a bar of soap, or the number of marbles in a jar, or recite the entire Constitution without error — in order to be able to vote. In some towns, over 99% of African Americans were unable to vote — even though it was technically against the law to keep people from voting on race. They’d say, ”Hey, it wasn’t about race, they just couldn’t guess how many bubbles are in this bar of soap.”

And guess what else started happening? For the very first time, states across the country, like Mississippi in 1890 and Alabama in 1904, started making laws that if you were in jail, in prison — or even if you got out of jail or prison — you just couldn’t vote anymore. Period. And let’s be clear, this wasn’t crime, this was all about race. Because I don’t know if you knew this or not, but from 1619-1865, throughout the entire South, they hardly had any jails or prisons, and the ones they had, were almost exclusively for white people. I mean they were nearly 100% white for over 200 years. And during those 200 years, they weren’t worried about letting white people with felonies vote. But when slavery ended, jails in the South went from being almost exclusively white to almost exclusively Black in a single generation. And states quickly picked up on this reality and started putting hundreds of new restrictions on what people who were convicted of crimes could or could not do in society. And guess what? Virtually none of those restrictions were in place when jails and prisons were primarily made up of white men. Today, the estimates are that at least 10,000 unique restrictions have been put in place on people convicted of crimes. 10,000. And in this country tens of millions of people have been convicted of crimes. So we have tens of millions of men and women with over 10,000 restrictions on what they can and cannot do in society.

It’s not just voting, but perhaps nothing in the world is more degrading than being an American citizen and not being allowed to vote. I said this before on Twitter — it’s a gross dehumanization of a person to strip them of their right to vote. It’s another form of basically telling the person that they are not fully human. They are basically 3/5ths. They are American enough for the laws of punishment to apply to them. American enough to go to jail or prison, but not American enough or human enough to engage in the most basic civil responsibilities.

Which leads me back to the presidential campaigns.

(Music transition)

This past weekend, five presidential candidates held town halls on CNN, and they were each asked a version of whether or not they support currently incarcerated people having the right to vote — and of all of the candidates that were asked the question. All of them either straight up said no, or some version of no, except for one — it was Bernie Sanders.

And that didn’t surprise me because only two states in the country currently allow incarcerated people the chance to vote. One is Maine and the other is Bernie’s home state of Vermont. So when Bernie was asked the question, he already knew his answer would be yes because he’s seen it in action in Vermont for decades.

But the question, in my opinion, was framed in a loaded fashion, the question was framed as, “Would you give the Boston Marathon bomber the right to vote.” And to some people’s surprise, Bernie still said yes. Because for him, the punishment was serving time in prison, not being denied your most basic human dignities.

And it actually opened Pandora’s box because before we knew it, Lindsey Graham, the Republican Senator from South Carolina was weaponizing it and saying Bernie Sanders wanted Dylann Roof, the white supremacist from South Carolina who murdered nine people at a church in Charleston, to have the right to vote.

But that’s the weird thing about having actual beliefs.

For instance, I’m against the death penalty. And I’m against it for about 6 different reasons, but one of the main two are that it is mainly used against Black people and people of color. Wealthy white people who murder someone almost never get it. Period. And because it’s mainly used against Black people and poor people, experts estimate that hundreds of innocent people have likely been executed in this country. So I’m against it.

But yesterday, Texas executed a horrible man. An unrepentant white supremacist who lynched a Black man named James Byrd — tying him to the back of a pickup truck in Jasper, Texas until his body was ripped apart into dozens of pieces. He never apologized. Not even right before he was executed.

And guess what? I’m still against the death penalty. Not because I like that man or even because I wanted him to live. Because a primal part of me didn’t, but I was against him being executed in great part because I know that the death penalty is rarely even used for white supremacists.

Just like I know that most people in prison aren’t Dylann Roof or the Boston Marathon bomber — and when we use them as the faces of why 10 million people should be denied the right to vote, that is functionally a lie. Because most people in jail or prison right now aren’t mass murderers and they aren’t white supremacists.

They are Black & Latino. And so no, I’m not excited about the idea of Dylann Roof getting to vote for Donald Trump — which is no doubt who he’d support, but when you have a belief that all American citizens should have the right to vote, then it applies to all American citizens.

That’s my belief.

Because right now, millions of Americans are being held in jail, not because they’ve been convicted of a crime, but simply because they can’t afford bail. And in 46 states, even if you haven’t been convicted of a crime, but are in jail after you’ve been arrested, you can’t vote. And that’s just wrong. If you’re innocent until proven guilty, it’s outrageous that you would be denied the right to vote before being found guilty.

And I could go down the long list of people who can’t vote right now, but think about this. The current law basically states that if you are caught smoking weed, you can’t vote, but if you aren’t caught, voting is just fine. And what we know is that only one factor separates who’s caught and who isn’t when it comes to weed in America and it’s race. Smoking weed has been functionally legal for white people for decades. Studies show that white people and African Americans smoke weed at the exact same rate, but that African Americans are 800% more likely to be arrested and jailed for it.

Do you see where I’m going with this. I’ve gotta run, but before I do, I’ve got one simple action step for you, ok?

(Action Step Music)

Today, I have some homework for you. It’s basic.

I just want you to go to a website and start doing some reading on your own, ok?

Go to RightToVoteAmendment.com


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