New Guidance on Voting Rights in Tennessee Further Exacerbates Disenfranchisement

Last month, Tennessee’s Elections Division issued new guidance requiring formerly incarcerated residents who have been convicted of a felony to fully restore their citizenship rights before being allowed to register to vote. Prior to this, formerly incarcerated Tennessee residents could petition for the restoration of their voting rights through a Certificate of Restoration, which required that the prospective voter show they had served their sentences and did not owe any outstanding court costs or child support. Along with Campaign Legal Center, Baker Donelson, and Free Hearts Tennessee, Equal Justice Under Law helped bring a lawsuit in 2020 challenging the Certificate of Restoration process because it was extremely convoluted and costly, there was a lack of uniform policies across jurisdictions, and there was no appeals process. Now, as that case approaches trial, Tennessee has made the process even more inaccessible by requiring those with felony convictions to have their citizenship rights fully restored by a judge or show that they were pardoned, before even embarking on the Certificate of Restoration process.

The Tennessee election officials behind the new guidance claim that the guidance is required by a Tennessee Supreme Court case, Falls v. Goins, in which Ernest Falls, a Tennessee resident who had relocated from Virginia, was turned away after trying to register to vote in Tennessee. Mr. Falls had been convicted of a felony in Virginia in 1986, but was granted clemency in 2020 by then-Virginia Governor Ralph Northam before he moved to Tennessee. Despite having his full rights of citizenship restored, the court held that Mr. Falls still had to go through the full Certificate of Restoration process.

But the new guidance seems to go even beyond the faulty Falls decision, requiring all residents who have formerly been convicted of felonies and served their sentences to go above and beyond the convoluted Certificate of Restoration process by also seeking restoration of citizenship via a pardon or a court petition. This adds more barriers to voter registration in a state where 470,000 citizens are already disenfranchised, and where Black and Latinx citizens are disenfranchised at a higher rate than anywhere else in the country. More than 9% of the total voting age population of Tennessee – and more than 21% of the African-American voting age population – already cannot vote because of the history of disenfranchisement and the inaccessibility of existing processes. In a nation that incarcerates exponentially more people per capita than anywhere else in the world – and does so in an egregiously racially disproportionate manner – the use of criminal records as a basis for stripping people of their civil liberties is already fundamentally unjust. The new guidance only exacerbates the problem, precluding even more people from exercising their most fundamental right and participating in democracy.

Equal Justice Under Law and our partners will continue to litigate the federal lawsuit challenging the Certificate of Restoration Process, which is intentionally obscure and unfairly discriminates against people living in poverty. As we work towards justice in Tennessee, the new guidance is both a discouraging hurdle, and a reminder of just how intertwined voter disenfranchisement and wealth discrimination are in our society.

For those attempting to navigate Tennessee’s Certificate of Restoration process, one of the most significant barriers to overcome is the requirement that all court costs and child support payments be paid. Equal Justice Under Law has already written about and litigated the issue of child support payments, which can constitute up to 70% of a poor, noncustodial parent’s income. Making these payments – which are rarely tied to actual income – is often impossible. The same is true of court costs and associated fines and fees, which create modern day debtors’ prisons by charging excessive amounts with high interest rates and other late fees, and often jailing people (and/or instituting additional fines) for nonpayment. Instead of curbing these exorbitant fees or implementing protections that consider ability to pay, states like Tennessee are only doubling down. The Certificate of Restoration process, made even more cumbersome by the newly-issued guidance, makes it so that people formerly convicted of felonies who owe these kinds of fees are not only trapped in cycles of poverty and criminalization, but are also excluded from democracy without recourse.

As we alleged in our original lawsuit, the process for claiming indigency and potentially restoring one’s right to vote is so unclear that applicants are unable to take advantage of it. There is no definition of what qualifies as indigency, or of what costs count as court costs. The process is almost impossible to navigate without an attorney, and has proven unmanageable even for those applicants fortunate enough to access legal assistance. The result is a modern-day poll tax that puts a price tag on the most basic of fundamental rights, predicating one’s right to vote on their ability to pay their way through a deliberately unnavigable process.

In and beyond Tennessee, voter disenfranchisement targets and disproportionately affects African-Americans and immigrants, particularly those living in poverty. With roots in the Jim Crow South, modern-era voter disenfranchisement systematically excludes socioeconomically marginalized communities from a form of government – democracy – that promises inclusion. And disenfranchisement is not the only tool being used to suppress votes from historically oppressed communities. From registration restrictions that require difficult-to-obtain documentation, , voter purges that discriminate against naturalized citizens, voter ID laws that exclude the 21 million Americans who do not have qualifying government-issued photo identification, and the curtailing of absentee ballots, policies and tactics that limit the availability and accessibility of voting are commonplace. And even as partners like Campaign Legal Center and the ACLU fight against voter suppression around the country, the systems in place continue to silence the votes and voices of millions of Americans.

Our democracy is built on principles of equity, inclusion, and representation. But voter suppression in places like Tennessee fly in the face of these foundational promises. Equal Justice Under Law and our partners strongly condemn Tennessee’s new guidance that keeps the right to vote out of reach for residents who simply want to participate in democracy but who do not necessarily have deep enough pockets to pay their way out of a rigged system. Contrary to what Tennessee election officials seem to believe, every person deserves the right to have their voices heard, no matter what they look like, where they live, or how much money they have. Along with our partners, we will continue the fight in the courts, in legislatures, and in our communities to hold those in power accountable to the promises of democracy.