People with Felony Records Face High Hurdles to Regaining Voting Rights in Tennessee

If a person convicted of a crime in another state has completed their sentence and had their voting rights restored in that state, can the government in Tennessee still disenfranchise them if they have unpaid court costs, restitution, or child support? This past summer, the Tennessee Supreme Court said “yes.” The issue could have profound ramifications for the 2024 elections.

Ernest Falls was convicted of involuntary manslaughter in Virginia in 1986. He served a sentence for that crime and moved to Tennessee in 2018. Two years later, Virginia Gov. Ralph Northam granted Falls clemency and restored his citizenship rights in Virginia, including his right to hold public office, sit on a jury, and vote. Falls then tried to register to vote in Tennessee, but a local election board rebuffed him. He appealed the decision in court.

Tennessee has a confusing web of laws for residents like Falls. Like many other states, Tennessee’s constitution declares a right to vote in more explicit terms than the U.S. Constitution does. On the other hand, like many other states, Tennessee’s constitution also allows the legislature to disenfranchise people who have been convicted of a felony. The legislature has decided that, in general, no person with a felony record can vote unless they have had their rights restored or been pardoned by the governor. Later, it added a requirement that those convicted of felonies pay all court costs and restitution assessed against them at trial and that they be current on all child support payments before being allowed to vote.

Adding to the complication, restoration of voting rights in Tennessee depends upon the crime committed and the date of conviction. For example, people convicted of certain felonies — like bigamy and bribery — before January 15, 1973, must go through the rights restoration process before voting. But people convicted of those same crimes between January 15, 1973, and May 17, 1981, are eligible to vote. And people convicted of some crimes — including voter fraud, treason, murder, and rape — within specific date ranges will never be eligible to vote.

Laws preventing people convicted of crimes from voting date back to the founding and even before. White supremacists weaponized and expanded them — along with literacy tests and poll taxes — after Reconstruction to limit Black political influence without using explicit racial classifications that would violate the U.S. Constitution. Today, an estimated 470,000 Tennesseans, or about 9 percent of the voting age population, are disenfranchised because they have criminal records. Twenty-one percent of potential Black voters in Tennessee are unable to vote because of felony convictions. No other democracy on the planet disenfranchises people with past convictions to such an extent.

A lawsuit in federal court challenging the financial obligations Tennessee has imposed on those with felony convictions before they can vote failed in 2010. The plaintiffs had alleged that these obligations violated various provisions of the U.S. Constitution. Falls’s only path to enfranchisement, therefore, was through state court.

Falls chose to make his case about statutory interpretation. He argued that once a person had their rights restored in the state where they were convicted of the crime, Tennessee’s requirement that court costs, restitution, and child support be fully paid did not apply. In support of his argument, he pointed to a provision that allows people convicted of out-of-state crimes to vote after they are “pardoned or restored to the rights of citizenship by the governor or other appropriate authority of such other state.”

The Tennessee Supreme Court disagreed. Having his rights restored in Virginia was not enough to regain the franchise in Tennessee. He will now have to show that he is current on all child support obligations and has paid any court costs before he can vote.

Even though the Tennessee Supreme Court only addressed cases involving residents like Falls with out-of-state convictions, elections officials are using the decision to restrict voting rights more broadly. Following the decision, the state’s director of elections issued guidance that everyone in the state with a felony conviction — including a Tennessee conviction — must show that they received a pardon from the governor or that a court restored their rights before being allowed to vote. Previously, rather than needing a pardon or a court order, people could restore their rights by paying all outstanding court debts and then getting a government official to sign a certificate of restoration.

Observers have expressed concern that the process of restoring voting rights is difficult and likely to disenfranchise many people with felony convictions. People with convictions often must wait several years after completing their sentence just to apply to have their rights restored, and then they face onerous requirements to provide documentation in support of their requests. Those with unpaid costs or restitution must go through an evidentiary hearing before having their rights restored, which delays the process and deters some from going through it. Moreover, the financial hurdles to rights restoration have gotten steeper because of the pandemic and subsequent inflation, which hurt many Americans economically. Some Tennesseans have certainly fallen behind on child support payments as a result. Although the legislature made an exception allowing people with unpaid court costs to regain voting rights if they are declared indigent by a court, there is no such provision for unpaid child support.

Although the parties and court in this case chose to focus on questions of statutory interpretation, there were also fundamental state constitutional questions at play in the case. Tennessee’s constitution states that “all power is inherent in the people.” Are Tennesseans with unpaid court costs or child support no longer part of “the people?” Tennessee’s constitution promises a “free election,” but can an election really be “free” if so many state residents are disenfranchised? Hopefully future cases will put these questions forward.

Other courts this year have considered whether and to what extent states can permissibly disenfranchise those convicted of felonies. In the process of upholding a bar on voting by persons on probation and parole, the North Carolina Supreme Court held that the legislature can constitutionally require an individual to pay all fines and court fees before they can vote. The decision affected at least 56,000 North Carolinians. In a similar vein, the Minnesota Supreme Court earlier this year rejected a claim that those with felony convictions automatically regain the right to vote after release from custody. Meanwhile, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit found that a provision of Mississippi’s constitution permanently disenfranchising persons convicted of certain crimes unless two-thirds of the legislature restored their voting rights — on an individualized basis — was cruel and unusual in violation of the Eighth Amendment. The entire Fifth Circuit will soon rehear the case.

Falls v. Goins may already have had an effect on Tennessee politics. The race for mayor of Memphis last month was decided by less than 5,000 votes. How other courts handle these issues will have high stakes next year. Almost 5 million Americans of voting age are disenfranchised because of felony convictions. At the presidential level, Georgia was decided by less than 12,000 votes in 2020. Many important state races were decided by even thinner margins. A race for a North Carolina supreme court seat saw a margin of just 412 votes. A court decision affecting the eligibility of a few thousand voters could tip the balance in similarly close races in 2024.

Marcus Gadson is an assistant professor of law at Campbell University, where he teaches state constitutional law.