Experts have already raised a number of problems with the Trump administration’s voter fraud commission and its request for voter registration information from the states. At the outset, the commission's request may have violated the law by failing to follow federal regulations relating to requests for information. Rick Hasen has raised concerns relating to privacy and federalism, among other issues, and Josh Douglas has argued persuasively that the commission is designed to make "the public think[ ] there is a problem where none exists"—while distracting from real and serious problems infringing on the right to vote.

One of many such problems is that of felony disenfranchisement. More than six million Americans are unable to cast ballots due to laws that prevent those who have committed felonies from voting. The precise terms of the laws vary from state to state: 12 states disenfranchise at least some felons permanently; 22 disenfranchise during prison and parole; 15 during prison. Only two states—Maine and Vermont—do not disenfranchise felons at all, even while they are in prison.

State laws disenfranchising people who have committed felonies can have national consequences. In the 2000 presidential election, for example, George W. Bush ultimately won Florida by just 537 votes, yet almost 950,000 people were unable to vote due to felony convictions. Florida's laws literally could have determined the result of the election. Indeed, demographic data suggest that they probably did. At the time of the election, nearly twenty percent of black men in Florida—a demographic that votes strongly democratic—were unable to vote due to a felony conviction.

Diluting the power of the black vote was in fact the original purpose of many felony disenfranchisement laws. During the Jim Crow era, at the same time that legislatures enacted poll tax laws with the purpose of preventing black people from voting, they also developed laws disenfranchising people who had committed felonies. Such laws were often targeted at felonies for which black people were more likely (or were believed to be more likely) to be convicted.

The authors of the felon disenfranchisement laws would have been pleased with those laws' consequences today. Given the racial disparities throughout the criminal justice system, it is unsurprising that the racial disparity in felon disenfranchisement persists. The numbers are sobering. Nationwide, one in 13 black people has lost the right to vote as a result of a felony conviction, while the same is true of only one in 56 white people. In four states, more than 20% of black people cannot vote due to a past felony conviction: Kentucky (26.2%), Virginia, (21.9%), Florida (21.3%), and Tennessee (21.3%). The trend is particularly consequential given that both Virginia and Florida are often important swing states.