Cuz I'm Young & I'm Black & My Hat's Real Low: Constitutional Rights To The Political Franchise For Parolees Under Equal Protection by Shaylen Roberts, Esq.
Cuz I'm Young & I'm Black & My Hat's Real Low: Constitutional Rights To The Political Franchise For Parolees Under Equal Protection by Shaylen Roberts, Esq.
INTRODUCTION
The right to vote is highly treasured and deeply symbolic of the unique
freedom afforded to the American citizen.2 The loss of democratic
participation due to criminal history lies at the other end of the freedom
spectrum, illustrating the tension that exists between America’s founding
democratic principles and the reality of our modern social structure.3
lyrics to a police officer’s questioning “Son, do you know why I’m stoppin’
you for?”).
2 See Nicholas Rathod, Honoring Rosa Parks: Moving From Symbolism to
Action, CTR. FOR AM. PROGRESS (Dec. 1, 2005, 9:00 AM), https://perma.cc/
ZW5M-DHLJ (discussing voting as a symbolic right as it pertains to the
Civil Rights movement and the disenfranchisement of African Americans).
3 WILLIAM E. HUDSON, AMERICAN DEMOCRACY IN PERIL: EIGHT
CHALLENGES TO AMERICA’S FUTURE 177 (2012) (“[D]emocratic elections in a
representative democracy must provide the opportunity for the equal
representation of all citizens.”).
126
2019] Cuz I’m Young & I’m Black 127
4 See Aaron Macarow, Our Prison System is Even More Racist than You
Inequities in the Justice System, 2000 VA. LAW. MAG. 20, 20 https://perma.cc/
9GC5-XE42 (“The manifestation of a criminal justice system that de facto
distributes separate, unequal standards of justice for whites and African
Americans . . . has created a mushrooming prison population that is
overwhelmingly black and Hispanic.”).
6 See Fact Sheet: Prisons and People in Prison, THE SENTENCING PROJECT,
8 See Id.
10 See Fact Sheet: Prisons and People in Prison, supra note 6 (providing
Part I – Background
15 See generally Fact Sheet: Prisons and People in Prison, supra note 6
Twenty Years of the Unjust Federal Crack Cocaine Law, ACLU (2006),
https://perma.cc/U9XF-QYYQ (“[S]entencing disparities punishing crack
cocaine offenses more harshly than powder cocaine offenses unjustly and
disproportionately penalize African American defendants for drug
trafficking comparable to that of white defendants.”).
21 See Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: or
Why the ‘War on Drugs’ Was a ‘War on Blacks’, 6 J. OF GENDER, RACE & JUST.
381, 386 (2002) (“[T]he War on Drugs should be understood as a special
case of what war has always been – the employment of force and violence
against certain communities . . . to attain certain political objectives.”).
22 See Aviva Shen, The Disastrous Legacy of Nancy Reagan’s, ‘Just Say No’
in violent crime through the late 1980s and early 1990s. 30 During the 2016
Presidential campaign, former President Bill Clinton admitted to the
negative contributions the Crime Bill made to mass incarceration and its
racial stigmatization.31 Hillary Clinton incorporated this regret as a
platform for her potential administration, adding: “I am focused on a
comprehensive approach toward fixing the system, going after systemic
racism and ending private prisons and the incarceration of low- level
offenders.”32 The former First Lady received harsh criticism surrounding
her past support of the Crime Bill, notably for its racially motivated
policies.33 The Clinton era increase of punishable felonies, non-
discretionary funding for urban policing, and support of mandatory
minimum sentencing practices solidified the reality that post- release life of
the American felon isdefined by discrimination and disadvantage.34
For the individual, incarceration has many “collateral consequences,”
which are extrapolated to the community and last long after release. 35
30 See Meghan Keneally, What’s Inside the Controversial 1994 Crime Bill
That’s Plaguing Hillary Clinton on the Campaign Trail, ABCNEWS (Apr. 11,
2016 3:11 PM), https://perma.cc/56TD-66Z4 (“[I]t came at a time when
violent crime was at staggering heights. According to the FBI, there were
more than 713 violent crimes per 100,000 people in 1994.”).
31 See Robert Farley, Bill Clinton and the 1994 Crime Bill, FACTCHECK.ORG
Shouldn’t Have Used those Words’, WASH. POST (Feb. 25, 2016),
https://perma.cc/Q4G9-R7PE (discussing Clinton’s over publicly
categorizing young black men as ‘super-predators’ in a speech supporting
the passage of the Crime Bill).
34 See Christie Thompson, What Happens When an Entire City Becomes a
Generally, felons, including those on parole, lose certain civic rights even
after their societal debt has been paid in time behind bars.36 Felon
disenfranchisement is a hotly debated matter of state action, constitutional
protection, and disparate treatment and impact. 37 States are free to regulate
the voting rights of ex-felons and parolees (ranging from no voting
restriction for convicted felons to lifetime banning). 38 These laws have a
counterintuitive effect on the rehabilitative goals of the prison and post
release systems.39
Michelle Alexander’s The New Jim Crow, is a cornerstone of textual
theory regarding America’s continued oppression of black Americans
through the penal system.40 Alexander’s discussion of the carefully crafted
racism built into the criminal justice system illustrates a reality that is
impossible to ignore, even from a place of privilege: “Once you’re labeled a
felon, the old forms of discrimination—employment discrimination,
housing discrimination, denial of the right to vote, denial of educational
opportunity, denial of food stamps and other public benefits, and exclusion
from jury service—are suddenly legal.”41
The political disenfranchisement of the adjudicated is often dated back
to the influence of the British on the founding fathers, and their vague
less respect, than a black man living in Alabama at the height of Jim Crow.
We have not ended racial caste in America; we have merely redesigned
it.”).
2019] Cuz I’m Young & I’m Black 133
42 See Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the
B. Voting Rights
48 Christopher Hartney & Linh Vuong, Created Equal: Racial and Ethnic
51 See id. at 370 (“[T]he very idea that one man may be compelled to hold
his life, or the means of living, or any material right essential to the
enjoyment of life, at the mere will of another, seems to be intolerable in any
country where freedom prevails, as being the essence of slavery itself . . . .
The case of the political franchise of voting is one.”).
52 Plyler v. Doe, 457 U.S. 202, 233 (1982).
2019] Cuz I’m Young & I’m Black 135
58 See Mark Joseph Stern, Alabama’s Failure of Moral Turpitude, SLATE (Oct.
6, 2016, 3:22 PM), https://perma.cc/PGB6-6XUJ (“Alabama’s law . . . is a
direct descendent of their 1901 constitution, which had the explicit purpose
of disenfranchising black voters.”).
59 Danielle Lang, Thompson v. Alabama: Addressing the Racist Roots of Felon
61 Id. at 233 (“We simply observe that its original enactment was
63 See ALA. CONST. art. VIII, § 177(b) (“No person convicted of a felony
C. Parole
(explaining that the purpose of parole “is to integrate prisoners into society
by allowing them to serve a portion of their sentences outside of prison.”).
67 See How Parole Works U.S. DEPT. OF JUSTICE, https://perma.cc/6HTW-
EC36 (last visited Oct. 24, 2018) (“Appropriate paroling release guidelines
which are formatted in a manner that reduces disparity . . . and promotes
respect for the system.”) (emphasis added).
68 Editorial Board, New York’s Broken Parole System, N.Y. TIMES (Feb. 16,
2014), https://perma.cc/P2V7-NL6K.
69 See U.S. ex rel Santos v. N.Y. Bd. of Parole, 441 F.2d 1216, 1218 (2d. Cir.
71 See Jean Trounstine, Beyond the Bars of Hopelessness: How We Can Revive
Republicans alike have become advocates for the parole system relating it
to a shared goal of undoing mass incarceration, compelled by human rights
concerns and economic reasoning.72
Much of a parole board’s eligibility determination is a furtive process,
based on the same vague moral standards that drive felon
disenfranchisement legislation.73 The process of parole eligibility is not
taken lightly, and, is often rigorous, intrusive, and anxiety provoking.74
Theoretically, when an individual is deemed eligible for parole, they are
deemed better capable of taking the necessary steps to leave the criminal
justice system behind, and to be afforded the rights of their restored
citizenship.75
candidates are suited for release at the initial, and especially subsequent,
parole hearings unless an individual is deemed to pose an unreasonable
public safety risk”).
72 See generally RIGHT ON CRIME, https://perma.cc/F3BF-43XR (last visited
Nov. 24, 2018) (outlining the conservative concerns about the current state
of American incarceration as it affects the economy).
73 See Kamala Kelkar, Electoral College is a Vestige of Slavery Say Some
76 See Dan Balz, A Divided Country Gets a Divisive Election, WASH. POST
minority group, he uses the definite article the, as in ‘the Hispanics,’ ‘the
Muslims’ and ‘the blacks.’”).
78 See David Brooks, Why is Clinton Disliked?, N.Y. TIMES (May 24, 2016),
Patriotic, but if You’re Black and Frustrated, Then You’re a Traitor, N.Y. DAILY
NEWS (Sept. 29, 2016), https://perma.cc/9QCW-SZZS (explaining the
dichotomy of white privilege in the 2016 election).
81 See Terrell Jermaine Starr, How Donald Trump Could Usher in an Era of
(last updated Nov. 7, 2018, 3:21 PM) (showing that ten states continue to
enforce laws that permanently bar ex-felons and persons on parole from
voting in any election).
84 See Christopher Uggen & Jeff Manza, Democratic Contraction? Political
(last visited Feb. 22, 2018) (providing more accurate information about
police violence against people of color due to a noted lack of accurate
reporting).
87 See Steven Zeitchik, Enterntainment’s Latest Trend: Race and the Criminal
ANALYSIS
91 See e.g., Pearson v. Murray, 182 A. 590, 593 (Md. 1936) (Thurgood
Marshall’s first argument for separate but equal in a state civil rights case
about law school admission which is sympathetic to the bench); Craig v.
Boren 429 U.S. 190, 210 (1976) (holding that sex-based discrimination
deserved heightened scrutiny on a case of discrimination against men who
were more politically “popular” than women).
92 See U.S. CONST. amend. XIV, § 1 (“No state shall . . . deny to any
(2011) (“If the legislators have wit . . . to avoid words like “race” or name
the particular racial group in the text of their legislation, the courts will
generally apply ordinary rational basis review.”).
94 Washington v. Davis, 426 U.S. 229, 242 (1976) (holding that although a
problems.96
To determine discriminatory intent, the Court uses a balancing test of
non-exclusive factors including the statistical data that demonstrates a
disproportionate racial impact, the history of the action, and its
relationship to race.97 The criminal justice system as a designed mechanism
of the continued oppression of black Americans since the end of the Civil
War is well documented in the socio-cultural sphere.98 There exists enough
historical information, record, and administrative history to make the very
short leap to conclude that disenfranchisement laws created against
parolees and the adjudicated serve only the purpose of discriminating
based on race to help effect political influence.99
The notion that parolees are barred from voting by state law on the
basis of race demonstrates an even greater necessity of striking down these
laws; racial classification is the most protected under a constitutional
analysis.100 The pending Thompson litigation plaintiffs are identified as a
class “of unregistered persons otherwise eligible to register to vote in
Alabama who are not, or may be in the future, denied the right to vote
because they have a felony.”101 In Alabama, as is reflected throughout the
96 See, e.g., Ricci v. DeStefano, 557 U.S. 557, 594 (2009) (Scalia, J.,
vs. Litigation, 11 J.L. & POL’Y 369, 389—91(2011) (discussing some judicial
acknowledgement of racial implications of disenfranchisement laws and
the right to pursue such claims without regard to the intention of the laws).
100 Arlington Heights, 429 U.S. at 265—66 (“In fact, it is because legislators
Thompson v. Alabama, 2016 WL 5405634 (M.D. Ala. Sept. 26, 2016) (No.
2:16-CV-00783-WKW-CSC).
2019] Cuz I’m Young & I’m Black 143
rest of the United States,, black individuals are exposed to a greater risk of
adjudication and subsequent parole based on unfair and pointed law
enforcement policy and practice, there exists devastating and ongoing
political misrepresentation and perpetual second-class citizenship, that
disproportionately effects non-white Americans.102
By simply ignoring the data that essentially equates parole as a racially
defined class of citizens who face the tremendous discriminatory impact
based on denial of the right to vote, and continuing to validate such
legislation—states are acting with discriminatory intent.103 In all likelihood,
parolees are more directly affected by the loss of the vote than free
citizens.104 It is imperative that parolees are able to engage in and gain a
comprehensive understanding of the current state of the law—their
immediate liberty depends on it.105
Alabama has been infamous for both racist voting laws and
conservative views toward the adjudicated and those facing the parole
board.106 Previously, the Court held that Alabama’s unequal appointment
of voting districts resulted in underrepresentation of vulnerable
communities and served a subversive purpose, designed to alienate
citizens based on race.107 Alabama’s legislation is merely a singular
(last visited Nov. 24, 2018) (“African Americans are incarcerated at more
than 5 times the rate of whites.”).
103 See Staples, supra note 49 (“The franchise is enshrined in the state
The Equal Protection Clause dictates that “[n]o state shall . . . deny to
any person within its jurisdiction the equal protection of the laws[;]” in
other words, all persons similarly situated should be treated equally under
such laws.112 Equal Protection case law interprets the manner in which a
state statute classifies the citizens to be effected under a potentially
discriminatory statute.113 The definition of “similarly situated” is not
108 See generally City of Mobile, Alabama v. Bolden, 446 U.S. 55, 56 (1980)
Rights Lawsuit? Hint: It’s Not Virginia, MOTHER JONES (Sept. 26, 2016),
https://perma.cc/ZVF3-GA8Z (describing Alabama’s vague and arbitrary
voting procedures for all felons, including those who have finished
probation and parole as “nothing more than a modern day poll tax”).
112 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)
(emphasis added).
113 See Plyler v. Doe, 457 U.S. 202, 217–18 (1982).
2019] Cuz I’m Young & I’m Black 145
114 See Jeffrey S. Beck, Similarly Situated Employees Doesn’t Mean Identical,
Parolees and free citizens are subject to the same city ordinances, have, or
have the potential to have, children enrolled in the school system, comprise
the work force, and utilize the same public amenities. 120 If a free citizen is
living in the same neighborhood, using the same public transportation and
contributing to the same economy as someone on parole, they would
arguably be equally invested in matters subject to the vote, legislation that
restricts the democratic participation of parolees is discriminatory based on
preferential treatment to those who are not on parole.121
Aside from being classified as a parolee and complying with parole
stipulations, it is hard to tell someone on parole apart from his neighbor,
without intimate knowledge of his personal life and criminal history.122 If
there exists a politically unpopular group, vulnerable to animus, it is
parolees.123 Coupled with the racism that people of color are subjected to in
general and the public’s unfavorable opinion of convicted persons,
parolees are particularly victimized by legislative malice and their chances
of full rehabilitation diminish when denied equal civic engagement. 124
MAG.,
(Jul. 16, 2015), https://perma.cc/5R9U-43SV (providing anecdotal evidence
about long-term prisoners returning to the community).
123 See, e.g., Mireya Navarro, Ban on Former Inmates in Public Housing Is
between politics and parole boards, it’s not uncommon for board members
to lose their jobs – or fear losing their jobs—for making decisions that are
politically unpopular.”); Steven D. Bell, The Long Shadow: Decreasing
Barriers to Employment, Housing, and Civic Participation for People with
Criminal Records Will Improve Public Safety and Strengthen the Economy, 42 W.
ST. L. REV. 1, 8 (2014) (“Because each state determines by statute the
qualifications required for its citizens to vote, each state likewise
2019] Cuz I’m Young & I’m Black 147
1. Public Safety
126 See Korematsu v. United States, 323 U.S. 214, 215–17 (1944) (utilizing
strict scrutiny formally); U.S. v. Carolene Products Co., 304 U.S. 144, 155 n.4
(1938) (defining the need for heightened protection of “discrete and insular
minorities” from discrimination under the Constitution).
127 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES
695 (Fourth Ed. 2011) (“The Supreme Court generally has been extremely
deferential to the government when applying the rational basis test.”).
128 U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
129 See Sarah Childress, Michelle Alexander: “A System of Racial and Social
130 Berman v. Parker, 348 U.S. 26, 32 (1954) (“Public safety, public health .
132 See Phil Hernandez & Beth Avery, Ban the Box U.S. Cities, Counties, and
States Adopt Fair Hiring Policies, NAT’L EMP’T L. PROJECT (Aug. 1, 2017),
https://perma.cc/7RTQ-UC6C (explaining that obtaining national fairer
hiring practices for persons with felony conviction has been difficult due to
the “public safety” defense concerning felon and parolee interaction with
free community members).
133 See Eugene Volokh, Why Has the Supreme Court Held that Felons Lack
United States Parole Commission expresses that: “the mission of the U.S.
Parole Commission is to promote public safety and strive for justice and
fairness in the exercise of its authority.”136 Parolees are expected to work,
obey the law, submit to searches of person and property without the usual
Constitutional protections, regularly report to the supervising officer or
agent, submit to drug or alcohol testing, and obey restrictions on travel and
weapon possession, in the name of public safety.137 Their non-adjudicated
neighbors, on the other hand, are not directly supervised for such
compliance. Denial of the right to enter a voting booth and pick a
candidate does not rationally enhance or relate to anyone’s safety.
2. Moral Standards
Perhaps the most popular state interest purported for banning parolees
and ex-felons from voting is to protect the ballot box from individuals of
bad moral character.138 It does not follow that a person’s parole status
would be a dispositive factor in this determination.139 Alabama’s state
constitution blocks persons with a criminal history from voting if they are
convicted of “among other offenses, any crime involving moral turpitude,”
a designation without a specific definition.140 The Court overturned
Alabama’s moral turpitude standard as a subversive mechanism to further
discrimination at the polls, noting that this standard has both an effect and
intention of racial discrimination.141
Although the “moral turpitude” standard is unconstitutional, it
remains in the state constitution and in effect without any further challenge
Criminality and “The Purity of the Ballot Box” 102 HARV. L. REV. 1300 (1989).
139 See Suzy Khimm, States Push to Provide Some Ex-Felons a Second Chance,
141 Id. at 233 (“We simply observe that its original enactment was
or discussion.142 While the Court did recognize that the standard was
facially neutral but intentionally discriminatory, the Court upheld the
state’s right to disenfranchise felons.143 Citing § 2 of the Equal Protection
Clause the Court held: “[w]ithout again considering the implicit
authorization of § 2 to deny the vote to citizens ‘for participation in
rebellion, or other crime’ . . . we are confident that § 2 was not designed to
permit the purposeful racial discrimination . . . Nothing in our opinion in
Richardson v. Ramirez, supra, suggests the contrary.”144 In many states, the
Court interprets “participation in rebellion, or other crime”145 as
synonymous with felony, and can justify racially motivated laws on these
grounds.146
While parole supervision is predicated by a felony conviction, which
could theoretically indicate an individual’s failure to abide by America’s
chosen moral standard, such failure is not a decisive nor persuasive reason
to achieve some elusive notion of a purer democracy by denying civic
participation.147 There are certainly many citizens who would be
considered immoral by reasonable society standards that remain able to
cast a ballot, and “[w]hen the façade of the classification has been pierced,
the disenfranchising laws have fared ill.”148
Parolees are aware that their liberty is at stake based on their actions
and that a parole violation would send them back to prison, rendering
them unable to vote.149 Therefore, parolees who remain within the
142 See Lang, supra note 59 (“Despite the Supreme Court’s ruling that the
vague ‘moral turpitude’ standard was selected to enable intentionally
racially discriminatory disenfranchisement, Alabama reintroduced this
term into its laws in 1996 without any debate.”).
143 See Hunter, 471 U.S. at 227.
144 See id. at 233 (leaving other felon disenfranchisement laws intact, but
147 See Dillenburg v. Kramer, 469 F.2d 1222, 1224 (9th. Cir. 1972)
community are arguably more law-abiding than the average citizen; their
compliance with community standards keeps them free, unlike free
citizens who are not supervised.150 The amount of personal information
required to be able to register to vote, generally, does not give any
indication about the moral character of any given citizen, only some
demographics and the implied certification that they are law-abiding.151
There have been several advertising campaigns designed to educate
Americans about the importance of voting and to compel them to do so, as
a civic responsibility, not a privilege of the free.152 If parolees are subject to
close supervision while living in the community, in order to ensure that
they are rehabilitated as responsible and productive citizens, voting should
be considered an especially important responsibility to meet these program
goals and would be a more likely requirement than a restriction.153
The Court has gone further, holding that a state’s projected societal
moral standards should have no constitutional bearing on law making so
as to minimize the risk of injecting animus into the passage of legislation. 154
Lawrence v. Texas held that states were specifically prohibited from
allowing overarching moral judgement of an individual’s personal
characteristics to govern the creation of criminal statutes. 155 In doing so,
states are essentially “creating a classification of persons undertaken for its
own sake.”156 The Court further clarified that “the state cannot single out
one identifiable class of citizens for punishment that does not apply to
Vote Restored, JUV. JUST. INFO. EXCH. (Feb. 17, 2016), https://perma.cc/VXN4-
9S9H (“[V]oting is the building block that can help people lead full,
successful lives once they leave prison.”).
154 See Lawrence v. Texas, 539 U.S. 558, 582 (2003).
155 Id.
156 Id. at 583 (citing Romer v. Evans, 517 U.S. 620, 635 (1996)).
152 New England Law Review [Vol. 52
everyone else, with moral disapproval as the only asserted state interest for
the law.”157
Disenfranchisement laws pertaining to parolees create a second class
based on moral unpopularity, which cannot be a legitimate governmental
interest, leaving the only motivation driving these laws as continued racial
oppression.158 Felonious incarceration and subsequent parole are directly
correlated with negative impact suffered by communities of color and
epitomize racial discrimination.159 Laws that single out a class of persons
for unequal treatment cannot be constitutional if their “sheer breadth is so
discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class it affects; it lacks a
rational relationship to legitimate state interests.”160
In Romer v. Evans, the Court distinguished animus from mere
disadvantage, holding that “in the ordinary case, a law will be sustained if
it can be said to advance a legitimate government interest, even if the law
seems unwise or works to the disadvantage of a particular group, or if the
rationale seems tenuous.”161 The Court emphasized that the significant
discretion it affords to states in implementing discriminatory laws so long
as “classifications are not drawn for the purpose of disadvantaging the
group burdened by the law,” suggests an existing sinister motivation
behind laws found to be in violation of the Equal Protection Clause
analyzed under such a low level of scrutiny.162
There exists a tension between the holdings of Romer and Lawrence and
the current state of felon disenfranchisement as it relates to morality. 163 As
it stands, individual states are allowed to deny parolees the right to vote
161 Id.
without running the risk of an Equal Protection violation. 164 In its refusal to
protect the voting rights of those who have served their time, the Court
acknowledges the important role of voting to the rehabilitation of parolees,
but foists the responsibility of the decision back upon the legislative
branch.165 The Court acknowledges that “it is essential to the process of
rehabilitating the ex-felon that he be returned to his role in society as a
fully participating citizen when he has completed the serving of his
term,”166 but held that the specifics of this rehabilitation should be
“addressed to the legislative forum which may weigh and balance
them.”167
By recognizing parolees as a racially drawn class by any other name,
and conceding that felon disenfranchisement dictated by some vague
moral standard of a state is unconstitutional, yet simultaneously allowing
states to continue to create such legislation without judiciary challenge,; the
Court remains in direct opposition with itself.168 The intent of the Equal
Protection Clause is to protect citizens from state laws which discriminate
with both facial and latent racist intent. 169 The historical implications of
restrictive voting laws alongside the actual discriminatory impact of felon
disenfranchisement based on post-release status, and the importance of
affording paroled persons the vote based on a constitutional argument, is
illustrated most starkly in Alabama.170 Not only do state restrictions on
parolee voters promote and delineate racial discrimination, they are not
related to furthering any legitimate government interest, nor do they serve
the purposes intended by state boards of parole.171
164 Richardson v. Ramirez 418 U.S. 24, 56 (1974) (holding that section two
of the fourteenth amendment allows for states to deny the right to vote
based on “participation in rebellion, or other crime,” as quoted from §2 of
the Fourteenth Amendment).
165 Id. at 55.
166 Id.
167 Id.
168 See generally Amy E. Lerman & Vesla M. Weaver, How Urban Policing
171 See, e.g., Childress, supra note 129 (“Denying someone the right to
vote says to them: ‘You are no longer one of us. You’re not a citizen. Your
154 New England Law Review [Vol. 52
176 See Loving v. Virginia, 388 U.S. 1, 12 (1967) (recognizing the freedom
to marry as “one of the vital personal rights essential to the orderly pursuit
of happiness by free men.”).
177 Turner, 482 U.S. at 84–85 (“Running a prison is an inordinately
178 Id. at 95 (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974): “Prison
inmate[s] retain those [constitutional] rights that are not inconsistent with
his status as a prisoner or with the legitimate penological objectives of the
corrections system.”).
179 Compare Id. at 89–90 (“The logical connection between the regulation
test: prison officials do not have to set up and then shoot down every
conceivable alternative method of accommodating the claimant’s
constitutional complaint.”).
181 Id. at 97.
189 See Jamie Fellner & Marc Mauer, Losing the Vote: The Impact Of Felony
271 (Mass. App. Ct. 1988) (“In the absence of a logical connection between
the governmental objective claimed (security) and the restriction on First
Amendment rights, some evidence of their reasonable relationship should
be presented before the limitation can be upheld as matter of law.”).
192 P.A. COMMISSION FOR CRIM. JUST. STANDARDS & GOALS, THE CRIMINAL
451 (1967) (upholding New York disenfranchisement laws: “it can scarcely
be deemed unreasonable for a state to decide that perpetrators of serious
crimes shall not take part in electing the legislators who make the laws, the
executives who enforce these, the prosecutors who must try them for
further violations or the judges who are to consider their cases.”); Reynolds
Holding, Why Can’t Felons Vote?, TIME (Nov. 1, 2006)
https://perma.cc/2JBR-LBKM.
195 Holding, supra note 194 (pointing out that “[p]laces like Mississippi
recently piled eleven disqualifying felonies onto the ten listed in their state
constitution,” based on the reasoning of Roger Clegg: “[I]f you aren’t
willing to follow the law, you can’t claim the right to make the law for
everyone else.”).
196 See Julian Vigo, Disenfranchisement Laws, Race and the U.S. Presidential
CONCLUSION
Voting rights and racial discrimination have a long and painful history
in the United States, and continue to be perpetuated through state laws
that politically disenfranchise parolees. Parolees represent a smaller class of
individuals entrenched in the criminal justice system, and the American
epidemic of mass incarceration. The right to vote is a fundamental and all
United States citizens should be able to freely participate in democracy as a
matter of equal protection. The racial disparities that define every level of
adjudication support the reality that felon disenfranchisement laws for
persons on parole are a thinly veiled mechanism of a racist government.
State rationalization related to public safety interests and the protection of
the ballot from poor morals are not legitimate interests and have no
compelling or rational relationship to the right to vote. The only clear
reason for the political silencing of parolees is racial animus, which, in and
of itself, is unconstitutional. Parolees maintain other fundamental rights
while on post- release supervision, and voting should be no different–
American democracy is at stake.