Moore v. United States: Avoiding the Tough Questions

Introduction

Charles and Kathleen Moore owed less than $15,000 due to the Mandatory Repatriation Tax (“MRT”),1.I.R.C. § 965.Show More a tax enacted as part of the 2017 Tax Cuts and Jobs Act. While the economic consequences of the tax were relatively inconsequential for the Moores, they hoped to convince the Supreme Court to make highly consequential changes to tax law more generally by challenging the MRT.2.See Brief for Petitioners at 12–13, Moore v. United States, 144 S. Ct. 1680 (2024) (No. 22-800).Show More The challenge put large portions of the Internal Revenue Code—provisions providing trillions in tax revenue—at risk.3.See infra notes 17, 91–92.Show More The case was also highly relevant to the constitutionality of wealth taxes, a topic of rising interest among scholars and politicians.4.See, e.g., Thomas Kaplan, Bernie Sanders Proposes a Wealth Tax: “I Don’t Think That Billionaires Should Exist,” N.Y. Times (July 16, 2020), https://www.nytimes.com/2019/09/2‌4/us/politics/bernie-sanders-wealth-tax.html [https://perma.cc/SRB9-MNES]; Jonathan Curry, UC Berkeley Economists Chosen as Tax Notes Federal’s Persons of the Year, Tax Notes (Dec. 16, 2019), https://www.taxnotes.com/special-reports/tax-policy/uc-berkeley-eco‌nomists-chosen-tax-notes-federals-persons-year/2019/12/13/2b617 [https://perma.cc/P622-Y‌W95].Show More In Moore v. United States,5.144 S. Ct. 1680 (2024).Show More the Court upheld the MRT and related tax provisions while strategically trying to avoid providing explicit guidance on other hot-button issues.

The basic facts of the case are simple. The Moores bought 13% of an Indian company, KisanKraft, in 2006 for $40,000.6.Id. at 1686.Show More While profitable, KisanKraft never distributed any income to the Moores or any American shareholders.7.Id.Show More Even so, the MRT subjected the Moores to a tax on 13% of KisanKraft’s accumulated income from 2006 to 2017, resulting in the Moores owing $14,729 in taxes.8.Id.Show More They challenged the constitutionality of the MRT, but the district court dismissed the challenge, and the U.S. Court of Appeals for the Ninth Circuit affirmed.9.Id.Show More

The first Part of this Comment provides high-level background on the MRT,10 10.The MRT is an “extraordinarily complicated” tax, so a detailed explanation is outside the scope of this Comment. Sean P. McElroy, The Mandatory Repatriation Tax Is Unconstitutional, 36 Yale J. on Regul. Bull. 69, 76 (2018).Show More general tax principles, and taxation provisions in the Constitution. The second Part outlines the various opinions in Moore. Finally, the third Part takes a critical look at the opinions and argues that the Court’s decision is broader than it appears. Further, it argues that in the Court’s effort to defend long-standing precedent against the Moores’ challenge, the Court failed to adequately justify its decision. Additionally, the third Part provides thoughts on what Moore means for the constitutionality of a wealth tax.

  1.  I.R.C. § 965.
  2.  See Brief for Petitioners at 12–13, Moore v. United States, 144 S. Ct. 1680 (2024) (No. 22-800).
  3.  See infra notes 17, 91–92.
  4.  See, e.g., Thomas Kaplan, Bernie Sanders Proposes a Wealth Tax: “I Don’t Think That Billionaires Should Exist,” N.Y. Times (July 16, 2020), https://www.nytimes.com/2019/09/2‌4/us/politics/bernie-sanders-wealth-tax.html [https://perma.cc/SRB9-MNES]; Jonathan Curry, UC Berkeley Economists Chosen as Tax Notes Federal’s Persons of the Year, Tax Notes (Dec. 16, 2019), https://www.taxnotes.com/special-reports/tax-policy/uc-berkeley-eco‌nomists-chosen-tax-notes-federals-persons-year/2019/12/13/2b617 [https://perma.cc/P622-Y‌W95].
  5.  144 S. Ct. 1680 (2024).
  6.  Id. at 1686.
  7.  Id.
  8.  Id.
  9.  Id.
  10.  The MRT is an “extraordinarily complicated” tax, so a detailed explanation is outside the scope of this Comment. Sean P. McElroy, The Mandatory Repatriation Tax Is Unconstitutional, 36 Yale J. on Regul. Bull. 69, 76 (2018).

Modus Operandi and Mindreading in Diaz v. United States

Introduction

Witnesses with the requisite knowledge or expertise often present, as an opinion, their answer to a case’s “ultimate issue.” They may opine, say, that a product was unreasonably dangerous in a product liability suit, or that a patent was infringed in a patent infringement suit, or that damages of a certain amount are appropriate, even if the jury is tasked with answering that same question.1.6 Michael H. Graham, Handbook of Federal Evidence § 704:1 (9th ed. 2023). There is no comprehensive list of all possible ultimate issues. See 29 Charles Alan Wright & Victor Gold, Federal Practice and Procedure § 6284, at 469 (2d ed. 2016).Show More This principle is unambiguously announced in Rule 704(a) of the Federal Rules of Evidence. It reads: “An opinion is not objectionable just because it embraces an ultimate issue.”2.Fed. R. Evid. 704(a) (emphasis added).Show More

The Rules feature only one caveat, articulated in Rule 704(b): “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”3.Fed. R. Evid. 704(b).Show More In other words, if the contents of a criminal defendant’s mind are an ultimate issue, no expert may share an opinion on that topic. “Those matters are for the trier of fact alone.”4.Id.Show More Rule 704(b) recognizes the risk of an expert “intruding” on the jury’s exclusive prerogative to assess a defendant’s mental state.5.United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993).Show More

Last Term, in Diaz v. United States,6.144 S. Ct. 1727, 1730 (2024).Show More the Supreme Court considered a category of opinion testimony which tiptoes up to that forbidden line. Delilah Diaz was crossing the United States-Mexico border when a border patrol officer found roughly 55 pounds of methamphetamine hidden in two concealed spaces in her car.7.Brief for the United States at 6, Diaz, 144 S. Ct. 1727 (No. 23-14).Show More Shortly after arrest, she disclaimed knowledge of the drugs, attributing them to a supposed boyfriend.8.Id.Show More Her story was full of implausibilities,9.Id. at 6–7.Show More though, and she was charged with knowingly and intentionally importing methamphetamine.10 10.Id. at 8.Show More Still, she proceeded to trial with the defense that she was a “blind mule,” or an unknowing courier of drugs.11 11.See Brief for Petitioner at 4-7, Diaz, 144 S. Ct. 1727 (No. 23-14).Show More Her mental state—that is, whether she knew about the drugs inside her vehicle—was the only live issue for the jury.

At trial, the prosecution called HSI Special Agent Andrew Flood as an expert on drug trafficking operations. Agent Flood carefully avoided testifying directly to Diaz’s mental state. Instead, he testified that “most” drug couriers are aware of the drugs in their presence.12 12.Petition for a Writ of Certiorari at 17, Diaz,144 S. Ct. 1727 (No. 23-14).Show More Put differently, he testified to the typical mental state—indeed, to the mens rea, or guilty mind—of a “class” of persons to which Diaz belonged. The trial court admitted his testimony, unpersuaded by Diaz’s protests that Agent Flood’s testimony was the “functional equivalent” of testimony regarding her mental state.13 13.Id. app. at 31a–33a; Joint Appendix at JA10, Diaz,144 S. Ct. 1727 (No. 23-14).Show More

The U.S. Court of Appeals for the Ninth Circuit affirmed.14 14.United States v. Diaz, No. 21-50238, 2023 WL 314309 (9th Cir. Jan. 19, 2023), aff’d, 144 S. Ct. 1727, 1730 (2024).Show More It held that testimony regarding the infrequency of unknowing drug couriers is admissible, provided that the expert does not express an “‘explicit opinion’ on the defendant’s state of mind.”15 15.Id. at *2 (citation omitted).Show More The Ninth Circuit acknowledged, however, that the Fifth Circuit had reached the opposite conclusion in a line of similar cases.16 16.Id.Show More The Supreme Court granted certiorari to resolve the deepening circuit split.17 17.See Petition for a Writ of Certiorari, supra note 12, at 8–13 (cataloguing the circuit split).Show More

The Supreme Court also affirmed, albeit on slightly different grounds. The majority opinion, written by Justice Thomas,18 18.Diaz, 144 S. Ct. at 1735. Justice Thomas wrote the majority opinion. Id. at 1730. Chief Justice Roberts joined that opinion, as did Justices Alito, Kavanaugh, Barrett, and Jackson. Id. Justice Jackson penned a concurrence. Id. at 1736 (Jackson, J., concurring). And Justice Gorsuch, joined by Justices Sotomayor and Kagan, dissented. Id. at 1738 (Gorsuch, J., dissenting).Show More focused on the meaning of the word “about.”19 19.See Fed. R. Evid. 704(b) (“[A]n expert witness must not state an opinion about whether the defendant did or did not have a mental state . . . .” (emphasis added)).Show More It declined Diaz’s suggestion that the Court adopt the Oxford English Dictionary definition, which lists “concerning” and “in reference to” as equivalent terms.20 20.Brief for Petitioner, supra note 11, at 18.Show More Instead, it opted to interpret the word in its context. It found that “[t]he words surrounding ‘about’ make clear that Rule 704(b) . . . does not preclude testimony ‘about’ mental-state ultimate issues in the abstract.”21 21.Diaz, 144 S. Ct. at 1735.Show More Rule 704(b) only “targets conclusions ‘about whether’ a certain fact is true.”22 22.Id.Show More

Accordingly, the majority laid out a new bright-line rule. Rule 704(b) applies to the “precise topic” of the defendant’s mental state but not testimony that just “concerns or refers to that topic.”23 23.Id.Show More So, expert testimony about the mental state of all members of a class of defendants is impermissible, because, logically speaking, it invariably applies to the precise mental state of any member of that class.24 24.Id. at 1734.Show More Testimony regarding the mental state of most members of a class, by contrast, is permissible, because it “does not necessarily describe [the defendant’s] mental state.”25 25.Id. at 1733–34.Show More Agent Flood’s statements therefore fell outside the Rule’s ambit. Indeed, the at-issue testimony, according to the majority, amounted to nothing more than the assertion that “Diaz was part of a group of persons that may or may not have a particular mental state.”26 26.Id. at 1734.Show More This left the jury to handle the ultimate issue: was Diaz one of the few unknowing drug couriers or not?27 27.Id. at 1735.Show More

The majority’s analysis was concentrated on Rule 704, and a narrow interpretation of it at that. Rule 704, however, does not “set a standard of admissibility.”28 28.3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7:20, at 885 (4th ed. 2013).Show More It “merely removes a formal objection that might otherwise stand in the way.”29 29.Id.Show More As a result, the Court missed two adjacent problems with the at-issue testimony, either of which could have independently rendered it inadmissible.

Part I of this Comment examines the first of those problems: the striking resemblance between Agent Flood’s testimony and inadmissible criminal propensity evidence. In arguably his most problematic statement, Agent Flood effectively introduced crimes committed by persons similarly situated to the defendant. The only relevance of those other acts was a bare (and plainly improper) suggestion that the frequency of others’ past crimes made Diaz’s conduct more likely to be criminal, as well. Part II considers the testimony’s inherent lack of reliability. It argues that the majority intermingled two distinct categories of testimony: a) contextual scientific testimony related to a mental condition; and b) speculative testimony concerning a group of individuals’ inner thoughts. The former can be indispensable to criminal trials, while the latter is unreliable and unprovable by nature. The Court needlessly gave its stamp of approval to the parts of Agent Flood’s testimony which fell unmistakably into the latter category. Finally, Part III suggests an alternative, moderate holding. If the Court had added two caveats to its interpretation of “about”—caveats that addressed quasi-propensity evidence and “mindreading”30 30.Diaz, 144 S. Ct. at 1743 (Gorsuch, J., dissenting).Show More—it could have simultaneously preserved the admissibility of important evidence that bears on mental state and precluded prejudicial testimony like Agent Flood’s. This proposed holding, it argues, is both fairer and more faithful to the Rules.

  1.  6 Michael H. Graham, Handbook of Federal Evidence § 704:1 (9th ed. 2023). There is no comprehensive list of all possible ultimate issues. See 29 Charles Alan Wright & Victor Gold, Federal Practice and Procedure § 6284, at 469 (2d ed. 2016).
  2.  Fed. R. Evid. 704(a) (emphasis added).
  3.  Fed. R. Evid. 704(b).
  4.  Id.
  5.  United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993).
  6.  144 S. Ct. 1727, 1730 (2024).
  7.  Brief for the United States at 6, Diaz, 144 S. Ct. 1727 (No. 23-14).
  8.  Id.
  9.  Id. at 6–7.
  10.  Id. at 8.
  11.  See Brief for Petitioner at 4-7, Diaz, 144 S. Ct. 1727 (No. 23-14).
  12.  Petition for a Writ of Certiorari at 17, Diaz, 144 S. Ct. 1727 (No. 23-14).
  13.  Id. app. at 31a–33a; Joint Appendix at JA10, Diaz, 144 S. Ct. 1727 (No. 23-14).
  14.  United States v. Diaz, No. 21-50238, 2023 WL 314309 (9th Cir. Jan. 19, 2023), aff’d, 144 S. Ct. 1727, 1730 (2024).
  15.  Id. at *2 (citation omitted).
  16.  Id.
  17.  See Petition for a Writ of Certiorari, supra note 12, at 8–13 (cataloguing the circuit split).
  18.  Diaz, 144 S. Ct. at 1735. Justice Thomas wrote the majority opinion. Id. at 1730. Chief Justice Roberts joined that opinion, as did Justices Alito, Kavanaugh, Barrett, and Jackson. Id. Justice Jackson penned a concurrence. Id. at 1736 (Jackson, J., concurring). And Justice Gorsuch, joined by Justices Sotomayor and Kagan, dissented. Id. at 1738 (Gorsuch, J., dissenting).
  19.  See Fed. R. Evid. 704(b) (“[A]n expert witness must not state an opinion about whether the defendant did or did not have a mental state . . . .” (emphasis added)).
  20.  Brief for Petitioner, supra note 11, at 18.
  21.  Diaz, 144 S. Ct. at 1735.
  22.  Id.
  23.  Id.
  24.  Id. at 1734.
  25.  Id. at 1733–34.
  26.  Id. at 1734.
  27.  Id. at 1735.
  28.  3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7:20, at 885 (4th ed. 2013).
  29.  Id.
  30.  Diaz, 144 S. Ct. at 1743 (Gorsuch, J., dissenting).

Reconstructing Citizenship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by incarceration alone. Second, the lived experiences of those denied the right to vote are notably absent from the literature. This paper seeks to re-center the conversation about the right to vote in the lives of those impacted by the policies that restrict the franchise.

To do so, this paper uses the participatory law scholarship (“PLS”) methodology to draw heavily from the shared experiences of the co-authors, who collaborated in 2022 on an unsuccessful attempt to overturn Connecticut’s felon disenfranchisement law and open pathways to voting for incarcerated people. Specifically, this paper lays out the historical and theoretical bases that inform policies of conviction- or incarceration-based disenfranchisement. It then turns to two critical and novel claims. First, it challenges the bases and scope of such policies, noting their broad impact. Second, it grounds the story of conviction- or incarceration-based disenfranchisement in the lives of affected individuals and their communities. This second point is critical; we seek to marry the lived experience of a co-author, James Jeter, with the academic treatment of that experience.

Vital claims emerge from James’s firsthand narrative. First, disenfranchisement creates a ripple effect that moves through communities, impacting not only the incarcerated and convicted person but also all those who love and depend on them. Second, disenfranchisement that is the product of contact with criminal legal systems creates and perpetuates a gap in representation. Disenfranchised people do not exist in a vacuum. They are parents, spouses, children, and partners. Denying their right to vote denies their ability to directly represent not only themselves, but also their communities. Instead, disenfranchisement creates a secondary representation model in which those who live in affected communities depend on others to represent and defend their interests. At best, someone else’s vote aligns with the interests of those in disenfranchised communities. More often, the votes of those outside the community become acts of charity and otherizing. This is clear in descriptions of social policy. Through rhetorical tropes ranging from “welfare queens” to “law and order,” those in power promulgate policies constructed around the suggestion that there are populations requiring support, saving, and protection through secondary representation as opposed to enjoying the ability to represent themselves and their own interests.

And so, this paper joins an existing conversation about power, representation, and exclusion with a conjoined narrative—a firsthand account of disenfranchisement, community organizing, and the democratic harm wrought by current policies.

Introduction

The United States incarcerates more people than any other country in the world.1.See Growth in Mass Incarceration: Prison Populations Over Time, Sent’g Project, https://www.sentencingproject.org/research/ [https://perma.cc/YX7W-VXHU] (last visited July 7, 2024). These figures do not include people incarcerated pretrial. For those figures, see Pretrial Detention, Prison Pol’y Initiative, https://www.prisonpolicy.org/research/pretrial‌_detention/ [https://perma.cc/NGC6-4F2K] (last visited July 7, 2024). Combined, both sets of data reveal that Black and brown men are incarcerated at disproportionately high rates. See Fact Sheet: Felony Disenfranchisement, Sent’g Project, https://www.prisonpolicy.org/scans/‌sp/Felony-Disenfranchisement-Laws-in-the-US.pdf [https://perma.cc/L9MT-K5HD] (last updated Apr. 2014).Show More In the process, we also disenfranchise the single largest class of eligible voters, either explicitly—through laws that bar voting for those who have been convicted or are currently incarcerated—or implicitly, by creating barriers to voting even for eligible incarcerated or convicted voters.2.The precise number of individuals excluded from voting as a result of conviction and/or carceral status is difficult to pinpoint given movement within the population (in and out of custody) and variances in jurisdiction regarding disenfranchisement. It is agreed, however, that this population represents the single largest excluded group of otherwise eligible voters. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 308 (2000). For population in custody, see Wendy Sawyer & Peter Wagner, Prison Pol’y Initiative, MassIncarceration: The Whole Pie 2024(Mar. 14, 2024), https://www.pris‌onpolicy.org/reports/pie2024.html?c=pie&gad_source=1&gclid=Cj0KCQjwwMqvBhCtARI‌sAIXsZpYlQqVoshNKo3krB3_MBj-rkXE00wdS9rZXcg7iO2MXt5TVJt4DIL0aAmJ6EA‌Lw_wcB [https://perma.cc/3XZJ-Z8TR] (estimating that over 1.9 million people are incarcerated in the United States); Sentencing Project, supra note 1 (estimating that 5.85 million people have lost their right to vote as a result of felony conviction).Show More

We, the authors, are a law professor and former Director of Yale Law School’s Liman Center (Jenny) and the Director of Dwight Hall’s New Haven Civic Allyship Initiative and the Full Citizen Coalition (James). In 2022, we worked as part of a grassroots coalition to urge the Connecticut legislature to repeal laws that disenfranchised those serving sentences for felony convictions and to create greater access to the ballot for currently incarcerated individuals.3.In 2021, Connecticut altered its restrictions on voting rights for people with felony convictions. See Off. of Legis. Rsch., Conn. Gen. Assembly, Issue Brief: Voting Rights After Felony Conviction (Nov. 23, 2021), https://www.cga.ct.gov/2021/rpt/pdf/2021-R-0188.pdf [https://perma.cc/48ZM-3LGZ] (describing changes to voting rights based on 2021 law). James both worked as an activist and organizer on the 2021 law and had his own voting rights restored as a result of its passage. SeeKelan Lyons, The Vote, Unlocked: Why This Election Day Is Special for Those on Parole,CT Mirror (Nov. 2, 2021, 7:44 PM), https://ctmirror. org‌/2021/11/02/the-vote-unlocked-why-this-election-day-is-special-for-those-on-parole/ [https://perma.cc/XYV2-YPTF]. Buoyed by the passage of the 2021 bill, in 2022 a coalition of criminal justice and election reform advocates formed to extend voting reform to cover incarcerated people. Both authors worked on this effort.Show More The effort was part of an ongoing campaign across the nation to repeal or alter laws that deny or suppress the voting rights of over one million voters.4.For a summary of these efforts, see Voting Rights, Sent’g Project, https://www.sentenc‌ingproject.org/issues/voting-rights/?gad_source=1&gclid=Cj0KCQjwwMqvBhCtARIsAIX‌sZpZSLKU_yBgWxj9eNxz1FkUqpOy2EycTB08tJfML6ovK2un-a3HiuEcaAix9EALw_w‌cB [https://perma.cc/8ECZ-6JFM] (last visited July 7, 2024) (summarizing voting reform efforts around the nation focused on disenfranchisement due to conviction and/or incarceration).Show More Ultimately, our efforts in Connecticut were unsuccessful. The bill we proposed never even received a number or a committee hearing. As James noted, it died without ever seeing the light of day. Nonetheless, our work continues.

This paper offers a firsthand account of this work by examining the nexus between criminal legal systems in the United States and disenfranchisement. While we cannot cover all aspects of this expansive topic, we offer one account that unfolds in three Parts. First, we offer a brief history of voting, focusing particularly on what role voting plays in defining citizenship and facilitating democratic representation. This history provides evidence of the race- and class-based impetuses for disenfranchisement based on conviction or carceral status––a reality that continues in modern disenfranchisement and voting qualification policies. Beyond this, the history of voting offers insights into constructions of the franchise as a privilege or a right. While the authors of this paper treat voting as a right and refer to it as such, the inconsistent legal construction of voting as either a privilege or a right is critical to understanding justifications for the historical absence of universal suffrage in the United States. At the end of Part I, we consider the significance of such a conceptualization of voting.

Next, we offer a lived account of James’s disenfranchisement and both authors’ shared commitment to ensure voting rights for convicted and incarcerated people. In this second Part, the effect of the rhetoric and theory of Part I is rendered real. Denial of voting rights, barriers to voting created by carceral systems, and misinformation about voting status not only redefine the citizenship of those subject to criminal legal systems and handicap reintegration of such individuals, but also dilute the representation of the communities such individuals call their own.

The conclusion urges a reconceptualization of voting rights and, by extension, citizenship. This final part is critical not only because it reimagines our democracy as more representative through the repeal of disenfranchisement statutes and policies but also because it pushes reform conversations to think broadly about how such representation is achieved. Certainly, repealing statutes and policies that explicitly deny individuals the right to vote because of conviction or carceral status is critical, but repeal alone will not resolve the problem this paper seeks to highlight. Barriers to voting abound for incarcerated and convicted people even if they remain eligible to vote. Until such barriers are addressed, denial of citizenship and the representation it promises will linger.

Before addressing any of these Parts, however, we offer a word about our choice of methodology: the PLS methodology.5.See Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795, 1795 (2023) (“PLS is legal scholarship written in collaboration with authors who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.”).Show More The choice was intentional. At its core, PLS offers the opportunity to meld our experiences (the firsthand account) with the theory that informs this piece—and which this piece seeks to dismantle.6.Id. at 1807.Show More In this way, this Essay tells a story in ways that other methodologies might preclude. PLS also offered us an opportunity for self-reflection about the work we do and who we are. Our identities are integral to the narrative we seek to lift up in this work. As authors, activists, colleagues, friends, teachers, scholars, a lawyer (Jenny), and an organizer who is also a formerly incarcerated Black man (James), our perspectives are driven by the world as we know it and as we engage with it through our different identities. Our experiences are simultaneously unique to us and rendered more global as we layer them with legal and political theory in an effort to push back against the existing paradigm.

This self-reflection mirrors the topic we chose. As we sought to weave together our stories with the history and theory of voting in the United States—and more accurately, voting exclusion and the construction of citizenship—we also had to work not to obscure or elevate a single voice. We speak both for ourselves collectively and individually here, just as we advocate a model of enfranchisement that permits each person to contribute to the body politic directly, as an individual. A model of inclusive voting allows each person to speak for themselves.

Finally, in choosing to write a PLS piece, we also sought to democratize legal scholarship. Legal academic writing tells a particular story. It can distill law and its boundaries to singularities. In this, it carries a unique value, but it, like the law it examines, is exclusive in its constructions. Not everyone reads legal scholarship, as Chief Justice Roberts has helpfully noted.7.See A Conversation with Chief Justice Roberts, C-SPAN, at 30:40–48 (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts [https://perma.cc‌/JYY3-4PZS] (“There is a great disconnect between the academy and the profession.”).Show More Similarly, not everyone gets to write legal scholarship, much less publish it in pages as auspicious as these. On a recent walk, James voiced his dislike of academic writing to Jenny. He described it as a National Geographic show in which a lion (the state) attacks and kills a gazelle (the subject/the marginalized person). The narrator is the legal scholar. The narrator describes the attack in painful detail: the lion’s claws are exactly this long; his fur is this color; etc., and in the end the gazelle dies. The description is not wrong, but it is also incomplete. We never hear the gazelle’s story. It does not get to say to the viewer “these claws really hurt” or “I don’t want to die.” PLS offers a space for the gazelle’s story in the gazelle’s own voice. Our Essay is not just about voting exclusion. It is not just about the value of a voice in our nation’s participatory democracy or a defined identity of citizen. It is not just about who makes laws and who is subject to law. It is about all of those things. It is the story of rights denied told from the perspective of those denied.

  1.  See Growth in Mass Incarceration: Prison Populations Over Time, Sent’g Project, https://www.sentencingproject.org/research/ [https://perma.cc/YX7W-VXHU] (last visited July 7, 2024). These figures do not include people incarcerated pretrial. For those figures, see Pretrial Detention, Prison Pol’y Initiative, https://www.prisonpolicy.org/research/pretrial‌_detention/ [https://perma.cc/NGC6-4F2K] (last visited July 7, 2024). Combined, both sets of data reveal that Black and brown men are incarcerated at disproportionately high rates. See Fact Sheet: Felony Disenfranchisement, Sent’g Project, https://www.prisonpolicy.org/scans/‌sp/Felony-Disenfranchisement-Laws-in-the-US.pdf [https://perma.cc/L9MT-K5HD] (last updated Apr. 2014).
  2.  The precise number of individuals excluded from voting as a result of conviction and/or carceral status is difficult to pinpoint given movement within the population (in and out of custody) and variances in jurisdiction regarding disenfranchisement. It is agreed, however, that this population represents the single largest excluded group of otherwise eligible voters. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 308 (2000). For population in custody, see Wendy Sawyer & Peter Wagner, Prison Pol’y Initiative, Mass Incarceration: The Whole Pie 2024 (Mar. 14, 2024), https://www.pris‌onpolicy.org/reports/pie2024.html?c=pie&gad_source=1&gclid=Cj0KCQjwwMqvBhCtARI‌sAIXsZpYlQqVoshNKo3krB3_MBj-rkXE00wdS9rZXcg7iO2MXt5TVJt4DIL0aAmJ6EA‌Lw_wcB [https://perma.cc/3XZJ-Z8TR] (estimating that over 1.9 million people are incarcerated in the United States); Sentencing Project, supra note 1 (estimating that 5.85 million people have lost their right to vote as a result of felony conviction).
  3.  In 2021, Connecticut altered its restrictions on voting rights for people with felony convictions. See Off. of Legis. Rsch., Conn. Gen. Assembly, Issue Brief: Voting Rights After Felony Conviction (Nov. 23, 2021), https://www.cga.ct.gov/2021/rpt/pdf/2021-R-0188.pdf [https://perma.cc/48ZM-3LGZ] (describing changes to voting rights based on 2021 law). James both worked as an activist and organizer on the 2021 law and had his own voting rights restored as a result of its passage. See Kelan Lyons, The Vote, Unlocked: Why This Election Day Is Special for Those on Parole, CT Mirror (Nov. 2, 2021, 7:44 PM), https://ctmirror. org‌/2021/11/02/the-vote-unlocked-why-this-election-day-is-special-for-those-on-parole/ [https://perma.cc/XYV2-YPTF]. Buoyed by the passage of the 2021 bill, in 2022 a coalition of criminal justice and election reform advocates formed to extend voting reform to cover incarcerated people. Both authors worked on this effort.
  4.  For a summary of these efforts, see Voting Rights, Sent’g Project, https://www.sentenc‌ingproject.org/issues/voting-rights/?gad_source=1&gclid=Cj0KCQjwwMqvBhCtARIsAIX‌sZpZSLKU_yBgWxj9eNxz1FkUqpOy2EycTB08tJfML6ovK2un-a3HiuEcaAix9EALw_w‌cB [https://perma.cc/8ECZ-6JFM] (last visited July 7, 2024) (summarizing voting reform efforts around the nation focused on disenfranchisement due to conviction and/or incarceration).
  5.  See Rachel López, Participatory Law Scholarship, 123 Colum. L. Rev. 1795, 1795 (2023) (“PLS is legal scholarship written in collaboration with authors who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.”).
  6.  Id. at 1807.
  7.  See A Conversation with Chief Justice Roberts, C-SPAN, at 30:40–48 (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts [https://perma.cc‌/JYY3-4PZS] (“There is a great disconnect between the academy and the profession.”).