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 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 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 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 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 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 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 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.
- 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). ↑
- 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). ↑
- 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. ↑
- 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). ↑
- 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.”). ↑
- Id. at 1807. ↑
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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.”). ↑
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