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2022
Black Women and Voter Suppression Black Women and Voter Suppression
Carla Laroche
Washington and Lee University School of Law
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Carla Laroche, Black Women and Voter Suppression, 102 B.U. L. Rev. 2431 (2022).
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2431
BLACK WOMEN AND VOTER SUPPRESSION
CARLA LAROCHE
*
ABSTRACT
Black women who are eligible to vote do so at consistently high rates during
elections in the United States. For thousands of Black women, however, racism,
sexism, and criminal convictions intersect to require them to navigate a maze of
laws and policies that keep them from voting. With the alarming rate of
convictions and incarceration of Black women, criminal law intersects with civil
rights to bar their involvement in the electoral process. This voting ban is known
as felony disenfranchisement, but it amounts to voter suppression.
By reconceptualizing voter suppression based on criminal convictions
through the experiences of Black women’s access to their voting rights, this
Article adds a new perspective to the rich scholarship analyzing voting rights.
This Article examines the history of Black women’s exclusion from the ballot
box in the United States, including how the racist legacy of Jim Crow and Jane
*
Associate Clinical Professor and Director of the Civil Rights and Racial Justice Clinic,
Washington and Lee University School of Law; J.D., Columbia Law School; M.P.P., Harvard
Kennedy School; B.A., Princeton University. This Article benefited from comments received
at the Lutie A. Lytle Black Women Law Faculty Writing Workshop (2021), Clinical Law
Review Clinical Writers’ Workshop (2021), Lutie-Langston Roundtable (2021), Association
of American Law Schools Annual Meeting Criminal Justice Section’s New Voices in
Criminal Law panel (2022), University of Richmond School of Law Junior Faculty Forum
(2022), Decarceration Works-in-Progress (2022), and University of Richmond School of Law
Emanuel Emroch Colloquy Series (2022). I would like to thank Alice Abrokwa, Nancy
Abudu, Maryam Ahranjani, Kathryn Banks, Amber Baylor, Valena Beety, Susan Carle,
Carliss Chatman, Erin R. Collins, Gilda Daniels, Nneka Dennie, Heather Kolinsky, Shalay
Jackson, Trina Jones, Sheldon Bernard Lyke, Christina Miller, Sarah Redfield, Zaneta
Robinson, Cary Shelby, Omavi Shukur, Marissa Jackson Sow, Brian Wilson, Erika Wilson,
and Charquia Wright, for their suggestions as I developed this Article, and Margaret Clark,
Janet Garcia-Hallett, and Katie Miller, for their research guidance. Thank you to Cassandra
Lamzik, Makailah Lee, Alexis Smith, and Russel Wade, for providing crucial research
assistance, and the Washington and Lee University School of Law Frances Lewis Law Center,
for its generous support. I am indebted to Kim Parker, for inviting me to serve as the American
Bar Association Criminal Justice Section’s inaugural Women in Criminal Justice luncheon
keynote in Nashville, Tennessee, in April 2019, and to Janeia Ingram, for nominating me to
present during the Tallahassee Women Lawyer’s commemoration of the Nineteenth
Amendment’s 100th anniversary in Tallahassee, Florida, in March 2020. Both events gave
me the opportunity to delve deeper into the history of Black women’s many struggles to gain
the right to vote. Thank you to the Boston University Law Review editors, especially Dylan
Welch, for their thorough edits and efforts to elevate civil rights issues. I am grateful to Black
women advocates, past and present, for their bold work to increase voting rights access for
all, including Nancy Abudu, Rosemary McCoy, and Sheila Singleton.
2432 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
Crow continue through mass incarceration and voter suppression schemes.
Using Florida’s disenfranchisement maze as a case study, this Article shows that
while Black women and other advocates have led attempts to abolish voter
suppression schemes, permanently, they have yet to succeed through the
judicial, executive, or legislative branches.
The ostensible reasons for these voter suppression schemes vary, but the
outcome has been the devaluation of the interests of Black women and their
communities while preserving the voting priorities of white communities. This
Article concludes by demanding that individuals, including voters and members
of all branches of the government, recognize Black women’s voting rights and
work to dismantle these voter suppression schemes. Until then, society will
continue to bar Black women from the ballot box disproportionately and
disregard the justice and democratic values the United States claims to hold
dear.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2433
CONTENTS
INTRODUCTION ............................................................................................. 2434
I. BLACK WOMEN’S INTERSECTIONAL VOTING STRUGGLES IN
CONTEXT ........................................................................................... 2442
A. Race and Gender: The Intersectionality of Black Women ........ 2444
B. Historical Voting Exclusion for Black Women .......................... 2447
C. Gender and Jim Crow’s Legacy ................................................ 2457
II. CHALLENGING THE DISENFRANCHISEMENT MAZE IN FLORIDA ........ 2460
A. Florida’s Disenfranchisement Maze: Background ................... 2461
B. Constitutional Amendment Victory and Derailment ................. 2465
C. Black Women’s Litigation Advocacy Rebuffed .......................... 2472
III. BLACK WOMEN’S VOTER SUPPRESSION ........................................... 2476
A. Ripple Effects of Ballot Box Invisibility ..................................... 2477
B. The Benefit to White Voters ....................................................... 2482
IV. ACCESSING THE VOTE ....................................................................... 2487
A. Unshackling Black Women’s Humanity .................................... 2488
B. Intersectionality Within Voting Rights Legal Analysis .............. 2489
C. Mutual Aid Network .................................................................. 2490
D. State and Federal Initiatives ..................................................... 2492
E. Critiquing Voting Rights for All with Criminal Convictions ..... 2493
CONCLUSION ................................................................................................. 2495
2434 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
For three hundred years, we’ve given them time. And I’ve been tired so
long, now I am sick and tired of being sick and tired, and we want a change.
—Fannie Lou Hamer
1
INTRODUCTION
Black women community activists and leaders have become synonymous
with those who struggle to enhance voting rights access. As one summary
described their efforts, “[G]enerations of Black women in particular have
encouraged voter registration, organized their communities to turn out at the
polls, and battled near-constant voter suppression efforts. Their tireless
commitment has started to attract more attention, but their work is not done.”
2
The historical and societal expectations are that Black women will make
sacrifices for, and represent the importance of, voting—without getting the right
to vote for themselves.
3
Consider, for example, Wandrea “Shaye” Moss, a thirty-seven-year-old
mother and former election employee in Fulton County, Georgia, and her mother
Ruby “Lady Ruby” Freeman, a sixty-two-year-old Black grandmother and
former Georgia election worker
4
with the Fulton County Department of
1
Fannie Lou Hamer, Speech at the Mississippi Freedom Democratic Party Rally in the
Williams Institutional CME Church: I’m Sick and Tired of Being Sick and Tired—Dec. 20,
1964 (Dec. 20, 2019), https://awpc.cattcenter.iastate.edu/2019/08/09/im-sick-and-tired-of-
being-sick-and-tired-dec-20-1964 [https://perma.cc/DH6S-958E]. Fannie Lou Hamer was a
civil rights activist from Mississippi who contested the evils of segregation and worked
passionately for the right to vote. Fannie Lou Hamer, SNCC DIGIT. GATEWAY,
https://snccdigital.org/people/fannie-lou-hamer [https://perma.cc/9AU6-CFBL] (last visited
Dec. 7, 2022). Hamer risked her life and liberty in the name of justice for the Black
community. Id.; Susan Johnson, Fannie Lou Hamer: Mississippi Grassroots Organizer, 2
NAT’L BLACK L.J. 155, 159 (1972). When she tried to vote in 1962, the white owner of the
Mississippi plantation where she had worked as a sharecropper for eighteen years fired her,
claiming, “We are not ready for that in Mississippi.” Keisha N. Blain, Fannie Lou Hamer’s
Dauntless Fight for Black Americans’ Right To Vote, SMITHSONIAN MAG. (Aug. 20, 2020),
https://www.smithsonianmag.com/history/fannie-lou-hamers-dauntless-fight-for-black-
americans-right-vote-180975610/ [https://perma.cc/G3AV-9VE2]. See generally NKECHI
TAIFA, RE-ENFRANCHISEMENT! A GUIDE FOR INDIVIDUAL RESTORATION OF VOTING RIGHTS IN
STATES THAT PERMANENTLY DISENFRANCHISE FORMER FELONS (2002).
2
Mattie Kahn, The Goddesses of Democracy, GLAMOUR (Nov. 2, 2021),
https://www.glamour.com/story/georgia-collective-ufot-butler-brown-women-of-year-2021
[https://perma.cc/9K99-YLMT].
3
See infra Section I.B.
4
Linda So & Jason Szep, Exclusive-Two Election Workers Break Silence After Enduring
Trump Backers’ Threats, REUTERS (Dec. 20, 2021, 6:08 AM), https://www.reuters.com
/article/us-usa-election-threats-georgia-exclusiv-idCAKBN2IP0VZ; Martin Pengelly,
‘There’s Nowhere I Feel Safe’: Georgia Election Workers on How Trump Upended Their
Lives, GUARDIAN (June 21, 2022, 5:52 PM), https://www.theguardian.com/us-news/2022/jun
/21/january-6-hearings-georgia-elections-workers-mother-daughter-testify
[https://perma.cc/T4U5-8MLC] (detailing how then President Donald Trump and his allies
2022] BLACK WOMEN AND VOTER SUPPRESSION 2435
Registration and Elections.
5
Both women enjoyed the work they had done as
election workers. As Moss explained, “I’ve always been told by my grandmother
how important it is to vote and how people before me, a lot of people, older
people in my family, did not have that right.”
6
They value the right to vote.
The Select Committee to Investigate the January 6th Attack on the United
States Capitol (“January 6th Committee”)
7
introduced Moss and Freeman to the
world on June 21, 2022, when it broadcasted their testimony about the horrors
Moss and Freeman endured after the Trump Administration accused them of
rigging the November 2020 election. These accusations were false and made
without any proof. Rudy Giuliani, a lawyer for then President Donald J. Trump’s
campaign, alleged to have seen a “surveillance video from the [State Farm
A]rena that he claimed showed the two exchanging USB memory sticks,
presumably containing fraudulent vote counts, ‘as if they’re vials of cocaine.’”
8
Trump described Freeman as a “professional vote scammer and hustler” and
attacked both women on a leaked recording of a phone call he had with Georgia
Secretary of State Brad Raffensperger, just two days before the January 6th
attack.
9
The work Moss and Freeman did to ensure the fairness of the 2020
election and that Fulton County counted every vote led to death threats, assaults,
racist and sexist attacks on their character and the disarray of their lives.
10
They
risked their lives while attempting to protect the integrity of the election.
11
From before the Women’s Suffrage Movement to present-day voting rights
activists,
12
Black women have faced these racialized and gendered caricatures;
“upended [election workers’] lives, fueling harassment and racist threats by claiming they
were involved in voter fraud”).
5
Moss had been a poll worker for over ten years, but she and her mother quit after the
2020 election. Amy Gardner, Election Workers Describe ‘Hateful’ Threats After Trump’s
False Claims, WASH. POST (June 21, 2022, 6:40 PM), https://www.washingtonpost.com
/national-security/2022/06/21/ruby-freeman-shaye-moss-jan6-testimony.
6
Id.
7
About, SELECT COMM. TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE U.S. CAPITOL,
https://january6th.house.gov/about [https://perma.cc/56CQ-K6Y5] (last visited Dec. 7,
2022).
8
Gardner, supra note 5.
9
Id.
10
See Pengelly, supra note 4, at 1-3. Moss and Freeman described people accosting their
family members and fearing being in public, staying away from their homes for months, and
changing their appearances because of viable threats. Id.
11
Id.
12
For example, consider the names of Stacey Abrams—the founder of New Georgia
Project (“NGP”) and a 2018 and 2022 Georgia Democratic gubernatorial candidate—and Nsé
Ufot—NGP’s former Chief Executive Officer. They have come to represent symbols of
inspiration for the power of working to increase voting rights access. Both individuals are
Black women who worked with people to register eligible people of color in Georgia. See
About New Georgia Project, NEW GA. PROJECT (2021), https://newgeorgiaproject.org/about
[https://perma.cc/8EXP-QW3T] (last visited Dec. 7, 2022). During and after the 2020 election
and 2021 Georgia Senate run-off elections, communities across the nation praised Abrams
and Ufot for leading the effort that registered 800,000 new voters in Georgia and fought
2436 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
while they pushed for democratic principles and the right to vote for systemically
excluded communities, they also battled for voting access for themselves.
Unfortunately, “[i]t should not fall to Black women to beat back these
antidemocratic measures, but over and over, it’s Black women who step up.”
13
Because of their consistent efforts, Black women are a powerhouse voting bloc,
have been lionized for making huge strides in registering voters,
and are one of
the most active portions of the United States’ electorate.
14
Commentators have described Black women as the “unsung heroes” of the
right to vote.
15
Research has found that “Black women, regardless of location,
age, or socioeconomic background, tend to vote for economically thriving,
educated, healthy, and safe communities.”
16
Their justice-focused interests
against voter suppression. Danny Hakim, Stephanie Saul & Glenn Thrush, As Biden Inches
Ahead in Georgia, Stacey Abrams Draws Recognition and Praise, N.Y. TIMES (Oct. 7, 2021),
https://www.nytimes.com/2020/11/06/us/politics/stacey-abrams-georgia.html. Politicians,
celebrities, and people on social media hailed them for defending and saving democracy. See
Kahn, supra note 2; Mariya Moseley, Georgia Black Women Leaders on ‘Saving Democracy’
by Helping Flip Senate, Fueling Biden-Harris Win, ABC NEWS (Jan. 21, 2021, 6:33 PM),
https://abcnews.go.com/Politics/georgia-black-women-leaders-saving-democracy-helping-
flip/story?id=75407219 [https://perma.cc/N47D-PSKE].
13
Kahn, supra note 2; see also Barbara Rodriguez, Black Women Helped Drive Record
Early Voting in Georgia. They’re Not Done., 19TH (Nov. 7, 2022, 8:59 AM),
https://19thnews.org/2022/11/black-women-organizing-early-voting-georgia
[https://perma.cc/29GB-4WPA] (quoting Yterenickia “YT” Bell, senior advisor of voting for
the Leadership Conference on Civil and Human Rights, as saying, “Black women have been
the backbone of democracy. . . . History shows us that we’ve always been engaged, even if
we were not prioritized and our rights were not restored in the same way as others”).
14
DANYELLE SOLOMON & CONNOR MAXWELL, CTR. FOR AM. PROGRESS, WOMEN OF
COLOR: A COLLECTIVE POWERHOUSE IN THE U.S. ELECTORATE 5, 9 (2019),
https://cdn.americanprogress.org/content/uploads/2019/11/18120343/Women-of-Color-in-
the-American-Electorate.pdf [https://perma.cc/9UEU-2RRW]; see also Chinyere Ezie, Not
Your Mule? Disrupting the Political Powerlessness of Black Women Voters, 92 U. COLO. L.
REV. 659, 671 (2021).
15
Jackie Calmes, Column: The Jan. 6 Hearings Are Sorting Real Heroes from the Fakes,
L.A. TIMES (June 24, 2022, 3:00 AM), https://www.latimes.com/opinion/story/2022-06-
24/january-6-committee-mike-pence-rusty-bowers-donald-trump. The chair of the January
6th Committee praised a few election officials as the “backbone of our
democracy.”Associated Press, Jan. 6th Panel: Local ‘Heroes’ Rebuffed Trump, Then Faced
Threats, NEWS CHANNEL 9 ABC (June 21, 2022), https://newschannel9.com/news/local/jan-
6th-panel-local-heroes-rebuffed-trump-then-faced-threats [https://perma.cc/26LT-VRT3].
16
Leah Rodriguez, Black Women’s Votes Remain in Jeopardy 55 Years After the Voting
Rights Act Passed, GLOB. CITIZEN (Aug. 6, 2020), https://www.globalcitizen.org/en
/content/black-women-helped-pass-voting-rights-act [https://perma.cc/A5R2-2KSR]; see
also Megan Bailey, Between Two Worlds: Black Women and the Fight for Voting Rights,
NAT’L PARK SERV., https://www.nps.gov/articles/black-women-and-the-fight-for-voting-
rights.htm [https://perma.cc/FTC4-NTKC] (last updated Sept. 13, 2022) (noting Black
women have worked toward universal suffrage that would benefit all, instead of access to the
ballot box for Black people or women).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2437
would protect them and their families, and, also, benefit communities of all
demographics.
17
Their votes are efforts to work toward a fair democracy.
Nevertheless, while people across the United States have lauded Black
women for saving the country’s democracy after elections, they have also failed
to prevent the suppression of Black women’s votes.
18
So, even though people
celebrate the monumental bravery of Moss and Freeman, two Black women
focused on protecting everyone’s right to vote, states also exclude other Black
women from voting or seeking to vote because they have been convicted of a
crime.
19
States across the nation ban people with convictions
20
from voting,
unless they have met certain, often confusing, criteria.
21
States vary in the
procedures people must follow to restore their right to vote.
22
Only Vermont,
Maine, the District of Columbia, and the Commonwealth of Puerto Rico allow
people to vote no matter their criminal history.
23
17
MARTHA S. JONES, VANGUARD: HOW BLACK WOMEN BROKE BARRIERS, WON THE VOTE,
AND INSISTED ON EQUALITY FOR ALL 9 (2020) (“Black women advocated for their interests as
people doubly burdened by racism and sexism, and they reasoned that when society lifted
them up as equals, everyone would rise.”).
18
Catherine Powell & Camille Gear Rich, The “Welfare Queen” Goes to the Polls: Race-
Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, 108 GEO.
L.J. 105, 121-25 (2020) (discussing how racialized “welfare queen” trope has led to targeting
Black women for voter fraud).
19
See id.
20
In recognition of the importance of using less stigmatizing language, I use people-first
language when referring to people who are incarcerated and who have criminal records. As
such, I will refer to “people with convictions,” instead of “convicts, former prisoners, or
felons.” See EDDIE ELLIS, CTR. FOR LEADERSHIP ON URB. SOLS., AN OPEN LETTER TO OUR
FRIENDS ON THE QUESTION OF LANGUAGE 2 (2007); Preferred Terms for Select Population
Groups & Communities, CTRS. FOR DISEASE CONTROL & PREVENTION,
https://www.cdc.gov/healthcommunication/Preferred_Terms.html [https://perma.cc/KV7G-
3CML] (last visited Dec. 7, 2022) (“Language in communication products should reflect and
speak to the needs of people in the audience of focus . . . . [and] these terms attempt to
represent an ongoing shift toward non-stigmatizing language.”); Alice Ristroph, Farewell to
the Felonry, 53 HARV. C.R.-C.L. L. REV. 563, 617 (2018) (“Felon is one of several concepts
in American criminal law that helps produce and perpetuate its distinctive severity and its
profound racial and economic inequalities.”).
21
50-State Comparison: Loss & Restoration of Civil/Firearms Rights, COLLATERAL
CONSEQUENCES RES. CTR.: RESTORATION OF RTS. PROJECT (Dec. 2021) [hereinafter 50-State
Comparison], https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-
restoration-of-civil-rights-and-firearms-privileges [https://perma.cc/CRX3-Y6B8]. Though
people with criminal convictions face countless barriers, most states deprive people of their
civil rights to vote, hold public office, serve on a jury, and serve as a notary public upon
conviction. GILDA R. DANIELS, UNCOUNTED: THE CRISIS OF VOTER SUPPRESSION IN AMERICA
153 (2020).
22
50-State Comparison, supra note 21.
23
Id. Critically, neither the District of Columbia nor Puerto Rico are states and, as a result,
they have limited voting power themselves. See DC and Puerto Rico Statehood—Top 3 Pros
and Cons, BRITANNICA: PROCON.ORG, https://www.procon.org/headlines/dc-and-puerto-rico-
statehood [https://perma.cc/4AL4-CUQK] (last updated Apr. 21, 2022).
2438 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
Although the literature uses the term “felony disenfranchisement,”
24
the
disenfranchisement maze people must follow to regain or restore their voting
rights amounts to voter suppression.
25
States may authorize the automatic
restoration of a person’s voting rights, an application after a waiting period, or
permanent disenfranchisement.
26
A person may be eligible to vote immediately
after they are released from prison, after completion of post-release conditions
related to probation or community supervision, after paying their legal financial
obligations (“LFOs”),
27
or not at all.
28
These disenfranchisement mazes vary
24
Select states ban people from voting if they are convicted of a misdemeanor. See DC
and Puerto Rico Statehood—Top 3 Pros and Cons, supra note 23; see also Beth A. Colgan,
Wealth-Based Penal Disenfranchisement, 72 VAND. L. REV. 55, 59 n.12 (2019). As such, I
will not use “felony” when discussing voter disenfranchisement in recognition of this
discriminatory practice’s reach. See JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT:
FELON DISENFRANCHISEMENT AND AMERICAN DEMOCRACY, at vii (2006) (“[W]e use the
phrase ‘disenfranchisement’ to describe the loss of voting rights [arising from a conviction].
This usage is predominant in the contemporary scholarly and journalistic literature. However,
in the extensive nineteenth-century debates over the extension or contraction of the franchise,
‘disfranchisement’ was the sole word used to describe the loss of voting rights, and most
historians still employ that word today. Most dictionaries consider the two words identical.”).
To be clearer about the aim and result of these laws, I will use “voter suppression” in this
Article, instead of “disenfranchisement.” In doing so, I stress the use of these laws and policies
to keep people from accessing their right to vote.
25
See ERIKA WOOD & RACHEL BLOOM, ACLU & BRENNAN CTR. FOR JUST., DE FACTO
DISENFRANCHISEMENT 8-9 (2008), https://www.brennancenter.org/sites/default/files/legacy
/publications/09.08.DeFacto.Disenfranchisement.pdf [https://perma.cc/6D2L-L4A6]
(attributing causes of disenfranchisement maze to complicated, incomprehensible laws
expecting officials with no criminal law expertise to administer and explain these laws;
disconnect between election officials and criminal legal system officials, etc.). As an example,
take the convoluted voting rights restrictions and restoration process in Tennessee, where the
years people were convicted and the type of crimes dictate their voting eligibility. Restoration
of Voting Rights, TENN. SEC’Y OF ST., https://sos.tn.gov/elections/guides /restoration-of-
voting-rights [https://perma.cc/9G92-VU3W] (last visited Dec. 7, 2022). People convicted
before January 15, 1973, can vote, unless they were convicted of particular offenses. Id.
People with convictions between January 15, 1973, and May 17, 1981, may vote in elections.
Id. Tennessee allows people convicted on or after May 18, 1981, to vote only after they have
completed their sentence and have had their rights restored or their felony convictions
expunged, though people convicted of certain crimes are barred from voting for life. Id.
Further, individuals must have paid any court costs, unless a court finds them unable to pay;
have finished paying any restitution obligations imposed by the court; and be current on their
child support payments before they may submit a certificate signed by authorized government
officials indicating they are eligible to vote. TENN. CODE ANN. § 40-29-202(b)-(c) (2021).
26
50-State Comparison, supra note 21.
27
LFOs include all court-imposed fines, fees, and restitution associated with a person’s
criminal charge and conviction. See Ann Cammett, Shadow Citizens: Felony
Disenfranchisement and the Criminalization of Debt, 117 PENN. ST. L. REV. 349, 378-80
(2012) (explaining different types and sources of these criminal legal debts).
28
50-State Comparison, supra note 21.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2439
across the United States, but they all amount to disenfranchisement by
geography.
29
In some cases, the voting restrictions themselves lead to more potential
criminal liability. Prosecutors criminally charge Black women who were once
convicted of a crime that caused them to lose their voting rights, who then
unintentionally and unknowingly misstep by registering to vote or voting while
ineligible. Crystal Mason
30
and Pamela Moses
31
are two Black women who were
convicted, respectively, for submitting a provisional ballot in Texas and trying
to register to vote in Tennessee while ineligible within their states’
disenfranchisement maze. Their arrests and convictions went viral across the
nation, offering further cause to call for reform. Meanwhile, these women
suffered the consequences of these additional injustices, including being
incarcerated and being separated from family, simply for trying to navigate
society’s constructed barriers.
32
Over the last forty years, the rate of incarceration of women has increased
exponentially, but Black women are represented disproportionately in
courtrooms, jails, and prisons.
33
Given the disturbing rate of conviction and
incarceration
34
of all women in the United States, but especially Black women,
35
29
Because each state and jurisdiction has its own laws and procedures for restoring the
right to vote after conviction and incarceration, Black women may be able to register to vote
in one state and be barred from voting in another state. See Can People Convicted of a Felony
Vote? Felony Voting Laws by State., BRENNAN CTR. FOR JUST. [hereinafter Can People
Convicted of a Felony Vote?], https://www.brennancenter.org/our-work/research-reports
/can-people-convicted-felony-vote-felony-voting-laws-state [https://perma.cc/SPU7-B4GM]
(last updated Sept. 26, 2022).
30
Crystal Mason was arrested and convicted in Texas for submitting a provisional ballot
because she was ineligible to vote. In May 2022, the Texas Criminal Court of Appeals
reversed and sent Mason’s case back to the appellate court to reconsider its holding. Barbara
Rodriguez, States Are Stepping up Prosecutions for Voter Fraud. But Who Gets the Harshest
Punishment?, 19TH (Oct. 6, 2022, 6:00 AM), https://19thnews.org/2022/10/state-election-
voter-fraud-prosecutions-harsh-sentences [https://perma.cc/GDB8-ESYE].
31
Pamela Moses was arrested, convicted, and sentenced for registering to vote while
ineligible in Tennessee. Eventually, the court granted her a new trial and the prosecutor
dismissed the charges. Sam Levine, The Untold Story of How a US Woman Was Sentenced to
Six Years for Voting, Guardian (Dec. 27, 2022, 2:00 AM), https://www.theguardian.com/us-
news/2022/dec/27/pamela-moses-voting-rights-mistake-jail [https://perma.cc/TU4Z-
EWLA]. For a summary of the disenfranchisement maze that people in Tennessee must
navigate, see supra note 25.
32
For further discussion of some of the extensive consequences women must navigate, see
Carla Laroche, The New Jim and Jane Crow Intersect: Challenges to Defending the Parental
Rights of Mothers During Incarceration, 12 COLUM. J. RACE & L. 517, 532-548 (2022).
33
Id. at 8-11.
34
In this Article, I use the term “incarceration” to describe confinement in local, state,
federal, Native American, and military jail or prison facilities.
35
See SENT’G PROJECT, INCARCERATED WOMEN AND GIRLS 1 (2022) [hereinafter SENT’G
PROJECT, INCARCERATED WOMEN AND GIRLS], https://www.sentencingproject.org/app
/uploads/2022/11/Incarcerated-Women-and-Girls.pdf [https://perma.cc/3ESS-FXT3] (noting
2440 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
this disenfranchisement serves to undermine Black women’s voting access.
Although the act of voting is supposed to express people’s political citizenship,
their hopes for their community and country, and their level of satisfaction with
their elected officials’ actions, Black women have been left out of this powerful
undertaking; their votes are suppressed through the disenfranchisement maze.
36
Part I of this Article explores the challenges Black women, in particular, have
faced when trying to access the right to vote because of their intersectional—
race and gender—identities and the value voting has within the United States.
37
It describes how voting disenfranchisement, a legacy of racist Jim Crow and
sexist Jane Crow
38
policies and behaviors operate, and how mass incarceration
has intersected with gender and race to heighten Black women’s ban from the
ballot box. Part II analyzes the history of voter suppression because of criminal
convictions in Florida and how two Black women, Rosemary McCoy and Sheila
there were five times as many women who were incarcerated in 2020 than in 1980 and growth
rate of incarceration of women is twice that of men during that same period); Aleks Kajstura,
Women’s Mass Incarceration: The Whole Pie 2019, PRISON POL’Y INITIATIVE (Oct. 29, 2019),
https://www.prisonpolicy.org/reports/pie2019women.html [https://perma.cc /CMR2-XH7Y].
Because jails and prisons usually place people in a facility based on the sex assigned to them
at birth, rather than their gender identity, incarceration data does not account for transgender
women placed in male facilities. See Transgender Incarcerated People in Crisis, LAMBDA
LEGAL, https://www.lambdalegal.org/know-your-rights/article/trans-incarcerated-people
[https://perma.cc/WXF3-YBPE] (last visited Dec. 7, 2022); Transgender Woman Continues
Fight for Transfer from Male Prison Where She Faces Repeated Sexual Assault, CTR. FOR
CONST. RTS. (Feb. 23, 2022), https://ccrjustice.org/home/press-center /press-
releases/transgender-woman-continues-fight-transfer-male-prison-where-she
[https://perma.cc/Y5XG-ZKZH]; Jaclyn Diaz, Minnesota Recognizes She’s a Woman. She’s
Locked in a Men’s Prison Anyway, NPR (Oct. 13, 2022, 6:07 AM), https://www.npr.org/2022
/10/04/1126801351/trans-rights-transgender-inmates [https://perma.cc/76WM-FKPM].
36
See infra Section III.A.
37
Although this Article focuses on Black women, the United States has deliberately
excluded other women of color from the ballot box. See generally Carliss Chatman, Citizens
United v. Federal Election Commission Rewritten, in FEMINIST JUDGMENTS: CORPORATE LAW
REWRITTEN (forthcoming 2022) (manuscript at 20-22) (on file with author); Patty Ferguson-
Bohnee, The History of Indian Voting Rights in Arizona: Overcoming Decades of Voter
Suppression, 47 ARIZ. ST. L.J. 1099 (2015) (detailing decades of voter suppression of
American Indians). Therefore, while this Article shows the continued threat of voter
suppression Black women endure, it does not seek to minimize the plentiful consequences all
those who must navigate discriminatory voter laws endure. Highlighting Black women’s role
in dismantling voter exclusion should not be read as a diminishment of any other group’s role
in doing so as well.
38
Pauli Murray used the term “Jane Crow” to signify the prejudice Black women faced
because of their race and gender. See generally Pauli Murray & Mary O. Eastwood, Jane
Crow and the Law: Sex Discrimination and Title VII, 34 GEO. WASH. L. REV. 232 (1965);
Lisa A. Crooms-Robinson, Murdering Crows: Pauli Murray, Intersectionality, and Black
Freedom, 79 WASH. & LEE L. REV. 1093, 1095-99 (2022); Jane Crow & the Story of Pauli
Murray, NAT’L MUSEUM OF AFR. AM. HIST. & CULTURE, https://nmaahc.si.edu/blog-
post/jane-crow-story-pauli-murray [https://perma.cc/EE2A-9VFG] (last visited Dec. 7,
2022).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2441
Singleton, have served as critical advocates in the push to recognize the
marginalization of women of color within the disenfranchisement maze.
39
Part
III examines the negative consequences these voter suppression schemes have
on Black women and their families and communities and explains why these
disenfranchisement mazes lead to the elevation of the interests of white
communities.
Part IV offers ways that advocates can demand the implementation of laws
and policies that give Black women with criminal convictions the full right to
vote, including abolishing these voter suppression laws. Should policymakers
and voters refuse to do so, people will continue to disregard Black women’s
inability to access their voting rights, knowingly, and racism and sexism will
continue to dictate who has political power, as they always have throughout U.S.
history. In 1795, political theorist Thomas Paine wrote, “[T]o take away [the
right to vote] is to reduce a [person] to a state of slavery, for slavery consists in
being subject to the will of another.”
40
Accordingly, a just, free, and democratic
society requires ensuring that Black women, including those with criminal
convictions, have input in our government; without their perspective, their
intersectional experiences will continue to be disregarded.
41
39
This Article reflects my own views formed through my prior experience as a lawyer,
clinical professor, and volunteer working on these issues in Florida. Through these endeavors,
I collaborated with inspiring individuals, including Dr. Jessica Younts of Justice Impact
Alliance and Cecile Scoon of the League of Women Voters of Florida.
40
Appellants’ Brief at 1, McCoy v. Governor of Florida, No. 20-12304 (11th Cir. Oct. 21,
2020) (alterations in original) (quoting THOMAS PAINE, DISSERTATIONS ON FIRST PRINCIPLES
OF GOVERNMENT 19 (Gale ECCO, Print Eds. 2018) (1795)).
41
See Press Release, New Higher Heights Poll: Black Women Highly Motivated To Vote,
But Desire More Representation & Change on Multiple Issues, #BLACKWOMENVOTE (Oct.
17, 2022), https://blackwomenvote.com/new-higher-heights-poll-black-women-highly-
motivated-to-vote-but-desire-more-representation-change-on-multiple-issues
[https://perma.cc/W2VR-N9B4] (quoting Glynda Carr, President & Chief Executive Officer
of Higher Heights: “A multitude of issues are of deep concern to our community. . . . Black
women are not single issue voters—we sit at the intersection of the most pressing issues facing
our nation”); Cat Zakrzewski, Women of Color Running for Office Face Higher Rates of
Violent Threats Online, WASH. POST (Oct. 27, 2022, 9:06 AM),
https://www.washingtonpost.com/politics/2022/10/27/women-color-running-office-face-
higher-rates-violent-threats-online.
2442 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
What will the negro woman do with the vote? . . . [W]e will stand by the
white women. . . . We are interested in the same moral uplift of the
community in which we live as you are. We are asking only one thing: a
square deal. . . . We want recognition in all forms of this government.
—Juno Frankie Pierce
42
I. BLACK WOMEN’S INTERSECTIONAL VOTING STRUGGLES IN
CONTEXT
This Part reflects on the critical importance of the right to vote and on the
history of Black women regarding the right to vote. When Juno Frankie Pierce
stood before the participants at the 1920 Tennessee Suffrage Convention,
43
she
was the only Black woman invited to speak. In this inaugural meeting of the
League of Women Voters of Tennessee in May 1920, members discussed
Tennesseans’ need to pass the Nineteenth Amendment, which stated, “The right
of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of sex.”
44
Because a sufficient number
of other state legislatures and the U.S. Congress had already ratified the
Nineteenth Amendment, if the Tennessee legislature passed this Amendment
when it planned to meet in August 1920, women would have the right to vote
under the Constitution.
45
Appreciating the importance of her presence for Black women, Pierce’s
words, quoted above, highlighted Black women’s critical work in the Suffrage
Movement and the need for Black women to finally be recognized as full
participants in the democratic process. Born during, or shortly after, the Civil
War to a mother who was enslaved, Pierce grew up in the Jim Crow era,
46
a
period of government-sanctioned terror and discrimination by white people
42
Biographical Sketch of Juno Frankie Pierce, ALEXANDER ST. (2019),
https://search.alexanderstreet.com/view/work/bibliographic_entity%7Cbibliographic_details
%7C4384807/biographical-sketch-juno-frankie-pierce [https://perma.cc/5MW9-UCGG].
43
Jessica Bliss, New Nashville Park To Be Named for Influential African American
Women’s Suffrage Leader Frankie Pierce, TENNESSEAN (Nov. 13, 2019, 12:55 PM),
https://www.tennessean.com/story/news/2019/11/13/frankie-pierce-park-nashville-suffrage-
leader-honored/2534066001/ [https://perma.cc/JQR8-NBS4].
44
U.S. CONST. amend. XIX.
45
Tennessee and the 19th Amendment, NAT’L PARK SERV. (July 31, 2020),
https://www.nps.gov/articles/tennessee-women-s-history.htm [https://perma.cc/JFR6-84N9].
Women in certain states could vote prior to the Nineteenth Amendment’s ratification to the
Constitution. Notably, other countries had granted some women the right to vote years, if not
decades, earlier. New Zealand, for example, granted “all women citizens” voting rights in
1893, and Australia “allowed non-Indigenous women in all states to vote” and run for office
in 1902. Women’s Suffrage, NAT’L LIB. AUSTL., https://www.nla.gov.au/digital-classroom
/senior-secondary/shoulder-shoulder-feminism-australia/womens-suffrage
[https://perma.cc/2GR5-LXVF] (last visited Dec. 7, 2022).
46
See Carole Stanford Bucy, Juno Frankie Pierce, TENN. ENCYC.,
https://tennesseeencyclopedia.net/entries/juno-frankie-pierce [https://perma.cc/Y5VB-
CTFQ] (last updated Mar. 1, 2018).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2443
against Black families.
47
Living during that period, Pierce would have witnessed
how the purported freedom and the right to vote were meaningless without
opportunities to access and enforce those rights fully.
48
In her demand for a square deal, Pierce’s words embodied what Black women
in the United States before and after her endured: sacrifice while seeking
political citizenship in a society steeped in racism and sexism.
49
In trying to
connect with the white women in the room, Pierce promised a continued alliance
once the Nineteenth Amendment passed. Through her request, she sought to
avoid a future of exclusion and disrespect of Black women.
Three months after Pierce’s remarks, in August 1920, a Tennessee legislature
made up of white men convened to decide whether to pass the Nineteenth
Amendment allowing women the right to vote.
50
After heated discussions, the
Tennessee legislature passed the Amendment.
51
Because Tennessee became the
36th state to pass the Nineteenth Amendment, women could celebrate their right
to vote under the Constitution.
52
A victory for so many.
53
Unfortunately, Pierce’s demand for a square deal for Black women has never
come to fruition. This Part explains how society’s views of Black women
engendered laws and policies that discriminated against Black women. It applies
an intersectional framework to prove that Black women’s race and gender have
intersected to elevate unique harms to their access to the ballot box throughout
U.S. history and illustrates how Jim Crow era laws and policies continue to do
so today.
47
See Angela Behrens, Christopher Uggen & Jeff Manza, Ballot Manipulation and the
“Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United
States, 1850-2002, 109 AM. J. SOCIO. 559, 561 (2003) (“[V]iolent suppression of the [B]lack
vote during Reconstruction combined with weak federal enforcement thereafter, and the
eventual adoption of a variety of disenfranchising measures by Southern states after 1890,
prevented most African-Americans from voting in the South.”).
48
See id. at 560-62.
49
See Kahn, supra note 2 (noting lead Black women have taken in voting rights advocacy).
See generally JONES, supra note 17 (detailing stories of Black women who sacrificed to obtain
political and social rights).
50
Woman Suffrage and the 19th Amendment, NAT’L ARCHIVES (June 2, 2021),
https://www.archives.gov/education/lessons/woman-suffrage [https://perma.cc/QDH7-
Z96R].
51
Id. (“[T]hose against the amendment managed to delay official ratification. Anti-
suffrage legislators fled the state to avoid a quorum, and their associates held massive anti-
suffrage rallies and attempted to convince pro-suffrage legislators to oppose ratification.
However, Tennessee reaffirmed its vote and delivered the crucial 36th ratification necessary
for final adoption.”).
52
Tennessee and the 19th Amendment, supra note 45.
53
Woman Suffrage and the 19th Amendment, supra note 50 (asserting “face of the
American electorate had changed forever”).
2444 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
A. Race and Gender: The Intersectionality of Black Women
Even though Black women like Pierce have pushed for democratic principles
and the full right to vote for systemically excluded communities, they have yet
to succeed for themselves.
54
The racial and gender identity of Black women in
the United States has meant that when Black men and white women gained,
Black women were left behind.
55
Society has yet to deem Black women worthy
of consideration and justice.
56
Scholars have analyzed and described the discrimination Black women face
when elevating their desire for support within the United States.
57
In her seminal
book, Ain’t I a Woman: Black Women and Feminism, bell hooks explained:
Usually when people talk about the “strength” of [B]lack women they are
referring to the way in which they perceive [B]lack women coping with
oppression. They ignore the reality that to be strong in the face of
oppression is not the same as overcoming oppression, that endurance is not
to be confused with transformation.
58
That endurance in the face of degradation appears in different forms. While
observing their enduring strength, society also imposes racist and sexist tropes
on to Black women.
59
For example, “welfare queen” is a term to describe Black
women as lazy and immoral; they are “poor Black single mothers deemed . . .
the agents of their own misfortune due to their unmarried status—assumed to
indicate loose morals, hypersexuality, and presumed laziness.”
60
54
See Errin Haines, In Tulsa and Beyond, Biden Tasks Black Women with Fighting the
Legacy of Inequity, 19TH (June 1, 2021, 8:46 PM), https://19thnews.org/2021/06/at-tulsa-and-
beyond-biden-tasks-black-women-with-fighting-the-legacy-of-inequity/ [https://perma.cc
/SM58-YC8J] (“‘When you’re a Black woman and you have this kind of responsibility, the
stakes are always high,’ [Leah] Daughtry[, a Democratic strategist] said. ‘We carry the weight
of history, of our ancestors and our future on our shoulders, and we are critically aware that
we have to succeed because if we don’t, there may not be another.’”).
55
See George Yancy, Black Womanist Theology Offers Hope in the Face of White
Supremacy, TRUTHOUT (June 19, 2021), https://truthout.org/articles/black-womanist-
theology-offers-hope-in-the-face-of-white-supremacy [https://perma.cc/XWQ9-LU87].
56
See id. (“Black women’s pain and suffering has become virtually invisible within the
wider social discourse, protest movements and collective social consciousness.”).
57
Id.; Powell & Rich, supra note 18, at 120-25.
58
BELL HOOKS, AIN’T I A WOMAN: BLACK WOMEN AND FEMINISM 6 (1981).
59
Trina Jones & Kimberly Jade Norwood, Aggressive Encounters & White Fragility:
Deconstructing the Trope of the Angry Black Woman, 102 IOWA L. REV. 2017, 2021-30
(2017).
60
Ann Cammett, Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law,
34 B.C. J.L. & SOC. JUST. 233, 237 (2014) (citation omitted); see also Marilyn Yarbrough &
Crystal Bennet, Cassandra and the “Sistahs”: The Peculiar Treatment of African Women in
the Myth of Women as Liars, 3 J. GENDER RACE & JUST. 625, 636-39 (2000) (summarizing
“jezebel” and “welfare queen” myths).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2445
These caricatures offer the government and others gatekeepers of resources
excuses to not support Black women’s and girls’ needs.
61
For example, in the
decade preceding 2014, philanthropic funders spent more than $100 million to
support dropout prevention and mentoring initiatives for Black and brown boys,
compared to only $1 million targeting Black and brown girls.
62
And Black
women-led voting rights organizations, in particular, and women-of-color-led
civic organizations overall, are under-resourced.
63
According to the Federal
Reserve, Black people generally own considerably less wealth than white
people. Comparing the household wealth in the United States by race, white
communities own 82.9% of household wealth to Black communities’ mere
4.6%.
64
Further, the income of Black women is considerably less than that of
white men.
65
According to the African American Policy Forum, a think tank
dedicated to justice, equality, and human rights for all, “Black men have
approximately 79x the wealth of Black women; white women have
approximately 415x the wealth of Black women; and white men have
approximately 438x the wealth of Black women.”
66
On too many fronts, Black
women are left behind.
67
61
Powell & Rich, supra note 18, at 117-19.
62
AFR. AM. POL’Y F., DID YOU KNOW?: THE PLIGHT OF BLACK GIRLS & WOMEN IN
AMERICA 1 (2014) [hereinafter THE PLIGHT OF BLACK GIRLS AND WOMEN],
https://www.aapf.org/_files/ugd/62e126_54d4f5a4634047fe894ec2db240cb487.pdf
[https://perma.cc/JD7T-DWRH].
63
See Yordanos Eyoel & Aimee Allison, Opinion, Women of Color: The Undercapitalized
Warriors of American Democracy, HILL: CONG. BLOG (Aug. 12, 2021, 11:00 AM),
https://thehill.com/blogs/congress-blog/politics/567540-women-of-color-the-
undercapitalized-warriors-of-american [https://perma.cc/6F8E-NTDZ]; Sarah C. Haan,
Shareholder Proposal Settlements and the Private Ordering of Public Elections, 126 YALE
L.J. 262, 342-43 (2016).
64
Distribution of Household Wealth in the U.S. Since 1989, BD. OF GOVERNORS OF THE
FED. RSRV. SYS., https://www.federalreserve.gov/releases/z1/dataviz/dfa/distribute/table
/#quarter:131;series:Net%20worth;demographic:race;population:all;units:shares
[https://perma.cc/MGD5-JX6T] (last updated Sept. 23, 2022). Also, the chart notes that the
“Hispanic” community, as labeled by the Federal Reserve, owns 2.9% of the household
wealth in the United States and “Other” races/ethnicities own 9.6% as of the second quarter
of 2022. Id. Black people make up about 13% of the U.S. population, to white people’s 72%.
See 2019: ACS 1-Year Supplemental Estimates: Race, U.S. CENSUS BUREAU,
https://data.census.gov/cedsci/table?q=race&tid=ACSSE2019.K200201 [https://perma.cc
/UM3N-SZEH] (last visited Dec. 7, 2022).
65
See Chandra Childers, Ariane Hegewisch & Eve Mefferd, Shortchanged and
Underpaid: Black Women and the Pay Gap, INST. FOR WOMEN’S POL’Y RSCH. (July 27, 2021),
https://iwpr.org/iwpr-publications/fact-sheet/shortchanged-and-underpaid-black-women-
and-the-pay-gap [https://perma.cc/56ZD-4HBG] (noting “it will take Black women more than
another hundred years—until 2133—to reach pay equity with [w]hite men”).
66
THE PLIGHT OF BLACK GIRLS AND WOMEN, supra note 62, at 1.
67
See HOOKS, supra note 58, at 7 (“No one bothered to discuss the way in which sexism
operated both independently of and simultaneously with racism to oppress [Black women].”).
2446 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
To address and name the ever-present devaluation of their personhood, Black
women scholars and activists have developed and expressed the concept and
terminology of intersectionality. Kimberlé Crenshaw coined the term
intersectionality in her foundational piece, Demarginalizing the Intersection of
Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine,
Feminist Theory and Antiracist Politics.
68
In reviewing the experience of Black
women and appreciating the Black women scholars who came before her,
69
Crenshaw defined intersectionality as:
[A] lens through which you can see where power comes and collides, where
it interlocks and intersects. It’s not simply that there’s a race problem here,
a gender problem here, and a class or LBGTQ problem there. Many times
that framework erases what happens to people who are subject to all of
these things.
70
Crenshaw addressed the need to fill in the gap that white men and white
women ignored. Crenshaw emphasized “the historical fact that intersectionality
was developed by [B]lack women activists and intellectuals against white-
dominated feminism, as much as against the male-dominated [B]lack liberation
movement, against capitalism and heterosexism.”
71
Black feminist scholars and others have explored the intersectionality
doctrine by analyzing the experience of Black women in the United States.
72
Scholars have since expanded intersectionality to other people with
marginalized identities and applications.
73
For example, Johanna Bond recently
researched and published a book on the origins and foundation of the
intersectionality framework and applied it to human rights laws and systems.
74
68
Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black
Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,
1989 U. CHI. LEGAL F. 139, 150 (amplifying how people have “treated Black women in ways
that deny both the unique compoundedness of their situation and the centrality of their
experiences to the larger classes of women and Blacks”).
69
For a review and history of Black women scholars and activists who spoke and wrote
on the need to recognize Black women in the law and society, see JOHANNA BOND, GLOBAL
INTERSECTIONALITY AND CONTEMPORARY HUMAN RIGHTS 6-14 (2021).
70
Kimberlé Crenshaw on Intersectionality, More than Two Decades Later, COLUM. L.
SCH. (June 8, 2017), https://www.law.columbia.edu/news/archive/kimberle-crenshaw-
intersectionality-more-two-decades-later [https://perma.cc/78CL-NWTG].
71
JENNIFER C. NASH, BLACK FEMINISM REIMAGINED: AFTER INTERSECTIONALITY 40
(2019).
72
See Crenshaw, supra note 68, at 141-50; Kimberlé Crenshaw, Mapping the Margins:
Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV.
1241, 1252 (1991).
73
See BOND, supra note 69, at 20; Alice Abrokwa, “When They Enter, We All Enter”:
Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24
MICH. J. RACE & L. 15, 17 (2018) (acknowledging growing “recognition in our public
discourse of other important intersections at which people may experience discrimination,
including the intersection of race and disability”).
74
BOND, supra note 69, at 20.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2447
The intersectionality framework is valuable because Black women are not a
monolith; we experience the world differently, with numerous perspectives and
priorities. Black women of different sexual identities, religious views,
socioeconomic statuses, educational attainments, and immigration statuses,
among other intersectional identities, encounter different challenges and
privileges.
75
Nevertheless, the intersection of one’s race and gender “so
profoundly affects the way one is treated, so radically shapes what one is allowed
to think and feel about this society, that the decision to generalize from such a
division is valid.”
76
B. Historical Voting Exclusion for Black Women
Delving deeper into U.S. history and politics shows how Black women, in
particular,
77
continued to face unique harms because of their race and gender,
even while working with Black men and white women to gain universal access
to the ballot box.
78
Courts have made clear how important the right to vote is to
the exercise of citizenship and civic engagement.
79
Scholars have described how
a healthy democracy should receive input from all its people through the ballot
box; political participation in a democracy should be a well-respected
foundational value.
80
Yet, policymakers and the judiciary have ignored or
actively suppressed Black women’s right to vote, notwithstanding their efforts
to access the ballot box.
81
This subsection summarizes how the legacy of Jim
75
See id. at 18-20.
76
PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 256 (1991); see also Janay
Kingsberry, For Black Women, Stacey Abrams’s Loss ‘Feels Like a Punch in the Gut,’ WASH.
POST (Nov. 9, 2022, 5:04 PM), https://www.washingtonpost.com/lifestyle/2022/11/09
/stacey-abrams-georgia-black-women (quoting Atlanta attorney Kristyn Hardy: “And not
only do we have one strike against us that we’re Black . . . we’re also a part of a second
marginalized group because we’re women. And so it always seems like we’re getting the short
end of the stick”).
77
Jones & Norwood, supra note 59, 2026-30.
78
See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV.
581, 586-87 (1990).
79
Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (“[T]he right to exercise the franchise
in a free and unimpaired manner is preservative of other basic civil and political rights, any
alleged infringement of the right of citizens to vote must be carefully and meticulously
scrutinized.”); Andrade v. NAACP of Austin, 345 S.W.3d 1, 12 (Tex. 2011) (“The right to
vote is fundamental, as it preserves all other rights.”).
80
Malia Brink, Fines, Fees, and the Right To Vote, HUM. RTS., Jan. 2020, at 12, 12
(“Voting is the core right of a democracy—the way in which the voice of each citizen finds
its way into government.”); see also Christopher Munsey, Why Do We Vote?, AM. PSYCH.
ASS’N (June 2008), https://www.apa.org/monitor/2008/06/vote [https://perma.cc/L7W8-
F9N2] (categorizing different scholars that have investigated why people vote).
81
See Patricia A. Broussard, Unbowed, Unbroken, and Unsung: The Unrecognized
Contributions of African American Women in Social Movements, Politics, and the
Maintenance of Democracy, 25 WM. & MARY J. RACE GENDER & SOC. JUST. 631, 669 (2019).
2448 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
Crow’s voter suppression continues through mass incarceration and the
disenfranchisement maze.
82
The combination of the Fifteenth Amendment of the Constitution, which was
ratified in 1870 and gave Black men the right to vote,
83
and the Nineteenth
Amendment, which outlawed policies that regulated voting based on gender,
84
should have given Black women access to the ballot box.
As The Very Reverend Dr. Kelly Brown Douglas explained in a 2021
interview:
On the one hand, white women have fought to eliminate gender
requirements while on the other hand Black men fought to eliminate racial
requirements and thus gain the patriarchal privilege to vote. Neither took
into account that without the elimination of both racial and gendered
restrictions, Black women would still be disenfranchised.
85
The exclusion of Black women from the ballot box is not a new development.
86
Since the nation’s establishment, Black women have been denied the right to
vote.
87
Starting with the decree that Black people represented only three-fifths
of a person in the original Constitution, the nation’s laws have worked against
their access to the ballot box.
88
Danielle Conway explained, “Black women are
indispensable to the telling of America’s attempts to build a nation; as well, these
women are equally important in measuring the success of social and political
movements for universal suffrage and the achievement of democratic ideals.”
89
82
See Jeffrey Robinson, The Racist Roots of Denying Incarcerated People Their Right To
Vote, AM. C.L. UNION (May 3, 2019), https://www.aclu.org/blog/voting-rights/racist-roots-
denying-incarcerated-people-their-right-vote [https://perma.cc/Q6A8-82UL].
83
U.S. CONST. amend. XV. White women suffragist leaders Elizabeth Cady Stanton and
Susan B. Anthony opposed the Fourteenth and Fifteenth Amendments to the Constitution.
They felt offended that the white men who could vote chose to give Black men the right to
vote over white women. See Why the Women’s Rights Movement Split over the 15th
Amendment, NAT’L PARK SERV., https://www.nps.gov/articles/000/why-the-women-s-rights-
movement-split-over-the-15th-amendment.htm [https://perma.cc/G23S-ARFB] (last updated
Jan. 14, 2021) (analyzing Stanton and Anthony’s active campaign against the Fifteenth
Amendment, and quoting Anthony’s response after Frederick Douglass called Stanton racist
and offensive: “[I]f you will not give the whole loaf of suffrage to the entire people, give it to
the most intelligent first. If intelligence, justice, and morality are to have precedence in the
government, let the question of women brought up first and that of the negro last.”).
84
U.S. CONST. amend. XIX.
85
Yancy, supra note 55.
86
Mae C. Quinn, Black Women and Girls and the Twenty-Sixth Amendment:
Constitutional Connections, Activist Intersections, and the First Wave Youth Suffrage
Movement, 43 SEATTLE U. L. REV. 1237, 1242-43 (2020) (summarizing progression of age
and race of people eligible to vote).
87
U.S. CONST. art. I, § 2; Quinn, supra note 86, at 1242-43.
88
See Quinn, supra note 86, at 1242-43.
89
Danielle Conway, Black Women’s Suffrage, the Nineteenth Amendment, and the Duality
of a Movement, 13 ALA. C.R. & C.L. L. REV. 1, 60 (2021).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2449
In these contexts, Black women have pushed for the right to vote, even when
other people did not appreciate their work.
90
The history of the Nineteenth Amendment captures only one period of the
ongoing struggle that Black women face to experience complete suffrage.
91
Nonetheless, Black women worked towards the Nineteenth Amendment’s
ratification.
92
Civil and voting rights activists like Ida B. Wells-Barnett,
93
Sojourner Truth,
94
and Josephine St. Pierre Ruffin
95
worked for women’s right
90
See Char Adams & Bracey Harris, Black Women in the South Have Been Bracing for
Roe’s Fall for Decades, NBC NEWS (May 7, 2022, 9:00 AM), https://www.nbcnews.com
/news/nbcblk/black-women-south-bracing-roes-fall-decades-rcna27097 [https://perma.cc
/FC6L-BBEM] (reporting on statements made by cofounder of abortion rights nonprofit,
Michelle Colon, who observed: “When you look at movements in this country, Black and
brown women have always been a part of them”).
91
See ROSALYN TERBORG-PENN, AFRICAN AMERICAN WOMEN IN THE STRUGGLE FOR THE
VOTE, 1850-1920, at 7-12 (1998); JONES, supra note 17, at 122; Angela P. Harris, Race and
Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 586-87 (1990) (citations
omitted) (“In the first wave of the feminist movement, [B]lack women’s realization that the
white leaders of the suffrage movement intended to take neither issues of racial oppression
nor [B]lack women themselves seriously was instrumental in destroying or preventing
political alliances between [B]lack and white women within the movement. In the second
wave, [B]lack women are again speaking loudly and persistently, and at many levels our
voices have begun to be heard. Feminists have adopted the notion of multiple consciousness
as appropriate to describe a world in which people are not oppressed only or primarily on the
basis of gender, but on the bases of race, class, sexual orientation, and other categories in
inextricable webs.”).
92
Serena Mayeri, After Suffrage: The Unfinished Business of Feminist Legal Advocacy,
129 YALE L.J.F. 512, 515 (2020).
93
Ida B. Wells-Barnett was a fierce civil rights advocate and social justice leader. She
documented the lynchings that occurred in the United States as a journalist, worked to achieve
the right to vote for all, and cofounded the NAACP. See Alice Janigro, Ida B. Wells,
SUFFRAGE100MA, https://suffrage100ma.org/resources/featured-suffragist/ida-b-wells
[https://perma.cc/WX5H-CJGR] (last visited Dec. 7, 2022); Caitlin Dickerson, Overlooked—
Ida B. Wells: 1862-1931, N.Y. TIMES (Mar. 9, 2018), https://www.nytimes.com/interactive
/2018/obituaries/overlooked-ida-b-wells.html (publishing belated obituary for Wells-
Barnett); Jessica Bliss & Jasmine Vaughn-Hall, ‘Brilliant and Politically Savvy:’ The Roles
of African American Women in the Fight To Vote 100 Years Ago, USA TODAY: LIFE (Aug.
16, 2020, 9:53 PM), https://www.usatoday.com/in-depth/life/womenofthecentury/2020/02/26
/african-american-womens-brilliant-role-19th-amendment-fight-vote/4544377002
[https://perma.cc/GDW8-FEBN].
94
Sojourner Truth was born enslaved in New York, but, once no longer enslaved, she
traveled the country speaking against slavery and in support of enfranchising Black women.
Lolita Buckner Inniss, While the Water is Stirring: Sojourner Truth as Proto-agonist in the
Fight for (Black) Women’s Rights, 100 B.U. L. REV. 1637, 1640-41 (2020) (describing
Sojourner Truth as a “creative and savvy entrepreneur who used the law and her image to
advance her activism on multiple fronts and to support herself” and observing, “though she is
often lauded as a symbol of the abolition movement, many of Truth’s greatest achievements
were in advancing the rights of women, especially [B]lack women” (citation omitted)).
95
Josephine St. Pierre Ruffin was a “journalist, suffragist and civil rights activist” who
“laid the groundwork for the eventual formation of the National Association of Colored
2450 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
to vote because they saw the value of political participation; yet, as Black
women, they risked their safety and faced constant rejection from white women
while doing so.
Take the 1913 Woman Suffrage Procession that occurred in Washington,
D.C., as just one example.
96
Alice Paul, a white woman suffragist, organized the
parade to occur the day before President Woodrow Wilson’s inauguration to
pressure him to support women’s suffrage.
97
In seeking support from Southern
white women suffragists, Paul sought to keep Black women out of the march.
98
Nevertheless, Ida B. Wells-Barnett, members of the Delta Sigma Theta sorority,
and other Black women suffragists participated in the march.
99
As journalists
with The Crisis, the NAACP’s newspaper, praised:
In spite of the apparent reluctance of the local suffrage committee to
encourage the colored women to participate . . . and in spite of the
conflicting rumors that were circulated and which disheartened many of
the colored women from taking part, they are to be congratulated that so
many of them had the courage of their convictions and that they made such
an admirable showing in the first great national parade.
100
Though given little credit in the history of the Suffrage Movement, Black
women walked proudly in the parade and worked to support the passage of the
Nineteenth Amendment.
101
Once the Nineteenth Amendment was ratified, Black women sought the
benefits of their labor. Recognizing “the importance of voting rights for women
to effect social change,” Black women in some parts of the nation registered to
Women.” Anthony W. Neal, Josephine St. Pierre Ruffin: A Pioneer in the Black Women’s
Club Movement, BAY ST. BANNER (Feb. 3, 2016), https://www.baystatebanner.com/2016/02
/03/josephine-st-pierre-ruffin-a-pioneer-in-the-black-womens-club-movement
[https://perma.cc/XHH9-VD8F]; see also Maude T. Jenkins, She Issued the Call: Josephine
St. Pierre Ruffin, 1842-1924, SAGE, Fall 1988, at 74, 74.
96
See Mary Walton, Opinion, The Day the Deltas Marched into History, WASH. POST
(Mar. 1, 2013), https://www.washingtonpost.com/opinions/the-day-the-deltas-marched-into-
history/2013/03/01/eabbf130-811d-11e2-b99e-6baf4ebe42df_story.html; see also Erin
Blakemore, This Huge Women’s March Drowned out a Presidential Inauguration in 1913,
HISTORY (Sept. 3, 2018), https://www.history.com/news/this-huge-womens-march-drowned-
out-a-presidential-inauguration-in-1913 [https://perma.cc/8BVL-XF5U].
97
Walton, supra note 96.
98
Blakemore, supra note 96 (noting Paul “quietly discouraged” Black women from
participating in the procession).
99
1913 Woman Suffrage Procession, NAT’L PARK SERV., https://www.nps.gov/articles
/woman-suffrage-procession1913.htm [https://perma.cc/R9GV-YS4G] (last updated Nov. 5,
2021).
100
Suffrage Paraders, 5 CRISIS 296, 296 (1913).
101
See 1913 Woman Suffrage Procession, supra note 99; see also Conway, supra note 89,
at 65-66 (noting duality of Black women working for women’s suffrage but being
discriminated against during Procession by white women).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2451
vote and voted after the Nineteenth Amendment’s ratification.
102
For example,
at least nine faculty members of the Virginia Normal and Industrial Institute, a
historically Black university now known as Virginia State University, became
the first Black women in their town to vote in 1920.
103
That same year, in
Richmond, Virginia, community activist Ora Brown Stokes and banker Maggie
L. Walker organized a successful voter registration drive that led to
approximately 2,500 Black women becoming registered voters.
104
This celebration of voting access was short-lived. States enacted racist and
discriminatory laws and enforced unwritten discriminatory policies during the
Jim Crow Era that stopped eligible voters, now including Black women, from
voting.
105
The executive, legislative, and judicial branches used their authority
to implement racist voter suppression schemes to stop the Black community
from voting.
106
Accordingly, “the legal sanctions that had given the vote to the
Southern Negro remained on the books, but on election day the Negro generally
remained at home. To keep Negroes from the polls and thus consolidate white
102
Ora Brown Stokes (1882-1957), VA. CHANGEMAKERS, https://edu.lva.virginia.gov
/changemakers/items/show/384 [https://perma.cc/37XR-3SPF] (last visited Dec. 7, 2022).
103
1920 First Colored Women To Vote in Ettrick, Virginia, HBCU LIBR. ALL.,
https://hbcudigitallibrary.auctr.edu/digital/collection/VSUD/id/471 [https://perma.cc/C5AM-
4N5W] (last visited Dec. 7, 2022).
104
Ora Brown Stokes (1882-1957), supra note 102.
105
The Fifteenth Amendment was ratified in 1870, authorizing access to the ballot box for
Black men. U.S. CONST. amend. XV. Within six years, however, it was clear that many Black
men would not access that promise. In an 1876 speech to the Republican National Convention,
Frederick Douglass exclaimed:
You say you have emancipated us. You have; and I thank you for it. You say you have
enfranchised us. You have; and I thank you for it. But what is your emancipation?—
what is your enfranchisement? What does it all amount to, if the [B]lack man, after
having been made free by the letter of your law, is unable to exercise that freedom, and,
after having been freed from the slaveholder’s lash, he is to be subject to the
slaveholder’s shot-gun?
Frederick Douglass, Speech of Frederick Douglass at the 1876 Republican National
Convention (June 1876), in OFFICIAL PROCEEDINGS OF THE NATIONAL REPUBLICAN
CONVENTIONS OF 1868, 1872, 1876 AND 1880, at 251 (1903). Douglass continued his quest to
see the promise of the Fifteenth Amendment twelve years later at the 1888 Republican
National Convention to no avail. Frederick Douglass, Speech of Frederick Douglass at the
1888 Republican National Convention (June 19, 1888), in PROCEEDINGS OF THE NINTH
REPUBLICAN NATIONAL CONVENTION 22 (1888),
https://babel.hathitrust.org/cgi/pt?id=pst.000024443319&view=1up&seq=28&skin=2021
[https://perma.cc/A2KF-LFVN] (“[L]et us remember these [B]lack men now stripped of their
constitutional right to vote. . . . Leave these men no longer to wade to the ballot box through
blood but extend over them the arm of this Republic, and make their pathway to the ballot
box as straight and as smooth and as safe as any other citizen’s.”).
106
See PAULA A. MONOPOLI, CONSTITUTIONAL ORPHAN: GENDER EQUALITY AND THE
NINETEENTH AMENDMENT 41 (2020); Susan D. Carle, Reconstruction’s Lessons 39-48 (July
28, 2022) (unpublished manuscript) (on file with author) (describing judicial efforts to weaken
Reconstruction Era’s civil rights gains for Black men).
2452 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
control, ingenious and sometimes violent methods were employed.”
107
This
concerted, government-sanctioned effort kept eligible Black voters—first Black
men and then, after the passage of the Nineteenth Amendment, all Black
people—from the ballot box.
108
Because of the violence and legally enforced tactics employed, Black women
had to develop plans and maneuvers to address the obstacles they faced to
attempt to register to vote and vote. In Richmond, Virginia, soon after Stokes
and Walker’s successful registration drive had occurred, city officials refused to
allow Black women to register to vote, even after they had stood in line all
day.
109
To support Black women in their desire to access the ballot box, Stokes
worked with other voting rights activists to develop a “phone system to alert
women when to come [into city hall] to register.”
110
Understanding that their
votes should be considered and counted, Black women continued to risk their
lives and livelihoods to support the right to vote for themselves and others.
As Black communities sought to build momentum around the realization of
the right to vote for all members of the Black community, the Civil Rights
Movement grew. During the Civil Rights Movement, Black women’s efforts
were instrumental, but they were given little recognition for their work, yet
again.
111
In fact, during the 1963 March on Washington that brought thousands
of people to Washington, D.C., to protest Black people’s exclusion from voting,
not one Black woman was scheduled to offer her own remarks.
112
107
U.S. COMM’N ON C.R., REPORT OF THE U.S. COMM’N ON C.R., 1959, at 30 (1959); TRACI
BURCH, SENT’G PROJECT, A STUDY OF FELON AND MISDEMEANANT VOTER PARTICIPATION IN
NORTH CAROLINA 12 (2007) (“Parties and other partisans reinforce[d] the notion that
‘speaking out is ineffective and risky.’ Voter intimidation has existed as a way of influencing
election outcomes throughout the nation’s history. . . . Practices such as poll taxes, literacy
tests, and white primaries were used for decades to prevent [Black people] from voting. These
legal restrictions were also backed by violence . . . .” (citation omitted)).
108
See Elizabeth D. Katz, Sex, Suffrage, and State Constitutional Law: Women’s Legal
Right To Hold Public Office, 33 YALE J.L. & FEMINISM 110, 115 (2022) (explaining white
women were able to obtain public office positions that were not granted to Black women
because of racist and sexist intersectional hurdles).
109
Ora Brown Stokes (1882-1957), supra note 102.
110
Id.
111
Jeanne Theoharis, How Women’s Voices Were Excluded from the March, MSNBC
(Sept. 4, 2013, 9:15 PM), https://www.msnbc.com/melissa-harris-perry/how-womens-voices-
were-excluded-the-msna155781 [https://perma.cc/BTG8-NGJN]. Civil rights leader Dorothy
Height noted that “women became much more aware and much more aggressive in facing up
to sexism in our dealings with the male leadership in the movement.” Dorothy I. Height, “We
Wanted the Voice of a Woman To Be Heard”: Black Women and the 1963 March on
Washington, in SISTERS IN THE STRUGGLE: AFRICAN AMERICAN WOMEN IN THE CIVIL RIGHTS-
BLACK POWER MOVEMENT 83, 89 (Bettye Collier-Thomas & V.P. Franklin eds., New York
Univ. Press 2001).
112
After much protest from Black women Civil Rights Movement leaders, March
organizers offered a limited tribute to six Black women. See Ama Kwarteng, Tribute to
Women: Spotlighting the 6 Women Honored During the First March on Washington,
COSMOPOLITAN (Aug. 28, 2020), https://www.cosmopolitan.com/politics/a33822164
2022] BLACK WOMEN AND VOTER SUPPRESSION 2453
After the March on Washington, legal scholar, and civil rights activist,
Reverend Pauli Murray, frustrated by the disregard of Black women’s work,
pronounced, “The Negro woman can no longer postpone or subordinate the fight
against discrimination because of sex to the civil rights struggle but must carry
on both fights simultaneously.”
113
Murray explained that women’s “full
participation and leadership” were “necessary to the success of the civil rights
revolution,” but both the movements to increase the rights of Black people and
women ignored the intersectional experiences of Black women.
114
Because of their intersectional alignment, Black women did not benefit from
the rights the Fifteenth and Nineteenth Amendments promised until the passage
of federal legislation in the 1960s.
115
The Voting Rights Act of 1965, in
particular, was “widely regarded as one of the most successful pieces of civil
/women-march-on-washington [https://perma.cc/8NVF-RBPF]. Unfortunately, “[t]he women
being honored weren’t even allowed to march with the men” and, though a woman delivered
the Tribute’s introduction, a man wrote the remarks and emphasized women’s support of
men’s efforts. See id.; see also Krissah Thompson, Women—Nearly Left off March on
Washington Program—Speaking Up Now, WASH. POST (Aug. 22, 2013),
https://www.washingtonpost.com/lifestyle/style /women—nearly-left-off-march-on-
washington-program—speaking-up-now/2013/08/22/54492444-0a79-11e3-8974-
f97ab3b3c677_story.html (quoting sole woman in the March’s organizing committee, Anna
Harold Hedgeman, as saying, “In light of the role of the Negro women in the struggle for
freedom and especially in light of the extra burden they have carried because of the castration
of the Negro man in this culture, it is incredible that no woman should appear as a speaker at
the historic March on Washington Meeting at the Lincoln Memorial”).
113
Pauli Murray, Speech to the National Council of Negro Women: The Negro Woman in
the Quest for Equality 2 (Nov. 14, 1963), https://cpb-us-e1.wpmucdn.com/blogs.uoregon.edu
/dist/7/11428/files/2017/03/Murray-The-Negro-Woman-2clsq0g.pdf [https://perma.cc/2SBJ-
QJ67]; see also Meghan Weaver, “Freedom!”: Black Women Speak at the March on
Washington for Jobs and Freedom, STAN.: MARTIN LUTHER KING, JR. RSCH. & EDUC. INST.,
https://kinginstitute.stanford.edu/freedom-black-women-speak-march-washington-jobs-and-
freedom [https://perma.cc/AVX7-LYGV] (last visited Dec. 7, 2022).
114
Murray, supra note 113, at 2. In a letter to the head organizer of the March on
Washington, Murray wrote:
I have been increasingly perturbed over the blatant disparity between the major role
which Negro women have played and are playing in the crucial grass-roots levels of our
struggle and the minor role of leadership they have been assigned in the national policy-
making decisions. . . . The time has come to say to you quite candidly, Mr. Randolph,
that “tokenism” is as offensive when applied to women as when applied to Negroes, and
that I have not devoted the greater part of my adult life to the implementation of human
rights to now condone any policy which is not inclusive.
N.J. STATE BAR FOUND., THE DAWNING OF THE MODERN CIVIL RIGHTS MOVEMENT 74 (2021),
https://njsbf.org/wp-content/uploads/2021/12/Excerpt-of-Letter-from-Pauli-Murray-to-A.-
Phillip-Randolph-Handout.pdf [https://perma.cc/HLN8-T5ET].
115
Martha S. Jones, For Black Women, the 19th Amendment Didn’t End Their Fight To
Vote, NAT’L GEOGRAPHIC (Aug. 7, 2020), https://www.nationalgeographic.com/history
/article/black-women-continued-fighting-for-vote-after-19th-amendment.
2454 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
rights legislation.”
116
Further, the Twenty-Fourth Amendment banned the use of
poll taxes in federal elections in 1964,
117
and the Supreme Court made state poll
taxes illegal in 1966.
118
Together, the goals of these legislative, constitutional,
and judicial actions were to ban the racist and sexist tactics that white people
used to terrorize Black people seeking to engage in the electoral process and to
authorize enforcement mechanisms to ensure states did not use discriminatory
practices when enacting new voting policies.
119
Even with the enactment of laws meant to grant actual access to the ballot
box, voting restrictions continue to plague Black women, even though they vote
in high numbers every election.
120
For example, the Voting Rights Act and other
civil rights legislation did not grant people with criminal convictions the ability
to vote.
121
The notion that Black women should be satisfied with their work without
receiving the benefits of their work is an example of the “Black woman tax.”
According to Najarian Peters, “[t]he Black woman tax is the expectation and
projection that the Black woman should be both the mule of the world and be
116
Christopher B. Seaman, An Uncertain Future for Section 5 of the Voting Rights Act:
The Need for a Revised Bailout System, 30 ST. LOUIS U. PUB. L. REV. 9, 12-15 (2010)
(explaining history and purpose of Voting Rights Act of 1965).
117
U.S. CONST. amend. XXIV.
118
Harper v. Va. Bd. of Elections, 383 U.S. 663, 684-86 (1966).
119
Seaman, supra note 116, at 12-15. The Supreme Court has since gutted critical aspects
of the Voting Rights Act’s power to review states’ voting procedures that may result in
discriminatory voting outcomes, including in its decisions in Shelby County v. Holder, 570
U.S. 529 (2013), and Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021).
See Myrna Pérez, 7 Years of Gutting Voting Rights, BRENNAN CTR. FOR JUST. (June 25, 2020),
https://www.brennancenter.org/our-work/analysis-opinion/7-years-gutting-voting-rights
[https://perma.cc/7ME6-TNNZ]; see also Franita Tolson, The Spectrum of Congressional
Authority over Elections, 99 B.U. L. REV. 317, 323 (2019) (“[T]he sin of Shelby County is not
only the neutering of a significant provision of one of the most successful civil rights statutes
in history, but also that it leaves a legacy of constitutional interpretation ignorant of the full
spectrum of congressional authority in this area.”); Press Release, Brennan Ctr. for Just.,
Additional Brennan Center Comment: Supreme Court Upholds Discriminatory AZ Voting
Laws, Weakens Voting Rights Act (June 25, 2021), https://www.brennancenter.org/our-
work/analysis-opinion/additional-brennan-center-comment-supreme-court-upholds-
discriminatory-az [https://perma.cc/C998-998B] (contending, in Brnovich decision, “justices
stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage
to this vital civil rights law and to the freedom to vote”).
120
Carliss Chatman & Marisa Jackson Sow, The Disregarded Canary: On the Plight of
Black Women Voters, NW. U. L. REV.: NULR OF NOTE (Oct. 29, 2020),
https://blog.northwesternlaw.review/?p=1826 [https://perma.cc/M55T-J42D]. See generally
Lani Guinier, Keeping the Faith: Black Voters in the Post-Reagan Era, 24 HARV. C.R.-C.L.
L. REV. 393 (1989).
121
Behrens et al., supra note 47, at 560 (“As one of the few remaining restrictions on the
right to vote, felon voting bans stand out; indeed, the rapid increase in felon
disenfranchisement rates since the early 1970s constitutes a rare example of significant
disenfranchisement in an era of worldwide expansion of democratic rights.”).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2455
grateful to occupy that position.”
122
The tax results in praising Black women for
their dedication to democratic principles and consistent voting, while making it
harder for them to reap the benefits of those principles. For Black women with
criminal convictions, they pay the tax with a ban on their right to vote.
Disenfranchisement due to criminal convictions dates back to the colonial
United States, but the implementation of these discriminatory practices
proliferated after the Civil War.
123
Even after the Civil Rights Movement, white
racists used the disenfranchisement maze as a “race neutral” way of suppressing
the Black communities’ political participation.
124
White racists did not hide their goal in implementing voter suppression
schemes during the Jim Crow era.
125
For example, the president of the 1901
Alabama Constitutional Convention justified the decision to add “moral
turpitude,” which included “misdemeanors and even . . . acts not punishable by
law,” as crimes warranting disenfranchisement because doing so was necessary
to avoid “the menace of negro domination.”
126
Feeding into racist tropes of
Black men, the drafter of this more expansive disenfranchisement maze in
Alabama’s constitution expected that “the crime of wife-beating alone would
disqualify sixty percent of the Negroes.”
127
Voter suppression schemes like Alabama’s reeked of racist intent, clearly in
conflict with the Fourteenth and Fifteenth Amendments’ prohibitions against
excluding people from the ballot box because of their race.
128
Yet, in a 1974
Supreme Court case, Richardson v. Ramirez,
129
the Court held that states have
the authority to ban people with criminal convictions from voting and to decide
how a person may restore their voting rights.
130
In its 6-3 opinion, the Court cited
122
Email from Najarian Peters, Assoc. Professor of L., Univ. of Kansas Sch. of L., to Carla
Laroche, Assoc. Clinical Professor, Washington & Lee Univ. Sch. of L. (July 5, 2022, 11:16
AM) (on file with author) (referencing Zora Neale Hurston’s use of “mule” in Their Eyes
Were Watching God to stress Black women’s lowly position in the world). Peters explains
that though society views Black women as mules, “[m]ule is what others project and expect
of us. We have to continue to reject that to save ourselves.” Id.
123
See id. at 563, 565 tbl.2; Historical Timeline: U.S. History of Felon
Voting/Disenfranchisement, BRITANNICA: PROCON.ORG, https://felonvoting.procon.org
/historical-timeline [https://perma.cc/84VC-EVD8] (last updated Oct. 25, 2022).
124
Behrens et al., supra note 47, at 568 (“Whereas structural and economic changes have
reduced the social acceptability of explicit racial bias, current ‘race-neutral’ language and
policies remain socially and culturally embedded in the discriminatory actions of the past.”).
125
See id. at 569-72 (displaying language from speeches given by legislators in support of
disenfranchising Black men).
126
Id. at 569.
127
Id. at 571.
128
U.S. CONST. amends. XIV, XV.
129
418 U.S. 24 (1974).
130
Id. at 26-43. In seeking to make the voter suppression schemes less powerful, three
individuals who had completed their sentences and paroles—Abran Ramirez, Larry Gill, and
Albert Lee—filed a writ of mandate to the California Supreme Court in 1972, alleging that
the California state law banning them from voting because of their criminal convictions was
2456 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
to Section 2 of the Fourteenth Amendment
131
to explain that these voter
suppression schemes were “an affirmative sanction”
132
that Congress approved
of in allowing states to disenfranchise people convicted of committing crimes.
133
Ultimately, the Court held that these voter suppression schemes did not violate
the Equal Protection Clause of the Fourteenth Amendment.
134
With the approval of the Supreme Court, state voter suppression schemes
based on people’s history of conviction continued.
135
The disenfranchisement
maze currently varies among jurisdictions across the United States, and this
disparity causes further harm and confusion. Ann Cammett describes the
negative impact of divergent voter suppression schemes and other civil
consequences associated with criminal convictions in this way:
The effect on any given individual depends on the jurisdiction in which he
or she resides, as well as whether the conviction occurred previously in
another state with different penalties. Consequently, a working knowledge
of collateral consequences is beyond the expertise of most criminal defense
attorneys, even when they are inclined to counsel defendants in this regard.
Moreover, as a rule, courts do not require attorneys to inform clients
entering into plea agreements of these sanctions. Accordingly, people with
criminal convictions are often surprised when they encounter these
roadblocks after release and are left to fend for themselves in navigating
them.
136
This confusion feeds the disenfranchisement maze.
The proliferation of racist law enforcement practices and policies led to the
mass incarceration and the use of the criminal legal system to remove Black
unconstitutional under the Fourteenth Amendment in 1972. Id. at 26-33. The California
Supreme Court ruled in their favor and held that the voting ban violated the Equal Protection
Clause of the Fourteenth Amendment. Id. at 27. Viola Richardson, the County Clerk of
Mendocino County, appealed the state court’s decision, arguing for the constitutionality of
California’s voter suppression scheme. Id. at 43, 58.
131
U.S. CONST. amend. XIV, § 2. (“[W]hen the right to vote at any election . . . is denied
to any of the male inhabitants of such State, being twenty-one years of age, and citizens of
the United States, or in any way abridged, except for participation in rebellion, or other crime,
the basis of [the state’s] representation therein shall be reduced. . . .”).
132
Ramirez, 418 U.S. at 54.
133
Id. at 42-46.
134
Id. at 56.
135
As of 2021, forty-eight states maintain policies of varying extremes that disenfranchise
citizens based on conviction status. JEAN CHUNG, SENT’G PROJECT, VOTING RIGHTS IN THE
ERA OF MASS INCARCERATION: A PRIMER 1 (2021), https://www.sentencingproject.org
/app/uploads/2022/08/Voting-Rights-in-the-Era-of-Mass-Incarceration-A-Primer.pdf
[https://perma.cc/3XLT-Y6GA]. In recent years, certain states have found ways to loosen the
clutches of the disenfranchisement maze. For example, in 2018, Louisiana passed a statute
that “[a]uthorized voting for residents who have not been incarcerated for five years including
persons on felony probation or parole.” Id. at 5; see also BURCH, supra note 107, at 32 (naming
states that have changed their voter suppression schemes).
136
Cammett, supra note 27, at 373 (footnotes omitted).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2457
people from electoral participation.
137
As mass incarceration and convictions
grew, Black men faced, and continue to face, the highest rates of incarceration
and convictions in the country.
138
Because of the racist efforts of state
legislatures and Congress during the Jim Crow era and afterward, Black men
had more access to prison than the ballot box, and their convictions led to voting
disenfranchisement.
139
With the disproportionate erasure of Black men from
their communities and the already limited access to the ballot box for the Black
community, Black women engaged in the political process to use the vote to
further Black community interests and have continued to face barriers.
140
C. Gender and Jim Crow’s Legacy
Because of their intersectional identities, the criminal legal system has harmed
Black women throughout U.S. history. While advocates have focused on men
and boys when discussing mass incarceration, “[t]he United States has
incarcerated women since the nation’s first prisons emerged”
141
and the rate of
arrest and incarceration of women has grown exponentially since then.
142
During
the colonial and antebellum periods, “criminalized [B]lack womanhood by
subjecting [B]lack women to brutality and exploitation and by barring them from
lawful avenues for redress.”
143
Further, between 1866 and 1928, Black women
137
Id.; CHRISTOPHER UGGEN, RYAN LARSON, SARAH SHANNON & ARLETH PULIDO-NAVA,
SENT’G PROJECT, LOCKED OUT 2020: ESTIMATES OF PEOPLE DENIED VOTING RIGHTS DUE TO
A FELONY CONVICTION 1, 9-12 (2020), https://www.sentencingproject.org/app/uploads/2022
/08/Locked-Out-2020.pdf [https://perma.cc/NZ8E-3JCT]; Erika K. Wilson, The Legal
Foundations of White Supremacy, 11 DEPAUL J. SOC. JUST. 1, 2 (2018) (“Race generally and
white supremacy specifically are embedded into the framework of most American social
institutions.”).
138
See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN
THE AGE OF COLORBLINDNESS (rev. ed. 2012); Wendy Sawyer & Peter Wagner, Mass
Incarceration: The Whole Pie 2022, PRISON POL’Y INITIATIVE (Mar. 14, 2022),
https://www.prisonpolicy.org/reports/pie2022.html [https://perma.cc/KW27-2WQ9].
139
See ALEXANDER, supra note 138, at 180 (“More [Black men] are disenfranchised today
than in 1870, the year the Fifteenth Amendment was ratified.”).
140
See Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African
American Communities, 56 STAN. L. REV. 1271, 1291-92 (2004); Rodriguez, supra note 13
(“We always say Black women take the community with them to the polls. They fight for not
just themselves, but their family, their neighbors and for the community as a whole.”).
141
Amber Baylor, Centering Women in Prisoners’ Rights Litigation, 25 MICH. J. GENDER
& L. 109, 111 (2018) (citing KARLENE FAITH, UNRULY WOMEN: THE POLITICS OF
CONFINEMENT & RESISTANCE 128-29 (Seven Stories Press new ed. 2011) (1993)).
142
Candice Norwood, Trauma on Top of Trauma: Why More Women Are Dying in Jails,
19TH (July 13, 2021, 10:08 AM), https://19thnews.org/2021/07/women-jail-deaths-increasing
[https://perma.cc/6656-4W63].
143
Kali Nicole Gross, African American Women, Mass Incarceration, and the Politics of
Protection, 102 J. AM. HIST. 25, 25-26 (2015).
2458 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
represented over 80% of the women held in jails and prisons.
144
In Georgia and
other southern states during that period, Black women made up 99% of the
women incarcerated in the prison and jail facilities.
145
In the 1970s and onward, the tough-on-crime laws and the War on Drugs
policing fueled the incarceration of Black women.
146
Crucially, “[s]tructural
racism anchored the rise of the private prison boom, and the prison-industrial
complex has resulted in the mass removal of Black women from society into
institutional captivity.”
147
Since the 1980s, the rate of incarceration of women
has increased by over 475%,
148
with Black women being incarcerated at a
disproportionately higher rate.
149
Between 2005 and 2018, the rate of jail
incarceration for women increased by 10%, compared to a decline of the rate of
jail incarceration for men of 14%.
150
Notably, while the incarceration rate of
Black women has been decreasing and that of white women increasing, Black
women continue to be incarcerated at a much higher rate than white women
overall.
151
Michele Goodwin described the attack on Black women’s liberty as “the
unyielding, state-sanctioned violence against Black women,”
152
the same terms
144
Talitha L. LeFlouria, Criminal Justice Reform Won’t Work Until It Focuses on Black
Women, WASH. POST (Feb. 12, 2021, 6:00 AM), https://www.washingtonpost.com/outlook
/2021/02/12/criminal-justice-reform-wont-work-until-it-focuses-black-women.
145
Id.
146
Id.
147
Id.
148
SENT’G PROJECT, INCARCERATED WOMEN AND GIRLS, supra note 35, at 1. According to
the Sentencing Project, “The total count in 2020 represents a 30% reduction from the prior
year—a substantial but insufficient downsizing in response to the COVID-19 pandemic,
which some states began to reverse in 2021.” Id. In 2021, the rate of incarceration of women
had increased by 700% since 1981. Nazish Dholakia, Women’s Incarceration Rates Are
Skyrocketing. These Advocates Are Trying To Change That., VERA INST. OF JUST. (May 17,
2021), https://www.vera.org/news/womens-voices/womens-incarceration-rates-are-
skyrocketing [https://perma.cc/TLU9-558C].
149
See Laroche, supra note 32, at 9.
150
ZHEN ZENG, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., JAIL INMATES IN 2018, at 4
(2020), https://bjs.ojp.gov/content/pub/pdf/ji18.pdf [https://perma.cc/S7L7-JZQR].
151
E. ANN CARSON, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., PRISONERS IN 2019, at
16 (2020), https://bjs.ojp.gov/content/pub/pdf/p19.pdf [https://perma.cc/NUC9-3EFE];
SENT’G PROJECT, INCARCERATED WOMEN AND GIRLS, supra note 35, at 2.
152
Michele Goodwin, The New Jane Crow: Women’s Mass Incarceration, JUST SEC. (July
20, 2020), https://www.justsecurity.org/71509/the-new-jane-crow-womens-mass-
incarceration [https://perma.cc/V49A-ND4Q]. See generally VALENA BEETY, MANIFESTING
JUSTICE: WRONGLY CONVICTED WOMEN RECLAIM THEIR RIGHTS (2022) (analyzing law
enforcement and mass incarceration through lenses of gender, race, sexual identity, and sexual
orientation); Ashley Givens, Andrea Murray-Lichtman, Tonya B. Van Deinse, MacKenzie
Dallenbach, Mariah Cowell Mercier, Evan M. Lowder & Gary S. Cuddeback, Individuals
with Mental Illnesses on Probation: The Intersection of Trauma, Race, and Gender, 17
FEMINIST CRIMINOLOGY 494 (2022) (reporting high rates of interpersonal trauma for women
2022] BLACK WOMEN AND VOTER SUPPRESSION 2459
used regarding the inhumane violence Black women endured during slavery.
153
Recent research has found that law enforcement are more likely to make traffic
stops of and arrest Black women at higher rates than white and Latina women.
154
The incarceration of women, especially Black women, “ignores the social and
psychological forces that often underlie female offending.”
155
These factors
include high rates of trauma, unaddressed mental health concerns, self-
medication and substance use disorder, and poverty.
156
Further, the majority of
the offenses that women are convicted of are drug- and property-related.
157
According to The Sentencing Project, a reform research and policy nonprofit,
one million women are under the control of the criminal legal system, whether
that is through incarceration in jail and prison, or under probation, parole, or
other state regulated practices.
158
Researchers estimate that between those who
are incarcerated, those who are under the state’s control, and those who have
criminal records, an estimated one million women cannot vote.
159
Accordingly,
Jim Crow’s racist legacy impacts women’s right to vote immensely.
on probation and finding, while white women reported higher rates of experiencing sexual
assaults, Black women had highest rates of posttraumatic stress disorder among all women).
153
JONES, supra note 17, at 11, 86 (describing different forms of violence and oppression
Black women faced during enslavement).
154
Policing Women: Race and Gender Disparities in Police Stops, Searches, and Use of
Force, PRISON POL’Y INITIATIVE (May 14, 2019), https://www.prisonpolicy.org/blog/2019/05
/14/policingwomen [https://perma.cc/C95H-SNQV] (“[T]he invisibility of Black women and
other women of color in the national discourse about policing . . . means that the full scope of
racial discrimination in policing is unknown, and certainly understated.”).
155
Beryl Ann Cowan, Incarcerated Women: Poverty, Trauma and Unmet Need, AM.
PSYCH. ASS’N (Apr. 17, 2019), https://www.apa.org/pi/ses/resources/indicator/2019/04
/incarcerated-women [https://perma.cc/WF4B-T3DZ].
156
Id.; Wendy Sawyer & Wanda Bertram, Prisons and Jails Will Separate Millions of
Mothers from Their Children in 2022, PRISON POL’Y INITIATIVE (May 4, 2022),
https://www.prisonpolicy.org/blog/2022/05/04/mothers_day [https://perma.cc/Y3W5-
SGRJ].
157
See Kajstura, supra note 35; Elizabeth Winkler, Why Oklahoma Has the Most Women
Per Capita in Prison, WALL ST. J. (Jan. 2, 2018, 8:00 AM), https://www.wsj.com/articles
/why-oklahoma-has-the-most-women-per-capita-in-prison-1514898001 (quoting Kris Steele,
former speaker of the House in Oklahoma, on types of crimes women in Oklahoma are
convicted of—“non-violent, low-level”—and Oklahoma’s disproportionately higher
sentences than other states).
158
SENT’G PROJECT, INCARCERATED WOMEN AND GIRLS, supra note 35, at 1. The vast
majority of women are on post-release control, either under probation (763,425 women) or
parole (103,542). Id. The system controls 83,054 women in prison and 69,800 in jail. Id. For
a discussion of the long-term social impact of women’s incarceration, see generally Jessica
Lynne Younts, American Epidemic: The Societal and Multi-generational Impacts Caused by
the Mass Incarceration of Women in the United States (2021) (Ph.D. dissertation, Nova
Southeastern University), https://nsuworks.nova.edu/fse_etd/347 [https://perma.cc/V5A7-
EBSD].
159
CHRISTOPHER UGGEN, RYAN LARSON, SARAH SHANNON & ROBERT STEWART, SENT’G
PROJECT, LOCKED OUT 2022: ESTIMATES OF PEOPLE DENIED VOTING RIGHTS DUE TO A FELONY
CONVICTION 2, 10 (2022), https://www.sentencingproject.org/app/uploads/2022/10/Locked-
2460 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
Further, these voting restrictions are not applied the same across the country.
Black women in states like Virginia may be eligible under the criteria set by the
governor to have their voting rights restored, but they must wait until the
governor decides to do so.
160
In states like Idaho and Oklahoma, which have the
highest rates of incarceration of women,
161
Black women’s right to vote is
restored automatically after completion of any imposed period of incarceration,
probation, or parole.
162
This disenfranchisement by geography causes confusion
and prevents Black women in one state from engaging in a right that Black
women in another state can.
It’s life or death. . . . People like me, we have a better understanding of the
issues, the problems people are going through, what keeps people down. If
people like me don’t vote, when people get into office they don’t hear us,
they don’t hear our concerns and our issues. They can close their eyes to
the truth.
—Rosemary McCoy
163
II. CHALLENGING THE DISENFRANCHISEMENT MAZE IN FLORIDA
Because of mass incarceration and racially motivated policing,
164
Black
women have been banned from voting and have had to navigate the
disenfranchisement maze while trying to address their communities’ needs.
165
Those who have sought to weaken these voter suppression schemes have been
met with legislative, executive, and judicial roadblocks. To illustrate this point,
this Part will examine the history of voter suppression based on criminal
Out-2022-Estimates-of-People-Denied-Voting.pdf [https://perma.cc/UZH7-NJNN]. See
generally JANET GARCIA-HALLETT, INVISIBLE MOTHERS: UNSEEN YET HYPERVISIBLE AFTER
INCARCERATION (2022) (reviewing struggles mothers of color endure as they navigate
marginalization and “invisible punishments” in employment after release from incarceration).
160
Restoration of Rights Process, SEC’Y OF THE COMMONWEALTH: KAY COLES JAMES,
https://www.restore.virginia.gov/restoration-of-rights-process [https://perma.cc/3RH7-
2R4V] (last visited Dec. 7, 2022) (explaining voting rights restoration process after felony
conviction and release from incarceration).
161
Rachel Cohen, Idaho Has the Highest Female Incarceration Rate in the Country, BOISE
ST. PUB. RADIO (Jan. 13, 2022, 9:26 AM), https://www.boisestatepublicradio.org/news/2022-
01-13/idaho-has-the-highest-female-incarceration-rate-in-the-country [https://perma.cc
/J5N8-A9MM].
162
Can People Convicted of a Felony Vote?, supra note 29.
163
Rosemary McCoy is a mother and grandmother who filed a lawsuit in federal court on
behalf of women of color with felony convictions who could not vote in Florida. Esther
Schrader, Battle for the Ballot: Two Black Women Fight Back Against Voter Suppression in
Florida, S. POVERTY L. CTR. (Mar. 16, 2021), https://www.splcenter.org/news/2021/03/16
/battle-ballot-two-black-women-fight-back-against-voter-suppression-florida
[https://perma.cc/4P7Y-7PWV].
164
See generally SUSAN BURTON & CARI LYNN, BECOMING MS. BURTON: FROM PRISON TO
RECOVERY TO LEADING THE FIGHT FOR INCARCERATED WOMEN (2019).
165
See supra Section I.C.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2461
convictions in Florida. While many states have imposed disenfranchisement
mazes that barred millions of people from voting, Florida led the nation.
166
Over
a million Floridians still cannot vote because the state banned people with felony
convictions, including Black women, from voting.
167
This Part describes the
attempts people directly impacted by the state’s voter suppression laws and their
allies made to weaken these laws, and the methods used to derail those justice
efforts by the legislative, executive, and judicial branches. In doing so, this Part
will show how attempts by Black women and others to increase the automatic
restoration of people’s voting rights have, to date, been no match for voter
suppression schemes.
A. Florida’s Disenfranchisement Maze: Background
Florida has a significantly higher rate of incarceration than the U.S.
average,
168
and its rate of incarceration of women is also higher than the national
average.
169
These individuals must endure heightened barriers to reentry that
come with convictions and incarceration.
Florida has had a history of excluding people with felonies from voting.
170
Since its first constitution, enacted in 1838, Florida has banned the
enfranchisement of people “convicted of bribery, perjury, or other infamous
crime.”
171
During and after the Civil War, Florida sought to stop Black men from
accessing their right to vote
by enacting Black Codes to criminalize Black
people’s attempts to work and live as free people in the state.
172
The state’s 1865
166
UGGEN ET AL., supra note 137, at 4 (“Florida thus remains the nation’s
disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned
from voting. . . . [Florida is one of seven states where] more than one in seven African
Americans is disenfranchised, twice the national average for African Americans.”).
167
Id.
168
See Florida Profile, PRISON POL’Y INITIATIVE, https://www.prisonpolicy.org/profiles
/FL.html [https://perma.cc/J2UD-N93J] (last visited Dec. 7, 2022).
169
Compare Wendy Sawyer, Florida Prison Incarceration Rates: Women, PRISON POL’Y
INITIATIVE (Jan. 2018), https://www.prisonpolicy.org/graphs/FL_Women_Rates_1978
_2015.html [https://perma.cc/L9M5-RQKB], with Wendy Sawyer, The Gender Divide:
Tracking Women’s State Prison Growth, PRISON POL’Y INITIATIVE (Jan. 9, 2018),
https://www.prisonpolicy.org/reports/women_overtime.html [https://perma.cc/NTU4-
7MSZ].
170
See Carla Laroche, Opinion, Black Women’s Voting Rights Silenced Yet Again, TAMPA
BAY TIMES (Aug. 21, 2020), https://www.tampabay.com/opinion/2020/08/21/black-womens-
voting-rights-silenced-yet-again-column [https://perma.cc/7ALG-AAZQ].
171
FLA. CONST. art. VI, § 4 (1838) (“The General Assembly shall have power to
exclude . . . from the right of suffrage, all persons convicted of bribery, perjury, or other
infamous crime.”); see also ERIKA L. WOOD, BRENNAN CTR. FOR JUST., FLORIDA: AN OUTLIER
FOR DENYING VOTING RIGHTS 5 (2016), https://www.brennancenter.org/sites/default/files
/publications/Florida_Voting_Rights_Outlier.pdf [https://perma.cc/3LAU-72AH]; Franita
Tolson, “In Whom Is the Right of Suffrage?”: The Reconstruction Acts as Sources of
Constitutional Meaning, 169 U. PA. L. REV. 2041, 2055-56 (2021).
172
WOOD, supra note 171, at 4.
2462 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
constitution allowed only “free white males” to vote.
173
Then, in its 1868
constitution, officials worked to undermine the right to vote that the Fourteenth
Amendment created for Black men.
174
Accordingly, after the state passed
restrictive and racist constitutional amendments that stopped Black men from
voting, “a moderate Republican leader boasted that he had kept Florida from
becoming ‘niggerized.’”
175
These racist principles remain in the Florida
constitution.
In 2018, the state constitutional voter suppression provision applied to any
person convicted of a felony.
176
People were not allowed to access many of their
civil rights, including registering to vote and running for political office.
177
A
person’s restoration of their right to vote required a restoration process, which
the Florida state governor had the authority to adopt and which could vary with
each administration.
178
Because of this authority, people had to navigate each
governor’s views on re-enfranchisement every four years; that is, with a new
administration came a new process people had to review, digest, and comply
with to have any hope of getting their right to vote back.
179
Comparing the processes and number of people granted the restoration of
their voting rights by Republican gubernatorial administrations since 1999
illustrates this point. During John Ellis “Jeb” Bush’s eight-year tenure as
governor from 1999 to 2007, his Administration changed the restoration process
for certain individuals.
180
In addition, litigation during Governor Bush’s tenure
resulted in more individuals becoming eligible to vote.
181
In total, approximately
173
Id.
174
Id. at 5.
175
Id. (quoting Johnson v. Governor of Fla., 353 F.3d 1287, 1296 (11th Cir. 2003),
vacated, 377 F.3d 1163 (11th Cir. 2004)).
176
Under the state constitution applicable in 2018, “[n]o person convicted of a
felony . . . shall be qualified to vote or hold office until restoration of civil rights.” FLA.
CONST. art. VI, § 4(a) (2018).
177
Id.
178
FLA. CONST. art. IV, § 8(a) (1968).
179
See WOOD, supra note 171, at 9.
180
FLA. ADVISORY COMM. TO THE U.S. COMM’N ON C.R., RULES OF EXECUTIVE CLEMENCY
SHOULD ALLOW LEVEL-1 OFFENDERS TO HAVE THEIR CIVIL RIGHTS AUTOMATICALLY
RESTORED UPON COMPLETION OF THEIR SENTENCES 9 (2014), https://www.usccr.gov/files
/pubs/docs/FL_SAC_Ex-Felon-Report.pdf [https://perma.cc/N3Y3-UBSP] (noting in 2004,
Governor Bush allowed for automatic rights restoration for people based upon length of time
since prior conviction and original conviction type); MARC MAUER & TUSHAR KANSAL,
SENT’G PROJECT, BARRED FOR LIFE: VOTING RIGHTS RESTORATION IN PERMANENT
DISENFRANCHISEMENT STATES 11 (2005), https://static.prisonpolicy.org/scans
/barredforlife.pdf [https://perma.cc/T8U7-JUEZ].
181
Fla. Caucus of Black State Legislators, Inc. v. Crosby, 877 So. 2d 861, 864 (Fla. Dist.
Ct. App. 2004) (requiring Florida Department of Corrections to help people with felony
convictions navigate disenfranchisement maze); see also Fla. Conf. of Black State Legislators
v. Moore, No. 01-659 (Fla. Cir. Ct. Aug. 21, 2008) (dismissing in light of settlement lawsuit
alleging Florida Department of Corrections failed to assist people with restoration of their
2022] BLACK WOMEN AND VOTER SUPPRESSION 2463
75,000 people regained their voting rights during Governor Bush’s
administration.
182
His successor, Charlie Crist, served four years as governor of Florida. During
his tenure, he authorized an automatic restoration process for certain
convictions.
183
If people were convicted of certain criminal acts, they were
relieved of the arduous disenfranchisement maze. Implementing an automatic
restoration process, even for select offenses, increased people’s ability to regain
their voting rights more easily and resulted in the restoration of 150,000 people’s
voting rights during Governor Crist’s four-year term.
184
When Richard “Rick” Scott took over as Governor of Florida in 2011, he
removed the automatic restoration process that had helped thousands of people
regain their voting rights.
185
Instead, Governor Scott imposed a
disenfranchisement maze that made it difficult to gain access to the ballot box.
Governor Scott’s process required people to endure waiting periods before they
could even start the application to restore their rights.
186
After the applicable
waiting period, if people obtained all the information needed to complete their
application, then they would have to wait further for the State Board of
Executive Clemency to review the documents.
187
At that point, should the State
Board decide that the applicants met the restoration requirements, the Governor
civil rights after their release from supervision, as required under Section 944.293, Florida
Statutes as it existed in 2001); Press Release, ACLU, ACLU Applauds Court Decision
Ordering Florida Department of Corrections to Assist Ex-Felons with Voting Rights
Restoration (July 14, 2004), https://www.aclu.org/press-releases/aclu-applauds-court-
decision-ordering-florida-department-corrections-assist-ex-felons [https://perma.cc/A4M3-
7Q6G].
182
Renalia Du Bose, Voter Suppression: A Recent Phenomenon or an American Legacy?,
50 U. BALT. L. REV. 245, 246 (2021). Between 1999 and 2004, Governor Bush’s
administration denied over 200,000 applications to restore voting rights. MAUER & KANSAL,
supra note 180, at 10.
183
FLA. RULES OF EXEC. CLEMENCY 9 (2007), https://www.brennancenter.org/sites/default
/files/analysis/FL%201%202007%20reforms.pdf [https://perma.cc/BK8J-SSKW]; Sam
Levine, Florida Officially Changes Jim Crow-Rooted Felon Disenfranchisement Policy,
HUFFPOST (Jan. 8, 2019, 5:45 AM), https://www.huffpost.com/entry/florida-felon-
disenfranchisement-reform_n_5c33d3c6e4b01e2d51f5fb5f [https://perma.cc/D9AD-J35C].
184
Du Bose, supra note 182, at 246-47; FLA. RULES OF EXEC. CLEMENCY, supra note 183,
at 9.
185
Du Bose, supra note 182, at 248; see Felony Disenfranchisement Laws in the United
States, SENT’G PROJECT (Apr. 28, 2014), [https://perma.cc/F56A-6622] (“In 2007, the Office
of Executive Clemency voted to amend the state’s voting rights restoration procedure to
automatically approve the reinstatement of rights for many persons who were convicted of
non-violent offenses. This decision was reversed in 2011, and persons seeking rights
restoration must now wait at least five years after completion of sentence.”).
186
FLA. RULES OF EXEC. CLEMENCY 12 (2011) [hereinafter 2011 CLEMENCY RULES],
http://myfloridalegal.com/webfiles.nsf/WF/SKNS-8ESMMH/$file
/rulesofexecutiveclemency.pdf [https://perma.cc/8END-UYMG] (identifying different
processes people must go through to obtain clemency and restore their civil rights).
187
Id.
2464 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
and the Florida Cabinet—the Attorney General, Chief Financial Officer, and
Commissioner of Agriculture—considered people’s applications at public
hearings.
188
Applicants waited years for their hearings.
189
While all four members of the Cabinet could vote in support of or against the
restoration of applicants’ voting and other civil rights, the Governor still had the
final decision; people would not be eligible to vote without Governor Scott’s
explicit approval.
190
Governor Scott did not have to follow any particular criteria
or laws when reviewing applications and making these decisions; the questions
he could and did ask applicants were often unpredictable and discriminatory,
191
as were his decisions.
192
For example, Governor Scott asked some applicants whether they had
fathered any children and, if they had, whether the children were by different
women or the same woman.
193
He also asked applicants whether they regularly
attend church.
194
Governor Scott’s process resulted in the restoration of rights
for “a higher percentage of Republicans and a lower percentage of Democrats
than any governor since 1971.”
195
In fact, after Governor Scott learned that one
man voted for him, even though the man was ineligible to vote, Governor Scott
restored his voting rights immediately.
196
While barriers to voting eligibility existed under Governor Crist’s
disenfranchisement maze, the barriers under Governor Scott were often
unsurmountable; Governor Scott closed the door on voting restoration for many
people who would have been automatically eligible under Governor Crist’s
restoration policies.
197
The drastic decrease in the number of people who
succeeded in obtaining their voting rights confirms just how restrictive Governor
Scott’s disenfranchisement maze became for Floridians. Over the eight years
188
Id.
189
Du Bose, supra note 182, at 249.
190
FLA. CONST. art. IV, § 8(a) (1968); 2011 CLEMENCY RULES, supra note 186, at 12.
191
See Lulu Ramadan, Mike Stucka & Wayne Washington, Florida Felon Voting Rights:
Here’s Who Got Theirs Back Under Scott, PALM BEACH POST (Oct. 26, 2018, 1:01 PM),
https://www.palmbeachpost.com/story/news/politics/elections/2018/10/25/florida-felon-
voting-rights-who-got-theirs-back-under-scott/5886930007 [https://perma.cc/U4NG-ZE3E];
Dexter Filkins, Who Gets To Vote in Florida?, NEW YORKER (Aug. 31, 2020),
https://www.newyorker.com/magazine/2020/09/07/who-gets-to-vote-in-florida (“There are
absolutely no standards. So we can make any decisions we want. . . . There’s really no law
that says you deserve anything.”).
192
See Ramadan et al., supra note 191.
193
Id.
194
Id.
195
Id.
196
Garrett Epps, The ‘Slave Power’ Behind Florida’s Felon Disenfranchisement,
ATLANTIC (Feb. 4, 2018), https://www.theatlantic.com/politics/archive/2018/02/the-slave-
power-behind-floridas-felon-disenfranchisement/552269.
197
See Sam Levine, 24 Years Ago She Lost Her Voting Rights for Pushing a Cop. She Just
Got Them Back., HUFFPOST (June 25, 2018), https://www.huffpost.com/entry/voting-rights-
felons-florida_n_5b2d1816e4b0040e274289e7 [https://perma.cc/ZFC8-RA5P].
2022] BLACK WOMEN AND VOTER SUPPRESSION 2465
Governor Scott held the executive role, 2011-2019, fewer than 2,900 people
regained their right to vote.
198
B. Constitutional Amendment Victory and Derailment
In 2011, advocates recognized the clear suppression of people’s right to vote
within Governor Scott’s policy in 2011.
199
Along with the realization of these
negative impacts came a determination to change the disenfranchisement maze
in Florida to make the voting restoration process automatic and nonpartisan.
200
As individuals continued to work through Governor Scott’s disenfranchisement
maze in the hopes that he would grant their civil rights back, a grassroots
movement developed in support of an initiative to change the state
constitution.
201
Florida has different methods of amending its constitution, one of which is
through a voter-led ballot initiative.
202
Floridians seeking to pass a state
constitutional voter-led amendment must go through several steps. To begin, the
proponents of the initiative must get 8% of Floridian voters
203
to complete a
petition in support of placing the initiative on the ballot.
204
Once the Supervisor
of Elections has validated that they have received at least 10% of the necessary
threshold, they must forward it to the Attorney General.
205
The Florida Supreme
198
Du Bose, supra note 182, at 247.
199
For example, the Florida Rights Restoration Coalition (“FRCC”) is a nonpartisan group
that advocates for automatic restoration of civil rights. See FLA. RTS. RESTORATION COAL.,
2011 ANNUAL CONVENING: AUGUST 19 & 20, 2011, at 2 (2011) (on file with author). In August
2011, over the course of the FRRC’s Convening, people directly impacted by Governor
Scott’s newly imposed disenfranchisement maze process, as well allies and members of state
and local organizations, discussed the reversion back to exclusionary practices. Id. They also
proposed diverse ways to address their concerns, including attempting to meet with the Scott
Administration, helping people with their applications, and researching legal remedies. Neel
U. Sukhatme, Alexander Billy & Gaurav Bagwe, Felony Financial Disenfranchisement, 75
VAND. L. REV. (forthcoming 2023) (manuscript at 13), https://papers.ssrn.com/sol3
/papers.cfm?abstract_id=4090995# [https://perma.cc/NDZ9-XVM6].
200
Sukhatme et al., supra note 199 (manuscript at 14).
201
Id. Discussion of getting a state constitutional amendment passed began before
Governor Crist’s actions. See Abby Goodnough, Disenfranchised Florida Felons Struggle To
Regain Their Rights, N.Y. TIMES (Mar. 28, 2004), https://www.nytimes.com/2004/03/28/us
/disenfranchised-florida-felons-struggle-to-regain-their-rights.html (mentioning
organizations had started drive to get constitutional amendment on ballot in 2004).
202
See FLA. CONST. art. XI; Johnson v. Governor of Fla., 405 F.3d 1214, 1220-22 (11th
Cir. 2005) (en banc) (recounting constitutional revision process conducted in 1968).
203
FLA. CONST. art. XI, § 3 (declaring threshold number of petitions was “equal to eight
percent of the votes cast in each of such districts respectively and in the state as a whole in
the last preceding election in which presidential electors were chosen”).
204
FLA. DIV. OF ELECTIONS, FLA. DEP’T OF STATE, 2018 INITIATIVE PETITION HANDBOOK 5
(2017), https://files.floridados.gov/media/697659/initiative-petition-handbook-2018-
election-cycle-eng.pdf [https://perma.cc/BDL2-X43M] (stating signed petition lapses after
two years).
205
Id. at 3.
2466 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
Court receives the initiative language from the Attorney General and reviews
the proposed language.
206
Should the proposed language survive the court’s
scrutiny, the ballot initiative proponents will continue collecting signed
petitions.
207
Then, once it has received the threshold 8% of eligible voters, the
Supervisor of Elections places the measure on the ballot.
208
To pass, at least 60%
of people who vote in that election must vote in support of the state constitutional
ballot initiative.
209
Spurred by Governor Scott’s limiting of the re-enfranchisement process,
people directly impacted by his actions engaged in this difficult but promising
ballot initiative effort.
210
The Florida Rights Restoration Coalition (“FRRC”),
led by Desmond Meade
211
and other directly impacted people, with support that
included the American Civil Liberties Union of Florida and the League of
Women Voters of Florida, worked on the ballot measure.
212
Operating under the
political group Floridians for a Fair Democracy, Inc., the movement’s goal was
to enact a less restrictive process and to eliminate the need to navigate the whims
of each successive gubernatorial administration.
213
After several years of drafting, researching, testing, community education,
and advocacy, community leaders and members united to have voters consider
the voting rights restoration ballot initiative language, known as Amendment 4,
during the November 2018 election.
214
Amendment 4’s language read, in
pertinent part:
[(a)] Except as provided in subsection (b) of this section, any
disqualification from voting arising from a felony conviction shall
206
Id. The court reviews the initiative language, title, and summary to ensure they deal
with only “one subject and matter” and do not have any defects. FLA. CONST. art. XI, § 3; FLA.
STAT ANN. § 101.161 (West 2022).
207
See FLA. DIV. OF ELECTIONS, supra note 204, at 3.
208
Id.
209
FLA. CONST. art. XI, § 5(e).
210
See Levine, supra note 197.
211
See Joseline Jean-Louis Hardrick, Let My People Vote: My Battle To Restore the Civil
Rights of Returning Citizens, FLA. BAR J. (Apr. 2022), https://www.floridabar.org/the-florida-
bar-journal/let-my-people-vote-my-battle-to-restore-the-civil-rights-of-returning-citizens/
[https://perma.cc/AUA9-WXX8] (describing Meade’s rise from being released from prison
to leading a statewide movement to pass state constitutional amendment for voting rights);
Desmond Meade, MACARTHUR FOUND. (Sept. 28, 2021), https://www.macfound.org/fellows
/class-of-2021/desmond-meade [https://perma.cc/JVH7-75QS] (profiling Meade upon his
selection as 2021 MacArthur “Genius Grant” awardee).
212
See generally FLA. RTS. RESTORATION COAL., supra note 199.
213
See Committee Tracking System: Floridians for a Fair Democracy, Inc., FLA. DIV. OF
ELECTIONS, FLA. DEP’T OF ST., https://dos.elections.myflorida.com/committees
/ComDetail.asp?account=64388 [https://perma.cc/PPW9-JUE3] (last visited Dec. 7, 2022).
214
FLA. DEP’T OF STATE, CONSTITUTIONAL AMENDMENT PETITION FORM 1 (2018)
[hereinafter CONSTITUTIONAL AMENDMENT PETITION FORM],
https://dos.elections.myflorida.com/initiatives/fulltext/pdf/64388-1.pdf [https://perma.cc
/7KV5-NZX8].
2022] BLACK WOMEN AND VOTER SUPPRESSION 2467
terminate and voting rights shall be restored upon completion of all terms
of sentence including parole or probation.
(b) No person convicted of murder or a felony sexual offense shall be
qualified to vote until restoration of civil rights.
215
FRRC and its partners used the idea of second chances to present Amendment
4’s significance to voters.
216
Under its language, individuals convicted of a
felony who sought to vote in Florida could do so once they completed their
court-imposed criminal sentence.
217
Their sentence would include not only any
term of incarceration, but, also, any period of parole and probation associated
with the sentence.
218
Amendment 4’s language required those with convictions
for murder or sexual crimes to still go through the disenfranchisement maze
before they could become eligible to vote.
219
Almost 65% of voters supported the measure, surpassing the 60%
threshold.
220
Amendment 4 is now in the Florida state constitution.
221
Article VI,
Section 4 of the Florida state constitution, which addresses electoral
disqualifications and voter suppression due to felony conviction, as adopted in
2018, now states:
(a) No person convicted of a felony, or adjudicated in this or any other state
to be mentally incompetent, shall be qualified to vote or hold office until
215
Id.
216
Say YES to second chances, VOTE YES on 4 in November, SECOND CHANCES
[https://perma.cc/9PMW-FKJ5] (last visited Dec. 7, 2022) (“Floridians from all walks of life
believe in forgiveness, redemption, restoration and, ultimately, second chances.”).
217
CONSTITUTIONAL AMENDMENT PETITION FORM, supra note 214, at 1.
218
Id.
219
Id. (stating people excluded from voting under Amendment 4 would have to continue
to go through gubernational discretion and related barriers to restore their rights); PAUL
WRIGHT, HUM. RTS. DEF. CTR., FLORIDA AMENDMENT 4-HRDC FACT SHEET 1-2 (2018),
https://www.prisonlegalnews.org/media/publications/Amendment_4_short_version_9-17-
18_p0GvWDL.pdf [https://perma.cc/LM8T-CMCM]. While recognizing the value of
Amendment 4, Paul Wright, the founder of a nonprofit that advocates for the rights of people
who are incarcerated and convicted of crimes, opposed Amendment 4 for that very reason.
As he explained, “At a very base level, Amendment 4 pits members of an impoverished and
oppressed community against one another.” Paul Wright, The Case Against Amendment 4 on
Felon Voting Rights, PALM BEACH POST (Oct. 29, 2018, 2:01 AM),
https://www.palmbeachpost.com/story/news/politics/elections/2018/10/29/point-of-view-
case-against-amendment-4-on-felon-voting-rights/9430966007. He also noted, “No other
state constitution singles out citizens by conviction offense with respect to restoration of
voting rights.” Id.
220
Florida Amendment 4, Voting Rights Restoration for Felons Initiative (2018),
BALLOTPEDIA [hereinafter BALLOTPEDIA], https://ballotpedia.org/Florida_Amendment_4,_
Voting_Rights_Restoration_for_Felons_Initiative_(2018) [https://perma.cc/H4FK-9X35]
(last visited Dec. 7, 2022); Voting Restoration Amendment 14-01, FLA. DEP’T OF ST.: FLA.
DIV. OF ELECTIONS, https://dos.elections.myflorida.com/initiatives/initdetail.asp?account
=64388&seqnum=1 [https://perma.cc/H89N-TPLQ] (last visited Dec. 7, 2022).
221
See FLA. CONST. art. VI, § 4(a)-(b).
2468 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
restoration of civil rights or removal of disability. Except as provided in
subsection (b) of this section, any disqualification from voting arising from
a felony conviction shall terminate and voting rights shall be restored upon
completion of all terms of sentence including parole or probation.
(b) No person convicted of murder or a felony sexual offense shall be
qualified to vote until restoration of civil rights.
222
As with other constitutional amendments and laws enacted to increase voting
access, celebrations abounded.
223
To the voting rights advocates, especially
those who led the movement while knowing they could not vote in November
2018 because of their felony convictions, the passage of Amendment 4 seemed
like a watershed moment. While people who were incarcerated, convicted of
certain felonies, and those under post-conviction supervision still could not vote
under Amendment 4’s provisions, advocates believed that their dream that over
a million people living in Florida would be eligible to vote automatically and
without gubernatorial intervention had come to fruition finally. As a result of
Amendment 4’s passage, people with felonies began to register to vote and did
vote in local elections in January 2019.
224
Unfortunately, the state legislature and governor snatched that moment of
celebration and free access to the ballot box away. In 2019, the state legislature
limited Amendment 4 by passing Senate Bill 7066 (“SB 7066”), which Governor
Ronald “Ron” DeSantis signed into law in June 2019.
225
Because of SB 7066,
the movement for greater access to vote hit a wall. While government officials
claimed that SB 7066 simply implemented the provisions of Amendment 4, it
required people to pay all their legal financial obligations, or LFOs, before they
222
Id.
223
Rosemary McCoy & Sheila Singleton, The Fight for Voting Rights Marches On, FLA.
POL. (Jan. 18, 2022), https://floridapolitics.com/archives/487648-rosemary-mccoy-sheila-
singleton-the-fight-for-voting-rights-marches-on [https://perma.cc/NU4C-S6AD]
(highlighting excitement associated with voting and sense of reclaiming power once able to
register to vote).
224
Under Florida’s constitution, Amendment 4 did not become law until January 8, 2019.
FLA. CONST. art. XI, § 5(e); see also KEVIN MORRIS, BRENNAN CTR. FOR JUST., ANALYSIS:
THWARTING AMENDMENT 4, at 4 (2019), https://www.brennancenter.org/sites/default/files
/analysis/2019_05_FloridaAmendment_FINAL-3.pdf [https://perma.cc/U2HN-MZFZ]
(estimating that at least 2,000 Floridians who were formerly incarcerated registered to vote in
January, February, and March, and that those newly registered individuals under Amendment
4’s passage equaled about ninety-nine times the average number of people who registered in
those months in 2017 and 2015 after obtaining their voting rights); McCoy & Singleton, supra
note 223 (noting McCoy and Singleton voted in local election after Amendment 4 came into
effect); Filkins, supra note 191 (quoting Betty Riddle, a Black woman who voted for the first
time in March 2020 at the age of sixty-two because of Amendment 4, as saying it was “[l]ike
a gift from Heaven”).
225
FLA. STAT. § 98.0751(2) (2019). Floridian voters elected Governor DeSantis in the
November 2018 election, and he was sworn in to lead the state executive branch in January
2019.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2469
would be eligible to vote.
226
Per SB 7066, any fine, fee, cost, restitution, or other
financial requirement associated with their felony criminal charge and/or
imposed by the court at sentencing would be an LFO.
227
Not only did SB 7066 require individuals to repay all the LFOs associated
with their sentence, but the legislature also made it harder for people with LFOs
to pay them off.
228
SB 7066 dictated that people’s attempts to convert their LFOs
in criminal cases to civil debts would not grant them voting eligibility.
229
Instead,
people must still consider LFOs unpaid, even if they are no longer recorded
under the criminal matter.
230
With the high rate of unemployment and underemployment of individuals
with criminal records, clearly, SB 7066 would cause the number of people
eligible to vote in Florida to drop, given its impact on those with felony
convictions.
231
The Florida Department of Corrections estimated
232
that
226
See id.; BALLOTPEDIA, supra note 220. In 2021, the DeSantis Administration altered
the way individuals get their right to serve on a jury restored after a felony conviction. FLA.
RULES OF EXEC. CLEMENCY 9 (2021), https://www.fcor.state.fl.us/docs/clemency
/clemency_rules.pdf [https://perma.cc/CJV7-8JZB]. The new rules followed the same
requirements as SB 7066; people had to pay all of their LFOs before they were eligible for
jury duty. Id.
227
See FLA. STAT § 98.0751(2)(a)(5); BALLOTPEDIA, supra note 220. For voting rights
eligibility purposes under Amendment 4, the fees associated with prison incarceration and
post-release matters would not be added to the LFO requirements. FLA. STAT.
§ 98.0751(2)(a)(5)(c). LFOs go back to post-Civil War times, when states would use the
outstanding debts “as a means of effectively re-enslaving African-Americans, allowing
landowners and companies to ‘lease’ [B]lack convicts by paying off criminal justice debt that
they were too poor to pay on their own.” ALICIA BANNON, MITALI NEGRECHA & REBEKAH
DILLER, BRENNAN CTR. FOR JUST., CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY 19
(2010).
228
Under SB 7066, people could request a reduction in their LFO by doing community
service at a preset hourly rate and requesting that the court offset their LFOs by that amount.
This approach could require hundreds of hours of community service, depending on the LFO
amount. Damon Winter & Jesse Wegman, Opinion, When It Costs $53,000 To Vote, N.Y.
TIMES (Oct. 10, 2021), https://www.nytimes.com/2021/10/07/opinion/election-voting-fine-
felony-florida.html (reporting that thirty-year-old man learned he would have to complete 700
hours of community service to pay off $7,331.89 in LFOs that arose out of conviction when
he was sixteen years old).
229
FLA. STAT. § 98.0751(2)(e)(III) (“The requirement to pay any financial obligation
specified in this paragraph is not deemed completed upon conversion to a civil lien.”).
230
Id.
231
Annie Harper, Callie Ginapp, Tommaso Bardelli, Alyssa Grimshaw, Marissa Justen,
Alaa Mohamedali, Isaiah Thomas & Lisa Puglisi, Debt, Incarceration, and Re-entry: A
Scoping Review, 46 AM. J. CRIM. JUST. 250, 268 (2021) (finding debt significantly burdens
those who have experienced incarceration, imposes disproportionate hardship on Black
people, and potentially increases risk of recidivism).
232
Florida does not have a reliable statewide database that people can access to determine
how much they owe in LFOs. Each of Florida’s sixty-seven counties has its own records for
criminal cases and its own way of storing their case files. Some counties have not digitized
their records and they require individuals to go to the clerk’s office to request their court files
2470 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
Floridians on probation, parole, or community supervision “owed an average of
$8,195 in restitution alone,” which does not include any fines and fees.
233
With
an average monthly income of $1,559.00, the ability to pay off LFOs is highly
unlikely.
234
LFO requirements disproportionately harm Black women with
criminal convictions.
235
They have a high rate of unemployment, meaning they
are less likely to have the income necessary to pay off their LFOs compared to
other similarly situated communities.
236
Black women also report that any income they did earn, they spent on their
families’ and their needs.
237
For example, when Raquel Wright, a forty-six-year-
old Black mother residing in Florida, discussed the over $54,000 in LFOs she
owed, she expressed the importance of supporting herself and her sixteen-year-
old daughter.
238
Wright said:
I have her day-to-day care: feeding, clothing, basic needs. I have our phone
bills. I have my car insurance. I have medical bills. . . . I’m never going to
be able to pay that [LFO] off in my lifetime. Especially now, being that my
employment is hindered with this charge. I’m always told I’m
overqualified or I didn’t pass the background check.
239
in-person. Others have made court documents available online, but only for cases opened in
the recent past; people with convictions before certain dates would not have online access.
Further, some records were destroyed, purposefully or accidentally, and they may be illegible,
even if they are available. See Winter & Wegman, supra note 228.
233
CAMPAIGN LEGAL CTR. & GEO. L. C.R. CLINIC, CAN’T PAY, CAN’T VOTE: A NATIONAL
SURVEY ON THE MODERN POLL TAX 19-22 (2019) [hereinafter CAN’T PAY, CAN’T VOTE],
https://campaignlegal.org/sites/default/files/2019-07/CLC_CPCV_Report_Final_0.pdf
[https://perma.cc/F4EN-WFF2] (revealing “estimated 10 million people owe more than $50
billion in fines and fees related to criminal convictions” and that “average family of a
returning citizen owed approximately $13,600 in fines and fees alone”); see also Alan
Rosenthal & Marsha Weissman, Sentencing for Dollars: The Financial Consequences of a
Criminal Conviction 3, 10-12 (Ctr. for Cmty. Alts., Working Paper, 2007),
https://communityalternatives.org/wp-content/uploads/2020/04/sentencing-for-dollars-
financial-consequences-of-criminal-conviction.pdf [https://perma.cc/7TDR-R8FC]; Winter
& Wegman, supra note 228.
234
See CAN’T PAY, CAN’T VOTE, supra note 233, at 23; MORRIS, supra note 224, at 3 (“We
found that formerly incarcerated Floridians who registered to vote in the first quarter of 2019
tended to be much lower income, have less college education, and come from neighborhoods
with higher unemployment than the rest of the state’s voters.”); Younts, supra note 158
(manuscript at 30) (“Some estimates state that 20% of the United States poverty rate could
[be] attributed to the 60% of formerly incarcerated people returning to the community that
face the reality of long-term unemployment.”).
235
See Lucius Couloute & Daniel Kopf, Out of Prison & Out of Work: Unemployment
Among Formerly Incarcerated People, PRISON POL’Y INITIATIVE (July 2018),
https://www.prisonpolicy.org/reports/outofwork.html [https://perma.cc/3KZE-Q9W3].
236
Id.
237
Winter & Wegman, supra note 228.
238
Id.
239
Id.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2471
Wright’s words emphasized the weight the LFOs carried over her as she
navigates raising her daughter within a society that refuses to look past her
conviction to hire her for a full-time steady job.
Amendment 4, as understood to create an automatic right to vote after
completion of any period of incarceration and parole or probation, granted
voting eligibility to approximately 1.4 million people.
240
With SB 7066,
however, at least 40% of those individuals would no longer be eligible to vote;
researchers estimated that SB 7066 would exclude at least 560,000 individuals
because they had not paid their LFOs.
241
Other sources estimated that SB 7066
disenfranchised a higher amount of people—approximately 700,000 people.
242
These individuals would have been eligible to vote after Amendment 4’s passage
without SB 7066.
243
Knowing that these additional financial requirements would prevent hundreds
of thousands of formerly eligible people from voting, Governor DeSantis signed
SB 7066 into law anyway.
244
When he did so, Governor DeSantis also sent
Florida Secretary of State Laurel Lee a transmittal letter outlining his issues with
the new law.
245
Governor DeSantis recognized Amendment 4’s automatic voting
rights restoration for certain people with felonies, but he made the determination
that voters had made a mistake in approving the amendment. For Governor
DeSantis, the voters should not have approved the automatic voting rights
restoration initiative.
246
Even though 49.6% of voters elected him governor in
the November 2018 election,
247
he assessed, without citing any data, that the
240
Memorandum from Howard Simon, Exec. Dir., ACLU of Florida, and Marc Mauer,
Exec. Dir., The Sent’g Project, to the Executive Board 2nd Chances Team 2 (Feb. 11, 2018)
[hereinafter Memorandum from Simon & Mauer], https://www.documentcloud.org
/documents/5775917-Florida-Simon-Mauer-Memo.html [https://perma.cc/KG7V-CTPJ].
241
Id.
242
Florida: Arbitrary Rights Restoration, FAIR ELECTIONS CTR.,
https://www.fairelectionscenter.org/hand-v-scott [https://perma.cc/U6LU-NJBF] (last visited
Dec. 7, 2022) (noting 700,000 Floridians would not be able to vote because of inability to
pay).
243
Memorandum from Simon & Mauer, supra note 240, at 2.
244
See Letter from Ron DeSantis, Governor, State of Florida, to Laurel Lee, Sec’y of State,
State of Florida 1 (June 28, 2019) [hereinafter Letter from Ron DeSantis],
https://www.flgov.com/wp-content/uploads/2019/06/6.282.pdf [https://perma.cc/BVM5-
B8V4]. Researchers have found that fines and fees led to voter suppression and “contributed
to a criminalization of low-income defendants, placing them at risk of ongoing court
involvement through new warrants and debt collection.” Devah Prager, Rebecca Goldstein,
Helen Ho & Bruce Western, Criminalizing Poverty: The Consequences of Court Fees in a
Randomized Experiment, 87 AM. SOCIO. REV. 529, 529 (2022).
245
Letter from Ron DeSantis, supra note 244, at 1.
246
Id.
247
November 6, 2018 General Election, FLA. DEP’T OF ST.,
https://results.elections.myflorida.com/Index.asp?ElectionDate=11/6/2018&DATAMODE=
(last visited Dec. 7, 2022) (select “Governor and Cabinet” from “Select Office” drop-down
menu to show gubernatorial election result data).
2472 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
65% of voters’ decision to approve Amendment 4’s automatic process was ill-
advised and wrong.
248
While Governor DeSantis did not approve of the inclusion of people with
certain felony convictions within Amendment 4’s impact, he approved of SB
7066’s requirements.
249
Yet again, gubernatorial actions thwarted people’s
access to the ballot box.
C. Black Women’s Litigation Advocacy Rebuffed
Despite SB 7066’s passage and gubernatorial support, voting rights advocates
continued to conduct get-out-the-vote campaigns and voter registration drives,
and collect money to cover people’s outstanding LFOs.
250
Black women who
wanted to vote, like Rosemary McCoy and Sheila Singleton, however, lost the
voting eligibility that they had under Amendment 4 because they could not
afford their LFOs.
251
McCoy and Singleton are two Black women and mothers who live in Florida.
They understand the power of what Amendment 4 promised. Prior to and upon
the passage of the state constitutional amendment, McCoy and Singleton offered
public education events about Amendment 4 and helped to register eligible
voters with the ACLU of Florida’s Jacksonville Chapter.
252
After SB 7066,
recognizing the disparate impact pay-to-vote laws have on women of color,
253
they filed a lawsuit in federal court as named plaintiffs against Governor
DeSantis, Secretary Lee, and several county clerks of court to challenge
Florida’s newly imposed disenfranchisement maze.
254
Based on the Fourteenth
248
Voting Rights Restoration Efforts in Florida, BRENNAN CTR. FOR JUST. (Aug. 10, 2022),
https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-
florida [https://perma.cc/A89N-R2ED] (indicating 65% of voters approved of Amendment 4).
249
See Letter from Ron DeSantis, supra note 244, at 1.
250
See Blaise Gainey, Probe Requested After Multi-Million Dollar Donation Made To Pay
Felons Fines and Fees, WFSU PUB. MEDIA (Sept. 25, 2020, 2:42 PM),
https://news.wfsu.org/state-news/2020-09-25/probe-requested-after-multi-million-dollar-
donation-made-to-pay-felons-fines-and-fees [https://perma.cc/DU2Z-SNLV]; Daralene
Jones, Florida Voting Rights Advocacy Group Cleared by FDLE After Allegations of Illegal
Donations, WFTV9 (May 19, 2021, 6:34 PM), https://www.wftv.com/news/florida/florida-
voting-rights-advocacy-group-cleared-by-fdle-after-allegations-illegal-donations
/MTM6HBQRRZDODI52FZTPRSMK44 [https://perma.cc/4HQH-UYJ2] (“FRRC has
raised $27 million to pay the fines and fees of former convicted felons, so far impacting 44,000
people statewide. The average amount of fines or fees owed, they said, was about $1,500.”).
251
See Laroche, supra note 170.
252
Transcript of Videoconferencing Proceeding Bench Trial Day 4, at 755, Jones v.
DeSantis, 462 F. Supp. 3d 1196 (N.D. Fla.) (No. 19-300), rev’d and vacated sub nom. Jones
v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020), and aff’d sub nom. Jones v. Governor of
Fla., 15 F.4th 1062 (11th Cir. 2021).
253
Couloute & Kopf, supra note 235 (explaining Black women with felonies have higher
rate of unemployment than white women, white men, and Black men).
254
First Amended Complaint for Declaratory and Injunctive Relief at 4, Jones, 462 F.
Supp. 3d 1196 (No. 19-300); see also Appellants’ Brief at 5, Jones, 15 F.4th 1062 (No. 20-
2022] BLACK WOMEN AND VOTER SUPPRESSION 2473
and Nineteenth Amendments to the Constitution, their July 2019 complaint
argued that Florida violated their right to access the ballot box because of their
race, sex, and lack of wealth.
255
This subsection dissects McCoy and Singleton’s
efforts to dismantle the disenfranchisement maze under SB 7066 and the series
of judicial decisions that rejected their constitutional arguments.
In their lawsuit, McCoy and Singleton highlighted the vast disadvantages
women of color in poverty, and Black women in particular, would face if SB
7066 survived constitutional review.
256
They argued that along with the burden
that SB 7066 placed on Black people, violating the Fourteenth Amendment, the
trial court should also find their disenfranchisement unconstitutional based on
gender discrimination under the Nineteenth Amendment.
257
They contended that
the courts could not ignore the violation of their constitutional rights at the
intersection of race, gender, and class.
Both women had completed all aspects of their incarceration and state control,
but could not vote because of SB 7066’s LFO requirements.
258
Through their
own words, expert testimony, and records, McCoy and Singleton explained how
women of color in Florida were less likely to be able to pay off their LFOs as
compared to men of any race and white women. At the several-days-long
consolidated trial in 2020, McCoy and Singleton testified about the impact SB
7066 had on them.
259
McCoy and Singleton wanted the court to reinstate their
right to vote that SB 7066 took away.
McCoy’s records and testimony documented that she was sentenced to
twenty-four months of incarceration and eighteen months of probation in
2015.
260
The court imposed $666 in fees and $6,400 in restitution.
261
When
McCoy was released, she lived with her daughter, was unemployed, and was
unable to pay these LFOs.
262
At the time of the trial, McCoy owed $7,806.72 in
restitution and interest, which she could not afford to pay.
263
12304); Schrader, supra note 163. Voting rights advocates filed lawsuits seeking to protect
Amendment 4’s objectives and arguing that SB 7066 was unconstitutional under the Equal
Protection and Due Process Clauses of the Fourteenth Amendment and the twenty-fourth
Amendment. The Northern District of Florida trial court judge consolidated McCoy and
Singleton’s case with the other related cases for pretrial and trial purposes.
255
First Amended Complaint for Declaratory and Injunctive Relief, supra note 254, at 6.
256
Id.
257
Id. at 26-28.
258
Id. at 7.
259
Transcript of Videoconferencing Proceeding Bench Trial Day 4, supra note 252, at
749-58; Transcript of Videoconferencing Proceeding Bench Trial Day 3, at 674-89, Jones,
462 F. Supp. 3d 1196 (No. 19-300).
260
First Amended Complaint for Declaratory and Injunctive Relief, supra note 254, at 5.
261
Jones, 462 F. Supp. 3d at 1211.
262
See Transcript of Videoconferencing Proceeding Bench Trial Day 4, supra note 252, at
751.
263
Jones, 462 F. Supp. 3d at 1211; Transcript of Videoconferencing Proceeding Bench
Trial Day 4, supra note 252, at 754-55. When asked if she had considered doing community
service to reduce her LFOs, McCoy noted that she was not aware of that option until she was
2474 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
After Singleton’s conviction in 2011, she was sentenced to six-months’
incarceration and three years of probation and was ordered to pay $771 in fees
and costs.
264
The district court judge, Judge Robert Lewis Hinkle, revealed the
discrepancies with the amounts Singleton owed.
265
While court orders indicated
Singleton owed thousands of dollars in restitution, the original sentencing court
did not enter those orders until years after her sentencing hearing.
266
Judge
Hinkle explained, “If, as appears likely, Singleton was not ordered to pay
restitution until three years after she was sentenced, the State apparently agrees
that she can vote without paying the restitution. Singleton would not have known
this had she not participated in this litigation.”
267
Further, Singleton testified that
she could only pay $50 per month towards paying her LFOs.
268
With that type
of payment plan, Singleton estimated that she would not pay off her LFOs for
approximately twenty-one to twenty-six years.
269
McCoy and Singleton’s attorneys also called expert witnesses, and used their
corresponding reports, to describe why the intersectionality of race and gender
in the criminal legal system makes SB 7066 particularly egregious for women
of color who are in poverty.
270
Unfortunately, the evidence and arguments
McCoy and Singleton presented at trial did not convince Judge Hinkle fully.
271
a party to the lawsuit and that, because of her disability and criminal conviction history, she
would have limited options. Id. at 757.
264
First Amended Complaint for Declaratory and Injunctive Relief, supra note 254, at 7.
265
See Jones, 462 F. Supp. 3d at 1211.
266
Id.
267
Id. (footnotes omitted). Singleton also owed the fines and costs the court originally
imposed, which she could not afford to pay. First Amended Complaint for Declaratory and
Injunctive Relief, supra note 254, at 8-9; Transcript of Videoconferencing Proceeding Bench
Trial Day 3, supra note 259, at 679.
268
Transcript of Videoconferencing Proceeding Bench Trial Day 3, supra note 259, at 680.
269
Id.
270
See generally Expert Report of Amanda L. Weinstein, PhD, Jones, 462 F. Supp. 3d
1196 (No. 19-300); Expert Report of Hannah L. Walker, PhD, Jones, 462 F. Supp. 3d 1196
(No. 19-300).
271
See Jones, 462 F. Supp. 3d at 1240. Prior to the trial, Governor DeSantis sought an
advisory opinion from the Florida Supreme Court on “whether ‘completion of all terms of
sentence’ under Article VI, section 4 of the Florida Constitution includes the satisfaction of
all legal financial obligations, namely fees, fines and restitution ordered by the court as part
of a felony sentence that would otherwise render a convicted felon ineligible to vote.” Letter
from Ron DeSantis, Governor, State of Fla., to Honorable Charles T. Canady, C.J. of the Sup.
Ct. of Fla., and the Js. of the Sup. Ct. of Fla. (Aug. 9, 2019),
https://www.brennancenter.org/sites/default/files/legal-work/08-09-2019-Advisory-Opinion-
Request.pdf [https://perma.cc/S8XP-TBZN]. In its advisory opinion responsive to the
governor, the Florida Supreme Court held that voters understood the term “completion of all
terms of sentence” in Amendment 4 to include LFOs. Advisory Op. to the Governor Re:
Implementation of Amend. 4, The Voting Restoration Amend., 288 So. 3d 1070, 1084 (Fla.
2020). Although the Florida Supreme Court’s ruling was not binding, the state used the
Advisory Opinion as proof that SB 7066 was simply implementing the will of the voters who
supported Amendment 4’s passage.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2475
In his May 2020 decision, Judge Hinkle held that the LFO requirement of SB
7066 violated the Equal Protection Clause under the Fourteenth Amendment,
imposed a poll tax prohibited under the Twenty-Fourth Amendment, and,
therefore, was unconstitutional.
272
He, however, found that the law did not
violate women of color’s rights to vote under the Nineteenth Amendment.
273
Judge Hinkle entered a permanent injunction against the enforcement of SB
7066.
274
He, however, denied McCoy and Singleton’s request that the court hold
the impact of their intersectionality as a cognizable legal claim because the
Fourteenth and Nineteenth Amendments required discriminatory intent from the
government.
275
In addition, Judge Hinkle reasoned that because more men had
felony convictions and LFOs than women, women did not face a larger disparate
impact.
276
The state appealed the district court’s decision to the Eleventh Circuit Court
of Appeals, arguing that SB 7066 did not violate the Constitution.
277
In July
2020, the Eleventh Circuit stayed the district court’s permanent injunction while
the appeal was pending.
278
Advocates argued this decision created particular
confusion as the 2018 election registration deadline approached.
279
In other
words, the court’s decision was part of the disenfranchisement maze, adding
unnecessary twists and turns to the voting process.
After briefing and oral arguments, the Eleventh Circuit issued a lengthy en
banc decision that approved SB 7066’s LFO requirement.
280
In reversing Judge
Hinkle’s opinion, the majority held that SB 7066 violated neither the Fourteenth
nor Twenty-Fourth Amendments.
281
McCoy and Singleton had also appealed Judge Hinkle’s holding that SB 7066
did not violate the voting rights of women of color.
282
A three-judge Eleventh
272
Jones, 462 F. Supp. 3d at 1234.
273
Id. at 1239-40.
274
Id. at 1250.
275
Id. at 1239-40.
276
Id. at 1240 (“[E]ven though the impact on a given woman with LFOs is likely to be
greater than the impact on a given man with the same LFOs, the pay-to-vote requirement
overall has a disparate impact on men, not women.”).
277
See Jones v. Governor of Fla., 975 F.3d 1016, 1028 (11th Cir. 2020).
278
McCoy v. Governor of Fla., No. 20-12003, 2020 WL 4012843, at *1 (11th Cir. July 1,
2020).
279
Seeking additional consideration, the plaintiff-appellees filed an application to the
Supreme Court to vacate the Eleventh Circuit’s stay. The Court denied the request. Raysor v.
DeSantis, 140 S. Ct. 2600, 2600 (2020). Justice Sonia Sotomayor issued a dissent noting her
strong disapproval of the majority’s refusal to recognize the harm the Eleventh Circuit’s
decision to stay the permanent injunction would have on people in Florida. Id. at 2603
(Sotomayor, J., dissenting).
280
Jones, 975 F.3d at 1058-59.
281
Id. at 1016-17, 1028. Judges Martin, Jordan, and Pryor filed three dissenting opinions.
282
The court decided to address McCoy and Singleton’s appeal separately after addressing
the state’s appeal. Jones v. Governor of Fla., 15 F.4th 1062, 1065 (11th Cir. 2021) (noting
2476 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
Circuit panel heard oral arguments on the merits of their arguments in July 2021.
The Eleventh Circuit rejected McCoy and Singleton’s gender, race, and class
constitutional violation arguments.
283
In its 2021 decision, the court cited to
precedent and refused to recognize the unique experiences and added challenges
women of color, who are low-income, face when accessing their right to vote,
despite the discrimination they face not being intentional.
284
As McCoy and Singleton expressed, “Our power evaporated, simply because
we cannot pay thousands of dollars.”
285
In serving as named plaintiffs in the suit
against Florida officials, McCoy and Singleton continued the history of
advocacy and sacrifice shown by countless Black women before them.
286
Yet,
different branches of state and federal governments thwarted efforts to expand
the right to vote to include women of color with criminal convictions in Florida.
On a broader level, through their lawsuit, McCoy and Singleton tried to force
the law to acknowledge that they endured different harms than white women and
all men faced. The courts declined.
I am not taking this stand because I personally wish for recognition. I am
doing it for the future benefit of my whole race.
—Ida B. Wells-Barnett
287
III. BLACK WOMEN’S VOTER SUPPRESSION
McCoy’s and Singleton’s experiences highlighted the state and federal
governments’ complacency and indifference regarding how their actions to deny
access to the ballot box harmed Black women. Florida, however, is not alone in
imposing laws and restrictions that support the disenfranchisement maze.
288
This
Part of the Article explains the harm these exclusionary policies have on Black
women and their families and analyzes reasons why the status quo, which bans
them from the ballot because of voter suppression, benefits white voters.
McCoy and Singleton did not premise appeal on argument they satisfied discriminatory intent
requirement).
283
Id. at 1066-67. For an in-depth analysis of the court’s decision and the Nineteenth
Amendment, see generally Paula A. Monopoli, Gender, Voting Rights, and the Nineteenth
Amendment, 20 GEO. J.L. & PUB. POL’Y 91 (2022).
284
See Jones, 15 F.4th at 1068.
285
McCoy & Singleton, supra note 223.
286
See supra Part I.
287
Alana Miller Manesse, USU Reflects on the 1913 Women’s Suffrage Parade, UTAH ST.
TODAY (Feb. 26, 2020), https://www.usu.edu/today/story/usu-reflects-on-the-1913-womens-
suffrage-parade [https://perma.cc/WZT3-CK96].
288
See Cammett, supra note 27, at 388-91 (summarizing U.S. Courts of Appeals decisions
that have held pay-to-vote schemes constitutional); Nora Demleitner, Felon
Disenfranchisement, 49 U. MEMPHIS L. REV. 1275, 1281 (2019) (noting failed attempts to
limit voter suppression based on criminal convictions through litigation).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2477
A. Ripple Effects of Ballot Box Invisibility
When given the opportunity, state and federal legislators, executive leaders,
and judges have failed to dismantle voter suppression schemes that exclude
people with criminal convictions. These laws are not without consequences to
those who must endure them. This subsection analyzes how these voter
suppression schemes erase Black women’s interests from the political sphere
and undermine Black families’ concerns.
289
In general, increased entanglement within the criminal legal system leads to
countless collateral consequences of convictions that Black women must
navigate.
290
Although all people face consequences because of their criminal
records, Black women’s intersectional place in society requires them to navigate
spaces with a different experience than other women and all men.
291
When Black
women with criminal convictions attempt to navigate the disenfranchisement
maze to access the vote, the criminal legal system steps in to block their access
and prosecutes them for daring to do so.
292
Women of color, and Black women
in particular, are sentenced more harshly than other individuals after being
convicted of violating state laws that ban voting for people with convictions.
293
For those who are incarcerated and those who have criminal convictions, the
inability to access the ballot box means they are “unable to advocate for policy
changes that could save their lives, because they are unable to access the
ballot.”
294
Further, these voter suppression schemes keep Black women from
voting out the officials and judges who continue these racist and sexist
policies.
295
And when individuals try to mobilize their electoral power while
incarcerated, officials punish their efforts with more voter suppression.
296
289
See Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126
YALE L.J. 2054, 2085-86 (2017).
290
See Laroche, supra note 32, at 543-48.
291
See supra Section I.A.
292
In a future project, I will analyze the use of the disenfranchisement maze to regulate
and criminalize Black women who dare to engage in the voting process. For general
summaries of the experiences of two such women, Pamela Moses and Crystal Mason, see
supra notes 30-31 and accompanying text.
293
See Rodriguez, supra note 30.
294
NAILA S. AWAN & SHRUTI BANERJEE, DĒMOS, HOW TO END DE FACTO
DISENFRANCHISEMENT IN THE CRIMINAL JUSTICE SYSTEM 1 (2020),
https://www.demos.org/sites/default/files/2020-05/How%20to%20End%20De%20Facto
%20Disenfranchisement%20in%20the%20Criminal%20Justice%20System_0.pdf
[https://perma.cc/X684-4JCY]; see also Zakrzewski, supra note 41 (“A lack of representation
means that we lose the important insights and solutions to public policy problems that women
of color will bring.”).
295
See Judicial Selection: Significant Figures, BRENNAN CTR. FOR JUST.,
https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-
figures [https://perma.cc/XC3Y-SYNC] (last updated Oct. 11, 2022) (reporting judge
selection methods, including popular elections and gubernatorial appointments).
296
See id. (describing how Massachusetts eliminated right to vote for people who are
incarcerated as recently as 1997 after people advocated to reform criminal legal system).
2478 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
And although researchers have found that voting reduces people’s rate of re-
arrest, the voter suppression schemes persist.
297
Specifically, researchers
explained, “The basic relationship between crime and voting is now clear: Those
who vote are less likely to be arrested and incarcerated, and less likely to report
committing a range of property and violent offenses.”
298
Yet, instead of
increasing people’s political participation, society furthers their exclusion.
Overall, without their voting participation, Black women receive limited
coverage and consideration of their experiences and interests.
299
Policymakers
view their priorities as less significant.
300
For example, in a January 2022 op-ed,
McCoy and Singleton explained what the actions of state legislators, the
executive, and courts signaled to them, remarking that “[w]hen that court
affirmed the poll tax, we lost our say in what we want—for our families, our
community, and our country.”
301
While Black women with criminal convictions,
like McCoy and Singleton, are working to enhance the right to vote and are on
the ground working to have local and national leaders address their
communities’ needs, those they hold accountable may dismiss their advocacy
efforts because of their exclusion from the ballot box; without the right to vote,
legislators disavow their interests.
302
Ultimately, the disenfranchisement maze
feeds upon Black women’s overall marginalization to vanquish their potential
votes and success.
303
Not only are Black women’s own interests devalued, but the
disenfranchisement maze causes the suppression of Black families’ rights and
interests as well.
304
McCoy expressed how her inability to vote disadvantages
the needs of her family and parenting responsibilities, saying: “If I can’t vote,
it’s hard for me to guide the direction of my grandson. . . . I need to vote. I need
to vote for things that matter to my family, my community, my state and the
United States of America.”
305
As McCoy’s explanation affirms, many people
seek to vote with a focus on the needs of more people than themselves alone;
297
MANZA & UGGEN, supra note 24, at 133.
298
Id.
299
See BURCH, supra note 107, at 11.
300
Id. at 3 (“Politicians and political parties face disincentives to mobilize participation
among people with felony convictions.”).
301
McCoy & Singleton, supra note 223.
302
BURCH, supra note 107, at 30.
303
See Laroche, supra note 32, at 547-48.
304
See Michael B. Mitchell & Jaya B. Davis, Formerly Incarcerated Black Mothers Matter
Too: Resisting Social Constructions of Motherhood, 99 PRISON J. 420, 423-24 (2019) (“While
Black motherhood has never been fully recognized, mothers with incarceration histories are
shadowed in relative invisibility.”).
305
Ko Bragg, Courts Asked To Analyze ‘Undue Burden’ of Florida’s Felony
Disenfranchisement Law on Black Women, 19TH (Feb. 13, 2021, 8:00 AM),
https://19thnews.org/2021/02/courts-analyze-undue-burden-floridas-felony-
disenfranchisement-law-black-women [https://perma.cc/89RG-LSXH].
2022] BLACK WOMEN AND VOTER SUPPRESSION 2479
those who cannot vote understand the broader implications of that exclusion,
which loom large.
306
For example, although suppressing one person’s voting rights and the
interests of their families should call for concern, the voter suppression schemes
that do not allow people to vote because of their criminal convictions reach
millions. One million women are already in the disenfranchisement maze, but
that number does not account for their family members and children they
support.
307
In the United States, at least 5.1 million children have a parent who
is incarcerated or formerly incarcerated.
308
It is not surprising that advocates
often call the incarceration of mothers a “double sentence,” a term signifying the
harsh separation children endure from their mothers while their mothers are
incarcerated.
309
While Black women’s physical confinement may cease upon
release from jails and prisons, the impact of their criminal records continues long
after their release.
310
As Black women navigate society with a criminal record
and/or reunite with family after release, their children and families must do the
same with them.
Depending on their state of residence, the children and families of Black
women must also face the disenfranchisement maze. Adults who are eligible to
vote but who live with others banned from voting may experience de facto
disenfranchisement.
311
That term represents the way the disenfranchisement
maze and lack of understanding of the rights restoration procedures prevent both
ineligible and eligible people from voting—even those who can vote do not.
312
As one source reported,
306
See supra note 80 for a discussion of the power of voting and what having access to
the ballot box allows for those who are eligible.
307
SENT’G PROJECT, INCARCERATED WOMEN AND GIRLS, supra note 35, at 1.
308
THE ANNIE E. CASEY FOUND. & KIDS COUNT, A SHARED SENTENCE: THE DEVASTATING
TOLL OF PARENTAL INCARCERATION ON KIDS, FAMILIES AND COMMUNITIES 2 (2016),
http://www.aecf.org/m/resourcedoc/aecf-asharedsentence-2016.pdf [https://perma.cc/H4U2-
4V6Q]; see also Brief of Interested Parties, Jennifer LaVia & Carla Laroche at 10-11, In re
Advisory Op. to the Governor Re: Implementation of Amend. 4, the Voting Restoration
Amend., 288 So. 3d 1070 (Fla. 2020) (No. SC19-1341) (describing impact inability to vote
had on families, highlighting that, behind data were people with children and communities
who supported them, and seeking to remind Florida Supreme Court justices of these
individuals’ humanity).
309
See Carla Laroche, Lauren Donaldson & Navneet Jaswal, Double Sentence: The
Consequences Incarcerated Mothers Face and the Impact on Their Children, in THE STATE
OF CRIMINAL JUSTICE 207 (Mark E. Wojcik ed., 2016).
310
See Laroche, supra note 32, at 543-48 (explaining extensive barriers mothers face upon
release when trying to reunite with their children held in the family regulation system).
311
WOOD & BLOOM, supra note 25, at 1; Jasmine Ting, Snoop Dogg Is Voting for the First
Time Ever, PAPER MAG. (June 7, 2020), https://www.papermag.com/snoop-dogg-vote-2020-
2646162250.html [https://perma.cc/HP6E-Z7LN] (explaining forty-eight-year-old rapper
Snoop Dogg planned to vote for the first time in 2020, and noting he had described himself
as being “brainwashed” into thinking he could not vote because of criminal record).
312
See Ting, supra note 311; see also ERIKA WOOD, BRENNAN CTR. FOR JUST., RESTORING
THE RIGHT TO VOTE 12 (2009), http://www.brennancenter.org/sites/default/files/legacy
2480 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
A 2009 study found that eligible and registered [B]lack voters were nearly
12 percent less likely to cast ballots if they lived in states with lifetime
disenfranchisement policies—while white voters’ probability of voting
decreased by only 1 percent in such states. The study’s results “suggest that
[felony disenfranchisement] exacerbates the bias against low
socioeconomic status racial and ethnic minorities in electoral outcomes and
policy responsiveness.”
313
In these situations, children do not experience the “thrill” of their mothers
voting. They do not feel that their families are part of the social political
power.
314
And they are not.
During her trial testimony, Singleton confirmed the power voting gave her
and what it meant to have the state take it away, again. She explained:
It gave me my stability as a [B]lack woman. I’ve got family. I got
grandkids, and I wanted to—I wanted to instill in them how important it
was to be able to vote. And by me not being able to vote, that’s something
that I couldn’t do because I wasn’t able to vote, but now I can give them
that stability, how important it is because you get your voice back, you be
able to voice your opinion in such a way, you know, and you can be a part
of something—it’s great—in the community.
315
Voter suppression policies hurt communities and create barriers for those who
are incarcerated and those with criminal convictions.
The challenges Black women face go beyond voting. The attacks on Black
families’ right to vote increase their vulnerability and lack of access to what
other families obtain much more easily.
316
Enduring incarceration, separation
from family, and navigating life with a criminal conviction amplifies the
different and restrictive systems, institutions, and people with whom Black
women must interact.
317
/Democracy/Restoring%20the%20Right%20to%20Vote.pdf [https://perma.cc/J7BA-9P9F];
Matt Shuham, Some Eligible Ex-Felons Fear Voting Because of Ron DeSantis, HUFFPOST
(Oct. 28, 2022, 4:15 PM), https://www.huffpost.com/entry/ron-desantis-florida-former-ex-
felon-voter-fraud-arrests_n_635c084ae4b0cf522df862a8?j2p [https://perma.cc/GB8B-
BHL4].
313
ERIN KELLEY, BRENNAN CTR. FOR JUST., RACISM & FELONY DISENFRANCHISEMENT: AN
INTERTWINED HISTORY 3 (2017) (quoting Melanie Bowers & Robert R. Preuhs, Collateral
Consequences of a Collateral Penalty: The Negative Effect of Felon Disenfranchisement
Laws on the Political Participation of Nonfelons, 90 SOC. SCI. Q. 722, 741 (2009)).
314
Brief of Interested Parties, Jennifer LaVia & Carla Laroche, supra note 308, at 17-18;
Transcript of Videoconferencing Proceeding Bench Trial Day 3, supra note 259, at 686.
315
Transcript of Videoconferencing Proceeding Bench Trial Day 3, supra note 259, at 686.
316
Bernadette Atuahene, Predatory Cities, 108 CALIF. L. REV. 107, 119 (2020) (“As many
feminist scholars have noted, to become an autonomous individual, people depend upon
family, community, and various forms of state assistance. Since interdependence is the true
status quo, a vulnerability analysis acknowledges the role of both state and non-state actors in
co-producing volatility.” (footnote omitted)).
317
Laroche, supra note 32, at 543-46.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2481
Their distrust of the criminal legal system leads to a further distrust of the
political process, voting, and government aid.
318
The result of voter suppression
laws is a sense of legal estrangement. As developed by Monica C. Bell, the term
“legal estrangement” means:
[A] process by which the law and its enforcers signal to marginalized
groups that they are not fully part of American society—that they are not
imbued with all the freedoms and entitlements that flow to other
Americans, such as dignity, safety, dreams, health, and political voice, to
name a few.
319
Access to the ballot box allows for connection with society; to exclude
members of the country who would otherwise be eligible to vote but cannot vote
disconnects people from society.
320
Because of criminal convictions and state
disenfranchisement laws, Black women, their families, and communities cannot
access the same voting rights as those without criminal convictions.
321
By
suppressing their right to vote, society signals to the people who cannot vote and
must navigate the disenfranchisement maze that their interests do not warrant
consideration and that others are better suited to decide for them.
322
To endure
legal estrangement is to recognize that society neither appreciates nor desires the
value their votes should offer.
323
318
See BURCH, supra note 107, at 13 (“[B]ecause of their previous experiences with law
enforcement and the criminal justice system, [people] may be especially susceptible to
intimidation tactics that threaten voters with fines, imprisonment, or other punishments.”);
see also Brief of Interested Parties, Jennifer LaVia & Carla Laroche, supra note 308, at 4.
319
Monica C. Bell, Legal Estrangement: A Concept for These Times, FOOTNOTES, July-
Aug. 2020, at 7, 8, https://www.asanet.org/news-events/footnotes/jul-aug-
2020/features/legal-estrangement-concept-these-times [https://perma.cc/4ZAW-VVZJ].
320
Roberts, supra note 140, at 1292 (“The geographic concentration of mass incarceration
translates the denial of individual felons’ voting rights into disenfranchisement of entire
communities.”).
321
See id.; Cammett, supra note 27, at 369 (“[F]or many low-income African Americans,
incarceration creates not just shadow citizens in an individual sense but shadow communities
as well.”).
322
Notably, in The New Jim Crow, Michelle Alexander expressed that people with
criminal justice histories may not register to vote, even when eligible, because they fear doing
so “would somehow attract attention to them—perhaps land them back in jail.” ALEXANDER,
supra note 138, at 160. Reaching back in history, Alexander explained that people worried
about the different levels of racial oppression; “many Southern [Black people] have vivid
memories of the harsh consequences that befell their parents and grandparents who attempted
to vote in defiance of poll taxes, literacy tests, and other devices adopted to suppress the
[B]lack vote.” Id.
323
Judy Bolden, a Black woman who was released from prison over twenty years ago and
could not vote in Florida because she owed $53,000 in LFOs, lamented, “It’s like I’m not a
citizen. . . . That’s what they’re saying.” Winter & Wegman, supra note 228. As Reuben
Jonathan Miller explained it:
Whether for narcotics, sex, or murder charges, formerly incarcerated people are locked
out of political and economic life. No matter how long ago the offense occurred, the
lengths they’ve gone to repay harms they may have caused, or if questions persist about
2482 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
B. The Benefit to White Voters
Even while enduring legal estrangement, voter suppression, and de facto
disenfranchisement, Black women and their families continue to refuse to accept
the efforts to marginalize their power. Black women strive to participate in the
electoral process, while knowing there are many barriers that keep them from
voting.
324
For example, after the Eleventh Circuit held Florida’s law requiring
people to pay all LFOs prior to becoming eligible to vote—SB 7066—did not
violate the Constitution, McCoy and Singleton have continued to promote access
to the ballot box for others.
Their dedication to ensuring people who are eligible
actually vote is so strong and their belief in political empowerment remains so
deep that they founded Harriet Tubman Freedom Fighters, Inc. (“HTFF”), a
nonprofit organization that offers community education and mobilizes voters in
Florida.
325
This subsection examines why the U.S. population accepts arcane and
onerous practices that undervalue Black women’s interests and efforts. Voting
laws and practices are less restrictive and more inclusionary of people with
criminal convictions in many other countries that have a less punitive view of
their criminal legal system.
326
“The United States is the only Western democracy
that permits the permanent denial of voting rights for individuals with felony
convictions.”
327
While organizations like the League of Women Voters stress that “[o]ur
democracy is strongest when every voice is heard,” society allows the
disenfranchisement mazes and voter suppression laws to persist.
328
Individuals
their guilt. Put differently, people with felony records never fully regain their citizenship.
This is not an accident, but the direct result of policies we’ve enacted that allow us to
treat formerly incarcerated people as if they aren’t citizens at all.
Reuben Jonathan Miller, How Thousands of American Laws Keep People ‘Imprisoned’ Long
After They’re Released, POLITICO (Dec. 30, 2020, 4:30 AM), https://www.politico.com/news
/magazine/2020/12/30/post-prison-laws-reentry-451445 [https://perma.cc/H2LN-CQEH].
324
McCoy & Singleton, supra note 223.
325
In Harriet Tubman Freedom Fighters, Corp. v. Lee, HTFF served as an organizational
plaintiff in a 2021 lawsuit against Florida state officials seeking to bar the enforcement of
another law signed by Governor DeSantis, which reduced Floridian’s access to the ballot box.
Amended Complaint at 11, Harriet Tubman Freedom Fighters, Corp. v. Lee, 576 F. Supp. 3d
994 (N.D. Fla. 2021) (No. 4:21-cv-00242).
326
See Hadar Aviram & Jessica L. Willis, Reintegrating Citizens: Felon Enfranchisement,
Realignment, and the California Constitution, 4 J.C.R. & ECON. DEV. 619, 625-26 (2015).
327
For the People Act of 2021, H.R. 1, 117th Cong. § 1402(14) (2021); see BRANDON
ROTTINGHAUS, INCARCERATION AND ENFRANCHISEMENT: INTERNATIONAL PRACTICES, IMPACT
AND RECOMMENDATIONS FOR REFORM 24-26 (2003), http://www.prisonpolicy.org/scans
/08_18_03_Manatt_Brandon_Rottinghaus.pdf [https://perma.cc/8EFM-M83P] (remarking
though Armenia, Cameroon, Chile, Belgium, Finland, New Zealand, and Philippines also
disenfranchised people for criminal offenses, considerably more people in United States
cannot vote than in these other countries).
328
Expanding Voter Access, LEAGUE OF WOMEN VOTERS, https://www.lwv.org/voting-
rights/expanding-voter-access [https://perma.cc/P6YA-6X99] (last visited Dec. 7, 2022).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2483
offer different reasons for supporting and allowing these voter suppression
schemes to exist, including punishment, social-contract violations, and election-
integrity protection.
329
Under the punishment theory, the disenfranchisement
maze should be an additional price one pays for being convicted of a crime.
330
For the social-contract violation theorists, someone with a criminal record broke
the expectations and responsibilities society expects people to follow, and,
therefore, must face the continued consequences of disturbing those social
norms.
331
As for the election-integrity protection theory, adherents do not want
someone who committed a crime to be able to influence policies by voting.
332
Yet researchers have found that many “lay persons in favor of criminal
disenfranchisement laws . . . have a hard time articulating exactly why” they
believe so.
333
Racism is another incredibly important reason that society supports these
voter suppression schemes, and this reason may account for society’s
unwillingness to articulate this discrimination publicly.
334
One researcher found
329
Neely Baugh-Dash, Note, Criminal Disenfranchisement: Deconstructing Its
Justifications and Crafting State-Centered Solutions, 7 BELMONT L. REV. 123, 132-37 (2019)
(discussing most prevalent justifications for disenfranchisement maze).
330
Id. at 132 (“For those supporting this theory, temporary or permanent
disenfranchisement is part of measuring out justice to those who have violated the rules of
social order.”); see also Pamela S. Karlan, Convictions and Doubts: Retribution,
Representation, and the Debate over Felon Disenfranchisement, 56 STAN. L. REV. 1147, 1150
(2004) (“One of the linchpins of current doctrine regarding criminal disenfranchisement
statutes is the assumption that these laws are essentially regulatory, rather than
punitive. . . . The current conception so undercuts originally regulatory justifications for
disenfranchising offenders that only penal justifications remain. Thus, if felon
disenfranchisement is to be justified, it must be justified as a permissible form of
punishment.”); 148 CONG. REC. 1500 (2002) (statement of Sen. George Allen) (“[Voter
suppression is] part of the price one pays when they commit a felony and they are
convicted . . . This is one of the many rights one gives up. . . . To get all of their liberties and
rights back, they have to demonstrate good behavior.”).
331
See Brian Pinaire, Milton Heumann & Laura Bilotta, Barred from the Vote: Public
Attitudes Toward the Disenfranchisement of Felons, 30 FORDHAM URB. L.J. 1519, 1525-26
(2003); see also Baugh-Dash, supra note 329, at 132-33. When asked whether they helped
people complete the certificate needed to restore their voting rights, Tennessee election
officials said they were against people with convictions getting their voting rights restored.
WOOD & BLOOM, supra note 25, at 7.
332
See Roger Clegg, Who Should Vote?, 6 TEX. REV. L. & POL. 159, 172 (2001) (“It is not
unreasonable to suppose that those who have committed serious crimes may be presumed to
lack this trustworthiness and loyalty.”); Baugh-Dash, supra note 329, at 133.
333
Baugh-Dash, supra note 329, at 137 (citing Pinaire et al., supra note 331, at 1541)
(discussing 2003 study that asked people to select reason why they support voter suppression
schemes, where “felons have proven that they should not be treated as citizens” received most
votes, but “none of the above/some other category” came in second).
334
See Victoria Shineman, Racial Animus Is Decreasing Support for the Voting Rights of
Citizens with Felony Convictions 18 (Oct. 25, 2018) (unpublished manuscript),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3272685 [https://perma.cc/423W-
2484 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
that individuals with negative attitudes toward Black people were less likely to
support the enfranchisement of people with felonies.
335
For these individuals,
the association between criminality and Blackness leads to erasing people’s right
to vote.
336
Darren Hutchinson explained that “despite the formal recognition of
equal protection, the law, including criminal law and enforcement, continues to
operate in a manner that preserves whites’ social dominance.”
337
A 2022 study found an increase in the incarceration of Black people in states
the provisions of the Voting Rights Act of 1965 were supposed to target.
338
The
researchers found that white voters and policymakers used the criminal legal
system to regulate and control Black communities after they could no longer use
the overt racism Jim Crow authorized.
339
A law hailed as a successful method of
enhancing Black voting rights
340
was also a source of fear for white people that
led to the imprisonment of Black people to limit their political power.
8LFG] (finding increased levels of racial animus correlated with decreased support for
enfranchisement of citizens convicted of felony).
335
Id. at 12-13.
336
See Marissa Jackson Sow, Whiteness as Contract, 78 WASH. & LEE L. REV. 1803, 1836
(2022); Jessi Quizar, A Bucket in the River: Race and Public Discourse on Water Shutoffs in
Detroit, 26 SOC. IDENTITIES 429, 435 (2020) (discussing “highly racialized” arguments in
favor of water shutoffs in Detroit, which characterized Detroiters as undeserving of help
because they are “thieving, criminal, and primitive”).
337
Darren Lenard Hutchinson, “Continually Reminded of Their Inferior Position”: Social
Dominance, Implicit Bias, Criminality, and Race, 46 WASH. U. J.L. & POL’Y 23, 76 (2014);
see also Theodore R. Johnson, How Punitive Excess Is a Manifestation of Racism in America,
BRENNAN CTR. FOR JUST. (Apr. 13, 2021), https://www.brennancenter.org/our-work/analysis-
opinion/how-punitive-excess-manifestation-racism-america [https://perma.cc/EN8R-DBBY]
(“One need only catalog the experiences of racial and ethnic minorities to discern that if mass
incarceration and punitive excess were abolished tomorrow, racial disparities would still exist
in the range of socioeconomic factors that influence one’s life chances and unduly expose
people of color to punishment and whatever social penalties take the place of confinement.”).
As Angela Davis declared:
Prisons thus perform a feat of magic. Or rather the people who continually vote in new
prison bonds and tacitly assent to a proliferating network of prisons and jails have been
tricked into believing in the magic of imprisonment. But prisons do not disappear
problems, they disappear human beings. And the practice of disappearing vast numbers
of people from poor, immigrant, and racially marginalized communities has literally
become big business.
Angela Davis, Masked Racism: Reflections on the Prison Industrial Complex, COLORLINES
(Sept. 10, 1998), https://colorlines.com/article/masked-racism-reflections-prison-industrial-
complex/ [https://perma.cc/72DD-9H7Z].
338
Nicholas Eubank & Adriane Fresh, Enfranchisement and Incarceration After the 1965
Voting Rights Act, 116 AM. POL. SCI. REV. 791, 803 (2022).
339
Id.; see also Nikita Lalwani, Making It Easier for Black People To Vote Had
Unexpected Consequences, WASH. POST (Nov. 11, 2022, 6:00 AM),
https://www.washingtonpost.com/politics/2022/11/11/vra-section-5-new-jim-crow.
340
See supra Section I.B.
2022] BLACK WOMEN AND VOTER SUPPRESSION 2485
As Marissa Jackson Sow questions, “In a society where all people are
guaranteed equal rights under the law, are Black people really people at all?”
341
In Whiteness as Contract, Jackson Sow describes how white people structure the
rules of access against, and to the exclusion of, Black people.
342
Accordingly,
Jackson Sow explains that the social contract is one that Black people did not
negotiate, but one that whiteness has imposed on them:
Constitutions and statutes give whiteness the force of law; however, the
invisible law of whiteness, which was negotiated by the people who
orchestrated political domination in the United States at its founding, now
serves as a shadow Constitution. When it is not legally enforceable under
public law, it may be legally enforceable under private ordering, or even
physically enforceable via sanctioned means regardless of their illegality
or obvious injustice.
343
This Article has discussed many obvious injustices Black women and their
families experience because of legally sustained and acceptable voter
suppression schemes based on criminal convictions.
344
Jackson Sow’s work
takes this analysis a step further as she explains how advocating on a morality
and humanity framework will not transform the systems Black women must
navigate.
345
The disenfranchisement maze preserves and benefits white families’
voting rights.
346
Further, one researcher warned, “One important consequence of this legacy
and continuing evolution of voting restrictions is unequal voter turnout in
elections, with white Americans, and particularly affluent white Americans, out-
participating people of color, low-income people, and young people by
significant-to-wide margins.”
347
The exclusion from the ballot box and the other
collateral consequences of the criminalization of Black communities are no
different.
341
Jackson Sow, supra note 336, at 1836 (emphasis omitted).
342
See generally id.
343
Id. at 1832.
344
See supra Section III.A.
345
Jackson Sow, supra note 336, at 1833 (“Seeking antiracist social transformation only
on the basis that white supremacy is morally wrong makes little sense in the face of a social
order for which racist economic exploitation and domination are expressed goals.”); see also
India Thusi, Essay, Blue Lives & the Permanence of Racism, 105 CORNELL L. REV. ONLINE
14, 30 (2020) (“[E]vidence of racial injustice is not enough to promote meaningful change in
this country.”).
346
Jackson Sow, supra note 336, at 1885 (“Because its raison d’être is the consolidation
and domination of wealth and power, white racial contracting will continue until it is no longer
profitable.”).
347
Sean McElwee, Why Voting Matters: Large Disparities in Turnout Benefit the Donor
Class, DĒMOS (Sept. 16, 2015), https://www.demos.org/research/why-voting-matters-large-
disparities-turnout-benefit-donor-class [https://perma.cc/VCD4-HGBR]; see also Ava Ayers,
Voting as Exclusion, 90 FORDHAM L. REV. 373, 389-92 (2021) (describing exclusionary nature
of voting).
2486 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
In fact, Stephanie E. Jones-Rogers, history professor and author of They Were
Her Property: White Women as Slave Owners in the American South,
348
found:
What begins in the colonial period is the emergence of a racially divided
social order where whiteness has a value that being a woman just does not
have . . . . I see time and time again in my research that when white women
are given a choice, they overwhelmingly choose to be empowered by
whiteness and to embrace white supremacy.
349
This racism is well illustrated by situations where those meant to administer and
regulate the electoral process have admitted their white supremacy rationale.
350
For example, when interviewed about people being removed from the voter
rolls, one Oklahoma official “said that election officials ‘pretty well know’ who
has been in trouble with the law,” and in answering another question, “used the
term ‘sambo,’ a racist slur for African Americans.”
351
These attitudes and words
sustain the racism inherent within voter suppression schemes.
352
Their words
and deeds exemplify how the false image of political power for Black women
and communities runs through these voter suppression schemes.
348
See generally Stephanie E. JONES-ROGERS, THEY WERE HER PROPERTY: WHITE WOMEN
AS SLAVE OWNERS IN THE AMERICAN SOUTH (2019).
349
Renée Graham, Opinion, White Women Voters and the Dismantling of Democracy,
BOS. GLOBE (Nov. 4, 2021, 3:45 PM), https://www.bostonglobe.com/2021/11/04/opinion
/white-women-voters-dismantling-democracy; see also GARCIA-HALLET, supra note 159, at
6 (“White mothers benefit from white privilege, in which their lives or the lives of their
children literally do not depend on surviving racial oppression, as those of Black families
do.”).
350
A 2014 federal report by the Presidential Commission on Election Administration
explained, “The United States runs its elections unlike any other country in the world.
Responsibility for elections is entrusted to local officials in approximately 8,000 different
jurisdictions.” PRESIDENTIAL COMMISSION ON ELECTION ADMINISTRATION, THE AMERICAN
VOTING EXPERIENCE: REPORT AND RECOMMENDATIONS OF THE PRESIDENTIAL COMMISSION ON
ELECTION ADMINISTRATION 1 (2014), https://law.stanford.edu/wp-content/uploads/sites
/default/files/publication/466754/doc/slspublic/Amer%20Voting%20Exper-
final%20draft%2001-04-14-1.pdf [https://perma.cc/6V9Z-5F43]. Because of the expectation
that local officials run federal and state elections, they “determine the quality of the voting
experience” on issues that “can involve active—and disputed—interpretations of state law.”
Richard Briffault, Election Law Localism in the Time of COVID-19, U. OF CHI. L. REV.
ONLINE (June 26, 2020), https://lawreviewblog.uchicago.edu/2020/06/26/election-law-
localism-briffault [https://perma.cc/UAA7-XSJK].
351
WOOD & BLOOM, supra note 25, at 7-8.
352
See Joshua S. Sellers, Election Law and White Identity Politics, 87 FORDHAM L. REV.
1515, 1532 (2019) (“[W]hite identity politics is more than just an aberrational feature of
partisan politics; it is a recurrent, durable driver of political outcomes.”).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2487
What we cannot imagine cannot come into being. A good definition marks
our starting point and lets us know where we want to end up. As we move
toward our desired destination we chart the journey, creating a map. We
need a map to guide us on our journey. . . .
—bell hooks
353
IV. ACCESSING THE VOTE
The elevation of racist and sexist views and white voter turnout has substantial
outcomes on elections. For example, sociologists Christopher Uggen and Jeff
Manza found that the exclusion of people with felony convictions from the ballot
box in Florida influenced the outcome of the 2000 presidential election.
354
In
fact, the election would have resulted in the Democratic candidate, Al Gore,
winning in Florida, and, thereby, becoming president, instead of the Republican
George W. Bush ultimately becoming the forty-third president.
355
Applying the
same reasoning, had then Governor Rick Scott restored the voting rights of
Floridians at the rate of his predecessor Governor Charlie Crist, the narrowly
decided 2018 Florida gubernatorial election may have resulted in a defeat of
Governor DeSantis by his Democratic opponent Andrew Gillum.
356
Voter
suppression due to convictions disregards the interests of those it excludes and
influences the outcome of national, state, and local races.
357
And those who endure the continuous practice of white social dominance are
aware of its existence. As Rosemary McCoy reflected in a 2021 interview,
“There’s only one purpose of taking your voting rights away from you, and that
is so that you can be a slave. No one can change my mind about this . . . If a
woman is a slave, her children and grandchildren are a slave.”
358
Voter
suppression schemes proliferated because of racism against Black people and a
societal desire to demolish the voting rights Black men achieved after the Civil
War. This original purpose does not diminish simply because policymakers have
become less transparent and expanded the impact to Black women.
359
353
BELL HOOKS, ALL ABOUT LOVE: NEW VISIONS 14 (1999).
354
See Christopher Uggen & Jeff Manza, Democratic Contraction? Political
Consequences of Felon Disenfranchisement in the United States, 67 AM. SOCIO. REV. 777,
792-93 (2002).
355
Id.
356
Governor Crist restored the voting rights of 150,000 people over four years, but
Governor Scott restored the vote of fewer than 2,900 individuals over eight years. Id. at 247.
Governor DeSantis defeated Andrew Gillum by less than 32,500 votes. November 6, 2018
General Election, supra note 247 (Select “Governor and Cabinet” from “Select Office” drop-
down menu to show gubernatorial election result data).
357
See Bianca Fortis, How Tennessee Disenfranchised 21% of Its Black Citizens,
PROPUBLICA (Nov. 8, 2022, 5:00 AM), https://www.propublica.org/article/tennessee-black-
voters-disenfranchised [https://perma.cc/YRG9-N3GA].
358
Bragg, supra note 305.
359
Angela Olivia Burton & Angeline Montauban, Toward Community Control of Child
Welfare Funding: Repeal the Child Abuse Prevention and Treatment Act and Delink Child
2488 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
This Article has defined the problem at stake: current laws either permanently
deny Black women with a history of convictions their vote or require them to
survive incarceration, pay-to-vote schemes, waiting periods, and other critical
roadblocks to regain their right to vote. The disenfranchisement maze is a
continuation of historical attempts to limit Black women’s interests and to
restrain Black communities without accountability.
The journey to voting access for Black women and their communities’
interests includes abolishing voter suppression based on criminal conviction.
Critically, “[t]o safeguard a democratic future, it is possible and necessary to
weave together the many and increasing strands of resistance to the prison
industrial complex into a powerful movement for social transformation.”
360
Part
of this democratic movement requires normative and legal changes. This Part
proposes ways to move towards a destination that disbands the
disenfranchisement maze and expands the vote to include Black women with
criminal convictions.
361
A. Unshackling Black Women’s Humanity
Society’s image of Black women as the defenders of voting rights conflicts
with Black women’s inability to access the ballot box fully. Black women have
put their faith in the promise of the ballot box even as those with political power
have diminished Black women’s voting interests.
362
Society needs to reckon
with and reject this hypocrisy.
Protection from Family Well-Being, 11 COLUM. J. RACE & L. 639, 662 (2021) (“The concept
of carcerality captures the ways in which white supremacy shapes and organizes society
‘through policies and logic of control, surveillance, criminalization, and un-freedom. . . . The
carceral state, and its punitive processes of criminalization and control, operate in highly
discriminatory ways and have both produced and reinforced massive inequalities along lines
of race, class, gender, sexuality, and other identity categories.’” (quoting Gabrielle French,
Allie Goodman & Chloes Carlson, What Is the Carceral State?, UNIV. OF MICH. CARCERAL
ST. PROJECT (May 2020), https://storymaps.arcgis.com/stories/7ab5f5c3fbca46c38f0b2496bc
aa5ab0 [https://perma.cc/YF8J-STPP])); Ciara Torres-Spelliscy, Electoral Silver Linings
After Shelby, Citizens United, and Bennett, 16 BERKELEY J. AFR.-AM. L. & POL’Y 103, 108
(2015) (noting state “bad actors” have learned to avoid court review frequently when
employing discriminatory practices in elections).
360
Davis, supra note 337.
361
While this Section outlines paths toward greater electoral participation for Black
women with criminal convictions, future scholarship will expand on these proposals more
fully.
362
See DANIELS, supra note 21, at 7 (critiquing United States for disenfranchising people
in a democracy). Stacey Abrams and Nsé Ufot, for example, supported voting rights advocates
and organizers and worked to register voters and increase get-out-the-vote efforts throughout
Georgia to help support Democratic candidates in elections in 2020 and 2021. See supra note
12. While Abrams’s efforts helped other candidates—including President Joe Biden and
Senators Raphael G. Warnock and Jon Ossoff—win their elections, she lost her own 2022 run
for governor of Georgia. See Kingsberry, supra note 76. Abrams’s dedication to voting rights
benefited other candidates but did not result in a electoral win for herself. Alexus Cubmie
2022] BLACK WOMEN AND VOTER SUPPRESSION 2489
To reverse the Black women tax, all individuals would have to consider Black
women not as work mules, but as humans worthy of accessing the ballot box.
Further, society must accept Black women with criminal convictions as human
as well.
363
To do so would require rejecting the racist and sexist caricatures of
Black women that foster voting exclusion for Black women with criminal
convictions and, instead, affirming Black women’s membership in the United
States’ democracy.
364
As Jackson Sow posited, a government that is “genuinely interested in
divesting from predatory policies aimed at draining life, liberty, and property
from Black people for the sake of white profit can do so; they need only divest
from whiteness and invest in a new, actively antiracist social contract in which
Black and Indigenous interests are centered.”
365
In the voting rights context,
divesting from whiteness requires rejecting the continuous benefits white society
receives from denying Black women the right to vote. It requires investing in
organizations and movements that focus on supporting Black women and girls’
access to the safety and security they continue to seek.
366
Doing so will require
sustained changes in the culture and norms that embody white supremacy and
patriarchy.
367
B. Intersectionality Within Voting Rights Legal Analysis
A critical element to changing the societal view of Black women as mules and
ending the Black woman tax requires the law and judicial branch to apply the
intersectionality framework properly.
368
Judges would have to appreciate that
noted, “For another election season, Black women continue to be the backbone of the
Democratic party, but not the face of it.” Id.
363
In explaining his support for people voting while in prison, then Secretary of State of
Maine Matthew Dunlap stated in 2019, “I’m not excusing the actions of anyone who winds
up in prison. But they’re still people, they’re still human beings, they’re still American citi-
zens, and I think this is a process that should belong to every American citizen.” Daniel
Nichanian, “A Sliver of Light”: Maine’s Top Election Official on Voting from Prison, APPEAL
(May 2, 2019), https://theappeal.org/politicalreport/matthew-dunlap-on-voting-in-maine-
interview [https://perma.cc/776B-EUHF].
364
See Powell & Rich, supra note 18, at 120-25; Andre M. Perry, To Protect Black Women
and Save America from Itself, Elect Black Women, BROOKINGS (July 2020),
https://www.brookings.edu/essay/to-protect-black-women-and-save-america-from-itself-
elect-black-women [https://perma.cc/3VT5-FYQH] (emphasizing Black women’s lack of
access to elected office and relegation to “second-class status” because they lack protection).
365
Jackson Sow, supra note 336, at 1887.
366
See Rodriguez, supra note 16 (explaining Black women vote for benefit of all); Bailey,
supra note 16 (noting Black women’s work for universal suffrage).
367
See RESMAA MENAKEM, MY GRANDMOTHER’S HANDS: RACIALIZED TRAUMA AND THE
PATHWAY TO MENDING OUR HEARTS AND BODIES 262-65 (2021) (detailing necessary
processes and actions white people must undergo to remove white supremacy as standard).
368
Some may claim that judges do not have the ability to hold these voter suppression
schemes unconstitutional; they may argue that only the legislature has the authority to address
the harms discussed in this Article. See Richardson v. Ramirez, 418 U.S. 24, 55 (1973)
2490 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
Black women can face discrimination that is different from Black men and white
women. Judicial analysis would have to view Black women holistically; Black
women are not only part of a gender or a race but are part of a race and a gender.
In the lawsuit McCoy and Singleton filed against Governor DeSantis for
violating the Fourteenth Amendment and Nineteenth Amendment rights of
women of color in poverty, the district court judge noted that although the
average woman with LFOs is more greatly impacted than the average man with
LFOs, “the pay-to-vote requirement overall has a disparate impact on men, not
women,” because more men have LFOs.
369
The trial court seemed to agree that,
at least on one important dimension, the LFO requirements disparately impacted
women. Although the district court’s and the Eleventh Circuit’s holdings turned
on whether courts should apply an intentionality and undue burden standard
under the Nineteenth Amendment, the court missed a critical opportunity to
support intersectional harms.
370
C. Mutual Aid Network
While the prior proposals, accepting Black women as members of the
collective and analyzing the law through an intersectional framework, focus on
intangible goals, my third recommendation, the use of mutual aid, seeks to
address the exclusion of Black women more directly. “Mutual aid” projects
provide the resources members need to survive while also critiquing the systems
that block access to the social safety net.
371
As Caitlyn Garcia and Cynthia
(mentioning arguments on negative impact these voter suppression schemes had on
individuals and their being outdated before noting Court’s role was “not . . . to choose one set
of values over the other” and stating legislature could abandon its voter suppression scheme).
For an explanation on how judges can move away from supporting discriminatory laws, see
generally Brandon Hasbrouck, Movement Judges, 93 N.Y.U. L. REV. 631 (2022). As a counter
to the idea that judges are bound by precedent when state law supports discriminatory
practices, Hasbrouck proposes that judges follow an “abolition constitutionalist interpretation
of the Fourteenth and Fifteenth Amendments.” Id. at 693. Under abolition constitutionalism,
“movement judges” must consider “the full constellation of laws in a discriminatory regime
rather than viewing each piece unto itself and concluding that each law independently does
not cross the line.” Id. Judges should follow the true goal of voting access for Black women
and other individuals by holding the disenfranchisement maze unconstitutional overall.
Finding these voter suppression schemes unconstitutional would align with an abolition
constitutionalist interpretation. For example, in his dissenting opinion in Ramirez, Justice
Thurgood Marshall explained that the goal of Section 2 of the Fourteenth Amendment was to
punish southern states who refused to allow eligible Black voters to vote. Ramirez, 418 U.S.
at 73-74 (Marshall, J., dissenting). Therefore, allowing these disenfranchisement mazes to
exist keeps Black people from voting, which is the opposite purpose of the Fourteenth
Amendment.
369
Jones v. DeSantis, 462 F. Supp. 3d 1196 (N.D. Fla.), rev’d and vacated sub nom. Jones
v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020), and aff’d sub nom. Jones v. Governor of
Fla., 15 F.4th 1062 (11th Cir. 2021); see also supra Section II.C.
370
See Bragg, supra note 305.
371
See DEAN SPADE, MUTUAL AID: BUILDING SOLIDARITY DURING THIS CRISIS (AND THE
NEXT) 97-238 (2020) (explaining key elements of mutual aid and communicating tips to avoid
2022] BLACK WOMEN AND VOTER SUPPRESSION 2491
Godsoe explain, “Mutual aid couples material resources with empowerment and
community-building of those impacted by the system, in order to secure real
harm reduction for children and families and transformative change across
communities.”
372
Mutual aid meets people where they are and provides them,
without shame or hoops to jump through, the services and support they need to
navigate society successfully.
373
Members of mutual aid projects work together
to meet each other’s needs, instead of waiting for the government, nonprofits, or
wealthy individuals to save them.
374
In the context of the issues identified in this Article, mutual aid projects
should be led by and focused on the needs of Black women who are directly
impacted by criminal convictions.
375
The projects may collect funds so that these
Black women may address their financial needs with no strings attached.
Additional projects may include paying Black women’s court fines, fees, and
restitution; writing and sending letters to Black women who are incarcerated;
bringing the children of Black mothers to family visits at jails and prisons;
providing childcare so their mothers can attend school, work, or to other
responsibilities; creating a job referral program; and offering stable and safe
housing. These projects and others like it should “directly meet [Black women’s]
survival needs and are based on a shared understanding that the conditions in
which we are made to live are unjust.”
376
Black women have endured the bias
related to their race and gender for centuries and these local mutual aid projects
would address some of the issues that have kept them from being able to pay
court fines and fees, obtain stable housing, and access employment. These
projects and their efforts will raise awareness of Black women’s inability to
access the ballot box because of their convictions and discrimination. The
community would come together not only to support the empowerment of Black
women who have been disregarded by society, but also to address intersectional
barriers.
377
pitfalls of mutual aid communities); Joel Izlar, What Is Mutual Aid?, UNIV. OF GA. SCH. OF
SOC. WORK, https://ssw.uga.edu/news/article/what-is-mutual-aid-by-joel-izlar/
[https://perma.cc/D2RG-MCSH] (last visited Dec. 7, 2022).
372
Caitlyn Garcia & Cynthia Godsoe, Divest, Invest, & Mutual Aid, 12 COLUM. J. RACE &
L. 601, 602 (2022) (proposing mutual aid model and divestment from punitive family
regulation system to support families).
373
See SPADE, supra note 371, at 13.
374
TOOKLKIT: MUTUAL AID 101, at 4 (2022), https://cdn.cosmicjs.com/09a653b0-7545-
11ea-be6b-9f10a20c6f68-Mutual-Aid-101-Toolkit.pdf [https://perma.cc/MY4V-ZNAX].
375
SPADE, supra note 371, at 13 (“This work is based in a belief that those on the front
lines of a crisis have the best wisdom to solve the problems, and that collective action is the
way forward.”).
376
See Dean Spade, Mutual Aid Is Essential to Our Survival Regardless of Who Is in the
White House, TRUTHOUT (Oct. 27, 2020), https://truthout.org/articles/mutual-aid-is-essential-
to-our-survival-regardless-of-who-is-in-the-white-house [https://perma.cc/M8XF-ZE2X]
(providing historical and present-day examples of mutual aid projects).
377
SPADE, supra note 371, at 15.
2492 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
D. State and Federal Initiatives
A crucial element of mutual aid is the civic and communal responsibility to
take part in political reform.
378
While these mutual aid networks would focus on
the survival needs of Black women with criminal histories, the networks would
also work toward the systemic elimination of the disenfranchisement maze.
379
Abolition of voter suppression based on convictions requires coalitions and
strategies that target both state and federal reforms. Danielle Conway has
emphasized, “Black women have consistently proven that their collective
organizing, coalition-building, abolitionism, and contestation have been rooted
in universal humanism, the support of their communities, and in the striving to
expand the power and promise of the democratic ideal of equality for all.”
380
Here, their efforts would focus on the critical need to push for broader
elimination of voter suppression based on convictions through state laws and
ballot initiatives, as well as federal laws and constitutional amendments.
Over the past ten years, some states have moved toward allowing more people
with criminal convictions to vote,
381
but only the District of Columbia has
dropped the disenfranchisement maze altogether in recent years.
382
In allowing
all people who are convicted of criminal offenses the right to vote, Vermont,
Maine, the District of Columbia, and the Commonwealth of Puerto Rico already
recognize the importance of not banning anyone with a criminal record from the
vote.
383
These jurisdictions avoid the damage that occurs when people’s voting
rights are restricted because of their criminal convictions. Pushing for a state-
by-state movement would aim to dismantle the disenfranchisement maze.
384
That said, the collective mutual aid networks and other coalitions should also
work to address abolishing voter suppression schemes nationwide and, thereby,
disenfranchisement by geography. With their efforts blocked in Florida and
other states, voting rights advocates continue to aim for broader policy reform
options. One measure, the For the People Act,
385
was originally introduced in
Congress in 2019 and would have granted people the right to vote after they
completed their term of imprisonment, among other voter access provisions.
386
378
Id.
379
Id. at 41 (explaining mutual aid “means intergroup coordination, the sharing of
resources and information, having each other’s backs, and coming together in coalitions to
take bigger actions”).
380
Conway, supra note 89, at 83.
381
See Historical Timeline: U.S. History of Felon Voting/Disenfranchisement, supra note
123.
382
See 50-State Comparison, supra note 21.
383
See id.
384
See Nora V. Demleitner, Criminal Disenfranchisement in State Constitutions: A
Marker of Exclusion, Punitiveness, and Fragile Citizenship, 26 LEWIS & CLARK L. REV. 531,
563 (2022).
385
For the People Act of 2021, H.R. 1, 117th Cong. §§ 1401-09 (2021).
386
Id. § 1403 (“The right of an individual who is a citizen of the United States to vote in
any election for Federal office shall not be denied or abridged because that individual has
2022] BLACK WOMEN AND VOTER SUPPRESSION 2493
While people still serving a sentence in jail or prison could not vote, millions of
people around the country would have had access to the ballot box upon
release.
387
The unwritten sentence they served by being banned from voting and
having to endure the disenfranchisement maze would no longer be in place.
After expiring at the end of the 116th Congress, legislators filed the Act again
in 2021 where it passed the House of Representatives but stalled in the Senate.
388
At the time this Article was written, the For the People Act of 2021 is dead. Yet
another door closed to people in the disenfranchisement maze, with Black
women and their families left to navigate the consequences.
Although the For the People Act remains stalled in Congress, the ideas behind
supporting more access to the ballot box nationwide have not. A more permanent
means of abolishing the disenfranchisement maze would be to support the
passage of a constitutional amendment protecting the right to vote for all.
389
An
affirmative and unequivocal right to vote, that includes people who are
incarcerated, within the Constitution would require all jurisdictions to respect
the participation of its members in the electoral process.
E. Critiquing Voting Rights for All with Criminal Convictions
All these proposals—shifting norms and stripping away stereotypes of Black
women, embracing intersectionality in the law, taking practical actions, and
engaging in lasting reform—would be critical to addressing the current
exclusion of Black women from the ballot box. Importantly, while this Article
critiques racism and sexism directed at Black women’s votes and the use of the
criminal legal system’s continuing control, all people would benefit from
dismantling the disenfranchisement maze.
While agreeing that the disenfranchisement maze is harmful, critics may
argue that banning voter suppression based on criminal conviction altogether
goes too far. They may claim that those who commit murder, sexual offense,
crimes against the United States, or other criminal offenses do not deserve to
take part in the political process. Supporters of a more restricted
disenfranchisement maze may contend that the actions of individuals who
been convicted of a criminal offense unless such individual is serving a felony sentence in a
correctional institution or facility at the time of the election.”).
387
See id.
388
All Actions H.R.1—117th Congress (2021-2022), CONGRESS.GOV,
https://www.congress.gov/bill/117th-congress/house-bill/1/all-actions?overview
=closed#tabs [https://perma.cc/BKA7-J6YL] (last visited Dec. 7, 2022).
389
See generally Reva Siegel, Why Equal Protection No Longer Protects: The Evolving
Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111 (1997) (discussing how
changes in laws perpetuate race and gender discrimination). For examples of proposed
constitutional amendments that would protect the right to vote for all, see Catharine A.
MacKinnon & Kimberlé W. Crenshaw, Reconstituting the Future: An Equality Amendment,
129 YALE L.J.F. 343, 358-62 (2019); Right To Vote Amendment, FAIRVOTE,
https://fairvote.org/archives/reform_library-right_to_vote_amendment/ [https://perma.cc
/237U-FA54] (last visited Dec. 7, 2022).
2494 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:2431
commit certain crimes require punishment in the form of exclusion from the
ballot.
This perspective, however, ignores how voter suppression due to convictions
has controlled and limited Black women and so many other communities
throughout history, as this Article proves. Selective application of voter
suppression schemes supports the enslavement of another human being.
390
Criminal convictions and the right to vote should be disentangled. Black women
have led the effort for universal suffrage because, as Maya Angelou noted, “The
truth is, no one of us can be free until everybody is free.”
391
Here, freedom from
the disenfranchisement maze means the end of voter suppression schemes
triggered by criminal convictions for all. It also means millions more people
around the nation accessing the ballot box. To exclude certain groups of
people—people in poverty, Black women, people convicted of murder or sexual
offenses—would reinforce the discriminatory policies and practices that exist
and work to marginalize individuals.
392
Admittedly, allowing people to vote without regard to their criminal records
will not stop all the voter suppression tactics states have implemented in recent
years.
393
Nonetheless, being able to vote is a crucial step in empowering Black
women’s voting participation, as well as people of other demographic identities.
390
See Appellants’ Brief at 1, Jones v. Governor of Fla., 15 F.4th 1062 (11th Cir. 2021)
(No. 20-12304) (“[T]o take away [the right to vote] is to reduce a [person] to a state of slavery,
for slavery consists in being subject to the will of another . . . .” (alterations in original)
(quoting PAINE, supra note 40, at 19)).
391
Colleen Curry, Maya Angelou’s Wisdom Distilled in 10 of Her Best Quotes, ABC NEWS
(May 28, 2014, 10:00 AM), https://abcnews.go.com/Entertainment/maya-angelous-wisdom-
distilled-10-best-quotes/story?id=23895284 [https://perma.cc/C4HS-QER3]; see also Audre
Lorde, Keynote Address: The NWSA Convention: The Uses of Anger, in WOMEN’S STUD. Q.,
Fall 1981, at 7, 10 (“I am not free while any woman is unfree, even when her shackles are
very different from my own. And I am not free as long as one person of Color remains chained.
Nor is anyone of you.”).
392
Dean Spade, Their Laws Will Never Make Us Safer, in AGAINST EQUALITY: PRISONS
WILL NOT PROTECT YOU 4 (Ryan Conrad ed., 2012) (emphasizing racism and discrimination
behind who gets arrested, convicted, and punished within legal systems).
393
See Block the Vote: How Politicians Are Trying To Block Voters from the Ballot Box,
AM. C.L. UNION (Aug. 18, 2021), https://www.aclu.org/news/civil-liberties/block-the-vote-
voter-suppression-in-2020 [https://perma.cc/PA6K-ABUR] (analyzing legislative and
constitutional measures states have engaged in to make voting more difficult, especially for
“people of color, students, the elderly, and people with disabilities”).
2022] BLACK WOMEN AND VOTER SUPPRESSION 2495
When you create a situation where a people’s history is erased, then that
is an extreme form of violence. . . . That history of resistance is a threat to
existing political order, and so it needs to be actively reclaimed.
—Rebecca Hall
394
CONCLUSION
Should voter suppression schemes continue, legislators, executive leaders,
and the judiciary will be sanctioning—with clear knowledge of the
disenfranchisement mazes’ roots and impact—continued discrimination against
Black people, and Black women in particular. Although they have failed too
many times before, the federal government and states must end all conviction
disenfranchisement mazes. It is time to reverse Black women’s removal from
the electorate and address the systems and policies that suppress their ability to
vote. While the federal and state governments and the public authorize
discriminatory practices to gatekeep who gets to vote, communities suffer and
must work tirelessly to access the right that others access easily.
395
The right to
vote should not depend on one’s race, gender, wealth, location, or criminal
record, and history must stop repeating itself.
When demanding the unequivocal support and action of white people in
ending the lynching of Black people in 1901, Ida B. Wells-Barnett demanded
“that the silence of concession be broken, and that truth, swift-winged and
courageous, summon this nation to do its duty to exalt justice.”
396
The same
principle applies to dropping these unjust disenfranchisement mazes. Laws and
systems must enable the full political power of all by dismantling voter
suppression due to criminal convictions. Society must move closer to the
change, square deal, truth, benefit, destination, and reclaiming Black women
have been demanding for far too long.
394
Julianne McShane, New Graphic Novel Reveals Black Women’s Hidden Role in Slave
Revolts, NBC NEWS (Aug. 3, 2021, 3:18 PM), https://www.nbcnews.com/news/nbcblk/new-
graphic-novel-reveals-black-womens-hidden-role-slave-revolts-rcna1573
[https://perma.cc/88NH-F4RR].
395
See supra Part II.
396
Ida B. Wells Barnett, Lynching and the Excuse for It, 53 INDEPENDENT 1133, 1136
(1901), https://digital.lib.niu.edu/islandora/object/niu-gildedage%3A24185 [https://perma.cc
/FCM3-C53Z].
