Cuz I'm Young & I'm Black & My Hat's Real Low: Constitutional Rights To The Political Franchise For Parolees Under Equal Protection by Shaylen Roberts, Esq.

‘Cuz I’m Young & I’m Black & My Hat’s
Real Low : Constitutional Rights to the

1
Political Franchise for Parolees Under

Equal Protection
Shaylen Roberts, Esq.*
INTRODUCTION
The right to vote is highly treasured and deeply symbolic of the unique
freedom afforded to the American citizen.2 The loss of democratic
participation due to criminal history lies at the other end of the freedom
spectrum, illustrating the tension that exists between America’s founding
democratic principles and the reality of our modern social structure.3
* Prosecutor at the Hillsborough County Attorney's Office in Manchester,

NH. New England Law | Boston Graduate (2018). M.S.W., Silberman
School of Social Work at Hunter College (2009). B.S, Social Work, Skidmore
College (2008). All of my gratitude and love to my amazing Mom, my
sister, and MC for their unwavering love and support. I would also like to
thank Professor Hansen for his teaching and guidance during my time at
New England Law, and Professor Friedman for his guidance and help with
this Note. Special thanks is owed to Amanda Palmeira for her
encouragement and steadfast friendship. This Note is dedicated to my
father, Denis Roberts, who is with me everyday. Lastly, thank you Hip-
Hopyou taught me lessons before I knew I needed to learn them.
1 JAY-Z, 99 PROBLEMS (Columbia Records 2003) (responding through
lyrics to a police officer’s questioning “Son, do you know why I’m stoppin’
you for?”).
2 See Nicholas Rathod, Honoring Rosa Parks: Moving From Symbolism to
Action, CTR. FOR AM. PROGRESS (Dec. 1, 2005, 9:00 AM), https://perma.cc/
ZW5M-DHLJ (discussing voting as a symbolic right as it pertains to the
Civil Rights movement and the disenfranchisement of African Americans).
3 WILLIAM E. HUDSON, AMERICAN DEMOCRACY IN PERIL: EIGHT
CHALLENGES TO AMERICA’S FUTURE 177 (2012) (“[D]emocratic elections in a
representative democracy must provide the opportunity for the equal
representation of all citizens.”).
126
2019] Cuz I’m Young & I’m Black 127
Denying the vote to the adjudicated is discriminatory based on the

institutional racism of the criminal justice system. 4 This racism has long
been justified, among other things, as a de facto consequence of modern
criminal law and is rarely afforded the protection of the Constitution. 5
However, statistical data shows racial targeting of black Americans, which
is even more prominently reflected by the lack of equal representation in
the criminal justice system.6 Restrictive laws that bar the adjudicated from
civic participation arguably serve an “invidious discriminatory purpose
[which can be] inferred from the totality of the relevant facts . . . [which
reveal that such] discrimination is very difficult to explain on nonracial
grounds,”7 rendering them unconstitutional.8
Parolees represent a unique subset of the disenfranchised population
that are expressly and immediately entitled to the right to vote under the
Equal Protection Clause of the Fourteenth Amendment. 9 If the incarcerated
are disproportionately classified by their race and are subject to
adjudication based on racially motivated policies, then, so are those on
parole.10 Parolees are in that they have fulfilled the terms of their
confinement.11 Eligible incarcerated persons are released under parole
supervision in order to safely and successfully reintegrate into the
community and contribute productively to society.12 Without the vote, one
4 See Aaron Macarow, Our Prison System is Even More Racist than You
Think, ATTN (Aug. 31, 2015), https://perma.cc/EVG9-C649 (“Black men are

disadvantaged at every stage in the justice system from arrest through
parole”).
5 See Clarence M. Dunnaville Jr., Unequal Justice Under the Law – Racial
Inequities in the Justice System, 2000 VA. LAW. MAG. 20, 20 https://perma.cc/
9GC5-XE42 (“The manifestation of a criminal justice system that de facto
distributes separate, unequal standards of justice for whites and African
Americans . . . has created a mushrooming prison population that is
overwhelmingly black and Hispanic.”).
6 See Fact Sheet: Prisons and People in Prison, THE SENTENCING PROJECT,
https://perma.cc/B695-5RJN (last updated Aug. 2017).

7 Washington v. Davis, 426 U.S. 229, 242 (1976).
8 See Id.
9 U.S. CONST. amend. XIV.
10 See Fact Sheet: Prisons and People in Prison, supra note 6 (providing
updated demographic information about the American prison population).

11 See generally To Solve Homelessness for a Night, You Need Shelter. To Solve
it for Good, You Need Work, THE DOE FUND, https://perma.cc/8AUY-SNVL

(last visited Feb... 22, 2018), (providing wrap around work programming
for the formerly incarcerated shown to successfully reduce recidivism and
promote meaningful community engagement).
12 See Dr. Bruce Bayley, Laura Gutierrez, Karen Stringham & Jean
128 New England Law Review [Vol. 52
can never fully experience authentic and meaningful American

citizenship.13 Because so many black voices are disproportionately silenced
by state laws that disenfranchise parolees, election results can never be
truly representative of all Americans.14
This Note will argue for the Constitutional protection of voting rights
for parolees under the Equal Protection Clause of the Fourteenth
Amendment. Part I will provide background information of mass
incarceration, the parole system, and the history of voting rights as they
pertain to the disenfranchisement of felons. Part II will explain the
importance of the immediate enfranchisement of parolees through
Constitutional means due to the current political climate and the state of
race relations in the criminal justice system. Part III will argue that
parolee’s voting rights should be protected under the Fourteenth
Amendment because they discriminate against a class subversively defined
by race, affect a fundamental right, and are motivated by racial animus.
Parolees are similarly situated to free citizens and present no risk to public
safety or injecting bad moral character into the community by exercising
their right to vote. These laws serve no legitimate or compelling state
interest. Part IV will argue that parolee disenfranchisement laws are not
legitimate because incarcerated persons maintain their fundamental rights,
and parolees are still afforded fundamental rights similar to the right to
vote upon release from prison.
Part I – Background
A. Felon Disenfranchisement and Mass Incarceration
Felon disenfranchisement laws have been a recurring topic of

constitutional debate, based chiefly on their link to racial discrimination
and contribution to the uniquely American epidemic of mass
incarceration.15 Today, there are 2.2 million people incarcerated in the
United States, which is the largest per capita imprisoned population in the
Kapenda, Why we incarcerate: Rehabilitation, ETHICS IN CORRECTIONS (Jul. 16,

2012), https://perma.cc/2ZTA-HRD9 (“The assumption is that individuals
are not criminals all the time and that it is possible to reform them . . . ”).
13 See Katie Rose Quandt, 1 in 13 African-American Adults Prohibited from
Voting in the United States, BILLMOYERS (Mar. 24, 2015),

https://perma.cc/6B2Z-D3C9 (“[V]oting is negatively correlated with
recidivism.”).
14 See id.
15 See generally Fact Sheet: Prisons and People in Prison, supra note 6
(providing updated demographic information about the American prison

population).
world.16 Persons of color, namely, black American men from heavily

policed urban areas, are disproportionately represented within the prison
and post release populations.17 Mass incarceration and its consequences
have been newly popularized through literature,18 film, and music.19
Despite the recent media recognition, the racial subterfuge driving this
epidemic has been an alarming and evidence-based sociological theory for
some time, which is starkly juxtaposed against the judiciary’s practical
adjudication of crime.20
American mass incarceration was largely driven by the overzealous
prosecution of drug crimes throughout the Reagan and Clinton
administrations.21 The Reagan regime imposed sweeping reforms on the
prosecution of drug crimes via the infamous War on Drugs and its ill-fated
“Just Say No” campaign.22 The War on Drugs called for a national “crack
down” on all drug related crimes, including non-violent offenses like small
16 Fact Sheet: Prisons and People in Prison, supra note 6.

17 See Fact Sheet: Trends in U.S. Corrections, THE SENTENCING PROJECT 5
(June 2018), https://perma.cc/SK6C-9EZV.
18 See Michelle Alexander, Ta-Nehisi Coates’s ‘Between the World and Me’,
N.Y. TIMES (Aug. 17, 2015), https://perma.cc/2TEL-G8RP (reviewing the

N.Y. Times best-seller: “Coates emphasizes over and over and over the
apparent permanence of racial injustice in America.”).
19 See, e.g., 13TH (Netflix 2016) (detailing the racist roots of mass
incarceration from the ratification of the Thirteenth Amendment); NAS, If I
Ruled the World (Imagine That), on It Was Written (Columbia Records 1996)
(“I’d open every cell in Attica, send ‘em to Africa.”); JAY-Z, supra note 1
(“And there I go, trapped in the Kit-Kat again/Back through the system
with the riff-raff again.”).
20 See e.g., Deborah J. Vagins & Jesselyn McCurdy, Cracks in the System:
Twenty Years of the Unjust Federal Crack Cocaine Law, ACLU (2006),
https://perma.cc/U9XF-QYYQ (“[S]entencing disparities punishing crack
cocaine offenses more harshly than powder cocaine offenses unjustly and
disproportionately penalize African American defendants for drug
trafficking comparable to that of white defendants.”).
21 See Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: or
Why the ‘War on Drugs’ Was a ‘War on Blacks’, 6 J. OF GENDER, RACE & JUST.
381, 386 (2002) (“[T]he War on Drugs should be understood as a special
case of what war has always been – the employment of force and violence
against certain communities . . . to attain certain political objectives.”).
22 See Aviva Shen, The Disastrous Legacy of Nancy Reagan’s, ‘Just Say No’
Campaign, THINKPROGRESS (Mar. 6, 2016), https://perma.cc/K8D4-4L46

(“Instead of convincing kids not to use drugs, the hysteria around drug use
by young people helped create some of the most destructive mechanisms
of mass incarceration.”).
scale possession and street level distribution,23 creating inordinately high

arrest rates for vulnerable populations, especially black men. 24
Ta-Nehisi Coates is a best-selling author and a famed correspondent
for the Atlantic, most notably for his writing regarding socio-cultural
issues, the American political realm and the related inherent injustices
experienced by people of color.25 He best describes the current state of the
American criminal justice system as a direct consequence of these decades
of discriminatory legislation:
The carceral state has . . . become a credentialing institution. . . . [It]
pushes you out of the job market . . . disqualifies you from feeding your
family with food stamps . . . allows for housing discrimination based on
criminal-background checks . . .[and] increases your risk of homelessness
[and] . . . of being incarcerated again.26
The Clinton administration’s 1994 Violent Crime Control and Law
Enforcement Act (“Crime Bill”) worked to further solidify the American
criminal justice system as a racist mechanism by reinforcing virtually every
punitive facet of criminal justice, from arrest to parole supervision. 27 The
Crime Bill expanded funding for prisons, law enforcement practices, and
implemented “three-strikes legislation,”28 which imposed mandatory life
sentences on repeat felony offenders, whose crimes were not necessarily
violent.29
On its face, the Crime Bill was intended to counteract a purported rise
23 See generally CORRECTIONAL ASS’N OF N.Y., Drop the Rock Coalition,

https://perma.cc/WU6V-R4AR (last visited Nov. 24, 2018) (providing
background surrounding harsh prosecution of small scale drug crimes in
New York based on Reagan era state legislation).
24 See Vagins and McCurdy, supra note 20 (explaining the unfair
sentencing structure of harsher punishment for crack possession versus

that of powder cocaine: “because of its relative low cost, crack cocaine is
more accessible for poor Americans, many of whom are African
Americans”).
25 See Ta-Nehisi Coates, THE ATLANTIC, https://perma.cc/9VR5-Q7CS (last
visited Nov. 24, 2018).

26 Ta-Nehisi Coates, The Black Family in the Age of Mass Incarceration, THE
ATLANTIC (Oct. 2015), https://perma.cc/4B9U-QP9T.

27 See Violent Crime and Control and Law Enforcement Act of 1994, Pub.
L. 103–322, 108 Stat. 1796 (1994) (hereinafter Crime Bill).

28 18 U.S.C. § 3559(c) (1987) (“The defendant receives mandatory life
imprisonment if he or she: is convicted in federal court of a ‘serious violent

felony’ and has two or more prior convictions in federal or state courts, at
least one of which is a felony, the other prior offense may be a ‘serious
drug offense.’”).
29 Crime Bill, supra note 27.
in violent crime through the late 1980s and early 1990s. 30 During the 2016
Presidential campaign, former President Bill Clinton admitted to the
negative contributions the Crime Bill made to mass incarceration and its
racial stigmatization.31 Hillary Clinton incorporated this regret as a
platform for her potential administration, adding: “I am focused on a
comprehensive approach toward fixing the system, going after systemic
racism and ending private prisons and the incarceration of low- level
offenders.”32 The former First Lady received harsh criticism surrounding
her past support of the Crime Bill, notably for its racially motivated
policies.33 The Clinton era increase of punishable felonies, non-
discretionary funding for urban policing, and support of mandatory
minimum sentencing practices solidified the reality that post- release life of
the American felon isdefined by discrimination and disadvantage.34
For the individual, incarceration has many “collateral consequences,”
which are extrapolated to the community and last long after release. 35
30 See Meghan Keneally, What’s Inside the Controversial 1994 Crime Bill
That’s Plaguing Hillary Clinton on the Campaign Trail, ABCNEWS (Apr. 11,
2016 3:11 PM), https://perma.cc/56TD-66Z4 (“[I]t came at a time when
violent crime was at staggering heights. According to the FBI, there were
more than 713 violent crimes per 100,000 people in 1994.”).
31 See Robert Farley, Bill Clinton and the 1994 Crime Bill, FACTCHECK.ORG
(Apr. 12, 2016), https://perma.cc/F35N-QPZH (remarking: “I signed a bill

that made mass incarceration worse,” at an NAACP meeting in
Philadelphia).
32 Glenn Minnis, Hillary Clinton Admits She Regrets Role in 1994 Mass
Incarceration Crime Bill, LATINPOST (Mar. 7, 2016), https://perma.cc/9R8V-

5XCA.
33 See Jonathan Capehart, Hillary Clinton on ‘Superpredator’ Remarks: ‘I
Shouldn’t Have Used those Words’, WASH. POST (Feb. 25, 2016),
https://perma.cc/Q4G9-R7PE (discussing Clinton’s over publicly
categorizing young black men as ‘super-predators’ in a speech supporting
the passage of the Crime Bill).
34 See Christie Thompson, What Happens When an Entire City Becomes a
Drug-Free School Zone, THINKPROGRESS (Apr. 14, 2014),

https://perma.cc/GMJ3-EXQ3 (detailing the unavoidable nature of elevated
sentencing factors as applied to poor communities versus their privileged
counterparts: “They now hit almost any urban drug crime with an extra
felony, one that was meant to punish dealing to school kids. Meanwhile,
drug offenders in whiter, wealthier, spread-out suburbs and towns rarely
face the same consequences.”).
35 See generally INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES
OF MASS IMPRISONMENT (Marc Mauer & Meda Chesney-Lind, Eds., 2002)

(collecting essays related to the biopsychosocial consequences of
incarceration and its disparate impact, including medical consequences,
Generally, felons, including those on parole, lose certain civic rights even
after their societal debt has been paid in time behind bars.36 Felon
disenfranchisement is a hotly debated matter of state action, constitutional
protection, and disparate treatment and impact. 37 States are free to regulate
the voting rights of ex-felons and parolees (ranging from no voting
restriction for convicted felons to lifetime banning). 38 These laws have a
counterintuitive effect on the rehabilitative goals of the prison and post
release systems.39
Michelle Alexander’s The New Jim Crow, is a cornerstone of textual
theory regarding America’s continued oppression of black Americans
through the penal system.40 Alexander’s discussion of the carefully crafted
racism built into the criminal justice system illustrates a reality that is
impossible to ignore, even from a place of privilege: “Once you’re labeled a
felon, the old forms of discrimination—employment discrimination,
housing discrimination, denial of the right to vote, denial of educational
opportunity, denial of food stamps and other public benefits, and exclusion
from jury service—are suddenly legal.”41
The political disenfranchisement of the adjudicated is often dated back
to the influence of the British on the founding fathers, and their vague
familial breakdown and lack of civic engagement).

36 See Criminal Disenfranchisement Laws Across the United States, BRENNAN
CTR. FOR JUSTICE, https://perma.cc/H8LY-KEZ2 (last updated Nov. 7, 2018)

(showing that only sixteen states restore voting rights immediately upon
release from prison, regardless of conviction or post release status).
37 See Felony Disenfranchisement Laws in the United States,
SENTENCINGPROJECT.ORG (Apr. 28, 2014), https://perma.cc/7F9V-P4JR (“The
momentum toward reform of these policies has been based on a
reconsideration of their wisdom in meeting legitimate correctional
objectives and the interests of full democratic participation.”).
38 See id.
39 See Todd R. Clear, The Effects of High Imprisonment Rates on

Communities, 37 CHI. J. OF CRIME & JUST. 97, 107–08 (2008) (“For example, if
going to prison reduces a person’s ability to get and to keep a job, even by
a small factor, then the neighborhoods where many people have been to
prison are also neighborhoods where those people have trouble in the job
market. The implications include higher unemployment and lower
incomes.”).
40 See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS
INCARCERATION IN THE AGE OF COLORBLINDNESS (2010).
41 Id. at 2 (“As a criminal, you have scarcely more rights, and arguably
less respect, than a black man living in Alabama at the height of Jim Crow.
We have not ended racial caste in America; we have merely redesigned
it.”).
notion of socially accepted moral standards through the punitive infliction

of a “civil death.”42 Anyone who was deemed to have committed a “moral
abomination” was permanently barred from any form of civic
engagement.43 As the country moved toward independence, the term
“moral abomination” became synonymous with “felony” in the context of
criminal law.44 While some states have less stringent restrictions on the
franchise rights of the adjudicated, there are twelve states that “restrict
voting rights even after a person has served his or her prison sentence and
is no longer on probation or parole; such individuals in those states make
up over 50 percent of the entire disenfranchised population.”45
Removing the right to vote for persons who are reintegrating within
the community sends the damaging psychological message that an
individual is no longer worthy of civic influence and are effectively
rendered second class,46 a factor that contributes to a higher likelihood of
recidivism.47 When viewed against the backdrop of mass incarceration and
42 See Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the
Era of Mass Incarceration, 160 U. PA. L. REV. 1789, 1790 (2012),

https://perma.cc/6WM9-K7DX (“Civil death extinguished most civil rights
of a person convicted of a crime and largely put that person outside of the
law’s protection.”).
43 See Janell Ross, The Race-Infused History of Why Felons Aren’t Allowed to
Vote in a Dozen States, WASH. POST (May 24, 2016), https://perma.cc/D48J-

NYV6 (“People convicted of . . . so-called moral abominations were
effectively rendered dead, unable to vote or engage in other aspects of
public life.”).
44 See id.
45 Felony Disenfranchisement: A Primer, THE SENTENCING PROJECT (2017),
https://perma.cc/2J6Z-ZARP (providing data about individual state felon

disenfranchisement status); see Gabriel J. Chin, The New Civil Death:
Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789,
1790 (2012) (referring to the decline of the use of the Civil Death:
“Policymakers recognized that almost all convicted persons rejoin society .
. . it was wise and fair to allow them to participate in society with some
measure of equality.”).
46 See Gregg D. Caruso, Why Prisoners and Ex-Felons Should Retain the
Right to Vote, PSYCHOL. TODAY (Nov. 6, 2016), https://perma.cc/TN7M-CC5E

(quoting a Guardian article: “A prisoner’s rehabilitation as a safe,
responsible and productive member of society must include the most basic
right of democratic process–the right to choose who governs us. To remove
this right dehumanizes prisoners.”).
47 See Susan Greenbaum, Restore Voting Rights to Ex-Felons, AL JAZEERA
AMERICA (Feb. 24, 2014), https://perma.cc/8JPQ-SXJY (“Research indicates

the re-enfranchising felons cuts the rate of recidivism by at least 10
percent.”).
alongside the racial demographics of the prison and parole population,48 a

pattern emerges, indicating some communities as “less than”, despite
being held to the same moral standard of those who are privileged by a
more equal application of the law, who are often policed less.49
B. Voting Rights
Voting is a fundamental right, protected by the Constitution.50 In Yick

Wo. v. Hopkins, the Supreme Court defined fundamental nature of the right
to vote under the Fourteenth Amendment, holding that: “though [voting
is] not regarded strictly as a natural right, but as a privilege merely
conceded by society according to its will, under certain conditions,
nevertheless it is regarded as a fundamental political right, because it is
preservative of all rights.”51 Justice Blackmun’s concurring opinion in
Plyler v. Doe accurately summarized the fundamental importance of the
political franchise under the Equal Protection Clause:
[T]he right to vote is accorded extraordinary treatment because it is, in
equal protection terms, an extraordinary right: a citizen cannot hope to
achieve any meaningful degree of individual political equality if granted
an inferior right of participation in the political process. Those denied the
right to vote are relegated, by state fiat, in a most basic way to second-class
status.52
After the Civil War, the Fifteenth Amendment was ratified, offering
explicit recognition of the right to vote for African Americans, declaring:
“[t]he 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 race, color, or
48 Christopher Hartney & Linh Vuong, Created Equal: Racial and Ethnic
Disparities in the US Criminal Justice System, NAT’L COUNCIL ON CRIME AND

DELINQUENCY 24-25 (Mar. 2009),
https://perma.cc/7RQQ-C3ZD (“Nationwide in 2006, African Americans
were on parole at 5.2 times the rate for Whites.”).
49 See Brent Staples, The Racist Origins of Felon Disenfranchisement, N.Y.
TIMES (Nov. 18, 2014), https://perma.cc/PQG5-VHCV (“[T]hat most states

view people who have served time in prison as beyond the protection of
the bedrock, democratic principle of the right to vote shows how terribly
short this country has fallen from achieving its ideals.”).
50 Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
51 See id. at 370 (“[T]he very idea that one man may be compelled to hold
his life, or the means of living, or any material right essential to the
enjoyment of life, at the mere will of another, seems to be intolerable in any
country where freedom prevails, as being the essence of slavery itself . . . .
The case of the political franchise of voting is one.”).
52 Plyler v. Doe, 457 U.S. 202, 233 (1982).
previous condition of servitude.”53 Almost a century later, the Voting

Rights Act of 1965 was passed nationally to recognize and overturn facially
neutral state regulations of voter registration intended to keep persons of
color from voting, mostly implemented in response to the ratification of the
Fifteenth Amendment.54
There have been judicial challenges to felony disenfranchisement
under several theories, including violation of the Equal Protection Clause
of the Fourteenth Amendment.55 Thus far, the Court has upheld most of
these laws citing lack of discriminatory intent, pointing out that the mere
existence of a discriminatory effect of a policy is not unconstitutional
without the backing of a discriminatory purpose. 56 Despite centuries of
pointed historical significance and documented racial motivation, states
maintain the right to restrict the voting rights of their citizens based on
criminal history without a judicial check.57
Alabama has a notoriously strict felony disenfranchisement structure
and is known for utilizing facially neutral mechanisms to discriminate
53 U.S. CONST. amend. XV, § 1.

54 The Voting Rights Act (1965), OUR DOCUMENTS, https://perma.cc/S6ZD-
AVJ7 (last visited Nov. 24, 2018) (“The act to enforce the Fifteenth
Amendment to the Constitution was signed in to law ninety-five years
after the amendment was ratified. In those years, African Americans in the
south faced tremendous obstacles to voting, including poll taxes, literacy
tests and other bureaucratic restrictions to deny them the right to vote.”).
55 See Richardson v. Ramirez 418 U.S. 24, 56 (1974) (holding that felons
on parole did not have a constitutional right to vote and upholding a

California disenfranchisement law).
56 See Washington v. Davis, 426 U.S. 229, 239, 242 (1976) (holding that: "a
law or other official act, without regard to whether it reflects a racially

discriminatory purpose, [is not] unconstitutional solely because it has a
racially disproportionate impact. . . Disproportionate impact is not
irrelevant, but it is not the sole touchstone of the invidious discrimination
forbidden by the Constitution.”); Richardson, 418 U.S. at 75 (It is clear that §
2 was not intended . . . to be a limitation on the other sections of the
Fourteenth Amendment. . . [I]t provides a special remedy. . . to cure a
particular form of electoral abuse—the disenfranchisement of Negroes.
There is no indication that the framers of the provisions intended that
special penalty to be the exclusive remedy for all forms of electoral
discrimination. This Court has repeatedly rejected that rationale.”).
57 See 6 Million Lost Voters: State Level Estimates of Felony
Disenfranchisement, 2016, THE SENTENCING PROJECT 1, 3-4, 9 (2016),
https://perma.cc/Z6SA-VMLH (“One in 13 African Americans of voting age
is disenfranchised, a rate more than four times greater than that of non-
African Americans.”).
against black voters.58 Alabama’s state constitution explicitly excludes from

voting “anyone convicted of a felony involving moral turpitude,” which
“as a practical matter, disenfranchises over a quarter million of the state’s
citizens and disenfranchises black voting-age citizens at three times the rate
of white voting age citizens.”59
The use of this “moral turpitude” standard to restrict the right to vote
is unconstitutional.60 In Hunter v. Underwood, the Supreme Court held that
Alabama’s constitutional standard to disenfranchise any felon who had
“committed a crime of moral turpitude,” was unconstitutional under the
Fourteenth Amendment because of masked discriminatory intent. 61 The
Court did uphold the right of the state to bar parolees and ex-felons from
voting under the reasoning of § 2, but struck down the decision of voting
based on a moral turpitude standard. 62 Despite this holding, the state
continues to use this standard to prohibit citizens from voting based on
their felony status, and, completely bans individuals on parole from civic
participation.63 Not only does this standard remain unchecked, Alabama
provides no official enumeration as to which felonies are crimes of moral
turpitude; the decision of whether a person who has a felony conviction
can vote is left to the discretion of each polling official. 64 In 2015, a group of
58 See Mark Joseph Stern, Alabama’s Failure of Moral Turpitude, SLATE (Oct.
6, 2016, 3:22 PM), https://perma.cc/PGB6-6XUJ (“Alabama’s law . . . is a
direct descendent of their 1901 constitution, which had the explicit purpose
of disenfranchising black voters.”).
59 Danielle Lang, Thompson v. Alabama: Addressing the Racist Roots of Felon
Disenfranchisement, AMERICAN CONSTITUTION SOCIETY (Sept. 30, 2016),

https://perma.cc/2ZKC-DMYN (providing background and overview of the
pending lawsuit).
60 See generally Hunter v. Underwood, 471 U.S. 220 (1985).
61 Id. at 233 (“We simply observe that its original enactment was
motivated by a desire to discriminate against blacks on account of race and

the section to this day has that effect . . . it violates equal protection under
Arlington Heights.”).
62 See Richardson, at 75.
63 See ALA. CONST. art. VIII, § 177(b) (“No person convicted of a felony
involving “moral turpitude or who is mentally incompetent, shall be

qualified to vote until restoration of civil and political rights or removal of
disability.”).
64 See Lang, supra note 59. (“[Felons] have no way [of knowing] if their
crime is disqualifying, but are required to sign under the penalties of

perjury that they have not been convicted of [such] in order to register to
vote. If they do submit an application, which few do, voter registrars
decide on an ad hoc basis whether . . . a felony conviction is
disqualifying.”).
attorneys filed suit against the state of Alabama in an unprecedented case

alleging that voting laws in Alabama were designed to keep persons of
color from voting at an equal rate with white citizens due to their criminal
conviction status, which acts as a subversive way of classification based on
race.65
C. Parole
One cannot discuss the consequences and constitutional implications of

the right to vote without considering imprisonment in all of its forms,
specifically, those living in the community under post-release
supervision.66 Parolees represent a subset population within that of the
politically disenfranchised whose lack of voting rights are particularly
arbitrary.67 The basic reasoning for parole release of an incarcerated
individual can be simplified: “while people must be punished for
wrongdoing, most are capable of growing, changing and rejoining society
before the end of their sentence.”68 Generally, once an inmate is granted
parole, he is released from prison to an approved address and is subject to
abide by specific stipulations, and, is subject to lowered liberty protections
for the duration of his parole.69 Should an individual violate the conditions
of his supervised release he is subject to be remanded to prison. 70 Parole is
granted after a hearing, in which a board of parole evaluates different
factors, including an individual’s actions while incarcerated and his or her
ability to reintegrate safely to the community.71 Democrats and
65 See Thompson v. Alabama, No. 2:16-cv-00783-WKW-CSC (M.D. Ala.)

(2015) (describing the plaintiffs as “a class of unregistered persons
otherwise eligible to register to vote in Alabama who are now, or may be in
the future, denied the right to vote because they have a felony.”).
66 See Hillard M. Sterling, Parole, 76 GEO. L. J. 1182, 1182 (1988)
(explaining that the purpose of parole “is to integrate prisoners into society
by allowing them to serve a portion of their sentences outside of prison.”).
67 See How Parole Works U.S. DEPT. OF JUSTICE, https://perma.cc/6HTW-
EC36 (last visited Oct. 24, 2018) (“Appropriate paroling release guidelines
which are formatted in a manner that reduces disparity . . . and promotes
respect for the system.”) (emphasis added).
68 Editorial Board, New York’s Broken Parole System, N.Y. TIMES (Feb. 16,
2014), https://perma.cc/P2V7-NL6K.
69 See U.S. ex rel Santos v. N.Y. Bd. of Parole, 441 F.2d 1216, 1218 (2d. Cir.
1971) (“A search which would be unlawful if directed against an ordinary

citizen may be proper if conducted against a parolee.”).
70 See How Parole Works, supra note 67.
71 See Jean Trounstine, Beyond the Bars of Hopelessness: How We Can Revive
Parole, PRISON LEGAL NEWS (Feb. 17, 2017), https://perma.cc/3KC6-Z768

(“[Advocacy groups] urge that parole boards assume that parole
Republicans alike have become advocates for the parole system relating it
to a shared goal of undoing mass incarceration, compelled by human rights
concerns and economic reasoning.72
Much of a parole board’s eligibility determination is a furtive process,
based on the same vague moral standards that drive felon
disenfranchisement legislation.73 The process of parole eligibility is not
taken lightly, and, is often rigorous, intrusive, and anxiety provoking.74
Theoretically, when an individual is deemed eligible for parole, they are
deemed better capable of taking the necessary steps to leave the criminal
justice system behind, and to be afforded the rights of their restored
citizenship.75
II. Part II – The Problem or Issue Being Addressed
The 2016 Presidential Election divided the American population by

more than just party lines and political leanings.76 Donald Trump’s
unapologetic bigotry,77 and Hillary Clinton’s checkered political
candidates are suited for release at the initial, and especially subsequent,
parole hearings unless an individual is deemed to pose an unreasonable
public safety risk”).
72 See generally RIGHT ON CRIME, https://perma.cc/F3BF-43XR (last visited
Nov. 24, 2018) (outlining the conservative concerns about the current state
of American incarceration as it affects the economy).
73 See Kamala Kelkar, Electoral College is a Vestige of Slavery Say Some
Constitutional Scholars, PBS (Nov. 6, 2016), https://perma.cc/98WJ-6674

(noting specifically that “the ability of states to make voting more difficult
is directly tied to the legacy of slavery,’ Perea said, ‘[a]nd that ability to
make voting more difficult is usually used to disenfranchise people of
color.’).
74 Sam Levin, Trapped, PRISON LEGAL NEWS (Feb. 8, 2017),
https://perma.cc/7AMK-GUDY (“Commissioners conduct lengthy
interrogations about the prisoners’ childhoods and circumstances prior to
the crime, the crime itself, accomplishments and discipline behind bars,
and post-parole plans. District attorneys then question the prisoner, . . .
[They] deliberate on the spot and offer an immediate decision.”).
75 See generally How Parole Works, supra note 67.
76 See Dan Balz, A Divided Country Gets a Divisive Election, WASH. POST
(Jan. 9, 2016), https://perma.cc/85UB-UAYV (“More so than in some past

campaigns, however, the effect of all this seems to be accentuating the gap
between left and right, between Democrats and Republicans, between
elites and the rest of the population.”).
77 See Lydia O’ Connor & Daniel Marans, Here are 16 Examples of Donald
Trump Being Racist, HUFFINGTON POST (Dec. 13, 2016),

https://perma.cc/8JW3-ND54 (“Virtually every time Trump mentions a
unpopularity,78 made for a very personal and deeply influential moment in

United States history.79 The 2016 election highlighted America’s ever-
present racist roots and the divisive sociology that continues to define us,
even to those who have had the privilege to ignore the consequences.80
With one candidate threatening to implement policies that would, in fact,
harken back to the days of Jim Crow,81 politically re-enfranchising all of the
underrepresented is an immediate priority.82 With so many voices silenced
by unconstitutional felon disenfranchisement legislation,83 election results
cannot possibly accurately reflect the actual populous of the country; this
destroys the validity of a representative government. 84
minority group, he uses the definite article the, as in ‘the Hispanics,’ ‘the
Muslims’ and ‘the blacks.’”).
78 See David Brooks, Why is Clinton Disliked?, N.Y. TIMES (May 24, 2016),
https://perma.cc/R5Z2-6R39 (“Clinton gives off an exclusively professional

vibe: industrious, calculated, goal-oriented, distrustful.”).
79 See Van R. Newkirk II, This is Who We are Now, THE ATLANTIC (Nov. 11,
2016), https://perma.cc/6KMY-P47L (“This was a juggernaut. It was

repudiation by the American electorate of the grand experiment of
diversity of the past few years symbolized by Barack Obama.”).
80 See Shaun King, To Be White and Frustrated with this Country is Somehow
Patriotic, but if You’re Black and Frustrated, Then You’re a Traitor, N.Y. DAILY
NEWS (Sept. 29, 2016), https://perma.cc/9QCW-SZZS (explaining the
dichotomy of white privilege in the 2016 election).
81 See Terrell Jermaine Starr, How Donald Trump Could Usher in an Era of
Jim Crow 2.0, FUSION (Nov. 11, 2016, 4:29 PM),

http://fusion.net/story/368840/donald-trump-black-african-american-racist-
jim-crow (“Black people have more to fear from a Trump presidency than
an un-restored VRA; we have to contend with a nationally-known bigot
who supports racist policing.”).
82 See Paul Grondahl, ‘New Jim Crow’ or Public Safety, TIMES UNION
(Oct.16, 2012), https://perma.cc/Q2GT-JQ85 (quoting activist Alice Green:

“[f]or generations, black men have been feared and labeled as innately
criminal. . .this mass incarceration of black men for non-violent crimes
perpetuates the myth of black inferiority.”).
83 See State Felon Voting Laws, PROCON.ORG, https://perma.cc/6XPC-4PLW
(last updated Nov. 7, 2018, 3:21 PM) (showing that ten states continue to
enforce laws that permanently bar ex-felons and persons on parole from
voting in any election).
84 See Christopher Uggen & Jeff Manza, Democratic Contraction? Political
Consequences of Felon Disenfranchisement in the United States, 67 AM. SOC.

REV. 777, 792 (2002) (“Although the outcome of the extraordinarily close
2000 Presidential election could have been altered by a large number of
factors, it would almost certainly have been reversed had voting rights
been extended to any category of disenfranchised felons.”).
The criminal justice system has consistently worked as a mechanism to

oppress people of color and maintain white privilege; this is reflected
politically.85 Increased advocacy coupled with increased media coverage of
racial injustice at the hands of the government—which have historically
gone underreported to the public86—create a climate that requires an
immediate a change.87 The judiciary must utilize their checking power
through Constitutional interpretation and restore these rights to the
franchise that have been arbitrarily denied by racist state action. 88 America
has held itself out as a democracy based on the equal participation and
protection of its citizens.89 While it is true that states have the power to
temporarily deny certain rights to those who have not obeyed the laws of
the land, the denial of the right to vote is not a rational extension of this
power.90 The case to specifically re-enfranchise parolees through equal
85 See Rand Paul, The Devastating Collateral Damage of an Insidious Drug
War Weapon, WASH. TIMES (Sept. 20, 2013), https://perma.cc/D5VN-NW4E

(“[Reports show] that . . . black Americans were four to five times more
likely to be arrested than whites for marijuana possession, both groups
used the drug at similar rates . . . similarly situated whites were far more
successful than black and Hispanics in the plea-bargaining process.”);
Bennett Capers, Critical Race Theory and Criminal Justice, 12 OHIO ST. J. OF
CRIM. L. 1, 2 (2014) (“[L]egal reforms that ostensibly benefit minorities occur
only when such reforms also advance the interests of the white majority.”).
86 See, e.g., MAPPING POLICE VIOLENCE, https://mappingpoliceviolence.org
(last visited Feb. 22, 2018) (providing more accurate information about
police violence against people of color due to a noted lack of accurate
reporting).
87 See Steven Zeitchik, Enterntainment’s Latest Trend: Race and the Criminal
Justice System, L.A. TIMES (Feb. 3, 2017), https://perma.cc/QF8X-Z6LP

(detailing the recent trend in film covering tragedies of the criminal justice
system including the stories of: Kalief Browder, Michael Brown, Travyon
Martin, Oscar Grant, Colin Warner, Emmett Till, William Ford and others
who have been victims to the racial animus linked to police and criminal
justice contact).
88 See generally Matt Ford, The Missing Statistics of Criminal Justice, THE
ATLANTIC (May 31, 2015), https://perma.cc/2ELX-9H8G (“Criminal justice

statistics can also influence judicial rulings including those by the Supreme
Court, with implications for the entire legal system.”).
89 American Democracy in an Age of Rising Inequality,TASK FORCE ON
EQUALITY AND AM. DEMOCRACY AM. POL. SCI. ASS’N, 1 (2004),

https://perma.cc/GNP2-AYML (“Equal political voice and democratically
responsive government are widely cherished American ideals.”).
90 See Jason Schall, The Consistency of Felon Disenfranchisement with
Citizenship Theory, 22 HARV. BLACKLTR. L. J. 53, 88 (2006) (“[T]he ‘purity of

the ballot box’ theory is founded on ghostly fiction.”).
protection is a hopeful one; judicial history demonstrates that smaller,

more politically “acceptable” populations often gain equal rights first,
opening the door for other landmark Supreme Court decisions that define
civil rights.91
ANALYSIS
III. The Voting Rights of Persons on Parole Should Be Constitutionally

Protected by the Equal Protection Clause of the Fourteenth
Amendment
A. Discriminatory Impact and Intention Revisited Through Thompson
In Equal Protection analyses, courts determine whether or not a state

action is unreasonably discriminatory against the class that is drawn by the
creation of a statute.92 The disparate impact test was developed by the
Court as a means to determine whether or not an action is discriminatory
(thus, in violation of the Equal Protection clause) toward a classification of
persons, most often by race, if such action does not distinguish by race on
its face.93 The test seeks to find the existence of a discriminatory impact on
a group, but in order to render an action unconstitutional, it requires that it
be motivated by discriminatory intent. 94 Denying parolees the right to vote
undoubtedly creates a discriminatory effect on persons of color as reflected
in the data of mass incarceration.95 Proving a statute’s additional layer of
discrimination is much more difficult, despite the seemingly mismatched
logic of recognizing that an action is causing obvious discrimination, but
enforcing its validity because legislators “didn’t mean” to cause such
91 See e.g., Pearson v. Murray, 182 A. 590, 593 (Md. 1936) (Thurgood
Marshall’s first argument for separate but equal in a state civil rights case
about law school admission which is sympathetic to the bench); Craig v.
Boren 429 U.S. 190, 210 (1976) (holding that sex-based discrimination
deserved heightened scrutiny on a case of discrimination against men who
were more politically “popular” than women).
92 See U.S. CONST. amend. XIV, § 1 (“No state shall . . . deny to any
person within its jurisdiction, the equal protection of the laws.”).

93 See Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 764
(2011) (“If the legislators have wit . . . to avoid words like “race” or name
the particular racial group in the text of their legislation, the courts will
generally apply ordinary rational basis review.”).
94 Washington v. Davis, 426 U.S. 229, 242 (1976) (holding that although a
discrimination may be the result of classifying certain citizens subject to a

law, “discriminatory purpose” must be behind the law, or else it is subject
to a rational basis standard of review).
95 Id.
problems.96
To determine discriminatory intent, the Court uses a balancing test of
non-exclusive factors including the statistical data that demonstrates a
disproportionate racial impact, the history of the action, and its
relationship to race.97 The criminal justice system as a designed mechanism
of the continued oppression of black Americans since the end of the Civil
War is well documented in the socio-cultural sphere.98 There exists enough
historical information, record, and administrative history to make the very
short leap to conclude that disenfranchisement laws created against
parolees and the adjudicated serve only the purpose of discriminating
based on race to help effect political influence.99
The notion that parolees are barred from voting by state law on the
basis of race demonstrates an even greater necessity of striking down these
laws; racial classification is the most protected under a constitutional
analysis.100 The pending Thompson litigation plaintiffs are identified as a
class “of unregistered persons otherwise eligible to register to vote in
Alabama who are not, or may be in the future, denied the right to vote
because they have a felony.”101 In Alabama, as is reflected throughout the
96 See, e.g., Ricci v. DeStefano, 557 U.S. 557, 594 (2009) (Scalia, J.,
concurring) (mentioning the imbalance that exists between disparate

impact as unintentional and the purpose of Equal Protection, despite not
considering the Equal Protection claim based on finding first for a Title VII
violation).
97 Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252,
265—68 (1977) (explaining the non-exclusive balancing factors as: “the

impact of the official action . . . the historical background . . . the specific
sequence of events leading up to the decision . . . and the legislative or
administrative history”).
98 See generally 13TH , supra note 19.
99 See Martine J. Price, Addressing Ex-Felon Disenfranchisement: Legislation
vs. Litigation, 11 J.L. & POL’Y 369, 389—91(2011) (discussing some judicial
acknowledgement of racial implications of disenfranchisement laws and
the right to pursue such claims without regard to the intention of the laws).
100 Arlington Heights, 429 U.S. at 265—66 (“In fact, it is because legislators
. . . are properly concerned with balancing numerous competing

considerations that courts refrain from reviewing their decisions on the
merits . . . absent a showing of arbitrariness or irrationality. But racial
discrimination is not just another competing consideration. When there is
proof that a discriminatory purpose has been a motivating factor in the
decision, this judicial deference is no longer justified.”).
101 Class-Action Complain for Declaratory and Injunctive Relief ¶ 50,
Thompson v. Alabama, 2016 WL 5405634 (M.D. Ala. Sept. 26, 2016) (No.
2:16-CV-00783-WKW-CSC).
rest of the United States,, black individuals are exposed to a greater risk of
adjudication and subsequent parole based on unfair and pointed law
enforcement policy and practice, there exists devastating and ongoing
political misrepresentation and perpetual second-class citizenship, that
disproportionately effects non-white Americans.102
By simply ignoring the data that essentially equates parole as a racially
defined class of citizens who face the tremendous discriminatory impact
based on denial of the right to vote, and continuing to validate such
legislation—states are acting with discriminatory intent.103 In all likelihood,
parolees are more directly affected by the loss of the vote than free
citizens.104 It is imperative that parolees are able to engage in and gain a
comprehensive understanding of the current state of the law—their
immediate liberty depends on it.105
Alabama has been infamous for both racist voting laws and
conservative views toward the adjudicated and those facing the parole
board.106 Previously, the Court held that Alabama’s unequal appointment
of voting districts resulted in underrepresentation of vulnerable
communities and served a subversive purpose, designed to alienate
citizens based on race.107 Alabama’s legislation is merely a singular
102 See Criminal Justice Fact Sheet, NAACP, https://perma.cc/2VL6-XVZW
(last visited Nov. 24, 2018) (“African Americans are incarcerated at more
than 5 times the rate of whites.”).
103 See Staples, supra note 49 (“The franchise is enshrined in the state
Constitution . . . Removing the right of some . . . to exercise their legal

responsibility as voters . . . would undermine that civilized society.”).
104 See U.S. Parole Comm’n Frequently Asked Questions, U.S. DEP’T OF
JUSTICE, https://perma.cc/5TGR-WTAC (last visited Nov. 24, 2018)

(detailing various questions and answers about how parolees need to
interact with the laws both before and upon release).
105 See Id. (“[A] Commissioner determines the appropriate sanctions,
including the possibility of an issuance of an arrest warrant.”).

106 Supreme Ct. History: Expanding Civil Rights: Landmark Cases, PBS,
https://perma.cc/STP9-LKGE (last visited Nov. 24, 2018) (“[A]labama's

apportionment scheme did violate the Constitution's Equal Protection
Clause . . . the right to exercise franchise in a free and unimpaired manner
is preservative of other basic civil and political rights . . . and the right to
vote is a fundamental right strictly protected by the Constitution.”); see also
Beth Schwartzapfel, How Parole Boards Keep Prisoners in the Dark Behind Bars,
WASH. POST (July 11, 2015), https://perma.cc/JY99-R69F (“The [Alabama]
Board routinely receives letters opposing parole from the governor, the
attorney general and other elected officials.”).
107 See Reynolds v. Sims, 377 U.S. 533, 547 (1964).
example of the subversive intent of disenfranchisement; 108 if just one state

is able to solidify discrimination of its paroled citizens, the risk of finding
further animus in any state law is too great, and all should be
overturned.109
The Thompson litigation presents a strong platform on which to move
forward in effectively challenging all state laws that restrict parolees from
voting, based on racial impact and Alabama’s infamy among felon
disenfranchisement advocacy groups.110 Additionally, Thompson presents
ample evidence of the ways in which the voting laws for parolees across
the United States are a direct extension of Jim Crow.111
B. Parolees are Similarly Situated to Free Citizens
The Equal Protection Clause dictates that “[n]o state shall . . . deny to
any person within its jurisdiction the equal protection of the laws[;]” in
other words, all persons similarly situated should be treated equally under
such laws.112 Equal Protection case law interprets the manner in which a
state statute classifies the citizens to be effected under a potentially
discriminatory statute.113 The definition of “similarly situated” is not
108 See generally City of Mobile, Alabama v. Bolden, 446 U.S. 55, 56 (1980)
(holding that “disproportionate effects alone are insufficient to establish a

claim”); Danielson v. Dennis, 139 P.3d 688, 694 (Colo. 2006) (“[A] felon who
is still serving parole is not entitled to restoration of his or her voting rights
. . .”); Otsuka v. Hite, 64 Cal. 2d 594, 596-97, 599 (1966) (“After reviewing
the history and purpose of this ground of voter disqualifications, we have
concluded that to preserve its constitutionality it must be limited to
conviction of crimes involving moral corruption and dishonesty, thereby
branding their perpetrator a threat to the integrity of the elective process.”).
109 See Carrie Johnson, Holder Calls for Restoring Felons’ Voting Rights, NPR
(Feb. 11, 2014), https://perma.cc/9JUG-YVMC (quoting former Attorney

General Eric Holder describing all felony disenfranchisement laws as
“based in exclusion, animus and fear”).
110 See Editorial Board, Alabama Puts Up More Hurdles for Voters, N.Y.
TIMES (Oct. 8, 2015), https://perma.cc/G3D3-MADW (“Alabama has a long

and ugly history of racial discrimination in voting.”).
111 See Samantha Michaels, Guess Which State is Facing a Felon Voting
Rights Lawsuit? Hint: It’s Not Virginia, MOTHER JONES (Sept. 26, 2016),
https://perma.cc/ZVF3-GA8Z (describing Alabama’s vague and arbitrary
voting procedures for all felons, including those who have finished
probation and parole as “nothing more than a modern day poll tax”).
112 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)
(emphasis added).
113 See Plyler v. Doe, 457 U.S. 202, 217–18 (1982).
explicitly defined.114 Politically, it is often vulnerable groups who are

affected by discriminatory regulation because of a refusal to develop
legislative insight as to the effect of laws on different populations, despite
existing in the same states and communities.115
In cases of employment and housing discrimination, courts determine
whether a plaintiff is similarly situated to those who received preferential
treatment by drawing comparisons.116 Courts perform a factual analysis
based on individual circumstances and use a balancing test of factors
related to the specific employment and experience of the employee or
potential tenant.117 Courts find discrimination, when the impacted
individuals are not reasonably distinguished from those receiving the
preferential treatment for any other reason other than their membership of
a protected class.118
It follows logically that when comparing parolees and free citizens,
there are only a certain number of factors to consider that can be applied to
all persons living within the same community; these factors would mostly
be related to activities of daily living and community interaction. 119
114 See Jeffrey S. Beck, Similarly Situated Employees Doesn’t Mean Identical,
Seventh Circuit Says, HR DAILY ADVISOR (Mar. 13, 2012),

https://perma.cc/5MEM-LP4V (“The court stated that an employee usually
must show that the comparator (1) dealt with the same supervisor, (2) was
subject to the same standards, and (3) engaged in similar conduct without
differentiating or mitigating circumstances. However, according to the
court, that isn’t a ‘magic formula.’”).
115 See Roger Clegg, Disparate Impact and Criminal Justice, CTR. FOR EQUAL
OPPORTUNITY (Mar. 22, 2016), https://perma.cc/E68F-6YU7 (disagreeing

with “the Obama administration’s efforts to apply ‘disparate impact’
theory to the criminal justice system”).
116 See Ernest F. Lidge III, The Courts’ Misuse of the Similarly Situated
Concept in Employment Discrimination Law, 67 MO. L. REV. 831, 863 (2002).

117 Id. at 873 (“In deciding whether the plaintiff and a comparator are
similarly situated, courts often focus on certain differences in conduct or

job responsibilities, or the fact that the two employees have two different
superiors.”).
118 See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15
(1973) (“Disparate treatment . . . is the most easily understood type of

discrimination. The employer simply treats people less favorably than
others because of their race, color, religion, sex or national origin.”).
119 See Natasha L. Carroll-Ferrary, Incarcerated Men and Women, The Equal
Protection Clause and the Requirement of “Similarly Situated,” 51 N.Y. L. SCH.

L. REV. 596, 596 (2006) (“In order to be similarly situated, groups need not
be identical in makeup, they need only to share commonalities that merit
similar treatment.”).
Parolees and free citizens are subject to the same city ordinances, have, or
have the potential to have, children enrolled in the school system, comprise
the work force, and utilize the same public amenities. 120 If a free citizen is
living in the same neighborhood, using the same public transportation and
contributing to the same economy as someone on parole, they would
arguably be equally invested in matters subject to the vote, legislation that
restricts the democratic participation of parolees is discriminatory based on
preferential treatment to those who are not on parole.121
Aside from being classified as a parolee and complying with parole
stipulations, it is hard to tell someone on parole apart from his neighbor,
without intimate knowledge of his personal life and criminal history.122 If
there exists a politically unpopular group, vulnerable to animus, it is
parolees.123 Coupled with the racism that people of color are subjected to in
general and the public’s unfavorable opinion of convicted persons,
parolees are particularly victimized by legislative malice and their chances
of full rehabilitation diminish when denied equal civic engagement. 124
120 See, e.g., Parole: An Informational Brochure, ST. OF CONN. PAROLE,
https://perma.cc/XU9U-FVYA (last visited Nov. 24, 2018) (detailing the

expectations of parole eligible inmates to obtain employment and integrate
lawfully in to the community and demonstrating that supervisees are fully
expected to engage in citizenship).
121 See Jessica Glazer, Why It Might Be Time to Rethink the Rules of Parole,
FIVETHIRTYEIGHT (Nov. 13, 2014, 6:00 AM), https://perma.cc/8Y97-ZE7Q

(discussing parolees in the community in comparison to their neighbors:
“most of us could not live under the rules of parole because there are too
many of them”).
122 See Jon Mooallem, You Just Got Out of Prison. Now What?, N.Y. TIMES
MAG.,
(Jul. 16, 2015), https://perma.cc/5R9U-43SV (providing anecdotal evidence
about long-term prisoners returning to the community).
123 See, e.g., Mireya Navarro, Ban on Former Inmates in Public Housing Is
Eased, N.Y. TIMES (Nov. 14, 2013), https://perma.cc/XPF5-NFL6 (providing

an example of formerly incarcerated persons’ difficulty with community
integration via strict housing guidelines based on their status as felons, and
how local systems have historically worked to disenfranchise this
population).
124 See Schwartzapfel, supra note 106 (“Given the close relationship
between politics and parole boards, it’s not uncommon for board members
to lose their jobs – or fear losing their jobs—for making decisions that are
politically unpopular.”); Steven D. Bell, The Long Shadow: Decreasing
Barriers to Employment, Housing, and Civic Participation for People with
Criminal Records Will Improve Public Safety and Strengthen the Economy, 42 W.
ST. L. REV. 1, 8 (2014) (“Because each state determines by statute the
qualifications required for its citizens to vote, each state likewise
C. No Legitimate State Interest Served Through Political

Disenfranchisement
In a claim of discriminatory state action the Court employs a “rational

relationship test,” requiring that the statute be “rationally related to a
legitimate state interest.”125 When a racial classification is made or the
statute seeks to restrict a fundamental right, Courts use a strict scrutiny
test, requiring the statute to serve a compelling government interest, be
narrowly tailored to meet the interest and be carried out by using the least
restrictive means.126 When scrutinizing rationally, Courts allow states
substantial deference to define their own legitimate interests in the interest
of making laws.127 However, it is well established that “a bare
congressional desire to harm a politically unpopular group cannot
constitute a legitimate government interest,” meaning that political
animosity toward one classification of persons and the desire to exclude
them from certain rights based on this classification can never be
considered legitimate.128
1. Public Safety
Although the disenfranchisement of parolees involves both a

fundamental right and a racially defined classification of individuals, even
under a rational basis standard, the exclusion from the right to vote does
not serve any legitimate government interest, no less a compelling one. 129
Public safety is generally accepted as a legitimate state interest, and
statutes that are made to protect the public are not usually deemed
determines the voting effect of a criminal conviction . . . . preventing

approximately 5.85 million Americans with felony convictions . . . . from
voting.”).
125 City of Cleburne, 473 U.S. at 440.
126 See Korematsu v. United States, 323 U.S. 214, 215–17 (1944) (utilizing
strict scrutiny formally); U.S. v. Carolene Products Co., 304 U.S. 144, 155 n.4
(1938) (defining the need for heightened protection of “discrete and insular
minorities” from discrimination under the Constitution).
127 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES
695 (Fourth Ed. 2011) (“The Supreme Court generally has been extremely
deferential to the government when applying the rational basis test.”).
128 U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
129 See Sarah Childress, Michelle Alexander: “A System of Racial and Social
Control”, PBS (Apr. 29, 2014), https://perma.cc/TY4W-VXC7 (“[W]e can’t

pretend then to really care about creating safe communities. We can’t
pretend that this system that we devised is really about public safety or
serving the interest of those we claim to represent.”).
arbitrary.130 The Court recognizes that the circumstances of every state

differ and that states should be able to enact different laws based on their
individualized public safety and welfare concerns.131 The concern for
public safety is one popularly argued to support legislation that applies
specifically to parolees, based primarily on the effect a parolee’s presence
could have on others in the community. 132 However, the public safety
argument does not logically rationalize the denial of participation within
the political franchise; such participation involves one citizen in the voting
booth, with a finite number of political choices. 133
By restricting parolees from the ballot box, the state is not enhancing
the safety of the community around them, nor is it fulfilling the goals of its
own post-release supervision programming.134 The intended goal of the
parole program in any state is the safe facilitation of community
reintegration for eligible persons when released from incarceration.135 The
130 Berman v. Parker, 348 U.S. 26, 32 (1954) (“Public safety, public health .
. . these are . . . conspicuous examples of the traditional application of the

police power to municipal affairs.”).
131 See City of Cleburne, 473 U.S. at 452 (Stevens, J., concurring).
132 See Phil Hernandez & Beth Avery, Ban the Box U.S. Cities, Counties, and
States Adopt Fair Hiring Policies, NAT’L EMP’T L. PROJECT (Aug. 1, 2017),
https://perma.cc/7RTQ-UC6C (explaining that obtaining national fairer
hiring practices for persons with felony conviction has been difficult due to
the “public safety” defense concerning felon and parolee interaction with
free community members).
133 See Eugene Volokh, Why Has the Supreme Court Held that Felons Lack
the Constitutional Right to Vote?, WASH. POST (Apr. 29, 2015),

https://perma.cc/3KJW-9CWA (pointing out that “section 1 of the
Fourteenth Amendment has been read as generally securing a
constitutional right to vote”); Jeff Jacoby, Voting is a Right but It’s Not a
Duty, BOS. GLOBE (Oct. 28, 2012),
https://www.bostonglobe.com/opinion/2012/10/27/jacoby/PiV0sbV2bXf6O
QAToXalxM/story.html (“Just as freedom of religion encompasses the
freedom to practice no religion, your freedom to vote for the candidate of
your choice includes the freedom to vote for no candidate at all.”); See
generally Chris Moody, America’s Voting System is Crazy—Here’s What You
Need to Know, CNN (Mar. 2, 2016), https://perma.cc/4H7R-UFLZ.
134 See Restore Voting Rights to Citizens with Past Criminal Convictions,
BRENNAN CTR. FOR JUST. (Oct. 6, 2016), https://perma.cc/UF54-95SW (“These

laws diminish our democracy . . . [and] hurt public safety by making it
harder to integrate citizens into their community, which makes them more
vulnerable to recidivate.”).
135 See generally Scott T. Walters, et al., Guide for Probation & Parole:
Motivating Offenders to Change, NAT’L INST. CORRECTION (2007),

https://perma.cc/K26H-9QXM (“The mission statements of most corrections
United States Parole Commission expresses that: “the mission of the U.S.
Parole Commission is to promote public safety and strive for justice and
fairness in the exercise of its authority.”136 Parolees are expected to work,
obey the law, submit to searches of person and property without the usual
Constitutional protections, regularly report to the supervising officer or
agent, submit to drug or alcohol testing, and obey restrictions on travel and
weapon possession, in the name of public safety.137 Their non-adjudicated
neighbors, on the other hand, are not directly supervised for such
compliance. Denial of the right to enter a voting booth and pick a
candidate does not rationally enhance or relate to anyone’s safety.
2. Moral Standards
Perhaps the most popular state interest purported for banning parolees
and ex-felons from voting is to protect the ballot box from individuals of
bad moral character.138 It does not follow that a person’s parole status
would be a dispositive factor in this determination.139 Alabama’s state
constitution blocks persons with a criminal history from voting if they are
convicted of “among other offenses, any crime involving moral turpitude,”
a designation without a specific definition.140 The Court overturned
Alabama’s moral turpitude standard as a subversive mechanism to further
discrimination at the polls, noting that this standard has both an effect and
intention of racial discrimination.141
Although the “moral turpitude” standard is unconstitutional, it
remains in the state constitution and in effect without any further challenge
agencies emphasize two main tasks: holding offenders accountable to

conditions (compliance), and encouraging positive behavior change
(rehabilitation).”).
136 U.S. DEP’T. OF JUST., https://perma.cc/4SK4-4BH5 (last visited Nov. 24,
2018) (emphasis added).

137 Bell, supra note 124, at 4.
138 See generally Note, The Disenfranchisement of Ex-Felons, Citizenship,
Criminality and “The Purity of the Ballot Box” 102 HARV. L. REV. 1300 (1989).
139 See Suzy Khimm, States Push to Provide Some Ex-Felons a Second Chance,
MSNBC https://perma.cc/Y8WQ-JKLR (July 21, 2013 12:01 AM), (quoting

Rhode Island state representative Michael Chippendale: “In my experience,
a lot of times these folks actually make exemplary employees because they
work a lot harder and they have something to prove, in a way, or that’s
how they feel.”).
140 Hunter v. Underwood, 471 U.S. 222, 222 (1985).
141 Id. at 233 (“We simply observe that its original enactment was
motivated by a desire to discriminate against blacks on account of race, and

the section continues to this day to have that affect.”).
or discussion.142 While the Court did recognize that the standard was
facially neutral but intentionally discriminatory, the Court upheld the
state’s right to disenfranchise felons.143 Citing § 2 of the Equal Protection
Clause the Court held: “[w]ithout again considering the implicit
authorization of § 2 to deny the vote to citizens ‘for participation in
rebellion, or other crime’ . . . we are confident that § 2 was not designed to
permit the purposeful racial discrimination . . . Nothing in our opinion in
Richardson v. Ramirez, supra, suggests the contrary.”144 In many states, the
Court interprets “participation in rebellion, or other crime”145 as
synonymous with felony, and can justify racially motivated laws on these
grounds.146
While parole supervision is predicated by a felony conviction, which
could theoretically indicate an individual’s failure to abide by America’s
chosen moral standard, such failure is not a decisive nor persuasive reason
to achieve some elusive notion of a purer democracy by denying civic
participation.147 There are certainly many citizens who would be
considered immoral by reasonable society standards that remain able to
cast a ballot, and “[w]hen the façade of the classification has been pierced,
the disenfranchising laws have fared ill.”148
Parolees are aware that their liberty is at stake based on their actions
and that a parole violation would send them back to prison, rendering
them unable to vote.149 Therefore, parolees who remain within the
142 See Lang, supra note 59 (“Despite the Supreme Court’s ruling that the
vague ‘moral turpitude’ standard was selected to enable intentionally
racially discriminatory disenfranchisement, Alabama reintroduced this
term into its laws in 1996 without any debate.”).
143 See Hunter, 471 U.S. at 227.
144 See id. at 233 (leaving other felon disenfranchisement laws intact, but
overturning the moral turpitude standard in Alabama based on racial

intention).
145 U.S. CONST. amend. XIV, § 2.
146 See Richardson v. Ramirez, 418 U.S. 24, 56 (1974).
147 See Dillenburg v. Kramer, 469 F.2d 1222, 1224 (9th. Cir. 1972)
(“reasons to sustain . . . disenfranchisement prerogative has usually ended

with a general pronouncement that a state has an interest in preventing
persons who have been convicted of serious crimes from participating in
the electoral process . . . . or . . . that the interest is preservation of the
‘purity of the ballot box.’”).
148 See id. at 1224-26 (“[C]ourts have been hard pressed to define the state
interest served by laws disenfranchising persons convicted of crimes . . .

Constitutional concepts of equal protection are not immutably frozen like
insects trapped in Devonian amber.”).
149 See Jennifer Guerra, Former Inmates Give Advice to Those Just Getting
community are arguably more law-abiding than the average citizen; their
compliance with community standards keeps them free, unlike free
citizens who are not supervised.150 The amount of personal information
required to be able to register to vote, generally, does not give any
indication about the moral character of any given citizen, only some
demographics and the implied certification that they are law-abiding.151
There have been several advertising campaigns designed to educate
Americans about the importance of voting and to compel them to do so, as
a civic responsibility, not a privilege of the free.152 If parolees are subject to
close supervision while living in the community, in order to ensure that
they are rehabilitated as responsible and productive citizens, voting should
be considered an especially important responsibility to meet these program
goals and would be a more likely requirement than a restriction.153
3. Morality Motivates Racial Animus
The Court has gone further, holding that a state’s projected societal
moral standards should have no constitutional bearing on law making so
as to minimize the risk of injecting animus into the passage of legislation. 154
Lawrence v. Texas held that states were specifically prohibited from
allowing overarching moral judgement of an individual’s personal
characteristics to govern the creation of criminal statutes. 155 In doing so,
states are essentially “creating a classification of persons undertaken for its
own sake.”156 The Court further clarified that “the state cannot single out
one identifiable class of citizens for punishment that does not apply to
Out of Prison, MICHIGAN RADIO (Nov. 12, 2015), https://perma.cc/RMG8-

B9M4 (compiling advice for people reentering society, acknowledging the
importance of parole officers and abiding by parole stipulations in order to
remain free).
150 See Douglas A. Wickham, Parole, 74 GEO. L.J. 897, 897 (1986) (“The
purpose of parole is to integrate prisoners into society . . . .”).

151 See United States Government, Register to Vote and Confirm or Change
Registration, USA, https://perma.cc/NM3F-BFMQ (last visited Nov. 24,

2018) (listing requirements as U.S. citizenship, residency in state and being
18 years of age).
152 See, e.g., Rock The Vote, Resources, ROCKTHEVOTE,
https://perma.cc/6UGL-W3XV (last visited Nov. 24, 2018).
153 See Sarah Barr, Many Ex-Felons Don’t Know They Can Get Their Right to
Vote Restored, JUV. JUST. INFO. EXCH. (Feb. 17, 2016), https://perma.cc/VXN4-
9S9H (“[V]oting is the building block that can help people lead full,
successful lives once they leave prison.”).
154 See Lawrence v. Texas, 539 U.S. 558, 582 (2003).
155 Id.
156 Id. at 583 (citing Romer v. Evans, 517 U.S. 620, 635 (1996)).
everyone else, with moral disapproval as the only asserted state interest for
the law.”157
Disenfranchisement laws pertaining to parolees create a second class
based on moral unpopularity, which cannot be a legitimate governmental
interest, leaving the only motivation driving these laws as continued racial
oppression.158 Felonious incarceration and subsequent parole are directly
correlated with negative impact suffered by communities of color and
epitomize racial discrimination.159 Laws that single out a class of persons
for unequal treatment cannot be constitutional if their “sheer breadth is so
discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class it affects; it lacks a
rational relationship to legitimate state interests.”160
In Romer v. Evans, the Court distinguished animus from mere
disadvantage, holding that “in the ordinary case, a law will be sustained if
it can be said to advance a legitimate government interest, even if the law
seems unwise or works to the disadvantage of a particular group, or if the
rationale seems tenuous.”161 The Court emphasized that the significant
discretion it affords to states in implementing discriminatory laws so long
as “classifications are not drawn for the purpose of disadvantaging the
group burdened by the law,” suggests an existing sinister motivation
behind laws found to be in violation of the Equal Protection Clause
analyzed under such a low level of scrutiny.162
There exists a tension between the holdings of Romer and Lawrence and
the current state of felon disenfranchisement as it relates to morality. 163 As
it stands, individual states are allowed to deny parolees the right to vote
157 Lawrence, 539 U.S. at 584.

158 See Attorney General Eric Holder, Remarks on Criminal Justice Reform at
Georgetown University Law Center (Feb. 11, 2014), transcript available at
https://perma.cc/NU9W-XQ7Z (“At worst, these laws, with their disparate
impact on minority communities . . . have their roots in centuries-old
conceptions of justice that were too often based on exclusion, animus and
fear.”).
159 Press Release, The White House, Remarks by the President on Criminal
Justice Reform (Nov. 2, 2015), https://perma.cc/ZUG5-BELG (“We account

for 5 percent of the world’s population, 25 percent of its inmates. They are
disproportionately black and Latino.”).
160 Romer, 517 U.S. at 632.
161 Id.
162 Id. at 633.
163 See The Campaign Legal Center, Thompson v. Alabama, CAMPAIGN
LEGAL CTR., https://perma.cc/G3K3-FKAT (last visited Nov. 324 2018)

(“Eighteen states prohibit citizens convicted of felony offenses from voting
while they are in prison, on parole or probation.”).
without running the risk of an Equal Protection violation. 164 In its refusal to
protect the voting rights of those who have served their time, the Court
acknowledges the important role of voting to the rehabilitation of parolees,
but foists the responsibility of the decision back upon the legislative
branch.165 The Court acknowledges that “it is essential to the process of
rehabilitating the ex-felon that he be returned to his role in society as a
fully participating citizen when he has completed the serving of his
term,”166 but held that the specifics of this rehabilitation should be
“addressed to the legislative forum which may weigh and balance
them.”167
By recognizing parolees as a racially drawn class by any other name,
and conceding that felon disenfranchisement dictated by some vague
moral standard of a state is unconstitutional, yet simultaneously allowing
states to continue to create such legislation without judiciary challenge,; the
Court remains in direct opposition with itself.168 The intent of the Equal
Protection Clause is to protect citizens from state laws which discriminate
with both facial and latent racist intent. 169 The historical implications of
restrictive voting laws alongside the actual discriminatory impact of felon
disenfranchisement based on post-release status, and the importance of
affording paroled persons the vote based on a constitutional argument, is
illustrated most starkly in Alabama.170 Not only do state restrictions on
parolee voters promote and delineate racial discrimination, they are not
related to furthering any legitimate government interest, nor do they serve
the purposes intended by state boards of parole.171
164 Richardson v. Ramirez 418 U.S. 24, 56 (1974) (holding that section two
of the fourteenth amendment allows for states to deny the right to vote
based on “participation in rebellion, or other crime,” as quoted from §2 of
the Fourteenth Amendment).
165 Id. at 55.
166 Id.
167 Id.
168 See generally Amy E. Lerman & Vesla M. Weaver, How Urban Policing
and Mass Imprisonment Create a Second-Class Citizenship in America,

GOLDMAN SCH. OF PUB. POL’Y – U.C. BERKELEY (June 17, 2014),
https://perma.cc/RQ5U-NRFS.
169 See, e.g., Brown v. Board of Education of Topeka, 347 U.S. 483, 495
(1954) (“Separate educational facilities are inherently unequal. . . Therefore,

we hold that the plaintiffs and others similarly situated . . . are . . . deprived
of the equal protection of the laws guaranteed by the Fourteenth
Amendment.”).
170 See Hunter v. Underwood, 471 U.S. 222, 222 (1985).
171 See, e.g., Childress, supra note 129 (“Denying someone the right to
vote says to them: ‘You are no longer one of us. You’re not a citizen. Your
IV. Parolees Should Maintain The Right to Vote Because The

Fundamental Rights Of Incarcerated Persons are Constitutionally
Protected.
A. Turner v. Safley and the Reasonable Relationship
Turner v. Safley is the controlling decision that served to protect the

fundamental rights of incarcerated persons. 172 The Court held that
inmates maintain the right of marriage because it is a fundamental right;
this holding can be analogized to the disenfranchisement of parolees. 173 In
evaluating the constitutionality of the right of inmates to marry one
another in a co-ed correctional facility, the Court used a reasonable
relationship test, specifically applicable to the correctional setting. 174 “A
regulation cannot be sustained where the logical connection between the
regulation and the asserted goal is so remote as to render the policy
arbitrary or irrational.”175
The right to marry is a fundamental right protected by the
Constitution.176 The Turner Court considered the legality of a prison
regulation within the unique nature of correctional facilities and their
inmates, affording an even greater deference for these regulations than
state action.177 An implemented reasonableness test requires that a
voice doesn’t count. You’re relegated to . . . second-class status, do not

matter . . . .’”).
172 See David L. Hudson Jr., Turner v. Safley: High Drama, Enduring
Precedent, FIRST AMENDMENT CTR. (May 1, 2008), https://perma.cc/LZ7N-

YC49 (“O’Connor did reiterate that inmates do not lose all the protections
of the Constitution simply because they are incarcerated. In the 18th, 19th
and much of the 20th centuries, inmates were considered what one court
called ‘slaves of the state.’ O’Connor wrote in oft-cited language: ‘Prison
walls do not form a barrier separating the inmate from the protections of
the Constitution.’”).
173 Turner v. Safley, 482 U.S. 78, 89—90 (1987).
174 Id. at 90.
175 Id. at 89-90.
176 See Loving v. Virginia, 388 U.S. 1, 12 (1967) (recognizing the freedom
to marry as “one of the vital personal rights essential to the orderly pursuit
of happiness by free men.”).
177 Turner, 482 U.S. at 84–85 (“Running a prison is an inordinately
difficult undertaking that requires expertise, planning, and the

commitment of resources, all of which are peculiarly within the province of
the legislative and executive branches of government . . . . Where a state
penal system is involved, federal courts have . . . additional reason to
accord deference to the appropriate prison authorities.”).
regulation serve a “legitimate penological objective.”178 The test requires a

balancing of different factors,179 without a requirement that such
regulations be imposed by using the “least restrictive means.”180 The
defendant-correctional-system argued that regulations restricting inmate
marriages served to bolster prison security and encourage inmate
rehabilitation.181
Noting that “this is not an instance where the ‘ripple effect’ on the
security of fellow inmates and prison staff justifies a broad restriction on
inmates’ rights—indeed, where the inmate wishes to marry a civilian, the
decision to marry . . . is a completely private one,” the Court compared
marriages between inmates to those allowable marriages between inmates
and free citizens.182 Through this analysis, the Court held that the
regulation against marriage was not reasonably related to security or
rehabilitation but presented an “exaggerated response . . . to rehabilitation
and security concerns.”183
In the same case, a separate regulation restricting correspondence
between inmates was upheld based on prison security reasoning because,
“undoubtedly, communications with other felons is a potential spur to
criminal behavior: this sort of contact frequently is prohibited even after an
inmate has been released on parole.”184 The reasonable relationship
balancing test provides that: “the correspondence regulation does not
deprive prisoners of all means of [the fundamental right of] expression,
rather, it bars communication only with a limited class of other people with
178 Id. at 95 (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974): “Prison
inmate[s] retain those [constitutional] rights that are not inconsistent with
his status as a prisoner or with the legitimate penological objectives of the
corrections system.”).
179 Compare Id. at 89–90 (“The logical connection between the regulation
and the asserted goal is so remote as to render the policy arbitrary or

irrational . . . whether there are alternative means of exercising the right
that remain open to prison inmates . . . the impact accommodation of the
asserted constitutional right will have on guards and other inmates . . . and
the absence of ready alternatives.”), with Railway Express Agency, Inc. v.
New York, 336 U.S. 106, 109 (1949) (describing rational basis review for
municipal laws and their relationship to legitimate government objectives).
180 Turner, 482 U.S. at 90–91 (“This is not a ‘least restrictive alternative’
test: prison officials do not have to set up and then shoot down every
conceivable alternative method of accommodating the claimant’s
constitutional complaint.”).
181 Id. at 97.
182 Id. at 98.
183 Turner, 482 U.S. at 91.
184 Id. at 91—92.

whom prison officials have particular cause to be concerned . . . .”185

Blanket marriage restrictions are not reasonable because relationships and
contact can be further regulated by prison administration to further safety
and rehabilitation interests, while keeping the basic right intact. 186
B. Parolees are Not Confined and Maintain Other Fundamental Rights
While the holding in Turner applies specifically to inmate rights, it is

easy to draw a parallel between prison regulations and laws that restrict
parolees.187 Parolees are more similarly situated to free civilians than those
who are incarcerated because they are not physically confined.188 Even if
parolees and prisoners were judicially deemed to be similarly situated,
restricting parolees from voting does not even pass a reasonable
relationship test; voting is regulated in other ways that would serve to
protect public security or the rehabilitation of parolees. 189 The objective of
banning parolees from the polls is never legitimate; as it is tied to racial
animus.190 Restricting rights is comparable to an “exaggerated response” in
seeking to preserve the ballot box from some elusive form of corruption.191
Parolees maintain many fundamental rights, including the freedoms of
speech, religion, family planning, and peaceable assembly. 192 Parole allows
185 Id. at 92.

186 See, e.g., Sheri Stritof, How to Marry a Prisoner, THE SPRUCE,
https://perma.cc/S9VM-XY4V (last updated Aug. 2, 2018) (detailing
different rules of correctional facilities involved in any kind of marriage to
a prisoner).
187 See generally Turner, 482 U.S. at 99—100.
188 See DEP’T OF JUST., supra note 136.
189 See Jamie Fellner & Marc Mauer, Losing the Vote: The Impact Of Felony
Disenfranchisement Laws in the United States, THE SENTENCING PROJECT 14—

16 (Oct. 1998), available at https://perma.cc/D8QY-QRWW (“Looked at
closely, the ‘purity of the ballot box’ argument is no more than a moral
competency version of the idea that the franchise should be limited to
people who ‘vote right.’”).
190 See id. at 16 (“Denying the vote to ex-offenders accomplishes little of
value . . . [it] contradicts the promise of rehabilitation.”).

191 See, e.g., Lovell v. Superintendent, N. Cent. Corr. Inst., 523 N.E.2d 268,
271 (Mass. App. Ct. 1988) (“In the absence of a logical connection between
the governmental objective claimed (security) and the restriction on First
Amendment rights, some evidence of their reasonable relationship should
be presented before the limitation can be upheld as matter of law.”).
192 P.A. COMMISSION FOR CRIM. JUST. STANDARDS & GOALS, THE CRIMINAL
JUSTICE STANDARDS AND GOALS OF THE NATIONAL ADVISORY COMMISSION

DIGESTED FROM A NATIONAL STRATEGY TO REDUCE CRIME 46, available at
https://perma.cc/2ZA4-DH8G (last visited Nov. 24, 2018) (listing: “exercise
state supervision of actions that are related to community safety, such as

employment, the bearing of arms and the things that paroled individuals
might carry on their person or have in their homes. 193 Voting is a right
comparable to that of free speech and marriage: personal, private and
important in ensuring post-incarceration rehabilitation in a meaningful
way. States like Alabama, which draw their interests in keeping persons on
post-release supervision based on moral concerns 194 “[rely on] the notion
that people have displayed very bad judgment by committing a felony, by
definition a serious crime . . . they have also proven themselves unfit to
make one of life’s most important decisions: choosing the nation’s
leaders.”195 However, when looking at the reality of the importance of
restoring the rights to the political franchise in order to combat racial
discrimination, promote productive community rehabilitation and re-
integration, and to ensure the equal representation of democracy, moral
standards specific to voting rights seem arbitrary. 196
of free speech, belonging to and participating in organizations and

engaging in peaceful assemblies, exercise of religious beliefs and practices,
preserving identity through distinguishing clothing, hairstyle and other
items of physical appearance” as retained rights of parolees).
193 See Owning a Gun, FELONYRESTRICTIONS.COM, https://perma.cc/CZ35-
LQ5E (last visited Nov. 24, 2018).

194 See e.g., Green v. Board of Elections of City of New York, 380 F.2d 445,
451 (1967) (upholding New York disenfranchisement laws: “it can scarcely
be deemed unreasonable for a state to decide that perpetrators of serious
crimes shall not take part in electing the legislators who make the laws, the
executives who enforce these, the prosecutors who must try them for
further violations or the judges who are to consider their cases.”); Reynolds
Holding, Why Can’t Felons Vote?, TIME (Nov. 1, 2006)
https://perma.cc/2JBR-LBKM.
195 Holding, supra note 194 (pointing out that “[p]laces like Mississippi
recently piled eleven disqualifying felonies onto the ten listed in their state
constitution,” based on the reasoning of Roger Clegg: “[I]f you aren’t
willing to follow the law, you can’t claim the right to make the law for
everyone else.”).
196 See Julian Vigo, Disenfranchisement Laws, Race and the U.S. Presidential
Election, COUNTERPUNCH (Jun. 21, 2016), https://perma.cc/6RU3-ETDB

(“When prison time ends, a second long-term punishment is extended
throughout life . . . voter disenfranchisement is just one of the many ways
of creating a specifically racialized marginalization . . . Former prisoners’
lives are mired by criminal records checks, barred entry to many
professions, suffer life-long . . . illness because of their marginalization, and
even face difficulty in survival.”).
CONCLUSION
Voting rights and racial discrimination have a long and painful history
in the United States, and continue to be perpetuated through state laws
that politically disenfranchise parolees. Parolees represent a smaller class of
individuals entrenched in the criminal justice system, and the American
epidemic of mass incarceration. The right to vote is a fundamental and all
United States citizens should be able to freely participate in democracy as a
matter of equal protection. The racial disparities that define every level of
adjudication support the reality that felon disenfranchisement laws for
persons on parole are a thinly veiled mechanism of a racist government.
State rationalization related to public safety interests and the protection of
the ballot from poor morals are not legitimate interests and have no
compelling or rational relationship to the right to vote. The only clear
reason for the political silencing of parolees is racial animus, which, in and
of itself, is unconstitutional. Parolees maintain other fundamental rights
while on post- release supervision, and voting should be no different–
American democracy is at stake.

Cuz I'm Young & I'm Black & My Hat's Real Low: Constitutional Rights To The Political Franchise For Parolees Under Equal Protection by Shaylen Roberts, Esq.

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‘Cuz I’m Young & I’m Black & My Hat’s

Real Low : Constitutional Rights to the

Political Franchise for Parolees Under

Shaylen Roberts, Esq.*

* Prosecutor at the Hillsborough County Attorney's Office in Manchester,

Denying the vote to the adjudicated is discriminatory based on the

Think, ATTN (Aug. 31, 2015), https://perma.cc/EVG9-C649 (“Black men are

https://perma.cc/B695-5RJN (last updated Aug. 2017).

9 U.S. CONST. amend. XIV.

updated demographic information about the American prison population).

it for Good, You Need Work, THE DOE FUND, https://perma.cc/8AUY-SNVL

can never fully experience authentic and meaningful American

A. Felon Disenfranchisement and Mass Incarceration

Felon disenfranchisement laws have been a recurring topic of

Kapenda, Why we incarcerate: Rehabilitation, ETHICS IN CORRECTIONS (Jul. 16,

Voting in the United States, BILLMOYERS (Mar. 24, 2015),

(providing updated demographic information about the American prison

world.16 Persons of color, namely, black American men from heavily

16 Fact Sheet: Prisons and People in Prison, supra note 6.

N.Y. TIMES (Aug. 17, 2015), https://perma.cc/2TEL-G8RP (reviewing the

Campaign, THINKPROGRESS (Mar. 6, 2016), https://perma.cc/K8D4-4L46

scale possession and street level distribution,23 creating inordinately high

23 See generally CORRECTIONAL ASS’N OF N.Y., Drop the Rock Coalition,

sentencing structure of harsher punishment for crack possession versus

visited Nov. 24, 2018).

ATLANTIC (Oct. 2015), https://perma.cc/4B9U-QP9T.

L. 103–322, 108 Stat. 1796 (1994) (hereinafter Crime Bill).

imprisonment if he or she: is convicted in federal court of a ‘serious violent

(Apr. 12, 2016), https://perma.cc/F35N-QPZH (remarking: “I signed a bill

Incarceration Crime Bill, LATINPOST (Mar. 7, 2016), https://perma.cc/9R8V-

Drug-Free School Zone, THINKPROGRESS (Apr. 14, 2014),

OF MASS IMPRISONMENT (Marc Mauer & Meda Chesney-Lind, Eds., 2002)

familial breakdown and lack of civic engagement).

CTR. FOR JUSTICE, https://perma.cc/H8LY-KEZ2 (last updated Nov. 7, 2018)

39 See Todd R. Clear, The Effects of High Imprisonment Rates on

notion of socially accepted moral standards through the punitive infliction

Era of Mass Incarceration, 160 U. PA. L. REV. 1789, 1790 (2012),

Vote in a Dozen States, WASH. POST (May 24, 2016), https://perma.cc/D48J-

45 Felony Disenfranchisement: A Primer, THE SENTENCING PROJECT (2017),

https://perma.cc/2J6Z-ZARP (providing data about individual state felon

Right to Vote, PSYCHOL. TODAY (Nov. 6, 2016), https://perma.cc/TN7M-CC5E

AMERICA (Feb. 24, 2014), https://perma.cc/8JPQ-SXJY (“Research indicates

alongside the racial demographics of the prison and parole population,48 a

Voting is a fundamental right, protected by the Constitution.50 In Yick

Disparities in the US Criminal Justice System, NAT’L COUNCIL ON CRIME AND

TIMES (Nov. 18, 2014), https://perma.cc/PQG5-VHCV (“[T]hat most states

previous condition of servitude.”53 Almost a century later, the Voting

53 U.S. CONST. amend. XV, § 1.

on parole did not have a constitutional right to vote and upholding a

law or other official act, without regard to whether it reflects a racially

against black voters.58 Alabama’s state constitution explicitly excludes from

Disenfranchisement, AMERICAN CONSTITUTION SOCIETY (Sept. 30, 2016),

motivated by a desire to discriminate against blacks on account of race and

involving “moral turpitude or who is mentally incompetent, shall be

crime is disqualifying, but are required to sign under the penalties of

attorneys filed suit against the state of Alabama in an unprecedented case

One cannot discuss the consequences and constitutional implications of

65 See Thompson v. Alabama, No. 2:16-cv-00783-WKW-CSC (M.D. Ala.)

1971) (“A search which would be unlawful if directed against an ordinary

Parole, PRISON LEGAL NEWS (Feb. 17, 2017), https://perma.cc/3KC6-Z768

II. Part II – The Problem or Issue Being Addressed

The 2016 Presidential Election divided the American population by

Constitutional Scholars, PBS (Nov. 6, 2016), https://perma.cc/98WJ-6674