Abstract

Excerpted From: Carla Laroche, Black Women and Voter Suppression, 102 Boston University Law Review 431 (December, 2022) (396 Footnotes) (Full Document)

Black women community activists and leaders have become synonymous with those who struggle to enhance voting rights access. As one summary described their efforts, “[G]enerations of Black women in particular have encouraged voter registration, organized their communities to turn out at the polls, and battled near-constant voter suppression efforts. Their tireless commitment has started to attract more attention, but their work is not done.” The historical and societal expectations are that Black women will make sacrifices for, and represent the importance of, voting--without getting the right to vote for themselves.

Consider, for example, Wandrea “Shaye” Moss, a thirty-seven-year-old mother and former election employee in Fulton County, Georgia, and her mother Ruby “Lady Ruby” Freeman, a sixty-two-year-old Black grandmother and former Georgia election worker with the Fulton County Department of Registration and Elections. Both women enjoyed the work they had done as election workers. As Moss explained, “I've always been told by my grandmother how important it is to vote and how people before me, a lot of people, older people in my family, did not have that right.” They value the right to vote.

The Select Committee to Investigate the January 6th Attack on the United States Capitol (“January 6th Committee”) introduced Moss and Freeman to the world on June 21, 2022, when it broadcasted their testimony about the horrors Moss and Freeman endured after the Trump Administration accused them of rigging the November 2020 election. These accusations were false and made without any proof. Rudy Giuliani, a lawyer for then President Donald J. Trump's campaign, alleged to have seen a “surveillance video from the [State Farm Ajrena that he claimed showed the two exchanging USB memory sticks, presumably containing fraudulent vote counts, ‘as if they're vials of cocaine.”’ Trump described Freeman as a “professional vote scammer and hustler” and attacked both women on a leaked recording of a phone call he had with Georgia Secretary of State Brad Raffensperger, just two days before the January 6th attack. The work Moss and Freeman did to ensure the fairness of the 2020 election and that Fulton County counted every vote led to death threats, assaults, racist and sexist attacks on their character and the disarray of their lives. They risked their lives while attempting to protect the integrity of the election.

From before the Women's Suffrage Movement to present-day voting rights activists, women have faced these racialized and gendered caricatures; while they pushed for democratic principles and the right to vote for systemically excluded communities, they also battled for voting access for themselves. Unfortunately, “[i]t should not fall to Black women to beat back these antidemocratic measures, but over and over, it's Black women who step up.” Because of their consistent efforts, Black women are a powerhouse voting bloc, have been lionized for making huge strides in registering voters, and are one of the most active portions of the United States' electorate.

Commentators have described Black women as the “unsung heroes” of the right to vote. Research has found that “Black women, regardless of location, age, or socioeconomic background, tend to vote for economically thriving, educated, healthy, and safe communities.” Their justice-focused interests would protect them and their families, and, also, benefit communities of all demographics. Their votes are efforts to work toward a fair democracy.

Nevertheless, while people across the United States have lauded Black women for saving the country's democracy after elections, they have also failed to prevent the suppression of Black women's votes. So, even though people celebrate the monumental bravery of Moss and Freeman, two Black women focused on protecting everyone's right to vote, states also exclude other Black women from voting or seeking to vote because they have been convicted of a crime. States across the nation ban people with convictions from voting, unless they have met certain, often confusing, criteria. States vary in the procedures people must follow to restore their right to vote. Only Vermont, Maine, the District of Columbia, and the Commonwealth of Puerto Rico allow people to vote no matter their criminal history.

Although the literature uses the term “felony disenfranchisement,” the disenfranchisement maze people must follow to regain or restore their voting rights amounts to voter suppression. States may authorize the automatic restoration of a person's voting rights, an application after a waiting period, or permanent disenfranchisement. A person may be eligible to vote immediately after they are released from prison, after completion of post-release conditions related to probation or community supervision, after paying their legal financial obligations (“LFOs”), or not at all. These disenfranchisement mazes vary across the United States, but they all amount to disenfranchisement by geography.

In some cases, the voting restrictions themselves lead to more potential criminal liability. Prosecutors criminally charge Black women who were once convicted of a crime that caused them to lose their voting rights, who then unintentionally and unknowingly misstep by registering to vote or voting while ineligible. Crystal Mason and Pamela Moses are two Black women who were convicted, respectively, for submitting a provisional ballot in Texas and trying to register to vote in Tennessee while ineligible within their states' disenfranchisement maze. Their arrests and convictions went viral across the nation, offering further cause to call for reform. Meanwhile, these women suffered the consequences of these additional injustices, including being incarcerated and being separated from family, simply for trying to navigate society's constructed barriers.

Over the last forty years, the rate of incarceration of women has increased exponentially, but Black women are represented disproportionately in courtrooms, jails, and prisons. Given the disturbing rate of conviction and incarceration of all women in the United States, but especially Black women, this disenfranchisement serves to undermine Black women's voting access. Although the act of voting is supposed to express people's political citizenship, their hopes for their community and country, and their level of satisfaction with their elected officials' actions, Black women have been left out of this powerful undertaking; their votes are suppressed through the disenfranchisement maze.

Part I of this Article explores the challenges Black women, in particular, have faced when trying to access the right to vote because of their intersectional-- race and gender--identities and the value voting has within the United States. It describes how voting disenfranchisement, a legacy of racist JimCrow and sexist Jane Crow policies and behaviors operate, and how mass incarceration has intersected with gender and race to heighten Black women's ban from the ballot box. Part II analyzes the history of voter suppression because of criminal convictions in Florida and how two Black women, Rosemary McCoy and Sheila Singleton, have served as critical advocates in the push to recognize the marginalization of women of color within the disenfranchisement maze. Part III examines the negative consequences these voter suppression schemes have on Black women and their families and communities and explains why these disenfranchisement mazes lead to the elevation of the interests of white communities.

Part IV offers ways that advocates can demand the implementation of laws and policies that give Black women with criminal convictions the full right to vote, including abolishing these voter suppression laws. Should policymakers and voters refuse to do so, people will continue to disregard Black women's inability to access their voting rights, knowingly, and racism and sexism will continue to dictate who has political power, as they always have throughout U.S. history. In 1795, political theorist Thomas Paine wrote, “[T]o take away [the right to vote] is to reduce a [person] to a state of slavery, for slavery consists in being subject to the will of another.” Accordingly, a just, free, and democratic society requires ensuring that Black women, including those with criminal convictions, have input in our government; without their perspective, their intersectional experiences will continue to be disregarded.

will the negro woman do with the vote? ... [W]e will stand by the white women .... We are interested in the same moral uplift of the community in which we live as you are. We are asking only one thing: a square deal .... We want recognition in all forms of this government.

--Juno Frankie Pierce

[. . .]

Should voter suppression schemes continue, legislators, executive leaders, and the judiciary will be sanctioning--with clear knowledge of the disenfranchisement mazes' roots and impact--continued discrimination against Black people, and Black women in particular. Although they have failed too many times before, the federal government and states must end all conviction disenfranchisement mazes. It is time to reverse Black women's removal from the electorate and address the systems and policies that suppress their ability to vote. While the federal and state governments and the public authorize discriminatory practices to gatekeep who gets to vote, communities suffer and must work tirelessly to access the right that others access easily. The right to vote should not depend on one's race, gender, wealth, location, or criminal record, and history must stop repeating itself.

When demanding the unequivocal support and action of white people in ending the lynching of Black people in 1901, Ida B. Wells-Barnett demanded “that the silence of concession be broken, and that truth, swift-winged and courageous, summon this nation to do its duty to exalt justice.” The same principle applies to dropping these unjust disenfranchisement mazes. Laws and systems must enable the full political power of all by dismantling voter suppression due to criminal convictions. Society must move closer to the change, square deal, truth, benefit, destination, and reclaiming Black women have been demanding for far too long.

Associate Clinical Professor and Director of the Civil Rights and Racial Justice Clinic, Washington and Lee University School of Law; J.D., Columbia Law School; M.P.P., Harvard Kennedy School; B.A., Princeton University.