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Excerpted from: Nicole Austin-Hillery, #Blacklivesmatter and Voting Disenfranchisement, 40 Western New England Law Review 415 (2018) (Transcript) (51 Footnotes) (Full Document)


NicoleAustin HilleryI want to tell you how happy I am to be here today with all of you. When I got the invitation that originally came from Chelsea, I was excited because I thought, “Wow, this law school is not afraid to walk the talk.” There is all this talk right now in our country about racial justice and supremacy and nationalism, and a lot of people say, in tweets and other things, how awful it is, but a lot of people really do not want to tackle it. Because, you all know that, talking about racism is not pretty, it is not easy, and it is not comfortable. But if we ever want to get to the heart of what is going on in this nation around the issue of race, we must have real conversations. So, I was so pleased to get this invitation because I thought, “oh this is going to be a real conversation.”

So, I have to tell you that I'm pulling out all the stops. I have a big mouth that I like to use for good. My eighth grade English teacher, Ms. John, told me when I was thirteen that I had a big mouth and she said, “but use it for good.” So that is what I try to do. I hope to do that today. And I also hope that we, in this room, have a real conversation.

Let me tell you a little about the Brennan Center, and who we are, and what we do. The Brennan Center is a national litigation think tank, legal advocacy, and research organization. We are part of the NYU School of Law, and we were founded as a living memorial to former Supreme Court Justice William J. Brennan, Jr. If you know anything about his jurisprudence, Justice Brennan was a civil rights, social justice warrior on the Court. He sat right next to former Supreme Court Justice, the late Thurgood Marshall, and the two of them got into a lot of what my mentor Congressman John Lewis calls “good trouble.”

When Justice Brennan stepped down from the Court, his law clerks all got together and said, “We want to do something to honor you, Justice Brennan,” and he said, “Please don't give me a gold pocket watch, I don't want that; I don't want some bust of me sitting somewhere.” His clerks came up with the idea of the Brennan Center. They said, “We want to have this organization that is going to continue the social justice, civil rights work that you talked about on the Court.” Justice Brennan made us promise one thing, I'm told, and that is we would not be afraid to challenge any of his previous opinions, but that we would look at what was wrong with our systems of democracy and justice, look at what was broken, and devote our work to fixing those parts of our broken democracy and justice systems. And that is what we do.

My role at the Brennan Center is to oversee all our policy and advocacy work in Washington. I spend a lot of time with all those wonderful people on Capitol Hill, trying to talk about legislation and to push for those things that we think work and try to stop those things that we think are problematic. I spend a lot of time--or at least I used to spend a lot of time--at the White House, talking about policy and advocacy issues. I don't get a lot of invitations these days--I think my last invitation was in November of 2016--but we'll see.

We also work with coalitions around the country and those that are based in Washington, D.C., because none of this work can be done singularly by one organization--it is impossible. You all know it takes a village to solve these problems, and it takes a village to fight back against efforts to make it harder to be engaged in our justice and democracy systems.

One of the Brennan Center's initiatives that I am most proud of is our efforts to try and fix what is broken with our voting and elections system here in the United States. We have got, as you heard in my introduction, a whole lot of problems, you all, a whole lot.

In this past election, we only had about sixty percent of the nation that went to the polls. Why is that not one hundred percent? It's not a hundred percent because voters are disenfranchised and because voters are disillusioned. Many of them feel we have this democracy, but so many feel they don't have a voice in this democracy. So many of them feel there are barriers put in place to make it harder for them to engage in our election system. We have these outrageously long lines that people have to stand in. We also have states that have tried to enact bills that make it harder for so many people to actually register to vote and indeed engage in our election system. Many of those people are predominately Black and Brown people; they are students, like many of you sitting here; they are the poor people; and they are the elderly.

I am going to talk about that a little toward the end, but I wanted to lay the groundwork so that we all understand that we are in trying and dangerous times when it comes to our electoral system. And what I tell everyone is this, because there are still people who come up to me and say, “I don't care about voting.” That makes me cringe, like nails on a chalkboard, when people say that to me. When they say that to me, I ask them, “Why?” and they respond, “Because ‘why?”’ In response I hear: “[b]ecause Nicole, there are people who tell me I need an ID to vote, there are people who tell me that because I have a prior felony conviction I can't vote” and they also say, “because of this thing called the Electoral College, I feel that my vote doesn't mean anything anyway. If the electors want to do something different, what's the use?”

We have a job to do. No one in the United States should feel like they don't have a voice. I tell people all the time, “I don't care how big your individual voice is, if you have a voice like mine that can reach from here to the back of Carnegie Hall or if you're the shyest person in your classroom. Nobody's voice is as big and as great as ours collectively when we go to the ballot box.” And that's why everybody must vote, that's why it's so important.

Chelsea wanted me to talk to you today about one of the most draconian parts of our democracy system that has been in place for many, many, many decades, but that so many people ignore because they feel like ‘it's not me, I can still go to the polls, I can still vote.’ But, we need to understand that so many of the issues that are facing us today, when it comes to the electoral system, whether they affect you or not, they are affecting our democracy. And anything that affects our democracy impacts every one of us. And anyone who tells you anything different is drinking something funny.

The history of voting in the United States is one where it has been about expanding the ballot box. It has not been about a system where we are trying to make it harder for people to actually vote. So, you have to remember that history; that is what we have to focus on as we continue to fight these fights.

One of the biggest problems in the United States is that we are disenfranchising millions of voters every day because they have a prior felony conviction. Now I don't know about you, but here is what I was taught in law school and otherwise; if you for some reason commit a crime, and you're convicted, then you have to go to jail. So be it, that is the way our criminal justice system works. That topic is one for another symposium--but let's just assume for the purposes of today's conversation that the system works very well, and you commit a crime, you're convicted, and you go to jail.

Now, once you have completed that incarceration period, what I have been taught, is that you are expected, when you come back into the community, to get a job, you are expected to pay taxes, you are expected to obey the laws, and you are basically expected to be a good citizen. Now, I have been taught that in a great democracy, part of being a good citizen is being engaged in the electoral process. So, why, in the United States, do we tell people you must serve your incarceration period, when you get out you have to follow all these rules and regulations and be a good citizen, but that voice, that ability to go into the ballot box, is something that we are going to keep out of your reach? There are only two states in the country that never take that right away from you, and they happen to be here in New England. In Maine and Vermont, you never have that right taken away from you; even when you are behind bars, you can still vote.

But in the rest of the country it is what we like to call a “patchwork quilt of laws.” It all depends on where you live and what the particular provisions are in that state. So, for example, in the Commonwealth of Virginia, it used to be that once you were finished with your incarceration period, if you wanted the right to vote restored, you had to get permission from the governor. Now, I don't know about you all, but you heard all of those fancy things about my career, but I'm not so fancy that I'm friends with the governor. So, if I had to go to the governor and ask permission to have my right to vote restored, guess what, I wouldn't get it. So how ludicrous is it that a state would require someone who was formerly incarcerated to get permission from the governor to have their right to vote restored?

Even if you do happen to know the governor, guess what, you must have a lawyer, you must have advocates, and you must have all these other people to help you work that system, because there are parameters in place. There is a certain letter you have to write to the governor, it must include certain information, most lay people can't do that. So again, in the Commonwealth of Virginia, they created a high bar for someone to get their right to vote restored. So, guess how many people under those old provisions had their right to vote restored? Very few.

Now, luckily, the current Governor [of Virginia] Terry McAuliffe declared, “I think this is draconian; I think it is immoral that in the Commonwealth of Virginia one has to go through these many hoops to get the right to vote restored. Because it's a right that everyone should have in the United States. I'm going to use the power of my executive pen, and I am going to restore that right to each and every individual formerly incarcerated person who approaches the governor's office with a very simple petition.” So, in the Commonwealth of Virginia, he has restored the right to vote to thousands of formerly incarcerated. So they went from being one of the worst states in the country on this issue to being one of the best--but that is just in Virginia.

Depending on where you live, it is something different. Guess what? The elections officials in many of these states don't necessarily know what the law is. We did a report a few years ago at the Brennan Center called “De Facto Disenfranchisement.” We called elections officials in every state, and we documented, based on our survey, what those elections officials said about how one gets their right to vote restored. We compared that to what we knew, as attorneys, was the law in those states. And guess what we found? The elections officials were just as confused as those who were formerly incarcerated.

So, that means that individuals who were returning to the communities, once they called their elections offices and said, “Please tell me how I can get involved and become a registered voter,” they were getting inaccurate information. So how in the heck, if the elections administrators don't necessarily know what the law is in their jurisdiction, do you expect the formerly incarcerated to know it? And how do you expect them to get re-engaged?

But before we talk about that and where we are now, we've got to talk about the history of this. You're probably wondering ‘where did this come from, Nicole?’ Why is this even an issue? Why is it that in this country you don't have the right to vote restored immediately upon completion of your incarceration? I'll give you two reasons. The United States is the only modern democracy in the world that strips the right to vote from millions of formerly incarcerated people; there is no other democracy that has a system quite like this.

And you have to ask yourself, why is that? Because we are supposed to be the world's greatest democracy, are we not? We are supposed to set the standard and be the example for the rest of the world. But, just like our mass incarceration numbers, we have the worst numbers when it comes to re-enfranchising the formerly incarcerated. And as I said, states impose all kinds of different laws. It varies based on whether you live in Massachusetts, whether you live in Rhode Island, or whether you live in Hawaii. It is different every place you go. “This widespread disenfranchisement,” which is probably of no surprise to any of you, “disproportionately impacts people of color. One in every thirteen voting-age African Americans cannot vote” because of these disenfranchisement laws. This is a disenfranchisement rate that is “more than four times greater than that of all other Americans.” So that's everybody; you put everybody together, you put Native Americans, you put Asian Americans, whites, you put every other ethnic group together, and that disenfranchisement for African Americans is greater than all those groups combined.

I also have to tell you, although data on the Latino community is not as prevalent as it is for African Americans, those numbers are not great either. What we found in “a 2003 study of ten states ranging in size from California to Nebraska ... [is] that nine of those states ‘disenfranchise[d] the Latino community at rates greater than the general population.”’ So I guess depending on how brown you are, and where you live, that's how badly it might be for you.

“While the origins of disenfranchisement may be traced back to early colonial law in North America,” one can go even further back to Ancient Greece. If you go back to Greece, you will see disenfranchisement laws were applied; however, at that time, the punishment was not applied ad hoc to everyone who was formerly incarcerated, punishments were made on a case by case basis.

That makes sense, doesn't it? I mean, we don't live in a country that says no matter what crime you commit, here is your punishment, you get twenty-five to life. It's based on what crime you commit, it's based on how heinous it is, it's based on where it's committed, how many people were impacted, all those factors. But when it comes to taking away the right to vote, none of those gradations matter in the United States, for any jurisdiction [that takes away the right to vote]. No matter what the crime is, if it is a felony conviction, you have that right taken away. “It wasn't until the end of the Civil War and the expansion of suffrage to black men that felony disenfranchisement became a significant barrier to U.S. ballot boxes.” And you can see why, can't you?

So, you have all these formerly enslaved people that now are free, and there are people, the white landowners, the white male landowners that said, “oh, hold up, wait a minute, hold up, we've got all of these people who we used to oversee that are now free and guess what? We brought so many of them here and now, they can really be a large voting block. Now we are saying that they can vote. Maybe we ought to find a way to maintain some control.”

And that is what voter disenfranchisement laws enabled people to do. So, the people who had economic power and who had political power started using this as a mechanism to control these formerly enslaved people who now had political power.

We're going to talk about this in three parts--we're going to talk about the end of the Civil War, then phase two of disenfranchisement laws, and then we're going to talk about where we are now. Which is kind of where we started; I gave you a few highlights of that, but we're going to talk about where we are now. And not only where we are now with respect to these laws, but how it relates to the larger issues we are facing when it comes to criminal justice and racial disparities. You must understand, none of these issues can be dealt with singularly. Even the prior speaker who spoke of health disparities, for example, all these things are interconnected. And when you want to talk about how we resolve some of these problems regarding racial disparities, you must look at them all together--you can't say, “I'm just an expert on health disparities,” or “I'm just an expert dealing with voter issues.”

No, all of these things are interconnected, and we are going to talk about that, and I'm hoping as we get to the panel discussion later that we will start to connect those dots, and that we start talking about the real solutions, because I have to tell you all, I love that you invited me to come out here and speak, and I love to talk about these issues, but I don't want to just have a room full of people who all look pretty and smart--which, by the way, you all do--I don't want people who will just sit here and listen to me talk. I believe in problem solving and talking about real solutions, and we should not be walking out of those beautiful glass doors today without having some real concrete solutions that we can figure out how to put in place.

. . .

I charge you today with refusing to be siloed. There are forces out there who want to silo us, to get us to focus on one thing at a time. We're smarter than that. We have to figure out how we look at all of these issues and fix them in one fell swoop because that is the only way we are going to fix our democracy. We cannot allow ourselves to be divided as civil rights warriors. We must connect the dots and work with each other on the issues that we are experts in and identify our colleagues who will help us in this effort. [We must figure out] how we bring all of this together. Until we do that, we are going to continue to have these conversations and conferences.

I want us talking about how we empower, engage, and level the playing field, for all Americans, regardless of race, regardless of gender, regardless of sexuality, and until we start thinking about it that way, we are going to have a long, hard road ahead of us. But I am emboldened. I am looking around this room and I see so many differences, just by [looking at your] faces, and I cannot imagine the differences [and the commonalities] I would find if we all spoke with one another. Here we are, all together, in this room. Charlottesville be damned.

This piece was spoken at the Western New England Law Review's Symposium, ‘Perspectives on Racial Justice in the Era of #BlackLivesMatter’ on October 20, 2017. Nicole Austin-Hillery, then Director-and-Counsel of the Brennan Center for Justice in Washington D.C., is currently the U.S. Program Executive Director with Human Rights