[i] See, e.g
., Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 83-93 (rev. ed. 2009); Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 41-68 (2006).
[ii] See, e.g., Erika Wood, Liz Budnitz & Garima Malhotra, Brennan Center for Justice, Jim Crow in New York (2009), https://www.brennancenter.org/publication/jim-crow-new-york.
[iii] Keyssar, supra note 1, at 320 (Table A5).
[iv] Giles R. Wright, Afro-Americans in New Jersey: A Short History 28 (1989) (hereafter “G. Wright”).
[v] James J. Gigantino II, The Ragged Road to Abolition: Slavery and Freedom in New Jersey, 1775-1865 (2015).
[vi] G. Wright, supra note 4, at 28-29. The Reconstruction Amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—were enacted following the Civil War to protect the rights of Black residents, including the right to be free from slavery, to equal protection of the law, and the right to vote.
[vii] Keyssar, supra note 1, at 360 (Table A15).
[viii] Id. at 320 (Table A5). As discussed below, New Jersey first limited the franchise to white males by statute in 1807. That restriction was written into the state’s Constitution in 1844.
[ix] Specifically, New Jersey law states, “[n]o person shall have the right of suffrage . . . [w]ho is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or another state or of the United States.” N.J. Stat. Ann. § 19:4-1(8) (West 2017). An “indictable offense” is defined as a crime of the first through the fourth degree, roughly what other states consider a felony. See N.J. Stat. Ann. §§ 2C:1-4; 2C:43-1 (West 2017). In addition to people disfranchised because of being convicted of an indictable offense, New Jersey’s Elections Code allows a court to impose disfranchisement as an additional punishment on anyone convicted of an elections offense. N.J. Stat. Ann. § 19:34-46 (West 2017). Whether to impose disfranchisement and for how long are in the complete discretion of the court. Id. This statute appears to be seldom, if ever, used and of questionable constitutionality. See In re Evans, 227 N.J. Super. 339, 349-50 (1988).
[x] Christopher Uggen, Ryan Larson, & Sarah Shannon, The Sentencing Project, 6 Million Lost Voters: State-level Estimates of Felony Disenfranchisement, 2016 15 (Table 3), http://www.sentencingproject.org/wp-content/uploads/2016/10/6-Million-Lost-Voters.pdf (hereafter “Sentencing Project, 2016”).
[xi] Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)
[xii] See Together We Teach, Populations of New Jersey Cities, http://www.togetherweteach.com/TWTIC/uscityinfo/30nj/njpopr/30njpr.htm (citing 2010 data from the U.S. Census Bureau) (last visited Oct. 16, 2017).
[xiii] Sentencing Project, 2016, supra note 10, at 15 (Table 3).
[xiv] See id. New Jersey is the only state in the Northeast that denies voting rights to people on both parole and probation. Connecticut and New York both disfranchise only people in prison and on parole. Massachusetts, Rhode Island, New Hampshire, and Pennsylvania restore voting rights once a person is released from prison. And, in Vermont and Maine, people with a felony conviction never lose the right to vote. Id. at 4.
[xv] U.S. Census Bureau, QuickFacts: New Jersey, https://www.census.gov/quickfacts/fact/table/NJ/RHI725216 (last visited Aug. 11, 2017).
[xvi] Sentencing Project, 2016, supra note 10, at 15-16 (Tables 3-4), (analysis by Novakowski).
[xviii] Jamie Fellner & Marc Mauer, The Sentencing Project & Human Rights Watch, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 9 (Table 2) (1998), https://www.hrw.org/legacy/reports98/vote/usvot98o-01.htm. More recent data specifically on Black men is not currently available.
[xix] Sentencing Project, 2016, supra note 10, at 16 (Table 4).
[xxi] In 2016, 47,470 Black New Jerseyans were disfranchised because of a criminal conviction. Id. There were 25,336 Black people in New Jersey in 1860 and 30,568 in 1870, all of whom were barred from voting prior to enactment of the Fifteenth Amendment. G. Wright, supra note 4, at 80 (Appendix 2).
[xxii] Data on the number of Latino people in New Jersey denied the right to vote because of a criminal conviction is not available. We do know, however, that Latino adults and juveniles are more likely to be incarcerated in New Jersey than their white peers. In 2016, New Jersey had a Latino/white incarceration disparity of over 2 to 1, the 10th highest in the nation. Ashley Nellis, The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons 17 (Table D) (2016), http://www.sentencingproject.org/wp-content/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf. Similarly, Latino youth in New Jersey are five times more likely to be incarcerated than white youth. The Sentencing Project, Latino Disparities in Youth Incarceration (2017), http://www.sentencingproject.org/wp-content/uploads/2017/10/Latino-Disparities-in-Youth-Incarceration.pdf. Under New Jersey’s law, these disparities are reproduced in our electorate.
[xxiii] Nellis, supra note 22, at 17 (Table C). To its credit, New Jersey is also a national leader in having reduced its prison population by 35 percent since 1999, The Sentencing Project, U.S. Prison Population Trends 1999-2015, http://www.sentencingproject.org/wp-content/uploads/2016/02/US-Prison-Population-Trends-1999-2015.pdf, with the greatest reductions being of people of color, Nellis, supra note 22, at 12 (Table 4). Despite this progress, the disparities described herein nonetheless remain.
[xxiv] Nellis, supra note 22, at 17 (Table C).
[xxvii] The Sentencing Project, Black Disparities in Youth Incarceration (2017), http://www.sentencingproject.org/wp-content/uploads/2017/09/Black-Disparities-in-Youth-Incarceration.pdf.
[xxviii] See Andrea McChristian, New Jersey Institute for Social Justice, Bring Our Children Home: Ain’t I A Child? 2 (2016), https://d3n8a8pro7vhmx.cloudfront.net/njisj/pages/465/attachments/original/1482183464/Ain’t_I_A_Child_Final_.pdf?1482183464.
[xxix] See Andrea McChristian, How discrimination is sending more black kids to prison, Star-Ledger (Oct. 3, 2017), http://www.nj.com/opinion/index.ssf/2017/10/how_discrimination_is_sending_more_black_youths_to.html.
[xxx] Farrakhan v. Gregoire, 590 F.3d 989, 1014 (9th Cir. 2010).
[xxxi] See Ryan Haygood, Disregarding the Results: Examining the Ninth Circuit’s Heightened Section 2 “Intentional Discrimination” Standard in Farrakhan v. Gregoire, 111 Colum. L. Rev. 51 (2011).
[xxxii] Portia Allen-Kyle, ACLU of New Jersey, Missing: 39,527 New Jersey Voters, (June 6, 2017), https://www.aclu-nj.org/news/2017/06/06/missing-39527-new-jersey-voters. The number of voters removed from the rolls does not factor in the extent of disfranchisement among those who were not previously registered. Nevertheless, alternative measures of disfranchisement mirror the same disproportionate impact. For example, over a quarter of people currently in New Jersey prisons come from Essex County and Camden County and those same two counties lead the state in the size of their probation caseloads. See N.J. Dep’t Corr., Offenders in New Jersey Correctional Institutions on January 3, 2017, by County of Commitment, http://www.state.nj.us/corrections/pdf/offender_statistics/2017/By%20County%20of%20Commitment%202017.pdf; N.J. Admin. Office of the Courts, Court Management Statistics, June 2017, https://www.judiciary.state.nj.us/public/assets/stats/cman1706.pdf. According to a response by the State Parole Board to an Open Public Records Act Request, data on parole by county is not collected and not available.
[xxxiii] U.S. Census Bureau, Quick Facts: New Jersey, Essex County, and Camden County, Population estimates for July 1, 2016, https://www.census.gov/quickfacts/fact/table/camdencountynewjersey,essexcountynewjersey,NJ/RHI725216 (last viewed Aug. 8, 2017) (analysis by Novakowski).
[xxxiv] Allen-Kyle, supra note 32 (analysis by Novakowski).
[xxxv] U.S. Census Bureau, Quick Facts: New Jersey, Essex County, Camden County, Hudson County, Monmouth County, Ocean County, Population estimates for July 1, 2016, https://www.census.gov/quickfacts/fact/table/oceancountynewjersey,monmouthcountynewjersey,hudsoncountynewjersey,camdencountynewjersey,essexcountynewjersey,NJ/RHI725216 (analysis by Novakowski).
[xxxvi] Gigantino, supra note 5, at 2. There were, of course, pockets of New Jersey residents who opposed slavery and worked toward abolition, including by hosting stops along the Underground Railroad. See id. at 216.
[xxxviii] Richard P. McCormick, The History of Voting in New Jersey 69-70 (1953).
[xxxix] The statute specifically limited the franchise to free, white male citizens, 21 years of age or older and “worth fifty pounds proclamation money, clear estate, and have resided in the county where he claims a vote for at least twelve months immediately preceding the election.” J.R. Pole, The Suffrage in New Jersey, 1790-1807, 71 Proceedings of the N.J. Historical Soc’y 39, 58 (1953) (citing Laws, 32 sess., 1 sit., pp. 14-15); see also Marion Thompson Wright, Negro Suffrage in New Jersey 175 (1948) (hereafter “M. Wright”); McCormick, supra note 38, at 99-100. Notably, the law was passed several years after enactment of the Act for the Gradual Abolition of Slavery of 1804, which would greatly expand the number of free Black people as children born to enslaved Africans reached adulthood, and thus increase Black political power. See Gigantino, supra note 5, at 95-98.
[xl] Keyssar, supra note 1, at 320 (Table A5).
[xli] See McCormick, supra note 38, at 144; Proceedings of the 1844 Constitutional Convention, May 30, p. 163, http://babel.hathitrust.org/cgi/pt?id=uc1.b4506453;view=1up;seq=7 (“Mr. Stokes presented a petition from certain colored citizens of the State praying that they may not be excluded by the Constitution, from exercising the right of suffrage — . . . . [w]hich was read, and, on motion of Mr. J.R. Thomson, was ordered to lie on the table.”); see also Gigantino, supra note 5, at 230.
[xlii] G. Wright, supra note 4, at 29.
[xliii] Gigantino, supra note 5, at 207-08. Peterson’s name often takes the form of several variations. Gigantino refers to him as “Thomas Peterson-Mundy.” Id. Though the three names were never actually used together contemporaneously, he is now most commonly known as “Thomas Mundy Peterson.” See Gordon Bond, Guest Post: Thomas Mundy Peterson and the Fifteenth Amendment, The Junto (July 11, 2013), https://earlyamericanists.com/2013/07/11/thomas-mundy-peterson-and-the-fifteenth-amendment/ (last visited Dec. 12, 2017).
[xliv] See, e.g., Keyssar, supra note 1, at 83-93; Manza & Uggen, supra note 1, at 41-68.
[xlvi] NAACP Legal Defense and Educational Fund & The Sentencing Project, Free the Vote: Unlocking Democracy in the Cells and on the Streets 2 (Updated 2016), http://www.naacpldf.org/files/about-us/Free%20the%20Vote%202016_0.pdf
[xlvii] The constitutional provision adopted in 1844 was the first time New Jersey codified the denial of voting rights based on conviction of a broad range of crimes. See Keysar, supra note 1, at 325 (Table A.7); McCormick, supra note 38, at 132. New Jersey had briefly denied voting rights to people convicted of treason during the Revolutionary Era. See McCormick, supra note 38, at 74-76. Those laws were narrowly tailored and short-lived, having been repealed by 1788. Id.
[xlviii] Application of Marino, 42 A.2d 469, 471 (N.J. 1945).
[l] See Proceedings of the 1844 Constitutional Convention, May 25, p. 97, https://babel.hathitrust.org/cgi/pt?id=uc1.b4506453;view=1upseq=7; Proceedings of 1947 Constitutional Convention, Vol. 2, at 1367, http://www.njstatelib.org/research_library/new_jersey_resources/highlights/constitutional_convention/.
[li] Stephens v. Yeomans, 327 F. Supp. 1182, 1188 (D. N.J. 1970). In 1947, New Jersey adopted the Constitution that remains in place today which empowers the legislature to “pass laws to deprive persons of the right of suffrage who shall be convicted of such crimes as it may designate.” N.J. Const. art. II, § 1(7). Following the adoption of the new Constitution, the legislature prescribed disfranchisement for the same list of crimes that prevented a person from serving as a witness at the time the 1844 Constitution was adopted. See Stephens, 327 F. Supp. at 1188.
Compare N.J. STAT. ANN. § 19:4-1 (“No person shall have the right of suffrage… [w]ho is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or another state or of the United States.) (emphasis added) with Stephens, 327 F. Supp. At 1183-84 (quoting 1948 version of the statute). For a general discussion on the explosion in mass incarceration beginning around this time, see, generally, MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (rev. ed. 2010).
[liii] Patrick A. Langan, U.S. Bureau of Justice Statistics, Race of Prisoners Admitted to State and Federal Institutions, 1926-86 (Table 7) (May 1991), https://www.ncjrs.gov/pdffiles1/nij/125618.pdf. There are significant gaps in the data available for New Jersey in the BJS report. In 1950, 1,367 people entered New Jersey prisons. Data for New Jersey is not reported again until 1977, at which point the number had almost doubled to 2,474. By 1986, the last year covered the by BJS report, 4,905 people entered state and federal prisons in New Jersey.
[liv] The Sentencing Project, Criminal Justice Facts – State-by-State Data: New Jersey, http://www.sentencingproject.org/the-facts/#detail?state1Option=New%20Jersey&state2Option=0. (last visited Aug. 11, 2017)
[lv] Between 1870 and 1910, New Jersey’s Black population almost tripled. G. Wright, supra note 4, at 45. In all, the state’s Black population increased almost 3,000 percent between 1870 and 1980. Id. at 79 (analysis by Novakowski).
[lvi] By 1980, over 95 percent of New Jersey’s Black population resided in urban areas. Id. at 70-72.
[lvii] See Elizabeth Hinton, From the War on Crime to the War on Poverty: The Making of Mass Incarceration in America 12-25 (2016).
[lix] Langan, supra note 53.
[lx] See Ryan P. Haygood, Juneteenth: Free at Last?, The Black Commentator, June 19, 2008, http://www.blackcommentator.com/282/282_juneteenth_haygood_printer_friendly.pdf.
[lxi] Martin Luther King, Jr., Civil Right No. 1, N.Y. Times Mag., Mar. 14, 1965, at 27.
[lxii] Ryan P. Haygood, The Past as Prologue: Defending Democracy Against Voter Suppression Tactics on the Eve of the 2012 Elections, 64 Rutgers L. Rev. 1019 (2012).
[lxiii] See Haygood, supra note 31.
[lxiv] Most European counties allow people to vote while incarcerated and some facilitate voting by setting up polling places in the prison and helping to secure absentee ballots. Jean Chung, The Sentencing Project, Felony Disenfranchisement: A Primer (2016), http://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/. Furthermore, if disfranchising people in prison makes the U.S. an outlier among Western democracies, its practice of disfranchising people who have completed their prison sentences makes it a truly global outlier: no other nation in the world disfranchises more people who have been released from prison than the U.S. Alexander, supra note 52, at 158.
[lxv] See Prison Policy Initiative, Prison Gerrymandering Project: The Problem, https://www.prisonersofthecensus.org/impact.html (last visited Sept. 5, 2017).
[lxvi] People who are in jail but maintain their right to vote do not vote for candidates of the district in which the prison is located. Rather, they maintain their domicile and vote by absentee ballot in their home districts.
[lxvii] See Prison Policy Initiative, supra note 65; see also Prison Policy Initiative, Fixing prison-based gerrymandering after the 2010 Census: New Jersey, https://www.prisonersofthecensus.org/50states/NJ.html (last visited Sept. 5, 2017). For a more academic perspective on prison-based gerrymandering and the role of the Census Bureau, see Nathanial Persily, The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them, 32 Cardozo L. Rev. 755 (2011).
[lxviii] See Hearing on A2937/S587 Before the Assemb. Judiciary Comm. 2016-2017 Leg., (N.J. 2017) (statement of Aleks Kajstura, Legal Dir., Prison Policy Initiative), https://www.prisonersofthecensus.org/testimony/NJ-A2937-PPI-Testimony-2017.pdf. Ending prison-based gerrymandering is especially important if people in prison are prohibited from voting as their presence pads the district of the prison and they are completely without a vote. If the franchise is extended to people in prison, maintaining a policy of prison-based gerrymandering creates the illogical situation in which they are counted as residents of the prison district but vote in their home district.