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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

A Restoration of Voting Rights & Humanity

Brandon Samuels254

As a nation that has always touted its democratic principles,
the United States of America restricts citizens’ right to vote.
Voter disenfranchisement laws particularly silence the voices
of formerly incarcerated individuals. These laws often restrict
or make it harder for formerly incarcerated Americans to vote
in federal and state elections. Individuals who have fully
completed their sentence continue to face voting obstacles
beyond prison that non-incarcerated Americans do not
encounter. These laws hamper individuals who have completed
their sentences and discriminate against the rights of formerly
incarcerated people. This article questions why formerly
incarcerated individuals are not eligible to enjoy the same
voting rights as their fellow Americans. To combat this unjust
treatment, this article proposes an original super-statute: The
Voting Rights Restoration Act. This novel proposal ensures that
formerly incarcerated individuals will be respected under the
law as equal citizens of the United States.

I. A Proposed Statute: The Voting Rights Restoration Act

A fundamental right that all Americans are entitled to is
the ability to participate in our nation’s democratic processes.
However, there are numerous state laws that exclude millions
of Americans with past criminal convictions from voting in
both state and federal elections.255 The Voting Rights
Restoration Act seeks to address this anti-democratic injustice.

255 Chung, Jean, and Amy Fettig. “Voting Rights in the Era of Mass
Incarceration: A Primer.” The Sentencing Project,3 Sept. 2021,
https://www.sentencingproject.org/publications/felony-disenfranchisement-
a-primer/.

254 Brandeis University Undergraduate, Class of 2025.

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This proposed statute is a super-statute because it addresses a
fundamental aspect of national life: the ability for all
Americans to participate in democracy.256 Super-statutes, such
as the Civil Rights Act of 1964 or the Voting Rights Act of
1965, provide a broad pathway for citizens to exercise their
fundamental rights that are enshrined in the Constitution of the
United States.257

The fundamental right to participate in our democracy
is directly addressed under Section 1 of the 14th Amendment of
the Constitution which states, “nor shall any state deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.”258 This amendment is particularly
significant because it states that the laws of the United States,
including voting laws, must be applied equally to all citizens.259
The Voting Rights Restoration Act reinforces the Equal
Protection Clause because it promotes the constitutional
principle that every American citizen is entitled to vote in
elections and that no state shall abridge this right.

Finally, the Voting Rights Restoration Act is a super
statute because it would be a “landmark” of our law.260 Not
only does this proposed piece of legislation give practical

260 Breen, “Class Lecture.”
259 U.S. Const. amend. XIV, § 1.
258 U.S. Const. amend. XIV, § 1.

257 Breen, Daniel. 221LGLS: Civil Rights and Civil Liberties: Legislative.
26 January. 2022, Brandeis University, Waltham. Class Lecture.

256 Scholars William N. Eskridge, Jr. and John Ferejohn define a
super-statute as, “a law or series of laws that (1) seeks to establish a new
normative or institutional framework for state policy and (2) over time does
“stick” in the public culture such that (3) the super-statute and its
institutional or normative principles have a broad effect on the
law—including an effect beyond the four corners of the statute” (1216);
Eskridge, William N., and John Ferejohn. Super-Statutes ,
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context
=dlj

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effect to the Equal Protection Clause, a core constitutional
command, but it also restores the right to vote to every
formerly incarcerated American. In summation, the Voting
Rights Restoration Act pertains to the three criteria that define
a super-statute; the legislation addresses a fundamental aspect
of our national life, it gives effect to deeply held beliefs and
aspirations, and it is a “landmark” in our law.261

The Voting Rights Restoration Act would also allow
any individual who has completed a sentence in prison or jail
to be eligible to vote upon release. Further, the Act would
allow individuals who are on parole or supervised probation to
exercise their right to vote in elections. States such as Florida,
Alabama, Arizona, and Tennessee have adopted laws that have
made restoration of voting rights “conditional on an
individual’s payment of all restitution, fines, and fees.”262
Formerly incarcerated individuals who are required to make
monetary payments in order to exercise their right to vote
encounter hindrances in fulfilling their civic responsibilities
that are not encountered by non-incarcerated individuals.

The Sentencing Project is a research and advocacy
center that seeks to limit the decriminalization of youths and
adults by undertaking an initiative to analyze laws related to
voter disenfranchisement. The center estimates that almost
900,000 Floridians are barred from voting, despite a 2018
referendum which guaranteed their restoration of voting
rights.263 The proposed Voting Rights Restoration Act abolishes
any law that requires former imprisoned to pay any restitution,
fine, or fee to vote. The act of voting or exercising one’s voice
in democracy should not be dependent on a monetary
contribution. Voting is an intangible mechanism that has no
monetary function because it is both a freely guaranteed and
not transferable right. Instead, voting ought to be regarded as a

263 Uggen et al., “Locked out 2020.”
262 Chung et al., “Voting Rights.”
261 Eskridge, William N., and John Ferejohn. Super-Statutes.

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fundamental right that any citizen can freely exercise,
regardless of income level or previous incarceration.

The Voting Rights Restoration Act seeks to restore the
right to vote for formerly incarcerated individuals while also
enforcing the rule of law in a rational manner. When an
individual violates the laws of the United States, they are
subject to incarceration. A convicted individual forfeits many
freedoms, including the right to vote, while they are
incarcerated. Therefore, The Voting Rights Restoration Act
pertains to individuals who are no longer incarcerated as well
as individuals who are in a period of parole.264 The application
of this proposed statute depends on if the individual is
imprisoned or has been released from incarceration. The
proposed statute does not apply to individuals who are
currently serving a prison sentence. While individuals
relinquish their right to vote during their period of confinement
and/or probation, this restriction should end upon the
termination of a person’s sentence. After an individual
completes their sentence, they have served their time and ought
to be reintegrated back into a society where voting is a regular
practice. Lastly, the Voting Rights Restoration Act would be a
federal law enacted by Congress, meaning it is applicable to all
50 states and territories of the United States.

II. Why The Voting Rights Restoration Act Is Needed

The Voting Rights Restoration Act is needed today
because it reflects the current call to combat the oppression of
minority groups disproportionately affected by the criminal
justice system.265 As it stands, disenfranchisement of voting

265 Brennan Center For Justice, “Criminal Disenfranchisement Laws.”

264 A great debate exists regarding if currently incarcerated individuals
should enjoy the right to vote. While this issue is worthy of discussion, its
breadth is beyond the scope of The Voting Rights Restoration Act and this
article.

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rights for formerly incarcerated individuals is widespread
across the nation. The Brennan Center for Justice, a nonprofit
law and policy institute which seeks to hold American political
institutions to account, states that “twenty-seven states bar
community members from voting, simply on the basis of
convictions in their past.''266 Essentially, it does not matter the
reason individuals have been incarcerated, the duration of their
incarceration, or how they behaved while incarcerated; all that
matters is that they were, for some time, and for some reason,
incarcerated.267

The impact of these laws disenfranchising formerly
incarcerated people has only intensified as “the number of
people disenfranchised because of a felony conviction
increased dramatically, rising from 1.17 million in 1976 to 6.1
million by 2016, just as mass incarceration and criminalization
took hold in the U.S.''268 Moreover, incarcerated individuals'
disenfranchisement laws have a disproportionate impact on
communities of color. As of 2020, The Sentencing Project
found that “in seven states—Alabama; Florida; Kentucky;
Mississippi; Tennessee; Virginia; Wyoming—more than one in
seven Black adults are disenfranchised. In total, 1.8 million
Black citizens are banned from voting.”269 The significance of
this statistic illustrates that voter disenfranchisement laws are
specifically targeting Black individuals from pursuing their
Constitutional right to participate in democracy. This is a
pattern of social injustice that has plagued America since its
founding. It is time to address voter disenfranchisement laws to
ensure equality under the law for all American citizens.

269 Uggen et al., “Locked out 2020.”
268 Chung et al., “Voting Rights.”
267 Brennan Center For Justice, “Criminal Disenfranchisement Laws.”
266 Brennan Center For Justice, “Criminal Disenfranchisement Laws.”

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III. A Lineage of Super Statutes

In general, the proposed super statute reflects a long
history of fundamental American principles, which include
democratic participation and equality under the law. At the core
of American democracy is civic participation through regularly
held elections.270 While the ability to vote is more accessible
today than it was a century ago, there are clearly still
limitations to voting rights for Americans with past criminal
convictions. There is a long history of Americans fighting for
more equal voting rights with the enactment of meaningful
legislation.271 The passage of the Voting Rights Act of 1965
represents the battle to make voting a more accessible and
inclusive process.272 At the time of enactment, this 1965 statute
abolished poll taxes and literacy tests. Since its enactment, it
has aimed to prevent any jurisdiction from abridging the right
to vote on account of race and has required a preclearance
requirement which bars specific jurisdictions from changing
voting laws without approval from the United States Attorney
General or District Court judgment.273

The Voting Rights Act of 1965 prevented
discriminatory voter suppression tactics, thereby giving more
Americans the chance to exercise their right to vote. Similarly,
the proposed Voting Rights Restoration Act seeks to make
voting more accessible for previously incarcerated individuals
by eliminating the obstacles that are prevalent in our current
laws. Congress tried to address racial discrimination in voting
through the Voting Rights Act of 1965, but criminal
disenfranchisement remains an apparatus of oppression in a
criminal justice system that disproportionately affects people of

273 Breen, “Class Lecture.”
272 Breen, “Class Lecture.”
271 Breen, “Class Lecture.”
270 Breen, “Class Lecture.”

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color.274 For this proposed Act to have a broad application to all
previously incarcerated Americans, it should be a federal law
enacted by the United States Congress. The hypothetical
passage of the Voting Rights Restoration Act would illuminate
America’s precious norms of democratic participation and
equality under the law.

Since there is no existing federal legislation and
individual states are adopting radically different voting laws,
there is a great disparity in the voting rights that formerly
incarcerated Americans receive.275 Part of this inconsistent
application of criminal disenfranchisement laws stems from the
Supreme Court of the United States’ decision in Richardson v
Ramirez (1974). In this case, three men who had served time
for felony convictions in California sued the state for the right
to vote by alleging that the state’s policies denied them the
right to equal protection guaranteed under the U.S.
Constitution’s 14th amendment.276 The Court ruled in favor of
California, stating that the Equal Protection Clause does not
prohibit disenfranchisement policies and that Section 2 of the
14th Amendment allows for states to deny voting rights “for
participation in rebellion, or other crime.”277

However, the Court’s interpretation of the Equal
Protection Clause in Richardson is inconsistent with the court’s
previous decision in Harper v. Virginia Board of Elections
(1966) where the Court found that “the Equal Protection
Clause is not shackled to the political theory of a particular
era.”278 Rather, it “draws much of its substance from changing
social norms and evolving conceptions of equality.”279 The

279 Tribe, Laurence H. American Constitutional Law . (2nd ed.) ed.,
Foundation Press, 1988.

278 Harper v. Virginia Bd. of Elections, 383 U.S. 669 (1966).
277 Richardson v. Ramirez, 418 U.S. 42 (1974).
276 Richardson v. Ramirez, 418 U.S. 24 (1974).
275 Chung et al., “Voting Rights.”
274 Chung et al., “Voting Rights.”

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Court’s inconsistent reasoning on criminal disenfranchisement
laws places more authority in the hands of state legislatures
who continue to limit the rights of formerly incarcerated
Americans.280 This should be an incentive for a law that is
nationally applicable by Congress’ enactment as well as
enforced by the Department of Justice. The proposed Voting
Rights Restoration Act ought to be enacted federally so that
every formerly incarcerated American can participate in the
electoral process, regardless of the state in which they live.

IV. A Message to Lawmakers

While the hypothetical Voting Rights Restoration Act is
a law for fundamental rights and equality, opponents of this
legislation might label the statute as too “soft” on crime.
Lawmakers could argue that felons ought to be restricted from
voting as a means of punishment for the crime(s) they
committed.281 However, this article argues that it is redundant,
cruel, and unjust to deprive formerly incarcerated persons of an
essential right that all Americans are entitled to after they have
already been punished. Additionally, if lawmakers want to
prevent more crimes from occurring, they should endorse the
Voting Rights Restoration Act. The proposed law reintegrates
formerly incarcerated individuals back into their communities,
preventing them from repeating their past mistakes.

A Sentencing Project study concluded that “among
individuals who had been arrested previously, 27 percent of
non-voters were rearrested, compared with 12 percent of
voters.”282 Lawmakers should also support the proposed statute

282 Uggen et al., “Locked out 2020.”

281 Clegg, Roger. “There Are Good Reasons for Felons to Lose the Right to
Vote.” The Heritage Foundation. Accessed May 26, 2023.
https://www.heritage.org/election-integrity/commentary/there-are-good-reas
ons-felons-lose-the-right-vote.

280 Chung et al., “Voting Rights.”

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because “a clear majority of U.S. residents support voting
rights for citizens who have completed their sentence.”283
Ultimately, the constituents of politicians are supportive of
formerly incarcerated individuals exercising their democratic
right to vote in elections, which should be an incentive for
lawmakers to support this proposed super-statute.

A 2018 Pew Research Center survey titled
“Re-enfranchisement for Those Convicted of Felonies” found
that a majority of both Democrats and Republicans support
re-enfranchisement.284 The survey demonstrates that there is a
strong bipartisan sentiment regarding this issue, which is
another reason why lawmakers ought to endorse the
aforementioned act. Before voting against the suggested Voting
Rights Restoration Act, opposing lawmakers should reconsider
their decision based on the law’s fairness, the positive impacts
of prisoner reintegration, and the bipartisan support amongst
Americans for re-enfranchisement.

In closing, the Voting Rights Restoration Act
illuminates the fundamental American principle that every
citizen should be able to vote. The proposed super-statute
would not only seek to stop the disenfranchisement of formerly
incarcerated individuals, but would also specifically aid
communities of color who are disproportionately affected by
the criminal justice system.

The fight for expanding voting rights and criminal
justice reform is not a new endeavor for lawmakers. In fact, the
passages of the Voting Rights Act of 1965, the First Step Act,
and many other laws have enforced the ideas of civic

284 Bialik, Kristen. “How Americans View Some of the Voting Policies
Approved at the Ballot Box.” Pew Research Center, Pew Research Center,
2 Oct. 2020,
https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-so
me-of-the-voting-policies-approved-at-the-ballot-box/.

283 Uggen et al., “Locked out 2020.”

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participation and voting equality under the law. The Voting
Rights Restoration Act seeks to promote these precious norms
by nationally permitting formerly incarcerated people to vote
once they have completed their sentence, are on parole, or are
serving probation. This proposed legislation reflects civic
republicanism and positive liberty in its efforts to make the
democratic system a more inclusive, consistent, and accessible
space for previously incarcerated people. Now is the time for
lawmakers to be brave and support a bill that will reinforce the
United States’ commitment to a more equal and ethical
criminal justice system.285

285 This op-ed was authored in the Spring of 2022. As of 05/18/2023,
Senator Benjamin L. Cardin (D-MD) introduced the Democracy Restoration
Act of 2023. Senator Cardin's Act would restore voting rights to 5.8 million
formerly-incarcerated Americans;

"S.1677 - 118th Congress (2023-2024): Democracy Restoration Act of
2023." Congress.gov, Library of Congress, 18 May 2023,
https://www.congress.gov/bill/118th-congress/senate-bill/1677;

“Democracy Restoration Act.” Ben Cardin U.S. Senator for Maryland:
Press Release, 10 April 2014,
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:t
ext=The%20Democracy%20Restoration%20Act%20would,back%20living
%20in%20their%20communities.

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Bibliography

Bialik, Kristen. “How Americans View Some of the Voting
Policies Approved at the Ballot Box.” Pew Research
Center, Pew Research Center, 2 Oct. 2020,
https://www.pewresearch.org/fact-tank/2018/11/15/how
-americans-view-some-of-the-voting-policies-approved
-at-the-ballot-box/.

Breen, Daniel. 221LGLS: Civil Rights and Civil Liberties:
Legislative. 24 January. 2022, Brandeis University,
Waltham. Class Lecture.

Cardin, Ben. “Democracy Restoration Act.” Ben Cardin U.S.
Senator for Maryland: Press Release, 10 April 2014,
http://www.cardin.senate.gov/press-releases/democracy
-restoration-act/#:~:text=The%20Democracy%20Restor
ation%20Act%20would,back%20living%20in%20their
%20communities.

Chung, Jean, and Amy Fettig. “Voting Rights in the Era of
Mass Incarceration: A Primer.” The Sentencing Project,
3 Sept. 2021,
https://www.sentencingproject.org/publications/felony-
disenfranchisement-a-primer/.

Clegg, Roger. “There Are Good Reasons for Felons to Lose the
Right to Vote.” The Heritage Foundation.
https://www.heritage.org/election-integrity/commentary
/there-are-good-reasons-felons-lose-the-right-vote.

“Criminal Disenfranchisement Laws across the United States.”
Brennan Center for Justice,
https://www.brennancenter.org/our-work/research-repor
ts/criminal-disenfranchisement-laws-across-united-state
s.

Eskridge, William N., and John Ferejohn. Super-Statutes ,
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?art
icle=1108&context=dlj

Potyondy, Patrick. “Felon Voting Rights.” Felon Voting Rights,

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https://www.ncsl.org/research/elections-and-campaigns/
felon-voting-rights.aspx.

Smith, Ed. “Marijuana Deep Dive: State Policy Updates.”
Marijuana Deep Dive | State Policy Updates,
https://www.ncsl.org/bookstore/state-legislatures-magaz
ine/marijuana-deep-dive.aspx.

Tribe, Laurence H. American Constitutional Law . (2nd ed.)
ed., Foundation Press, 1988.

Uggen, Chris, and Amy Fettig. “Locked out 2020: Estimates of
People Denied Voting Rights Due to a Felony
Conviction.” The Sentencing Project, 13 Aug. 2021,
https://www.sentencingproject.org/publications/locked-
out-2020-estimates-of-people-denied-voting-rights-due-
to-a-felony-conviction/.

Legal Documents and Cases Cited

Constitution of the United States.
https://constitution.congress.gov/constitution/.

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)
“Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).”

Justia Law,
supreme.justia.com/cases/federal/us/383/663/.

Richardson v. Ramirez, 418 U.S. 24 (1974).
“Richardson v. Ramirez, 418 U.S. 24 (1974).” Justia Law,

supreme.justia.com/cases/federal/us/418/24/.
"S.1677 - 118th Congress (2023-2024): Democracy

Restoration Act of 2023." Congress.gov, Library of
Congress, 18 May 2023,
https://www.congress.gov/bill/118th-congress/senate-bill/
1677.

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