Laws that disfranchise people because of a criminal conviction have historically been used to prevent newly-freed Black people from voting.[xliv] Following the Civil War, many states specifically crafted their disfranchisement laws to strip away voting rights for offenses they believed were disproportionately committed by Black people.[xlv] For instance, in Mississippi, a person would lose their voting rights for committing theft, but not for murder. Under this rationale, a person would lose the right to vote for stealing a chicken, but not for killing the chicken’s owner.[xlvi]

New Jersey enacted its first broad ban on voting by people with criminal convictions as part of its 1844 Constitution,[xlvii] at a time when slavery was still legal in the state and free Black people had been denied the right to vote by statute for almost 40 years. The 1844 Constitution banned anyone from voting who had been convicted of a crime that would disqualify them from serving as a witness in court.[xlviii] Its purpose was to “maintain the purity” of the state’s elections.[xlix]

Under the 1844 law, any person convicted of “blasphemy, treason, murder, piracy, arson, rape, sodomy, or the infamous crime against nature, committed with mankind or with beasts, polygamy, robbery, conspiracy, forgery, or larceny above the value of six dollars” would be denied the right to vote.^[l] The loss of voting rights in New Jersey was tied to this list of crimes until 1970 when a federal court ruled that the list was “totally irrational.”[li]

New Jersey responded to the court’s ruling in 1971 by broadening its disfranchisement statute so that it applied to anyone serving a sentence for any indictable crime, just as the country began to embrace a devastating practice of mass incarceration in the era of the War on Drugs.^[lii]

Incarceration in New Jersey skyrocketed: between 1950 and 1986, the number of people admitted to state and federal prisons in New Jersey each year increased over three-and-a-half fold.[liii] Between 1980 and its peak in 1999, New Jersey’s prison population increased over 460 percent.^[liv]

The rise of mass incarceration did not impact Black and white people equally. New Jersey’s Black population had grown dramatically throughout the twentieth century[lv] and was becoming increasingly concentrated in urban areas.[lvi] Beginning in the 1960s, as urban rebellions erupted in cities across the country, law enforcement agencies intentionally focused their efforts in these urban, predominantly Black areas.[lvii] And the War on Drugs, which was launched in the 1970s and gathered steam in the 1980s, introduced mandatory minimum sentences that required much more severe sentences for possession of crack cocaine, more common in low-income urban areas, than powder cocaine.[lviii]

These racially discriminatory policy decisions ensured that Black communities would be disproportionately targeted by the new mass incarceration regime. In New Jersey, the number of Black people entering prisons each year increased over 420 percent between 1950 and 1986, compared to an increase of 127 percent in the number of white people.^[lix] 

New Jersey’s decision to maintain its disfranchisement law in the face of decades of racially discriminatory criminal justice policies has led to a dramatic increase in the number of Black people who have lost their voting rights and a corresponding reduction in the political power of Black communities.[lx]