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July 19, 2022 Feature

Repairing the Cracks of Structural Racism and Building a New Foundation: The Fight for Racial Justice in the Garden State

New Jersey law uses the racial disparities of its criminal justice system to disproportionately exclude Black people from voting.

Ryan P. Haygood and Andrea McChristian

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We are more than two years into a pandemic that has fundamentally changed the world we live in. From how we work to how we socialize, every aspect of our lives has been changed by this deadly virus. COVID-19 has had a particularly harsh impact on New Jersey, which has consistently had one of the highest COVID-19 death rates in America since the start of the pandemic.

While all New Jerseyans have been affected, the virus has disproportionately and devastatingly affected New Jersey’s communities of color. The virus was the leading cause of death for Black people in New Jersey in 2020. In Newark, the state’s largest city, which is about half Black, more than 850 people died from COVID-19 between March 2020 and March 2021, exceeding the death tolls of five states during the same period. This disproportionate impact should not come as a surprise.

Racial disparities related to COVID-19 have only exacerbated the preexisting cracks of structural racism in our state’s foundation. Black people and other people of color have higher rates of underlying conditions on which the virus preys and at the same time are more likely to have the frontline “essential” jobs that expose them to the virus. They more often lack the autonomy, flexibility, and paid time off to get a vaccine without fear of losing their job and likewise are more likely to be uninsured or underinsured, which means they are less likely to get the critical health care they need. Add in that they face higher rates of unemployment, food insecurity, and mortgage delinquency than their white peers.

These cracks created New Jersey’s staggering racial wealth gap, wherein the net wealth for white people in New Jersey is $103,500 compared with just $4,900 and $2,300 for Black and Latino people, respectively. They cause Black infants in New Jersey to experience the highest racial disparity rate in mortality in America. They led to New Jersey having the worst rates of Black-to-white youth and adult incarceration disparity in the nation. They have resulted in our Black children attending school in the sixth most segregated education system in America. They have ensured that Black people in New Jersey are three times as likely to face police force as their white counterparts.

To be sure, these cracks were not created overnight. They were formed at the founding of New Jersey, when English settlers were provided 150 acres of land and an additional 150 acres for every enslaved African person they brought with them into the colony.

They spread as New Jersey became known as the “slave state of the North”; by 1830, over two-thirds of the northern enslaved Black population resided in New Jersey. They manifested in 1844 when New Jersey limited the franchise to white men and denied the vote to people with criminal convictions. After slavery ended formally, the cracks were deepened through the prevalence of “cottaging,” an early form of sharecropping that took hold in New Jersey. They persisted in the 20th century to today through racially restrictive covenants, Black soldiers’ exclusion from the GI Bill, redlining, predatory lending, and other racially discriminatory practices that divested resources from New Jersey’s Black communities while conferring benefits on its white residents.

Ilustration by Tofunmi Yosola.

Ilustration by Tofunmi Yosola.

Thus, New Jersey’s racial disparities today are the direct result of the structural racism that has persisted in our state for generations.

Building a New Foundation

How do we repair these cracks and build a new foundation?

Our organization is committed to realizing social and racial justice in New Jersey. Established more than 20 years ago by Alan V. and Amy Lowenstein, the New Jersey Institute for Social Justice’s mission is to topple load-bearing walls of structural inequality to empower Black people and other people of color. To do so, we use cutting-edge racial justice advocacy to build reparative systems that create wealth, transform justice, and harness democratic power—from the ground up—in New Jersey. Sometimes that advocacy involves litigation, or at least the threat of it. Other times, litigation is not necessary or effective. We use litigation as part of our theory of change when other aspects of advocacy have not been effective.

Our transformative advocacy is grounded in a five-part community-centered theory of change that guides our work. First, we engage deeply with, listen carefully to, and learn from the communities of color we serve to understand the systemic issues they confront. Second, we use research, writing, and policy analysis to incorporate these community issues into advocacy reports that include policy proposals aimed at redressing the harm. Third, through public education, we engage communities across New Jersey to build coalitions with those who will use their collective voice to advocate for solutions. Fourth, we create campaigns and advocate for policy and legislative action and systems change to turn our policy proposals into meaningful reform. Fifth, on the other side, we engage with key stakeholders on implementation to ensure that the policy change achieved returns resources to the communities where we began.

Through this theory of change, the institute and its partners have achieved a number of successes over the past few years, including a $15 minimum wage; the closure announcement of two of New Jersey’s youth prisons; an independent prosecutor bill for cases involving police misconduct; the issuance by New Jersey’s attorney general of a First Amendment directive; the introduction of first-of-its-kind state reparations taskforce legislation; the passage of a comprehensive package of apprenticeship bills; and early voting and online voter registration, just to name a few.

To meet this current moment, we pivoted our work to respond to the COVID-19 crisis, with our advocacy leading to New Jersey becoming the first state in the nation to test all of its youth for COVID-19, the release of over 100 young people from state juvenile facilities in response to the virus, and the passage of legislation that provides $8.4 million for enhanced youth reentry services and restorative justice hubs.

Using Litigation to Expand Democracy

Our litigation focus to meet the moment has been on protecting and expanding democracy. In advance of the 2020 presidential election, we filed a lawsuit with partners in the District of New Jersey, League of Women Voters of New Jersey v. Way, that successfully challenged New Jersey’s practice of rejecting thousands of mail-in ballots each election cycle due to signature mismatches. Following a consent order, New Jersey created a statewide notice-and-cure process for such voters. In the 2020 primary, almost 16,000 voters received notice that there was an issue with their signature and an opportunity to cure the alleged defect in time for their vote to be counted. We intervened in a second lawsuit, Trump v. Murphy, also in the District of New Jersey, to defeat the Trump campaign’s challenge to the format of New Jersey’s 2020 hybrid vote-by-mail and in-person election and to the counting of certain votes. New Jersey had record turnout during the 2020 election.

Litigation has played a key role in our advocacy tool kit. We have several attorneys on staff with litigation backgrounds, including law firm experience. Ryan himself served as deputy director of litigation at the NAACP Legal Defense and Educational Fund, Inc. In addition to the litigation docket within our democracy work, our on-staff litigators also contribute to advancing policy proposals.

The institute’s litigation body of work also includes partnership with the Campaign Legal Center and others. We recently joined with Gibbons P.C. to file an amicus brief before the Inter-American Commission on Human Rights arguing that the United States is in violation of international law because of its failure to restore the right to vote to incarcerated people.

One of the institute’s powerful campaigns is 1844 No More: Let Us Vote, which led to the historic restoration of the right to vote to 83,000 people in New Jersey.

Exclusion in the North

The history of how racist Southern legislatures built political regimes that excluded Black people, other people of color, and women is well understood. What is less well-known is that this history of exclusion also took root deeply in the North, including in New Jersey.

New Jersey was the first state in the Northeast to restrict the vote to white men. New Jersey also opposed the Emancipation Proclamation and was the last Northern state to abolish slavery. Following the Civil War, New Jersey refused to ratify the Reconstruction amendments.

It is against this racist historical backdrop that New Jersey further restricted access to the ballot box by denying the vote to people with criminal convictions in 1844, the same year it restricted voting to white men. Importantly, New Jersey denied this fundamental right without demonstrating any legitimate public safety purpose.

Before 2020, New Jersey denied the right to vote to more than 100,000 people because of a criminal conviction, with Black people representing more than half of those who had lost their voting rights for that reason. Indeed, owing to population increases, prior to 2020, more Black people in New Jersey were disqualified from voting because of a conviction than were prohibited from voting in New Jersey prior to the passage of the Fifteenth Amendment.

This disparate impact on Black political power was a direct result of New Jersey’s decision to connect the fundamental right to vote to its criminal justice system, which is infused with racial discrimination. New Jersey has the shameful distinction of having the highest Black/white adult and youth incarceration disparity rates in America. A Black adult in New Jersey is 12 times more likely to be incarcerated than a white adult. A Black youth in New Jersey is almost 18 times more likely to be locked up than his or her white counterpart, even though the cohorts commit most offenses at similar rates.

New Jersey’s law imports these staggering racial disparities from the criminal justice system into the political process, accomplishing what now-prohibited poll taxes, grandfather clauses, and literacy tests explicitly sought to do—disproportionately exclude Black people from voting.

Designing a New Strategy

What strategy did we employ to undermine this historical foundation established to disadvantage and exclude so many?

We designed a new one!

In 2017, the institute, our robust coalition of partners across the Garden State, and people denied the right to vote launched the 1844 No More: Let Us Vote campaign. We knew that, on the national level, our democracy was being dealt a new blow each day. But we also knew that we didn’t need to wait for democracy to trickle down to us from Washington, D.C.

We engaged with communities and partners across New Jersey. We conducted intensive research, writing, and data analysis. We explored whether litigation should be the first course of action, given the sizable number of people of color impacted by the discriminatory law and the institute’s deep expertise litigating challenges like these across the country. In this case, however, given that litigation had previously proven unsuccessful in restoring the vote to people with convictions, we used other tools in our interdisciplinary arsenal.

We organized people in communities across New Jersey to lift their voices to urge their elected officials to pass legislation restoring voting rights to people with convictions. We traveled back and forth to Trenton and beyond to urge elected officials to finally turn the page on 1844.

The resistance was fierce. The law was bolstered by the weight of its having been in effect for 175 years. But we built an even larger coalition. We organized ourselves around the shared belief that no person in New Jersey—whether in prison, on parole, or on probation—should lose the fundamental right to vote. More than 100 local, state, and national organizations, as well as faith leaders, youth, and the mayors of several major New Jersey cities, joined the call to restore voting rights to people in prison, on parole, and on probation in New Jersey.

Our collective advocacy worked. Two years after launching the 1844 No More campaign, the New Jersey Legislature passed a historic law that restored the right to vote to people on probation and parole in the state. One of the leaders of our coalition, Antonne Henshaw, cast a yes vote for final passage on the Senate floor on behalf of Senator Sandra Cunningham, the prime sponsor of the Senate bill. Antonne was swept up in the criminal justice system at a young age and spent over 30 years in prison. He had never had the right to vote. In fact, a prison guard once told him, “We can do whatever we want, y’all can’t vote, you don’t matter.” But Antonne’s vote certainly mattered that day.

Formerly incarcerated people were key voices throughout the 1844 No More campaign. Our institute colleague Ron Pierce was one of many who spoke passionately about the personal impact that restoring the right to vote would have on their lives. New Jersey had denied Ron—a husband, a veteran, and a college graduate—the right to vote for over 30 years. The right to vote had been important in Ron’s life prior to incarceration; Ron vividly recounted sitting around the coffee table with his family after going to vote and talking about the importance of civic engagement over coffee and donuts.

When Governor Phil Murphy signed the bill into law on December 18, 2019, and it became effective on March 17, 2020, New Jersey came 83,000 steps closer—the number of people impacted by the law—to being 1844 no more.

Just months later, Ron and Antonne—after decades of being denied—finally, and proudly, cast their votes in the 2020 election.

Ron’s observation is powerful: “The vote has value to the soul.”

The next chapter of the 1844 No More story will be written when we restore the right to vote for people in prison, further erasing this moral stain when New Jersey joins Maine, Vermont, and most Western democracies in never importing the racism of the criminal justice system into the exercise of the franchise. The realization of the Fifteenth Amendment and the integrity and legitimacy of our democracy demand that New Jersey free the vote for people in prison.

True racial and social justice comes from the ground up—not from the top down. The institute is committed to repairing the cracks of structural racism—in the areas of democracy, mass incarceration, economic justice, reparative justice, and more—to ensure that we can achieve an equitable future together. This is the work that is necessary to make Black lives truly matter in New Jersey and to build a new foundation.

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Ryan P. Haygood and Andrea McChristian

The authors are with the New Jersey Institute for Social Justice, Newark, New Jersey.