A Call for Standardizing Voting in Jails

By Clara Butler
Associate Editor, Vol. 26

The 2020 election came down to slim margins in counties across the nation. Yet, over five million people in this country were unable to cast a ballot because of their involvement with the criminal justice system.[1] The Supreme Court has held that it is not a violation of the Fourteenth Amendment to bar people convicted of a felony from voting.[2] Many states have enacted felon disenfranchisement laws consistent with this principal .[3] However, despite the fact that people who are jailed pre-trial or on misdemeanors still retain the fundamental right to vote, they, too, are largely disenfranchised.[4] According to data collected by the Prison Policy Initiative, about 745,000 such individuals are detained in jails on any given day.[5] This has tangible consequences for Black Americans, who make up 40% of the incarcerated population, and women, who have seen their incarceration rates rise in both jails and prisons over the last few decades.[6] The disenfranchisement of the jail population works to serve the same white, male hegemony that the Jim Crow Laws functioned in the service of just 50 years ago.

The main problem affecting voting in jails is the fact that every jurisdiction varies widely in their voting practices.[7] The process of requesting absentee ballots to a jail, submitting paperwork before registration cut-offs, accessing information about candidates, determining eligibility, and voter identification are a few of the factors that vary jurisdiction to jurisdiction.[8] The multitude of differences in each locality make it difficult not only for incarcerated individuals but also for local clerks and jail officials to correctly implement this voting process.

The barriers facing people who are incarcerated in jails are not insurmountable, however. The use of voter registration drives by local nonprofits, the designation of voter coordinators, and the imposition of requirements that county jails have voter registration plans have all proven to be effective means of restoring voting rights to people held in jails.[9] The Cook County Jail even opened a polling location to facilitate in-person voting for those who are held in the facility, a model that could be implemented nationwide.[10] But these solutions tend to work narrowly within the confines of specific jurisdictional commands rather than as a standardization of the process nationwide.

Under the Elections Clause of the Constitution, states have the power to set the “times, places and manner of holding elections” but Congress reserves the right to “make or alter such regulations.”[11] Similar to the models in Maine and Vermont, Congress should pass federal legislation ensuring that all people in jail are eligible to vote by absentee ballot if there is no in-person option at the their facility. We have seen the power of absentee ballots in the 2020 election in light of COVID-19.[12] Enfranchising those in jail in the same way we have during the pandemic would allow hundreds of thousands of additional voters in the next election to have their voices heard.

Additionally, all people detained in jails should be considered “specially qualified,” as is the current process in Massachusetts,[13] so that they do not have to register before completing an absentee ballot. This eliminates the significant roadblock of meeting registration deadlines and lessens the amount of mail processed by the jail that has the potential to get lost or intercepted by correctional officials.

With mass incarceration reaching new heights in the United States the individuals detained in facilities should be contributing their voices in elections where positions like sheriffs, judges, and presidents have tangible effects on their everyday life. Civic participation has been shown to reduce recidivism and contribute to public safety goals.[14] Without proper federal safeguards to ensure administrative ease in providing ballots to those held within jails, we are disenfranchising people who have a fundamental right to vote and whose voices need to be heard.

[1] Uggen et al., Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction, The Sentencing Project (Oct. 30, 2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/#III.%20Disenfranchisement%20in%202020.

[2] Richardson v. Ramirez, 418 U.S. 24 (1974).

[3] See Nicole Lewis, In Just Two States, All Prisoners Can Vote. Here’s Why Few Do., The Marshall Project (June 11, 2019, 6:00AM), https://www.themarshallproject.org/2019/06/11/in-just-two-states-all-prisoners-can-vote-here-s-why-few-do (Maine and Vermont let all people vote, regardless of conviction, even if they are incarcerated).

[4] O’Brien v. Skinner, 414 U.S. 524 (1974).

[5] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.

[6] Id.

[7] Margaret Barthel, Getting Out the Vote From the County Jail, The Atlantic (Nov. 4, 2018), https://www.theatlantic.com/politics/archive/2018/11/organizers-fight-turn-out-vote-county-jails/574783/.

[8] Id.

[9] Nicole D. Porter, Voting in Jails, The Sentencing Project (May 7, 2020), https://www.sentencingproject.org/publications/voting-in-jails/.

[10] Kelli Smith, Cook County Jail set for in-person voting despite COVID-19 setbacks: ‘It’s also about social justice, it’s about fairness, it’s about hope’, Chi. Trib (Sep. 21, 2020, 5:00AM), https://www.chicagotribune.com/news/breaking/ct-cook-county-jail-inmate-election-vote-20200921-mh3yo3z6bnfq5fgdqhxco6weve-story.html; Porter, supra note 9.

[11] U.S. Const. art. 1, § 4.

[12] Drew Desilver, Mail-in voting became much more common in 2020 primaries as COVID-19 spread, Pew Research Center (Oct. 13, 2020), https://www.pewresearch.org/fact-tank/2020/10/13/mail-in-voting-became-much-more-common-in-2020-primaries-as-covid-19-spread/ (absentee voting increased by millions as COVID-19 made in-person voting unsafe for vulnerable populations).

[13] Porter, supra note 9.

[14] Id.