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Getting Out the Vote in the Maze of Mass Incarceration

Denying people the vote is presumed—wrongly—to be part of the deprivation of being locked up.

Scott Olson/Getty Images

For the people trying to get out the vote in jails across the United States, there are no doors to knock, no sidewalks to canvass from. The people they are trying to reach may not even know they have the right to vote. For people in jails who are registered to vote, the vast majority of them won’t have access to a polling place. In reality, they have to rely on the people who jail them to ensure they get to vote. The nearly half a million people, on average, awaiting trial in jail on any given Election Day retain the right to cast a ballot. But many of them, along with groups working to protect their votes, know that having the right isn’t enough.

For the past decade, Meredith Hellmer has been trying to reach voters who are jailed in Cuyahoga County, Ohio, with the Northeast Ohio Voter Advocates. They had built a comparatively supportive relationship with the jail officials there, too. “It really waxes and wanes depending on who’s in charge,” Hellmer told me, a few weeks ahead of the 2020 general election. Up until this year, NOVA volunteers could visit the jail and have one-on-one meetings with people who wanted to register to vote. They would register around 300 or 400 people in any given election cycle. Those conversations with prospective voters, in visiting rooms and hallways, helped break down myths about voting that had prevented people from registering: “Their biggest misconception is that they aren’t allowed to vote, that they think any kind of felony record would prevent them from voting.”

It’s understandable why people who are in jail may reasonably assume they’ve lost their right to vote. Jails are “incarceration’s front door,” confining people who have been arrested, but, in most cases, have not yet been convicted of any criminal offense. They may also be unable to afford their bail in order to get out as their criminal case progresses. While around 631,000 people are held in U.S. jails every day, the number of people who have been to jail in a given year is higher; according to the Prison Policy Institute, “every year, over 600,000 people enter prison gates, but people go to jail 10.6 million times each year.” There are also about 5.2 million people in and outside prisons who are currently disenfranchised due to laws restricting voting rights for those convicted of felony crimes. That’s one out of every 44 adults in the U.S., according to a new report from the Sentencing Project. (And in some states, the rate is much higher: In Alabama, Mississippi, and Tennessee, one out of every 13 adults is disenfranchised.)

In recent years, while efforts to end felony disenfranchisement have gained more ground—and in some cases, have succeeded—the voting rights of those still incarcerated have received less scrutiny. There isn’t national data available on jail voting turnout, but from what voting rights advocates have seen, these myths and obstacles have likely seriously depressed turnout. The League of Women Voters of Metropolitan Columbus has started a jail voting outreach program in Franklin County, the state’s most populous county. The program’s coordinator, Elizabeth Grieser, told me that during the 2016 presidential election, out of the 2,100 people jailed in Franklin County, the total turnout was 11—and in the 2018 election, it was zero.

Voting rights groups have turned their focus on people jailed in Ohio, along with other battleground states: Pennsylvania, Texas, and Arizona. That was before Covid-19. The outreach work in places like Cuyahoga County, where it was making some progress, is now compromised by the pandemic. On the same day I spoke to Meredith Hellmer from NOVA, she was scheduled to have a video visit with a prospective voter in jail, something the jail staff had been accommodating as an alternative to the in-person visits they had to stop in the fall. It wasn’t a given, even before, that jail officials would support their efforts, whether that was agreeing to make ballots available to those who asked but not doing much more, or getting more involved, like helping volunteers through the cumbersome rules associated with visiting a jail. “For my volunteers who don’t have a lot of experience with the criminal justice system, it’s hard for them to grasp—and understandably so—that there’s all these people in jail, awaiting trial,” she said. Some of her volunteers had never set foot in a jail before.

People in the state’s custody, theoretically, could be among the easiest demographics to get registered to vote and to turn out. It’s not a lack of desire to vote that’s keeping people in jails from voting: According to the American Civil Liberties Union of Ohio, there was a 79 percent turnout in Cuyahoga county jails in 2018. That’s the county where NOVA volunteers got to visit the jails and have direct contact with voters. In Franklin County, where the turnout was zero, volunteers were only permitted to drop off materials.

But what’s responsible for voter suppression in jails goes deeper than procedure. “The reality is that very few people get ballots in jail, despite being eligible and registered,” Chiraag Bains, director of legal strategies at Demos, told me by phone, ahead of this November’s election. It’s not surprising that it wouldn’t occur to someone working in a jail, or a member of the general public, that people in jails have the right to vote, he said. “It’s not just about overlooking things in an election, it’s how we treat people accused of criminal offenses.” Depriving people of the vote is presumed—incorrectly, wrongly—to be just part of the deprivation of being in jail.

Taking away the rights of “criminals” to vote is still seen as an acceptable extension of punishment. Across the political spectrum, lawmakers who defend this disenfranchisement speak of the right to vote as something to be earned back once someone has “paid their debt to society,” a kind of moral cost. But disenfranchisement serves a more political purpose. That’s evident in admissions like the one from the chairman of the Alabama Republican Party in 2003: “As frank as I can be, we’re opposed to [restoring voting rights] because felons don’t tend to vote Republican.” At the Senate confirmation hearings for now–Supreme Court Justice Amy Coney Barrett, Senator Ted Cruz used his time to claim that Democrats “would like to see as many felons as possible vote”—like, he offered inexplicably, the deceased Charles Manson—because “it would help their prospects on Election Day.” Of all the major Democratic candidates for president this cycle, though, Bernie Sanders was the only one to support restoring voting rights to all people who are currently incarcerated; the vast majority still supported the idea that for some people who are incarcerated, the vote is a fair right to take away.

Disenfranchisement laws have, for more than a century, been part of a political project that turned to the law as a tool of voter suppression. “When you look at how it proliferated and spread in the United States, especially after the Civil War, and after Reconstruction, it’s very clear to me that this was intended to strip Black political power,” Chiraag Bains from Demos said. Lawmakers were absolutely explicit about this. “If we should have white supremacy, we must establish it by law—not by force or fraud,” Alabama’s constitutional convention president said in 1901, when the state removed the right to vote from those convicted of a “crime involving moral turpitude.” Their laws couldn’t explicitly state that Black people were denied the right to vote; this was intended to have the same effect. When the Supreme Court invalidated the “moral turpitude” clause in 1985, the language returned 11 years later in the state’s felony disenfranchisement law.

As Sakira Cook, director of the Justice Reform Program at the Leadership Conference on Civil and Human Rights, said, this is “not only a democracy issue but a racial and social justice issue.” Like poll taxes and literacy tests, laws disenfranchising people based on their criminal records might be race-neutral on their face, but in practice, they block disproportionately more Black people from voting. States more widely adopted felony disenfranchisement laws after the Fifteenth Amendment extended the franchise to Black people. That was partial: It took the Voting Rights Act to secure it. And still, today, one in 16 Black people of voting age is denied the vote due to felony disenfranchisement laws, according to the Sentencing Project—a rate 3.7 times that of non-Black people. In some states, it’s one in seven.

Ending disenfranchisement for people involved with the criminal legal system, then, is not just about voting rights, or criminal justice reform; it’s a political fight that requires challenging white supremacy. There is a tendency to accept these laws as just “what we’ve always done,” Bains said. But they vary from state to state, so it’s just not true that all people with felony convictions can’t vote in this country. That also means these laws can change, but it will require challenging the ideology that has shaped them. It means taking very seriously, Bains said, “the relationship between the vote and citizenship—and personhood.”

In Florida, returning citizens—people who were formerly incarcerated—have fought and won to have their voting rights restored upon completing their sentence, with the ballot initiative Amendment 4, which passed with the support of nearly two-thirds of voters in 2018. Amendment 4 wasn’t a universal restoration of voting rights: It excluded people with felony convictions for murder or sex offenses. Shortly afterward, state legislators passed a law in response to Amendment 4, which stipulated that completing a sentence didn’t just mean being released from prison or jail; voting rights would only be restored once someone had paid off all their financial obligations related to their conviction—court fees, fines, restitution. Returning citizens have challenged the new law undermining Amendment 4, but as their case stands, the law remains in effect, leaving as many as 900,000 people who had their rights restored with Amendment 4 disenfranchised—again—in the 2020 general election.

By contrast, people who have completed a felony sentence in Ohio have their voting rights automatically restored—all they have to do is register to vote. Ohio’s voting rights are even more expansive: It is one of 17 states that only prohibit people from voting if they are currently serving a sentence. (People in Ohio jails serving a misdemeanor sentence can also still vote.) This makes Ohio look a bit like Florida could have with Amendment 4 truly in effect. There is a vast difference, though, between what the courts say, what state laws say, and what goes on in practice in county jails.

Ensuring people in jails who have the right to vote actually get to vote remains at the discretion of the people who run the jails. In Ohio’s Franklin County, voter registration work has historically been left solely to the jail social workers, said Grieser with the League of Women Voters of Metropolitan Columbus, and they can take “a pretty passive approach,” making registration forms available, if they are asked, or posting a flier a month before the deadline to request an absentee ballot. This year, she was hoping that the volunteers she coordinates would be able to work more directly with people in Franklin County jails. But Covid-19 limited their outreach to letters addressed to each person in the jail. Seventeen people so far returned their registration forms. “When we do voter registration drives in the community, we know people make mistakes on the forms pretty often,” Grieser told me. “We know that the best way to do outreach is in person.” But given everything against them this year, in a county jail system where zero people voted in 2018? “Even if we have 20 people register, that’s 20 more than we would have had.”

Voting rights for people in jails have been well established for more than 40 years. The 1974 Supreme Court case O’Brien v. Skinner established that pretrial detainees have a fundamental right to vote. In practice, disenfranchisement in jails is common and systemic.

Though people in jails in Ohio do have the right to vote, for example, people who are jailed close to the election may not be able to exercise that right. Voters in Ohio jails vote by absentee ballots, which are typically physically brought to the jails by elections officials and then collected. A similar process exists for people who are hospitalized during an election. But hospitalized voters can request a ballot right up to 3 p.m. on Election Day. Jailed voters don’t have the same provisions; their requests must be received by the Saturday before Election Day. If you are arrested in Ohio the weekend before Election Day? You can’t meet the state’s deadline for an absentee ballot request.

In the last four elections, Bains said, an estimated 1,000 people were in this position in Ohio jails. This was according to an expert witness in a legal challenge brought by Demos, the Campaign Legal Center, and the MacArthur Justice Center in 2018. The system was stacked against people in jail voting but also against finding out who exactly was being disenfranchised in this way. The day before the election, Bains said, “we had to sit in criminal court and watch to see who was being detained.” Voting rights attorneys worked with public defenders who knew the courts, cross-referencing what they saw in arraignments with voter registration data, to find those people in jail. “We met people who said, Yes, I was planning on voting on Tuesday, and now I can’t get to the polls.” One of the men who became their client told them he had already asked a corrections officer how to get a ballot.

They filed their challenge in federal court in Columbus on the morning of Election Day, finishing their motions on the drive from Dayton, where the men were jailed. At a hearing that same day, a judge issued a temporary restraining order and ordered that ballots be delivered to the two men in jail. They were able to vote—on Election Day. “It’s unfortunate that this is what it takes,” Bains recalled. But that day, “the legal system worked to vindicate people’s rights despite that we were up against the clock.”

The suit went on to win in federal court, with a judge ruling that “hospitalized persons are not more worthy of additional voting privileges under our Constitution than jail-confined persons, and offering greater access to the ballot simply because the legislature values the former’s votes over the latter’s is exactly what the Equal Protection clause forbids.” But Ohio continued to fight the challenge, and in March, the Sixth Circuit Court of Appeals affirmed the state’s argument: The men had not been deprived of their voting rights, because they could have taken advantage of early voting.

The argument is probably the expected one under Trump’s federal judiciary. It still makes no sense. As Meredith Hellmer at NOVA told me, “Typically, you don’t plan to get arrested.”

The court didn’t say this was over, Bains emphasized. “They said, we don’t recognize your right, but the state of Ohio could.” The state legislature could act. These jails are under the government’s control, and they shouldn’t be let off the hook for that. “If we can pull off getting people in the hospital a ballot on Election Day, we should be able to do it in jails.”

Some states have taken concrete steps to actively ensure the voting rights of people in jails, but there’s a long way to go. In Illinois, a recent law now requires counties with more than three million residents to establish temporary polling places in their jails. So far, that’s just Cook County, home to Chicago. But the law also directs jail officials to put into practice a clear absentee voter process for those jailed in any county. The community-based voting rights group Chicago Votes, which coordinates voter registration and education at Cook County jail, helped advance the law.

2020 will be the first presidential election since the law passed in which Cook County jail serves as an election precinct for people jailed there. Get-out-the-vote efforts there have been underway for several years, with volunteers from the Sargent Shriver National Center on Poverty Law, an economic and racial justice organization, visiting every weekend to help people register to vote face-to-face. For the 2016 general election, they registered 1,000 voters and collected 1,200 ballots from the Cook County jail, according to the Chicago Reporter. That was before the jail had polling places. Ahead of the 2020 election, reports The Washington Post, Chicago Votes registered nearly 1,500 people at the jail to vote. It’s not clear what turnout will look like, but the jail plans to go ahead with two weekends of early voting in October, joining other election precincts across the country navigating Covid-19.

The right to vote while in jail, even for those with felonies, has also now expanded to Washington, D.C., where the D.C. council voted in July to allow people serving felony sentences to vote in District and federal elections. The D.C. Department of Corrections says it has helped register 300 people in its custody to vote ahead of this election.

In Columbus, Grieser was still hopeful for the voter registration drive in the county jails. “From our perspective, we view this as a slow, ongoing process,” she told me. “We talked to people in Cuyahoga County, and they had kind of the same experience: It can be hard to get your foot in the door.”

But there has to be a better way than negotiating, ballot by ballot, at the whims of the jailers, at the whims of judges. Illinois gets closer, with the county sheriff getting favorable press for respecting the rights of people in his custody. At the same time, his jail rejected and returned 1,000 voter guides mailed to people imprisoned there. (The jail said it was a mistake, but by then, voting was already underway.)

All this should make it clear how the right to a vote remains contingent, and likely will remain so for anyone in jail. It’s not that the solutions are unknown: Corrections officers could be trained and directed to make absentee ballots available. All jails could become polling sites. Everyone entering jail could be offered the chance to register to vote. (Everyone, in jail or not, who is eligible to vote could be automatically registered.) What will it take, and what would be easier: making sure people get to vote while in jail, or closing the jails so they don’t have to?