As Nov. Nears, Attys Fight To Ensure Jailed Voters Get Ballots

By Anne Cullen | June 21, 2020, 8:02 PM EDT

While felony convictions have stripped more than 6 million Americans of their right to vote, about half a million people sitting in U.S. jails on any given day are eligible to cast a ballot, but they rarely can. Civil rights lawyers are trying to help.

"My job is often to write angry letters on fancy letterhead to try and compel people to do the things that we want them to do," Campaign Legal Center's Dana Paikowsky said during a recent webinar held by criminal justice advocacy group The Sentencing Project.

The recent Harvard Law graduate specializes in jail voting rights and has been supporting activists on the ground with her "angry letters," which she told Law360 are aimed at getting sheriffs, jail supervisors and county clerks "to live up to their constitutional obligations to provide ballot access" to inmates.

A trio of Supreme Court rulings handed down in the 1960s and 1970s affirmed that states can't deny ballot access to eligible voters in jail, and the data shows millions of Americans that pass through these facilities each year fall into this category.

According to federal statistics from 2018, two-thirds of the roughly 740,000 people housed in local jails in the middle of that year weren't convicted of any crime, but simply awaiting trial in custody because they couldn't afford bail. Of the 250,000 or so convicted, many were serving time for a misdemeanor or a smaller infraction, charges that rarely impact a person's legal right to vote.

When the justices guaranteed these individuals ballot access, however, they left it up to the states and localities to figure out what that looks like, and the systems local jails have put in place aren't always up to snuff.

"Some policies on jail voting amount to something like one line in a jail handbook, that says just like, 'inmates have the right to vote,' and that's really not much in the way of a jail policy," Paikowsky said.

Julie Ebenstein, a senior staff attorney with the American Civil Liberties Union's Voting Rights Project, added that "it's often a struggle to access an absentee ballot from jail," both because of absentee ballot request deadlines and "obviously just general access to everything that you'd need to be able to vote by mail."

It's not easy for jail inmates to get their hands on a voter registration form or a ballot when they may not know their rights and lack access to the internet. These types of hurdles disproportionately impact communities of color, as nearly half of all people jailed in the U.S. are Black or Latinx.

Activists all over the country have built programs to overcome these obstacles — aiming to inform jail inmates about their eligibility, get their names on voter rolls, and keep them updated about the election process and the candidates on the tickets — but it's not uncommon for a jail to resist these efforts.

That's when legal experts can come in handy.

"It was night and day," said Houston-based activist Durrel Douglas about the Campaign Legal Center's impact on his campaign to register voters inside the Harris County Jail.

Douglas, co-founder of advocacy group Houston Justice and the partnership director for Spread the Vote, said before they had attorneys backing their cause, they had to trust what the jail gatekeepers were telling them.

"When you have these elected officials and their legals telling you, 'here's how that really works,' what choice do you have?" he said.

However, once Paikowsky and her colleagues stepped in, Douglas said "the dynamic changed," and everything moved along much faster. Response times from the jail sped up and his group was quickly put in contact with higher-ups.

"They added gravitas and legitimacy to the on-the-ground efforts," Douglas said.

In 2018, Houston Justice reported that its voter registration campaign added more than 1,300 people in jail to voter rolls and more than 300 people voted by mail from the Harris County Jail that year.

In Arizona, attorney and activist Alex Gulotta said "lawyer energy" helped install a regulatory framework in the state last year that mandates jails give eligible voters a chance to cast a ballot.

Gulotta, the Arizona director of All Voting Is Local who previously practiced as a legal aid lawyer, teamed up with Arizona Advocacy Network, led by attorney Joel Edman, to convince state officials to include provisions in the state's Election Procedures Manual that called on counties to implement a ballot-by-mail process for eligible voters in jail.

Outside of the statute and court decisions, the manual is the "main body of election law in Arizona," Edman told Law360, who likened the document to "how-to" guidance for voting officials.

"Previously, the manual had been completely silent" on voting from jail, Edman said. "We pushed for some language to be included in the manual to signal to county elections officials" that they had to put a plan in place to service eligible voters in the jail facilities, he said.

However, these guidelines are just a springboard, as Gulotta said they've still found a dismal number of jail inmates are voting. Across the whole state, somewhere between three and seven people voted from jail for the state's presidential primary in March, he said. On any given night, Arizona jails house 14,000 people.

All Voting Is Local and Arizona Advocacy Network are part of a coalition that is now putting together a county-by-county scorecard that grades the state's jails on how well they've implemented the manual's new jail voting mandate. The data will be published in the coming weeks.

On the other side of the Sun Belt, in Georgia, attorneys and activists from think tank Demos and the Southern Center for Human Rights have joined forces to disseminate thousands of "know your rights" pamphlets and set up prepaid jailed-voter hotlines.

Naila Awan, senior counsel at Demos, told Law360 they're ready to tap in if voters run into problems.

"We worked with the jails own service providers to cover the cost for individuals who are incarcerated in jails in Georgia to call us and ask any questions that they have about their eligibility or about navigating the process, and flag if they're having any problems getting access to a ballot," she said.

She added that they're looking to push out a fresh set of pamphlets ahead of the November election.

Awan said she's also working to fill the gaps left by the new pandemic-related visitation restrictions with a set of policy recommendations that Demos and its partners recently circulated to grassroots organizations around the country.

"There's now a lot of voters in jail who will not be receiving those same materials either through the state or through the local advocates, who they've been typically able to access those types of resources from," Awan said.

The recommendations lay out steps jails can take to ensure that incarcerated eligible voters have a chance to cast a ballot in November. Jails are advised to integrate voter registration into the intake process, maintain copies of absentee ballot applications on-site, and send completed ones out free of charge, among other suggestions.

While the blueprint is high-level, Awan said she's happy to tailor it down to the needs of any local organization that asks. "We're always available if they want to talk through how to adjust or amend some of those recommendations to fit the needs of their particular state," she said.

Houston Justice is also pursuing workarounds in light of the pandemic, as co-founder Douglas said they're working to have public service announcements play on jail TVs and training up chaplains and others allowed inside on how to inform eligible voters about the options available to them.

Douglas said that these new tactics — which don't require an in-person visit — have inspired him to scale up his efforts to other jails in the state, and even across the country. And he's still brandishing the Campaign Legal Center's missive as a ticket to get him in the door.

"I have used that memo as our entry point," he said. "It applies to all the jails."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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