From Behind Bars, Pretrial Detainees Fight To Vote

By Jack Karp | October 25, 2020, 8:02 PM EDT

Inmates in Cook County, Illinois, are able to vote in this year's election at a polling place inside their jail, a rare effort to ensure ballot access for incarcerated voters who activists say face barriers across the country. (Nuccio DiNuzzo/Getty Images)


About 50 voters lined up inside the Cook County, Illinois, polling place, located as are most in a drab, institutional building. Another 50 waited for their turn in the hallway outside. Some voted while others registered to vote. Turnout was just shy of 40%, and no one had to wait for hours to cast their ballot.

In short, the polling place was a huge success, according to those who operated it. That success may be especially surprising since this polling place was located inside a jail.

In March, the Cook County Jail became the first ever to set up a physical polling place so inmates who are eligible to vote could do so behind bars. And about 1,500 of them did just that in this year's presidential primary.

"It was just so exciting," says Cook County Sheriff Thomas Dart, one of the driving forces behind the effort. "I talked to a ton of detainees that were voting that day, and there was just this wild sort of excitement."

But the voting booths at the Cook County Jail are a rare bright spot in a national jail voting system that far more often disenfranchises inmates through a lack of information, logistical hurdles and resistant jail staff, voting rights activists say. As a result, those activists warn, thousands of jailed voters — who have yet to be convicted of anything and are eligible to vote — could be kept from the ballot box in this year's election.

More than 74% of the approximately 746,000 people jailed across the country haven't yet been convicted of a crime, according to a 2020 report from the Prison Policy Initiative. And all of them retain their constitutional right to vote, a fact affirmed by the U.S. Supreme Court in its 1974 O'Brien v. Skinner decision.

In addition to pretrial inmates, Maine and Vermont allow all prisoners to vote, and some states only disenfranchise those convicted of certain crimes, according to Dana Paikowsky, an Equal Justice Works fellow at the Campaign Legal Center.

But just because prisoners are eligible to vote doesn't mean they can.

"It is enormously difficult to vote if you're incarcerated," says Paikowsky, a fact that's evident from the number of people voting in jail, which she says "is incredibly small in a way that's really sad and disappointing."

For instance, in Arizona approximately 60% of the more than 14,000 people in jail each day are eligible to vote, according to a July report from the Arizona Coalition to End Jail-Based Disenfranchisement. That amount dwarfs the amount of inmates who actually voted in the state's March primary — seven inmates total.

"That's not a problem of the people in jail not wanting to vote," Paikowsky says. "It's a problem of them not having access to the ballot."

A Lack of Information

The biggest barrier to that access is that many detainees simply don't know they're eligible to vote, according to activists.


Most people, inmates included, assume that being jailed automatically nullifies a person's voting rights, says Thea Sebastian, policy counsel at Civil Rights Corps. And the complexity of voter eligibility laws, under which different crimes may disenfranchise different inmates in different states, makes it difficult for detainees to decipher whether or not they can legally cast a ballot.

"It's that kind of criminalization of democracy that's set up by having these really complicated systems where we draw these weird lines about who can and can't vote that just really sets people up for failure," Sebastian says.

And it's not just inmates who are often unaware they're eligible to vote. Many jail staff aren't aware of that fact either, activists say.

Durrel Douglas includes himself in that group. Douglas, who is now the executive director of Houston Justice and works to improve ballot access in Texas jails, used to be a prison guard. And he "had no idea" some of the inmates under his charge could vote, he says.

Jailed voters also lack information about registration deadlines and absentee ballots, Douglas says. Even something as simple as what address to list on a ballot application or who's running for office can be difficult to find out from behind bars, where inmates often can't use the internet or make phone calls.

"What that means is that to get information about the election process, incarcerated individuals are reliant on the sheriff and on the sheriff's deputies to actually provide them with that," Sebastian says. "And that's just clearly a system that isn't fair, it's not uniform, it's not really effective."

Making the system less fair is the fact that many sheriffs are elected and often appear on the very ballots they're charged with providing inmates, a conflict Sebastian and others say is one reason some sheriffs are resistant to helping detainees vote.

"If the sheriff's name's on the ballot," Sebastian asks, "would the sheriff necessarily want to facilitate jail voting?"

'De Facto Disenfranchisement'

Even informed inmates find it nearly impossible to vote given what activists say is a complete lack of voting infrastructure inside jails.


Joe Watson was one of those inmates. Watson was awaiting trial in an Arizona jail when the 2008 presidential election rolled around. But Watson, who had yet to be convicted for a series of first-time, nonviolent offenses, knew he was still eligible to vote.

So he asked his guards to help him cast a ballot, as one guard had during the primary months before.

But he had since been moved, and in his new jail, "everyone just ignored me when it came to requesting a general election ballot," he says. "I was actually laughed at by guards over there. And once they stopped laughing they just walked away."

Watson never got to vote in that election — or since, as he pled guilty shortly after and lost his right to vote.

"They're just not prioritizing it," he says of jail staff. "They don't care enough to put in the work to make sure that folks have access to a ballot."

In fact, most jails have no system for ensuring inmates' access to the ballot and get no guidance from their states' election officials, says Kristina Mensik, associate director of Common Cause Massachusetts.

For instance, many states require voters to have identification to register to vote, something people in jail don't usually have, say prisoner advocates. Some states also require those requesting or filling out absentee ballots to include witness signatures, something else that's difficult to access in jail.

Even getting paper, pens and stamps can be problematic behind bars, where there are often delays and bans on inmates sending or receiving mail, activists say.

"You would be surprised how just the most mundane things like sending and receiving mail in a timely fashion is extremely difficult in local jails," says David W. Frank, an Indiana civil rights attorney who has worked on cases involving inmate voting rights.

What results is a patchwork in which ballot access is "different from county to county," says Watson, who is now communications coordinator for criminal justice reform organization American Friends Service Committee – Arizona. In his case, it was even different from jail to jail within the same county.

Nine of Arizona's 15 counties scored an F when the Arizona Coalition to End Jail-Based Disenfranchisement rated their jail voting procedures in July, including Maricopa County, where Watson was jailed. Only one was given an A.

"The Maricopa County Sheriff's Office has, through its inmate tablet technology, updated our information and awareness efforts to the election process for community members incarcerated in our jail system," the county sheriff's office told Law360 via email. The office added, "MCSO always has and will continue our support of those who wish to exercise their constitutional right to take part in the election process."

But activists argue that isn't what's happening. What's happening instead is "a system of de facto disenfranchisement," says Mensik, which mainly impacts the poor and people of color, who make up a disproportionate percentage of the jail population.

It's a population activists worry will find it even harder to vote this year, since most of the work of helping inmates vote falls to community organizations like the one Douglas runs, which go into jails to register and educate prisoners — something that's no longer possible in facilities that have banned visitors over COVID-19.

"The pandemic has exacerbated every single one of the barriers that makes voting from jail difficult," Paikowsky says.

Turning to the Courts

With sheriffs failing to help — and, in some cases, actively resisting inmates' ballot access, according to advocates — jailed voters have started turning to the courts.


Inmates in an Allen County, Indiana, jail sued the sheriff there in 2017 alleging he had "systematically disenfranchised hundreds of eligible voters" during the 2016 general election by refusing to provide prisoners with absentee ballots.

The Allen County Sheriff's Office did not respond to a request for comment, but in court documents, the sheriff admitted to not giving absentee ballots to any inmates, even though more than three-quarters of the jail's population was eligible to vote, according to the complaint.

The sheriff, however, argued that the jail's inmates were free to request absentee ballots and none did so by the appropriate deadline, according to a 2019 partial summary judgment order in the case.

Frank, who represented those voters but is no longer involved in the class action, says the suit is pending while the parties try to reach a settlement.

Two other jailed voters filed a similar class action against the Ohio secretary of state in 2018, claiming the state's absentee ballot request deadline disenfranchises voters who are jailed before an election but after the deadline has passed.

Paikowsky, who worked on that case, points out that Ohio, like several states, has laws allowing voters who are hospitalized shortly before an election to request an emergency absentee ballot after the deadline. But it does not make the same exception for those in jail.

That discrepancy violates the Constitution, the inmates claimed. In 2019, an Ohio federal judge agreed, writing that "hospitalized voters 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 the Sixth Circuit overturned that decision in March, saying Ohio's regulatory interest in the orderly administration of elections outweighs the burden placed on jailed voters.

The Ohio secretary of state did not respond to a request for comment. But in a motion for summary judgment in the case, the state insisted that being jailed before an election is no more burdensome than having car trouble or getting caught in bad weather.

"If people forego their early voting options, they naturally risk that some unexpected life event might disrupt their ability to vote on Election Day," the state wrote.

Voting Booths Behind Bars

One way to solve this problem is to set up polling places in jails, like the one in the Cook County Jail, says Frank, who points out that county officials often place remote polling sites in places like retirement homes.


In fact, the Cook County Jail's first stab at in-jail voting during the March primary "was a rousing success," Sheriff Dart says. Almost 40% of the jail's detainees, or about 1,500 inmates, voted, according to Dart, a more than threefold increase over the 430 who voted in the previous election.

Dart already has the first-of-its-kind polling site up and running for the general election, where inmates began voting on Oct. 17.

"There is virtually no logistical reason why you can't do this," Dart says.

That has not been the case in Harris County, Texas, where county commissioners approved a measure to do something similar in the Harris County Jail.

That effort stalled when the county clerk announced the project violated Texas' election code, which bars all electronics within 100 feet of a polling location, according to Roxanne Werner, director of community relations for the Harris County Clerk. In a jail full of security cameras, that means a polling place would break the law, she says.

So it's likely the number of jailed voters casting a ballot in Harris County in this year's election will remain low. In the 2016 presidential election, that number was 21, according to Werner.

Advocates worry that setbacks like these in Harris County and Ohio mean that thousands of jailed but eligible voters will be disenfranchised in this year's election. That's especially tragic, they say, since those are the voters who most closely see sheriffs, prosecutors and judges at work and are most affected by laws that legislators pass — all officials who are often elected.

"These officials are making decisions that most directly impact the people who are currently incarcerated in jail," she says, "and so we should care what their perspective is on how those officials are doing their jobs."

Watson won't be able to share his own perspective at the ballot box for a while still. He completed his sentence in 2019 and under Arizona law can't apply to have his franchise restored until 2021.

That means he can't vote in this election. But he's helping other formerly incarcerated people do just that. Meanwhile, he says, he's counting the days until he can cast his own ballot again.

"The first day that I'm eligible to apply to have those rights restored, I'm going to," he says.

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

--Editing by Katherine Rautenberg.

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