Jurisprudence

The 470,000 People Most Likely to Be Disenfranchised Next Election

Voting rights for people in jail is becoming another casualty of COVID-19.

The words "help we matter 2" are seen written in a window at the Cook County Department of Corrections.
A window at the Cook County jail, where there is a large coronavirus outbreak.
Kamil Krzacynski/Getty Images

In the months before prisons and jails banned visitors due to the coronavirus, election workers and volunteers streamed in and out of Chicago’s Cook County Jail helping people there get ready to vote.

They lugged about 40 voting machines into the facility’s chapels, rec rooms, and law libraries. They taught civics classes in the common areas, reminding detainees that they have the right to cast a ballot if, like more than 70 percent of people in U.S. jails, they are being held pretrial and haven’t yet been convicted of a crime. Working with a nonpartisan organization of young activists called Chicago Votes, they registered more than 1,500 new incarcerated voters in total.

By early March, the Illinois primary election was approaching—and so was COVID-19. But jail and election officials stuck with their plan to run a voting precinct inside the jail for two weekends, complete with poll watchers and election judges. Dispensers of hand sanitizer were made available, and “the elbow-bump was happening at that point,” said Jen Dean, deputy director of Chicago Votes, who spearheads its jail voting program.

But on the second weekend, a few days before the March 17 primary, the remainder of the jail voting was called off as officials concluded it was just too dangerous during a pandemic.

With most Americans isolated at home indefinitely and a presidential election coming up this fall, many people are wondering how—or whether—they’ll be able to cast their votes. On Capitol Hill, lawmakers are debating whether the federal government should help states expand mail-in voting.

Largely unmentioned in this conversation are the some 470,000 Americans detained in city and county jails nationwide who have a constitutional right to vote by mail, according to the U.S. Supreme Court. Advocates fear that virtually everyone held in jail will be disenfranchised in the 2020 election if coronavirus restrictions prevent civic groups from entering these facilities to register voters and give them ballots. Incarcerated people typically can’t do these things themselves because of cumbersome jail mail restrictions as well as a lack of access to the internet and to their own identification documents.

“Perhaps this is an opportunity to remind folks that one of the populations most affected by absentee balloting is people in jail,” said Sean Morales-Doyle, senior counsel for democracy issues at the Brennan Center for Justice, a public policy institute.

The effort to reach this overlooked group of voters had been accelerating in recent years. Since the 2016 election, voting rights groups in places like Ohio, Pennsylvania, Texas, and Arizona—crucial battleground states—have turned their attention to registering pretrial detainees (and in nearly all states, those convicted of misdemeanors can also vote from jail). There is no national data on how many jailed voters participated in the 2018 midterm, but organizers say thousands did in many major cities while far fewer did in rural lockups where fewer volunteers visit.

But such organizing is difficult to perform while practicing social distancing. Volunteers are patted down as they enter jails. They register incarcerated people one-on-one, in close quarters. And they pass out ballot applications and ballots by hand.

That’s all on hold as the coronavirus contagion puts jails on lockdown—and as prisoner advocacy groups refocus their energies from voting rights to the immediate issue of moving incarcerated people vulnerable to the illness out of correctional facilities altogether.

Several sheriff’s officials and jail administrators said that voting couldn’t be their top priority during the coronavirus crisis. In Cook County, the sheriff’s office is “currently devoting every available resource to the critical task of protecting our staff, detainees, and the public from the spread of this global pandemic,” said spokesman Matt Walberg. The department has reached out to local election officials and will follow their guidance for voting this fall, he said.

Mike Brickner, the Ohio state director of All Voting Is Local, an advocacy group run by the Leadership Conference on Civil and Human Rights, fears that “we could end up back where we were before 2016, when few to no people in jail had a practical right to vote.” Before the pandemic, he said, the administrators of the Cuyahoga County Jail in Cleveland had been very open to expanding ballot access to people behind bars there, seeing it as a way to remind them that they are still part of the social contract even while awaiting trial.

In Arizona, another key purple state, the secretary of state’s office last year published an election manual requiring that counties implement procedures to let people in jail vote. (The Colorado secretary of state issued a similar policy last year.)

But it is unclear how that new rule will be enforced if voting groups are sheltering in place. “We may have to ask defense lawyers to get the information into the jail to their clients,” said Alex Gulotta, the Arizona state director of All Voting Is Local.

Maryland offers another case study. There, an “Expand the Vote” bill that would have mandated assistance for voters in jail was moving through the General Assembly earlier this year. It passed one branch, then stalled in March as lawmakers shifted focus to emergency COVID-19 measures.

In Chicago, a new law effective in January required Cook County to set up a full polling location in its jail. Advocates say that for that to still take place this fall, they will need to recruit election judges who are young, healthy and willing to enter a facility now teeming with the infection.

To be sure, jail voting was difficult before the coronavirus. Many sheriffs and correctional administrators have long been uncooperative about anything they see as affecting the security of their institution, including allowing election volunteers to enter jails to work with detainees. Some facilities only allow mail the size of a postcard, preventing incarcerated people from receiving or sending absentee ballot applications and ballots.

And Wisconsin’s official guidance to incarcerated voters is that if you don’t have an “acceptable photo ID” on you when you are arrested, you can’t vote from jail.

Incarcerated voters themselves do not always know their rights, and many fear they are breaking the law by trying to vote, advocates say.

But jailed voters “have the most direct vantage on how local elected officials—judges, prosecutors, sheriffs—are actually doing their jobs,” said Dana Paikowsky, a jail voting expert at the Campaign Legal Center, a legal advocacy organization. “From the perspective of democratic accountability, this is one of the most important segments of our electorate.”

Paikowsky notes research suggesting that many Americans are discouraged from future civic participation if they spend even a few days behind bars, making jail voter registration crucial to the long-term health of a democracy.

Emergency absentee ballot laws in many states require election officials to help people vote who are injured or hospitalized in the weeks or days leading up to an election. That same logic should apply to voters who are put in jail late in a campaign season, the Campaign Legal Center and partner organizations argued in a recent Ohio lawsuit.

A federal district judge last year agreed, ruling that voters in jail are similarly situated to those in hospitals or nursing homes. But in March, a three-judge panel of the 6th U.S. Circuit Court of Appeals, which covers Kentucky, Tennessee, Michigan, and Ohio, overruled that decision. The judges, two of whom are President Donald Trump’s appointees, said that the state’s interest in running an efficient election—hard to do at a jail, they said—outweighs the burden that being incarcerated places on a citizen’s right to vote.

As the pandemic threatens to upend the 2020 campaign, jail voting may be just the first of many election issues decided by the courts.

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