On any given day, more than 425,000 of the approximately 514,000 people locked in America’s local jails have not been convicted of the crime for which they are detained, according to a March 2023 Prison Policy Initiative report. Legally innocent, individuals awaiting a trial never lose the right to vote. And yet, they are overwhelmingly denied the ability to cast a ballot. This disenfranchisement most heavily impacts Black and low-income Americans, who are incarcerated in wildly disproportionate numbers.
Jails should promote civic engagement and political participation, not stifle it. Making it easier to vote from jail, including by establishing polling sites within local jails, is a crucial step toward fulfilling the promise of the right to vote for all.
While the U.S. Supreme Court has paid lip service to the right to vote while behind bars, the judicial system has let jails and detention centers off the hook for persistently failing to provide meaningful avenues to vote from jail. In fact, individuals in jail are frequently subjected to “de facto disenfranchisement,” a term that describes the ways in which logistical, procedural, and other barriers to voting effectively prevent them from exercising their right to cast a ballot.
In 1974, the Supreme Court held in O’Brien v. Skinner that eligible incarcerated voters cannot be denied the right to vote because they are detained. But the Supreme Court has maintained a low, permissive bar for jail administrators to demonstrate that they are complying with this requirement. All that jail administrators have to do to satisfy their legal obligations is show that they did not explicitly close off every available avenue for detained voters to cast a ballot, the Supreme Court has held. For example, in many jurisdictions, jailed voters are allowed to vote by mail. The existence of this option, according to current jurisprudence, satisfies the constitutional demand for the right to vote from jail. But it is almost universally difficult, and often impossible, to vote by mail while detained. Even when nothing explicitly prohibits jailed voters from casting a ballot, in practice they have little or no chance of successfully doing so.
Potentially denying the right to vote to more than 425,000 individuals is unacceptable. And urgent, widespread demands for ballot access in jails are long overdue. Unfortunately, those most affected by de facto disenfranchisement are those whose political power is repeatedly marginalized and squandered. Black Americans and low-income Americans are overrepresented as a share of the pretrial detainee population, according to a 2019 briefing by the Prison Policy Initiative. Black Americans constitute 43% of the pretrial detainee population, the briefing found, despite making up only 13% of the U.S. population. This disparity stems from the over-criminalization of poverty and of Black Americans, both of which also exist alongside a system of money bail that leaves legally innocent poor people to languish in jails while wealthier people spend their pretrial periods on the outside.
Black Americans and low-income Americans, therefore, are particularly vulnerable to being disenfranchised because they are detained. This disenfranchisement then remains pervasive because of a complex web of barriers to accessing the ballot while jailed.
Voting from jail can be a challenging, costly, and sometimes impossible undertaking. A brief published by the Legal Defense Fund (LDF)’s Thurgood Marshall Institute, “Democracy Detained: Fulfilling the Promise of the Right to Vote from Jail,” chronicles many of the barriers to voting while detained. It identifies widespread obstacles for jailed voters related to voter information, voter registration, mail-in ballots, ballot curing, and access to voter outreach teams.
Many jailed voters are not provided with complete or accurate information about their right to vote from jail and how to do so, according to the LDF brief. Sometimes, they’re provided no information at all. Voting-related flyers posted in jail facilities, if they exist, may not be updated or accurate. Even official documents, such as voter registration forms, sometimes contain incorrect or incomplete information about whether someone is eligible to vote. Moreover, when election officials, jail officials, and voter registration forms do not sufficiently explain state disenfranchisement policies — which vary from state to state and can mean that individuals convicted of some crimes are denied the right to vote — jailed individuals may be misled about their voting eligibility, according to a report by the American Civil Liberties Union. As a result, even individuals who have never been convicted of a crime in the past may be dissuaded from trying to exercise the right to vote due to confusion about whether they are eligible to cast a ballot while detained. Furthermore, without a regular or reliable internet connection, which is the case for the majority of detained people, according to the Washington Post, accessing information about how to vote from jail can be impossible.
Also, jail staff may lack extensive training about the voting rights of individuals detained in their facilities, the LDF brief found, or have no training at all. Jail administrators, the point of contact for detained individuals, may be unequipped to answer questions about voting eligibility and confused about their role in facilitating voting from jail.
Registering to vote is another barrier, the LDF brief shows, because it generally requires resources not available to detained individuals. According to an October 2020 Prison Policy Initiative report, people in jail are less likely to have the types of identification required to vote, which is especially problematic in states with strict voter ID laws. Even acceptable forms of identification are generally confiscated with a detained voter’s personal effects upon entering the jail, according to the Prison Policy Initiative. A lack of internet access also impedes online voter registration and the ability to check one’s registration status after submitting a paper or online registration form.
Mail voting is the most common voting method theoretically available to detained voters, but it can be difficult or impossible in a jail setting. Detained people attempting to cast a mail-in ballot may not have access to phones, pens, stamps, or identification cards. Any one of these issues constitutes a potential hurdle; in conjunction, they can be prohibitive. Individuals who are detained after a state’s deadline to request a mail-in ballot and held through Election Day are universally disenfranchised when the only option to vote while detained is by mail.
If people do manage to vote from behind bars, addressing any potential issues with their ballots amounts to another obstacle. Detained voters often can’t access many of the channels by which they’re notified about the need to cure, or fix, their submitted ballots, and are frequently shut out from the ballot curing process itself, which allows voters to correct ballot errors if needed. Whereas non-detained voters might be able to track their ballots online and receive information about needing to cure their ballots via email or a telephone call — and then subsequently cure their ballots by mail, fax, or in person — these avenues can be difficult, expensive, or unavailable for detained voters. Quick turnaround deadlines for ballot curing can further impede detained voters’ ability to do so. For example, a family member or friend who monitors a detained individual’s email for them may not relay ballot curing information in a timely manner.
Incomplete access to voter outreach teams is another common hurdle for jailed voters. Volunteers and voter outreach organizations like Texas-based Pure Justice shoulder a great deal of the burden of facilitating ballot access in jails without on-site polling locations. These individuals and teams provide information about voting eligibility and procedures to detained voters and they can also help distribute, collect, and turn in mail-in ballots. Though these organizers serve an urgent and crucial need, they cannot reach all detained voters, and they should not be relied on as the sole, ad-hoc solution to a pervasive and systemic problem.
Piecemeal reforms to election procedures in jails may help modestly increase the number of individuals who can successfully vote in jails without on-site voting. But the most comprehensive avenue for realizing the promise of the right to vote in jails is through establishing jail-based poll sites, where detained voters, jail staff, and the public can register and vote in person during the early voting period and on Election Day.
Establishing an in-person poll site — or multiple sites — at a jail is the best step jail and election administrators can take to facilitate voting from jails. Unlike small-scale tweaks to the standard mail-reliant systems for voting from jail, jail-based polling sites meaningfully address many of the impediments to voting while detained. They combat informational barriers both by streamlining the process to vote from jail and providing consistent and accessible messaging to detained voters. They address registration barriers by providing avenues for on-site, in-person voter registration that minimizes the internet, phone, printer, and stamp access challenges that traditionally make registering to vote from jail difficult. Importantly, jail-based poll sites also eliminate the need for mail-in ballots for many detained voters, warding off the myriad difficulties with voting by mail from jail outlined by the Prison Policy Initiative’s jail voting report. They also relax pressure on volunteer outreach teams by providing access to balloting procedures and facilitating transport of ballots from the polling location to the relevant election authority — responsibilities that usually otherwise fall on volunteers.
As of 2022, eight jails have taken the lead in demonstrating the feasibility and effectiveness of jail-based poll sites, according to the LDF brief. Data from these sites, reviewed by the Prison Policy Initiative, suggests that when people in jail know they can vote where they are detained, they do. At Cook County Jail in Illinois, voter participation jumped from 7% to 37% of the jail’s population after the establishment of half a dozen on-site polling places. The Prison Policy Initiative found that that increase of 1,500 voters created momentum that made the Cook County Jail poll site Chicago’s most active voting precinct in the June 2022 primary election, the Chicago Tribune reported. These opportunities to vote from jail have broad social benefits: For Americans with a history of contact with the criminal legal system, having the right to vote or voting itself is related to reduced recidivism, according to the Sentencing Project.
Community partners, advocates for the detained, jail administrators, local officials, and election administrators can work together to replicate the early successes of jail-based poll sites across the country. It is beyond time to make real the promise of the right to vote from jail by making jails themselves the sites of democratic practice by hundreds of thousands of Americans.
This TMI brief examines barriers to voting for people incarcerated related to voter information, voter registration, mail-in ballots, ballot curing, and access to voter outreach teams and reforms that will help eligible incarcerated voters actualize their right to vote from jail.
This report outlines how racial biases embedded in our criminal legal system, and by extension, the money bail regime, cause pretrial incarceration to disproportionately harm Black and Latinx people and offers principles for an effective and just bail reform platform.
Justice Above All Podcast
This episode examines the inherent racism surrounding prison-based gerrymandering and how it continues to feed the prison industrial complex while diluting Black political power.