Research Associate
Prepared to Vote and Voting Rights Defender Attorney
Across the country, thousands of elected officials wield considerable power over the function and outcomes of the criminal legal system.1 Each year, in some states and districts, voters elect state attorneys general, district attorneys, sheriffs, state supreme court judges, and trial court judges.2 These elected officials make choices and take actions that formatively influence the functions of the criminal legal system. For example: district attorneys have considerable discretion when deciding whether to file criminal charges against someone accused of committing a crime, and trial court judges make decisions that significantly impact the outcomes of criminal trials, such as determining what evidence can be shown to a jury.3 However, millions of Americans who have a vested interest in the fairness of our criminal legal system – those who are detained while awaiting their criminal trial – are denied a meaningful opportunity to vote, despite their right under the law to do so. Most individuals held in city or county jail at any given time have not been convicted of any crime and are awaiting a trial, meaning they retain their legal right to vote, but procedural and logistical barriers make it difficult or impossible for them to do so.4 Reforms that make it easier to vote from jail, up to and including the establishment of polling locations inside jail facilities, will help eligible incarcerated voters to actualize their right to vote from jail.
Courts have affirmed that eligible voters detained while awaiting a trial or after a misdemeanor conviction have the right to vote – at least in theory. Unfortunately, the courts have failed to affirmatively obligate jails to provide meaningful ballot access to detained voters. This makes it difficult, or impossible, to cast a ballot from jail in many jurisdictions despite the right to do so.
In 1974, the Supreme Court ruled in O’Brien v. Skinner that eligible incarcerated voters cannot be denied their constitutional right to vote due to their detainment.5 In that case, the Court found that pretrial detainees were unconstitutionally denied access to the ballot when they were not allowed to cast absentee ballots and the state failed to provide them with any other means of casting their vote. In fact, the state had “rejected out of hand” any alternative that would permit the detained individuals to vote without absentee ballots. As a result of O’Brien v. Skinner, individuals can’t be denied the right to vote based solely on their detainment.
But having the right to vote is different from having the ability to vote, and the Court has obscured that difference by interpreting very narrowly what constitutes being denied the right to vote as a detained American. In McDonald v. Board of Election Commissioners of Chicago (1969), individuals who were detained in Chicago’s Cook County Jail while awaiting trial claimed that Illinois’ practice of barring detained individuals from using absentee ballots violated the equal protection clause of the 14th Amendment.6 In McDonald, unlike in O’Brien, the Court found that the failure to provide absentee ballots did not violate the Constitution.7 Also unlike O’Brien, the Court based its decision on the fact that these plaintiffs weren’t prohibited from every possible mechanism of voting, just from using absentee ballots despite there being no other realistic method of participation at that time. The majority raised that it is within the state’s power to establish a special polling booth in the jail or consider other options to enable detained individuals to vote on Election Day, which would allow the plaintiffs to vote without using absentee ballots. But few states or jurisdictions have adopted these alternative pathways to enable detained citizens to vote.
In the more than 50 years since these cases were decided, only a small handful of carceral facilities that house eligible incarcerated voters have established jail-based polling sites or any broad mechanism for allowing detained individuals to access the ballot besides voting by mail – and detained individuals who are eligible to cast an absentee ballot from jail often face prohibitively burdensome barriers to doing so.
These circumstances have had the predictable effect of leaving many detained Americans with a slim chance of successfully voting – and no recourse when they are disenfranchised, because the state has not expressly prohibited them from voting by any means.
The Court ignoring what the “right to vote” can really mean with no avenue to cast a ballot reflects a major tension over jail-based voting: States, localities and jail administrators can maintain that they are not actively denying detained individuals the right to vote while offering no practical avenue to do so. This has led to a crisis wherein hundreds of thousands of Americans may not be able to cast a ballot for their candidates and policies of choice, despite being legally eligible to vote, because they are detained.
The Court ignoring what the “right to vote” can really mean with no avenue to cast a ballot reflects a major tension over jail-based voting: States, localities and jail administrators can maintain that they are not actively denying detained individuals the right to vote while offering no practical avenue to do so.
The denial of voting rights to legally eligible individuals who are detained in American carceral institutions is a form of de facto disenfranchisement, by which legally eligible voters are nevertheless denied an opportunity to vote.8 In jails, de facto disenfranchisement has a profound numeric impact on voter turnout – and Black and economically marginalized Americans make up a disproportionate share of those disenfranchised while in jail.9 As of 2017, pretrial detainees comprised nearly two-thirds of the 745,000 people incarcerated in American jails, a near-quadrupling since the 1980s.10A majority of the other 263,000, who were serving a sentence for a criminal conviction, were incarcerated for a misdemeanor offense.11
The racially disparate impact of de facto disenfranchisement aligns with the longstanding historical pattern: Criminal disenfranchisement, the revocation of the right to vote based on a criminal conviction, has long been used as a tool to suppress Black political power. Although de facto disenfranchisement of people in jails is procedurally distinct from criminal disenfranchisement for a felony conviction, taken together, these two interrelated forms of voter suppression are emblematic of a fundamental historical truth: Since Reconstruction, the burden of disenfranchisement based on contact with the criminal legal system has been borne disproportionately by Black Americans.12
American states — particularly Southern states — strategically adapted crime-based restrictions on voting after the Civil War. At that time, criminal disenfranchisement’s reach was extended to a broad swath of crimes not previously included among disqualifying common-law felonies.13 The expansions were designed to cover crimes thought to be particularly common among Black residents.14 In South Carolina, legislators extended criminal disenfranchisement against adultery, arson, wife-beating and other crimes that were identified with Black people, but not for murder or fighting, with which whites were charged at rates similar to Black residents.15 In 1896, the Mississippi Supreme Court heard a challenge to its constitution’s disenfranchisement of (mostly Black) persons convicted of minor crimes, but not major crimes committed largely by whites (such as murder and rape). The Court recognized that Mississippi, like other Southern states at the time, had manipulated criminal disenfranchisement as part of a campaign to disenfranchise as many Black people as possible without triggering the federal constitutional protections in the 14th and 15th Amendments. Because these criminal disenfranchisement provisions didn’t explicitly mention race, the Court found that Mississippi had not violated the 14th and 15th Amendments, which prohibited explicit racial discrimination in voting and promised Black Americans the equal protection of the law.16
Criminal disenfranchisement was one part of broader efforts to prevent Black Americans from voting. Some voter suppression tactics, like poll taxes and literacy tests, were struck down as unconstitutional – while others persisted.17 It was not until the passage of the Voting Rights Act of 1965 (VRA) that America made good on the promises of the 14th and 15th Amendments – although it allowed criminal disenfranchisement to persist.18
The VRA enshrined new voter protections and crucially required jurisdictions with a history of voter discrimination to gain federal approval before making changes to their voting laws.19 The passage of the VRA was a response to the chasm between Black Americans’ equal right to vote on paper and their lack of access to the ballot box in reality. What good is the “right” to vote when you will face violence for attempting to cast a ballot? Or when your state forces you to jump through arbitrary and exclusionary hoops, such as providing a printed photocopy of a qualifying ID, in order to vote? Recognizing the meaninglessness of the legal right to vote when it is not enforced or actualized, the VRA ushered in a new era in voting rights, marked by a new and expansive conception of what it means to be meaningfully enfranchised.20
The contradiction that inspired the VRA – What good is your right to vote if you are Black when logistical and procedural barriers make it virtually impossible for you to cast a ballot? – is unfortunately still felt by hundreds of thousands of American citizens who have the legal right to vote but who are disenfranchised by logistical and procedural barriers when they are detained.
Given the persistently racially disparate impact of disenfranchisement practices, it is unsurprising that Black Americans’ ballot access is particularly compromised by de facto disenfranchisement. The racial and economic disparities for pretrial detention and incarceration for misdemeanor offenses are predictably egregious. Black Americans comprise nearly half of the country’s pretrial population despite being only 13% of the U.S. population.21 This is a direct result of the money bail system, which “creates a two-tiered justice system: those with money can buy their way to freedom, while those without money are made to languish in jail.”22 The but-for cause of detention for a large and disproportionately non-white swath of the pretrial population is the ability to pay bail: The median money bail amount for a felony charge is $10,000, and the average yearly income of a person who cannot afford bail is $16,000 for men and $11,000 for women.23 Race and class disparities are also apparent among individuals detained for probation and parole violations. Black Americans account for 40% of people detained for probation or parole violations, despite making up only 13% of the U.S. population.24 In some cases, individuals are returned to custody for infractions as minor as being late to a meeting with a parole officer or failing to make payments on a fine.25 The overrepresentation of Black Americans and low-income Americans in pretrial detention reflects the racial disparities that exist at every level of the criminal legal system, from arrest to conviction.26
The contradiction that inspired the VRA – What good is your right to vote if you are Black when logistical and procedural barriers make it virtually impossible for you to cast a ballot? – is unfortunately still felt by hundreds of thousands of American citizens who have the legal right to vote but who are disenfranchised by logistical and procedural barriers when they are detained.
There are manifold barriers to casting a ballot from jail, ranging from a lack of information about voter eligibility and how to vote from inside to impediments to voter registration and casting a ballot.27 Our conversations with voting rights advocates and jail-based voting organizers, as well as the observations of LDF’s Prepared to Vote/Voting Rights Defender teams, have substantiated the significant burden involved in voting from jail.
Some of the most formidable barriers to voting in jail are informational. Details about voter eligibility and how to vote are often sparse, or entirely lacking. Where information is available to incarcerated voters, circulated information about eligible detained voters’ right to vote is often outdated or wholly inaccurate. Jail administrators, who are the point of contact for detained individuals, are often not sufficiently informed of the right to vote pretrial and are confused about eligibility and what they can do to facilitate voting from jail. Sometimes voter registration forms contain incorrect, confusing, or incomplete information about criminal disenfranchisement laws, compounding the problem.
Due to a lack of centralized investment in voter education and information in jails, addressing informational and other barriers sometimes falls to voter outreach teams – nonpartisan organizations or individuals who assist detained voters with ballot access. These grassroots jail outreach teams provide support and access to individuals who are detained around election periods, helping them to cast a ballot. They also pass along important information about the elections themselves, filling a crucial gap: Detained individuals are sometimes isolated from civic education and cannot independently access the information they need to understand whether they are eligible to vote, when elections are being held, and what will be on the ballot. Nonpartisan voter education efforts like LDF’s Prepared to Vote (“PTV”) initiative fill an informational gap for eligible jailed voters. Over the past two years, the PTV team has been working with organizers like Pure Justice and Houston Justice to disseminate accurate and accessible voter education materials to pre-trial detainees at the Harris County Jail in Texas.
While these voter education efforts are crucial, LDF’s PTV staff has seen first-hand that even when voters know they are eligible to vote, numerous obstacles stand in the way of doing so, beginning with the myriad obstacles to registering to vote from jail. In 30 states, people wanting to vote must register days or weeks in advance of Election Day.28 People detained through the registration period who cannot register from jail may end up excluded from voting. Even those who can meet the deadline to register are likely to face problems doing so. Some states have strict voter ID laws requiring limited forms of identification to register to vote.29 People in jail are less likely to have the types of identification required to vote, and their personal effects (including IDs) are typically confiscated upon entering the jail.30 In addition, government-issued prison or jail ID cards frequently do not qualify as acceptable forms of identification.31
A would-be voter who lacks acceptable identification, either because they never had it or because it was confiscated upon intake, may not be able to register to vote. Even those who manage to keep or regain access to their state-issued identification in jail may not be able to participate in the modernized online voter registration due to a lack of internet access. Without regular and reliable internet access, it can be difficult to check on voter registration status, after submitting a paper or online registration form, to see if the registration was successful.1
Voters who are detained on Election Day are almost always prevented from voting in person. Absentee ballots are the common workaround, but absentee balloting itself presents many additional barriers to voting from jail. A lack of internet access can prevent registered voters from applying to vote by mail, which usually involves submitting a form or request. Even in cases where correctional officers hand out vote-by-mail applications, access is not guaranteed – someone who happens to be in the shower or elsewhere when officers circulated the forms might miss their only chance to obtain one.32
If a jailed voter manages to overcome registration and absentee ballot request hurdles, the costs of stamps may impede or prevent casting a ballot. Only 19 states and Washington D.C. require local election officials to provide return postage for mailed ballots.2 Voters who live in the remaining 31 states and can’t find or afford postage to mail their ballot back to their elections office may be disenfranchised.
The burden of navigating these barriers to registering to vote and voting by mail from jail falls on nonpartisan voter outreach teams, volunteers, and detained voters themselves. Voter outreach teams help detained individuals secure proper identification and navigate other hoops to jump through in order to register to vote or request a mail-in ballot. They have successfully advocated for ballot carve-outs in facilities that digitize mail and procedures to afford detained voters temporary access to their facility-controlled identification. They also educate facility staff about the ballot components that must be delivered for voters to cast their ballot, as well as changes to election procedures and deadlines. Jail-based voter registration and outreach programs are crucial to mitigating voter access issues in jails, but they are not sufficient to resolve the crisis of barriers to voting while detained. Outreach groups rely on people power and resources that are not available everywhere, so many voters are left behind when these groups take on redressing the wide–ranging shortfalls in voting access in jails. And, like detained voters, outreach groups are limited by access and logistical barriers. Jail outreach teams cannot operate in the same way as traditional get-out-the-vote drives, where volunteers can go door-to-door or connect with potential voters at a student union or farmer’s market. They require not only the initiative of non-profit organizations like Pure Justice or other groups but also the cooperation of jail administrators, who have discretion over visitors and outreach within the jail.
Roshawn Evans is the Organizing Director of Pure Justice, a local advocacy group comprised of system-impacted individuals who help to facilitate voter registration drives and advocacy around the jail-based polling place in the Harris County Jail. He told us that many jail administrators block these groups from access to eligible incarcerated voters by denying requests to deliver voter programs. Oftentimes, voter outreach groups are at the mercy of a friendly pro-voter jail administrator or else faced with additional hurdles to jump through.
Outreach groups also rely in some ways on local and state governments, which can limit their efficacy. For example, a paper shortage in Texas during the 2022 election led the Secretary of State’s office to hand out fewer voter registration forms to groups that help register voters.3 This substantially constrained the work of jail-based outreach teams who rely on paper ballots to register detained voters without internet access.4 While these dedicated volunteers and organizations work hard to offer much-needed support, their work should not be the sole source of voter education and engagement, and it will never be a sufficient solution to all of the challenges that detained voters face throughout the country.
Relying on mail-in ballots and voter outreach teams to address a state’s failure to provide robust voter access in jails is a step in the right direction but is far too limited to address the fundamental access problems faced by thousands of eligible incarcerated voters who are de facto disenfranchised. The resources of outreach teams are too limited, their presence across geographic regions too uneven, and jail administrators’ discretionary powers too great for this to be a sufficient solution. A more centralized response, which expands opportunities to access the franchise for all detained voters, is possible. Local jails can and should provide voter education, reliable mail-in voting options that are not hindered by inadequately trained mail room personnel or mail digitization policies, and a place for detained individuals to vote, in person, during early voting period and on Election Day.
Barriers to voting vary from locality to locality and from jail to jail. Click below learn about the state of jail-based voting at two counties – and the varying levels of political participation that result.
LDF and partners are active in Texas’ Travis County, where they have encountered obstacles to voting while detained without a poll site at the jail that reflect some of the complications seen across the country.
Travis County does not have a polling location on-site, so detained individuals must attempt to vote by mail. In Texas, applications to vote by mail must be received by the County Clerk’s Office at least 11 days before an election.33 As a result, people who enter jail after this deadline must vote in person; otherwise, they will be completely disenfranchised.
Even for people who are incarcerated earlier, submitting a vote-by-mail application and subsequent ballot is often difficult and unreliable to accomplish in a jail setting. Misinformation about eligibility, combined with lack of access to the internet, phones, pens, stamps, and identification cards, means that eligible incarcerated voters must overcome countless hurdles in order to cast their ballot.
Only four people successfully voted by mail from the Travis County Jail in the November 2022 election.
Beginning in 2020, Illinois law required Cook County to set up voting machines within its jail – Cook County Jail, the nation’s second largest.35 The jail constructed more than half a dozen temporary poll sites supervised by the Cook County Clerk’s Office and the Chicago Board of Elections.36
Jail-based voters, many of whom were able to register and vote on the same day, took advantage of the ability to vote in-person from jail. More than 2,000 of the 5,400 people in Cook County Jail voted in the 2020 general election. 37
In the 2018 primary, before the establishment of the jail-based poll site, less than 7% of detained individuals voted at the Cook County Jail. In the 2022 primary, after the Cook County Jail enacted jail-based in-person voting, 25% of the individuals detained there voted.38
Eligible voters who are detained during election season do not lose the right to vote simply by virtue of their confinement, but the barriers to voting from jail can be prohibitive, in which case the right to vote from jails is essentially meaningless. The best way to actualize the right to vote from jail – that is, to ensure that all eligible incarcerated voters have the information and access they need to cast a ballot – is to leverage jail infrastructure to provide registration and voting access to jailed voters on site.
Jail-based polling sites, where detained voters can cast their ballots in person, realize the promise of the right to vote while detained. They address some of the most burdensome challenges to voting from jail under traditional circumstances, such as information deficits, registration barriers and absentee ballot complications.
Direct contact with voters is the number one factor impacting voter turnout in jails.39 Nonetheless advocates report that most jails do not actively provide the information necessary to register and vote.40 A survey of 68 Wisconsin county jails by the ACLU and All Voting is Local found that only one county provided detailed information on registration and voting and the rest had vague or no voter education or registration procedures.41 Without information about voter eligibility and procedures, detained individuals are very unlikely to vote successfully. Supporting a jail-based polling site provides jails with the opportunity to strengthen their voter education and outreach – and relieves the burden on volunteer organizations and individuals who may assist with outreach and education.
Jail-based polling sites are administered by the same people who already have access to the facility, such as jail administrators and representatives from the sheriff’s office. The entities or individuals who already provide detained individuals with announcements and information about other logistical matters are in a better position than outreach volunteers to communicate announcements and information regarding the polling site at the jail.
Another informational benefit of jail-based polling sites is that voting in person from jail is more straightforward procedurally, so it requires less information and navigation than registering and voting by mail. In other words, voters need less information to be able to vote in person in jail than they would need in order to vote by mail from the jail. This lowers the informational burden of voting from jail.
Many jailed voters do not have access to materials about particular candidates or policies that are on the ballot due to a lack of Internet access in jails.5 Jail-based outreach volunteers have expressed hesitation about bringing voter education materials about particular candidates or policies into jails, and about talking to detained individuals about the candidates in an upcoming election, out of concern over being misperceived as trying to influence voters. A jail-based polling site could provide voter education materials produced by each campaign and nonpartisan sources to inform voters about particular candidates and policies, allowing detained individuals to make informed voting decisions without accessing the Internet or depending on voter outreach teams to provide this crucial information.
Allowing individuals in jail to register to vote in person, before or during the voting period and/or on Election Day, minimizes the burden of voter registration under traditional circumstances. In addition to hosting jail-based polling sites, states can and should designate jails as formal voter registration agencies, as Rhode Island has done with its Department of Corrections and Washington, D.C. has done with its jails.42
Offering on-site voter registration mitigates the Internet, phone, and printer access challenges that make registering to vote from jail so difficult. A jail-based registration apparatus would include the materials needed to register to vote, whether paper registration forms and/or access to an online portal where individuals can register or be registered by an administrator.
In states with same-day voter registration, jail-based polling sites allow detained individuals to register and vote at the same time rather than having to register, apply for a mail-in ballot, and submit a ballot by mail in multiple time-separated steps.
Jail-based polling sites obviate the need for absentee ballots for most individuals detained during the election period. Mail-in ballots present a host of challenges for detained voters which jail-based polling sites can mitigate. Jail mail delays can jeopardize voters’ timely receipt of a mail-in ballot, and mail digitization policies and inadequately trained mail room personnel may prevent jail voters from receiving a usable ballot.43 Jail polling places eliminate all of these concerns by removing facility mail policies and procedures from the voting process.44 Early deadlines to request a mail-in ballot can disenfranchise individuals who are not detained until after the deadline has passed, whereas anyone who is detained and eligible can vote in person at a jail-based polling site.
Some detained individuals fear compromised ballot secrecy since many jails reserve the right for staff to read outgoing mail, whereas ballot secrecy is assured at a jail-based polling site.6 Voter outreach volunteers who assume the burden of couriering registration forms and ballots back and forth between the jail and the elections office can be criminalized for doing so under “ballot harvesting” laws in some states – at a jail-based polling site, the administrators of the site and elections officials coordinate on ballot return, so volunteers do not run the risk of violating the law.7
As of 2022, at least eight jails provide in-person voting. Data from these sites suggest that when people in jail know they can vote where they are detained, they do.45 For example, at the Cook County Jail, less than 7% of people detained in the jail voted in the 2018 primary election. After the jail established an on-site polling location in 2020, about 37% of the jail’s population voted in the 2020 General Election.46 That represents an increase of more than 1,500 voters making their voices heard. In the June 2022 Primary Election, people detained in the Cook County jail voted at a higher rate than registered voters in Chicago at large, making the jail “Chicago’s most active voting precinct.”47 Replicating this success in jails across the nation will require buy-in from jail administrators, local officials, individuals in jails and their communities, and community partners.
Our upcoming action toolkits will help voters, voting advocates and organizers, and election officials forge these partnerships and take action to establish polling locations and enshrine the ability to vote in or around detention centers.
Advocates and state officials who are aware of the obstacles to mail-in voting for inside voters and mobilize to address them have been successful at eliminating (or at least mitigating) their disenfranchising effects. Several organizations have developed resource guides to help advocates understand and combat barriers to voting from inside.48 The purpose of this toolkit is not to catalogue all of the barriers that inside voters encounter comprehensively or to duplicate the information that is available in existing resource materials. Rather, this toolkit focuses on newly identified barriers to jail voting and emerging trends that have disenfranchising effects for inside voters. This narrow focus serves three functions:
First, it conveys important information about newly evidenced obstacles to voting from inside and trends in jail mail policies that are creating unexpected challenges for inside voters.
Second, this toolkit provides actionable strategies to overcome these barriers.
Third, by clarifying the expansive obstacles to mail-in voting from inside, and the extent to which trends in jail policies are continually exacerbating them, this toolkit underscores the critical importance of forging a second avenue of voting: jail-based polling places.
Click on the following barriers to view information about their disenfranchising effects and how to address them.
Voting rights is a fast-moving and constantly evolving area of law. Voting laws, election procedures, and deadlines for registering to vote and requesting mail-in ballots routinely change from one election cycle to the next. Voting statutes may be challenged and overturned just days before an election.49 As a result, it can be difficult to determine if the voting information that is made available to incarcerated voters by jail officials is updated, accurate, and complete.
Voting eligibility and voting rights for voters who are impacted by the criminal legal system are particularly nuanced and complex. Individuals who are incarcerated in the same facility may have different voting eligibilities and a person’s eligibility may change if their case status changes. If a person’s state of incarceration differs from their state of residence (or “domicile”), that may further complicate the assessment of which voting laws and procedures apply. It is commonplace for one jail official to be assigned responsibility for meeting all administrative needs of all incarcerated individuals who are housed in their designated housing unit. In practice, this sometimes means that one staff member is responsible for providing a vast array of information, forms, and services to everyone on their sizable caseload.
In the jail setting, providing voting information to incarcerated individuals often takes the form of a facility official posting flyers that may or may not be updated or accurate. If a flyer is taken down or the initial supply of voter forms provided to facility staff is exhausted, these materials may not be replenished. Lacking extensive (or any) training as to the voting rights of incarcerated individuals, designated jail staff may not be equipped to answer detailed questions about incarcerated individuals’ voting eligibility or voting procedures for inside voters.
Eligible incarcerated voters are frequently disenfranchised because, in order to register to vote and cast their ballot, they must follow the procedures of two state agencies that frequently do not understand one another and promulgate conflicting policies and procedures. Jail administrators often do not understand election laws and procedures, while election officials commonly lack awareness of the policies and procedures of area jails. This routinely disenfranchises incarcerated voters either because they are unable to follow election procedures due to lack of access to information or required forms, or because an election agency’s procedures contravene those of their jail facility.
Overcoming informational barriers is one realm in which the involvement of community partners, where possible, is crucial to providing meaningful ballot access in jails. Community organizations, like Houston Justice, that are experienced with jail voting, are knowledgeable about the intersecting policies and procedures of local jails and boards of election. They are uniquely qualified to help incarcerated voters navigate this maze of complex and frequently contradictory practices, and to assist them in overcoming barriers to voting that they may encounter. The voting rights community is increasingly enriched by the subject matter expertise of directly impacted advocates who were themselves disenfranchised during their incarceration. These impacted advocates are often best equipped to engage inside voters because they understand firsthand the formidable challenges of voting from inside and the overall carceral experience. Jail administrators and election officials can best protect the franchise and the legal rights of eligible incarcerated voters by actively involving community organizations and advocates in their voting education and assistance programs. The participation of community organizations is the best means of ensuring that incarcerated voters receive voting information and assistance that are applicable and accessible to them. By allowing community voting rights organizations access to jail facilities to deliver voter education and assistance programs, jail administrators may decrease staff and facility allocations of time and resources. Programs and services provided by community advocates who have special expertise in jail voting may also mitigate jail administrators’ risk of violating incarcerated voters’ legal rights, as when jail staff provide inadequate or incorrect voting information or otherwise impede inside voters’ meaningful access to voting procedures.
Prisons’ and jails’ digitization of incarcerated individuals’ non-legal mail is a growing problem for detained voters.50 This practice of scanning incarcerated individuals’ incoming mail has now expanded to at least 14 states, while additional states are in the trial phase of new mail digitization policies. [footnote: Ibid.] People who are incarcerated in facilities that digitize mail are required to have all of their mail (other than legal mail and publications) sent to a third-party company that scans incoming mail items.51 People inside who are subject to mail scanning policies may receive print-outs of their scanned mail, or receive it electronically on a tablet or other device. In facilities that digitize mail, incarcerated individuals do not receive original physical copies of their postal mail unless it is a publication or legal mail from an attorney or other recognized legal professional. This process disenfranchises voters in three ways:
Incarcerated individuals’ receipt of postal mail that is scanned by a mail digitization vendor is delayed. These vendors are often out-of-state, and scanning takes time. Mail digitization may prevent people inside from timely receiving not only their ballot, but also time-sensitive correspondence from boards of election about election changes or procedures to correct their voter forms or cure their ballot.
Scanned ballots and ballot envelopes cannot be used to cast a ballot. Even if incarcerated voters receive hard copy print-outs of their digitized mail-in ballot, these scanned materials cannot be used to cast a ballot. For instance, scanned images of the confidentiality sleeve and return envelope cannot be used to return a completed ballot. Because many jails and boards of election do not have procedures in place to timely provide provisional ballots to voters inside, ballots spoiled by the mail digitization process often disenfranchise these voters.
Mail sent to a digitization vendor by an entity that has not established an account to send mail to the mail recipient may not be delivered. The companies that digitize mail may require senders not only to establish an account, but also to link that account to specified mail recipients. Ballots that are sent to these mail digitization facilities by boards of elections without completing this step for each individual voter may never reach the voter at all. In these cases, voters may not be notified or aware that their ballot was sent to them.
Elections administrators should assess whether carceral facilities in your area have instituted mail digitization policies. For every facility that houses eligible incarcerated voters in your area, determine whether they scan prisoners’ mail. You can usually determine this by searching online for how to send mail to people incarcerated in the facility. Mail scanning policies may vary from one jail to the next. Just because one local jail does not digitize mail does not mean that the same is true of other jails nearby.
Elections administrators should include special guidance in all informational materials for incarcerated voters in facilities that have instituted mail digitization policies. If a voter’s mail-in ballot is directed to a mail scanning facility, that voter will not receive the components they need to cast their ballot. Election officials should ensure that informational materials they produce for incarcerated voters notify these voters to direct their ballots to their jail’s physical address even if their jail requires their social mail to be sent to a mail scanning facility. Election materials, including instructions for requesting and completing of mail-in ballots, should instruct voters who are incarcerated in facilities that have instituted mail digitization policies to use the physical address of the facility as their mailing address.
Jail administrators in facilities that scan mail should ensure that there is a “carve-out” for paper ballots in the facility’s mail scanning policy. Because paper ballots are sent by boards of election, which are government agencies, some jails have instituted an “official mail carve-out” that allows ballots to be sent directly to the facility, just as legal mail is. Authorizing and implementing carve-outs takes time, so this should be coordinated months before the election period.
Jail administrators in facilities that scan mail should publicize ballot carve-outs to all eligible incarcerated voters in the facility. Because the address of the mail scanning facility is sometimes the only mailing address provided in facility handbooks, voters inside may not be aware of the direct mailing address of their facility, or that they should use that address on their voting forms. Jail administrators in facilities that have instituted mail digitization policies should ensure that voters in their custody are notified that they should have ballots directed to the physical address of the facility. This procedure should be publicized both through prominently posted flyers and other informational materials, and also by facility staff who are responsible for providing voting forms to inside voters. Limiting publicity of this issue to election flyers and brochures during election periods is insufficient. Jail administrators should update facility handbooks and policy statements to reference the exemption of ballots from mail scanning requirements and notify voters that they should direct mail-in ballots to a specified physical address. Distributing voter education materials that are produced by community partners with expertise in jail voting may help ensure that inside voters receive accurate information from a source they trust.
Jail administrators in facilities that scan prisoner mail should provide mailroom and other staff with informational materials that publicize the ballot carve-out. In carceral facilities that prohibit incarcerated individuals from receiving non-legal paper mail, ballots addressed to inside voters may be destroyed or returned to sender if mailroom staff are not aware of an approved carve-out. The one-time memos that jail administrators commonly send to notify staff of policy changes may be overlooked, forgotten, or unknown to new staff. To help prevent the disenfranchisement of voters inside, it may be helpful to provide informational materials for jail mailroom staff that are always readily available to them – for example, by producing and posting flyers in jail mailrooms. Staff who are responsible for providing voting forms and information to voters in jails that have instituted mail digitization procedures should also be made aware of the carve-out and advised to notify voters to use the facility’s physical address on their mail-in ballot request form. Where applicable, jail administrators and election officials should apprise themselves of the written materials and online videos produced by experienced advocates that explain incarcerated voters’ rights and how jail staff can avoid disenfranchising them, and they should publicize these materials to jail personnel.
Advocates should determine whether carceral facilities in your area have instituted mail digitization policies. For every facility that houses eligible incarcerated voters in your area, determine whether they scan prisoners’ mail. You can usually determine this by searching online for how to send mail to people incarcerated in the facility. Mail scanning policies can vary from one jail to the next. Just because one local jail does not digitize mail does not mean that the same is true of other jails nearby.
Advocates should encourage jail officials to approve a “carve-out” for paper ballots in the mail scanning policy. Because paper ballots are sent by boards of election, which are government agencies, it may be possible to advocate for an “official mail carve-out” that allows ballots to be sent directly to the facility, just as legal mail is. Prisons and jails may not deprive individuals in their custody of their rights under the law, so you may argue that jails should not institute practices that disenfranchise eligible incarcerated voters.
Provide carceral facilities that house eligible incarcerated voters in your area with flyers and other educational materials for facility mailroom staff. A carve-out will only help incarcerated voters if facility mailroom officials are aware of it. In carceral facilities that prohibit incarcerated individuals from receiving non-legal paper mail, ballots addressed to inside voters may be destroyed or returned to sender if mailroom staff are not aware of an approved carve-out. The one-time memos that jail administrators commonly send to notify staff of policy changes may be overlooked, forgotten, or unknown to new staff. To help prevent the disenfranchisement of voters inside, you may want to provide informational materials for jail mailroom staff that are available on an ongoing basis (e.g., flyers for posting in jail mailrooms, or an online video explaining incarcerated voters’ rights and how jail mailroom staff can avoid disenfranchising them). You can share these materials by emailing them to jail administrators. You can also share materials like these on social media, which may help raise public awareness of these concerns and increase pressure on jail officials to ensure that agreed carve-outs are consistently implemented and observed.
Include mail digitization information in your voter education campaigns and materials. Coordinating a carve-out for mail-in ballots at facilities that scan mail will only help if incarcerated voters know that they should use the facility’s mailing address on the ballot request form (or, in universal vote-by-mail states, the change of address form) they submit to the board of elections. Because the address of the mail scanning facility is sometimes the only mailing address provided in facility handbooks, if advocates don’t publicize this information, voters inside may not be aware of the direct mailing address of their facility, or that they should use that address on their voting forms. Publicizing this using social media can raise awareness of this information among incarcerated voters’ friends and loved ones, which they can then communicate during their calls or visits with inside voters.
When mailroom staff misclassify required ballot components as prohibited items, those components may be destroyed, returned to sender, or otherwise withheld from the voter, which may spoil incarcerated voters’ ballots. Because many jails and boards of election do not have procedures to timely provide provisional ballots to voters inside, ballots spoiled due to mailroom officials’ failure to deliver all required ballot components may disenfranchise voters in the following ways:
One or more discarded components of the ballot may be required in order to cast a valid mail-in ballot. Even if an inside voter is not required to use the return envelope provided by the board of elections to cast their ballot, use of the provided confidentiality sleeve may be required.
Lacking access to the Internet from inside and frequently unable to afford paid phone calls, if they are not provided the return envelope, eligible incarcerated voters may not be able to determine the mailing address to which they must send their mail-in ballot in time to vote.
Many people inside rely on the small number of “indigent stamps” they receive each month for all of their legal and social correspondence. When mailroom staff fail to deliver pre-paid return envelopes to voters, these voters may not have the financial means to cast their ballot.
Preventing the spoliation of incarcerated voters’ mail-in ballots may benefit from close coordination between jail administrators and election officials.
Jail administrators should determine what ballot components are required for mail-in ballots and whether any of those components, if missing or damaged, may be replaced by the voter with the assistance of jail staff. They should ensure that facility staff take reasonable steps to help inside voters replace missing or damaged components. Required ballot components may differ depending on the election. For instance, a locally administered vote on a referendum or other ballot measure may involve different ballot components than state and federal elections. In some cases, it may be possible for a required ballot component that is missing or damaged to be replaced by the voter. Some questions to research include: Aare voters required to use the confidentiality sleeve provided by the board of elections or may the voter use any blank, sealed envelope? If the return envelope is missing and jail staff is willing to help a voter determine the return mailing address and provide a postage stamp, is that acceptable or must the voter use the return envelope provided? If an incarcerated voter needs to replace a missing or damaged ballot component, jail administrators should instruct staff to take reasonable steps to provide the voter necessary materials, such as an envelope to return their ballot.
Elections administrators should provide carceral facilities that house eligible incarcerated voters with materials that specify required ballot components and explain whether missing or damaged components may be replaced by the voter. Before each election, elections administrators should notify administrators in area jails of all ballot components that must be delivered to voters for them to cast a mail-in ballot. Elections administrators should also provide jail facilities detailed information about which ballot components, if any, may be replaced should any component be damaged, destroyed, or undeliverable under jail policy.
Elections administrators should ensure that all ballot components are deliverable under the existing policies of area jails, and jail administrators should implement procedures that enable incarcerated voters to cast their ballot even if it includes prohibited items. Carceral agencies have considerable discretionary authority to decide what items may and may not be delivered to incarcerated individuals. For example, in many jurisdictions, envelopes with self-adhesive seals (“peel-and-seal” envelopes) are prohibited. If mail-in ballots include self-adhesive envelopes, those ballot components may not be delivered to inside voters. Elections administrators should consult with jail administrators in area facilities and ensure that mail-in ballots for incarcerated voters do not include prohibited items that could result in their disenfranchisement. Jail administrators should issue and enforce staff procedures that enable inside voters to cast their ballots even if ballot components contain prohibited items. For example, if a ballot component is deemed undeliverable to an inside voter, staff could make arrangements for the voter to complete their ballot in a staff office without releasing the prohibited item to them.
Elections administrators and jail administrators should actively involve community voting rights advocates in their voter and staff education efforts regarding ballot components. Community advocates are a trusted resource for detained voters, and they can make voters aware of the ballot components they need to receive in order to cast their ballot. They can also pass on information about strategies for replacing missing or damaged components, helping voters to recognize if they receive an incomplete ballot and what (if anything) they may be able to do to replace missing components.
Advocates should determine what ballot components are required for mail-in ballots and whether any of those components, if missing or damaged, may be replaced by the voter. Required ballot components may differ depending on the election. For instance, a locally administered vote on a referendum or other ballot measure may involve different ballot components than state and federal elections. In some cases, it may be possible for a required ballot component that is missing or damaged to be replaced by the voter. For example, are voters required to use the confidentiality sleeve provided by the board of elections or may the voter use any blank, sealed envelope? If the return envelope is missing and jail staff is willing to help a voter determine the return mailing address and provide a postage stamp, is that acceptable or must the voter use the return envelope provided?
Advocates should provide carceral facilities that house eligible incarcerated voters in your area with flyers and other educational materials for facility mailroom staff. To help prevent the disenfranchisement of voters inside, you may want to provide informational materials for jail mailroom staff (e.g., flyers for posting in jail mailrooms that specify all required components of mail-in ballots). You can share these materials by emailing them to jail administrators. You can also share materials like these on social media, which may help raise public awareness of the concern, and increase pressure on jail officials to ensure that incarcerated voters are not disenfranchised due to mailroom staff’s disposal or damage of required ballot components.
Advocates should include a list of mail-in ballot components in your voter education campaigns and materials. By making voters inside aware of the ballot components they need to cast their ballot and have that ballot counted, and possible strategies for replacing missing or damaged components, advocates can help voters recognize if they receive an incomplete ballot and what (if anything) they may be able to do to replace missing components. Publicizing this information using social media can raise awareness of this information among incarcerated voters’ friends and loved ones, which they can then communicate to them during jail calls or visits.
Inside advocates and incarcerated voters can also help raise awareness among jail officials. For example, incarcerated individuals who plan to vote can notify jail administrators and mailroom staff of the ballot components they need to receive to exercise their voting rights through internal channels such as “requests to staff” or “kites.”
When voters in the outside community encounter challenges in the voting process, they may vote using a provisional ballot to avoid being disenfranchised. If confusion arises about a community member’s voter registration status or their mail-in ballot does not arrive or is spoiled, they may case a provisional ballot. Incarcerated voters are not typically afforded this important accommodation.
This disenfranchises detained voters. If a jailed voter does not receive their mail-in ballot, receives an incomplete or damaged ballot, or spoils their ballot, in most cases, they have no recourse. In the unlikely event that an incarcerated voter has the telephone number of the appropriate election office, has adequate funds to call that office, and has their call answered by an election officials who understands how to navigate an automated menu to accept a call from a carceral facility, there are rarely provisions in place to timely deliver provisional ballots to voters who are incarcerated. Because incarcerated individuals cannot travel to off-site polls or election offices, this lack of consideration has disenfranchising effects. By failing to provide incarcerated voters access to provisional ballot procedures that are afforded to other voters, elections administrators selectively discriminate against this voter class and jail administrators breach their duties to afford individuals in their custody reasonable opportunity to exercise their legal rights. Inside voters’ mail-in ballots are vetted by jail mailroom staff who sometimes dispose of required ballot components or reject mail-in ballots due to facility mail scanning policies for prisoner mail. That is, the voters with the highest probability of experiencing ballot spoliation have the least access to recourse or corrective measures to protect their vote.
Elections administrators and jail administrators should coordinate to ensure that procedures are in place to timely deliver provisional ballots to eligible incarcerated voters in area jails if needed. Resources of community advocacy organizations are limited, and it is not acceptable for boards of election or carceral agencies to delegate their obligations to community organizations. However, community advocates can infuse voter assistance efforts with important additional capacity and qualified support during busy election seasons. Election officials and jail administrators should: 1) center and uplift community organizations in the development and implementation of procedures to assist incarcerated voters, and 2) ensure that these voters can avail themselves of advocates’ support services.
Non-incarcerated voters whose ballots are spoiled or incomplete often have multiple channels of information that notify them of the need to cure their ballot and explain how to do so. For example, they may be able to track their ballot online, receive email notification of the need to cure their ballot, or receive a telephone call about the same. They may be able to cure their ballot by mail or by fax or by visiting an election office in person.
Detained voters’ lack of timely information about ballot curing and lack of access to means of ballot curing disenfranchise voters. Without direct access to the Internet, detained voters cannot track their ballot online. Impediments to placing telephone calls also render telephonic ballot tracking unviable in most cases. Incarcerated voters do not have direct email addresses or telephone numbers. Even if they are fortunate enough to have a friend or family member on the outside who is willing to receive emails on their behalf (and many people inside do not), messages sent to these voters via third parties on the outside may not reach them in time to meet ballot curing deadlines.
The same barriers to accessing voter information, like limited or no Internet or telephone use, both make detained voters more likely to need to cure their ballots and less likely to be able to do so. If an inside voter receives notification that they need to cure their ballot, they cannot do by visiting an off-site election office or by curing their ballot online, and they are typically not permitted to send faxes via staff-operated fax machines. Calls placed to a facility’s main number may route to the voicemail of jail officials who may be unaware of election procedures, the ballot curing process, or what role they should play in facilitating incarcerated voters’ ability to cure their ballot.
Elections administrators should notify area jails of ballot curing procedures and deadlines.
Elections administrators and jail administrators should work together to ensure that ballot curing notifications route to the designated facility staff person. They should also notify community voting rights organizations of this designated jail staff contact person so that advocates can effectively refer any complaints they may receive from incarcerated voters about their possible disenfranchisement to the designated facility contact for timely intervention.
Jail administrators should designate a staff member both to receive ballot curing notifications from the board of elections and also to coordinate inside voters’ access to ballot curing procedures.
Jail administrators should implement procedures, in consultation with election officials, that specify the duties of designated jail staff in their facilitation of the ballot curing process.
Jail administrators should notify incarcerated voters of the facility telephone number and extension for the jail official who is designated to receive ballot curing notifications and advise voters to enter this telephone number on their mail-in ballot request form.
Jail administrators should work in close coordination with facility staff to ensure that ballot curing notifications route to the designated facility staff person. They should also notify community voting rights organizations of this designated jail staff contact person so that advocates can effectively refer any complaints they may receive from incarcerated voters about their possible disenfranchisement to the designated facility contact for timely intervention.
Jail administrators should work to ensure that eligible jailed voters have access to valid identification cards to be able to vote. This can come in the form of family members visiting with identification. Where no such identification is available, jail administrators should work with elections administrators to verify voter eligibility lists for detainees in advance of the voting period.
Elections administrators and jail administrators should implement staff training programs for jail – based voting well in advance of upcoming elections. After the jail-based poll site is established, both entities should work together to address the election day issues that occurred in order to improve the poll site.
In partnership with the Prisoners Legal Advocacy Network (PLAN), the Thurgood Marshall Insititure has prepared toolkits for both election and prison administrators and advocates to assist with advocating for and building out poll sites in local jails.
As elections administrators and jail administrators work with advocates and allies to establish poll sites in local jails, advocacy work on this front has provided some key insights to keep in mind.
Based ont he level of support for jail-based voting in your area, there are steps advocates and allies can take to push forward the implementation of jail-based poll sites, or “jail-based voting” (JBV).
