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Enfranchising All

illustration by Naya Lee Chang

On election day in 2020, the Cook County Jail was busy. Individuals in the jail who retained their ability to vote were able to cast their ballots and participate in the democratic process with relatively little hassle, thanks to an Illinois bill that established Cook County Jail as the country’s first jail-based polling place. “Jail is an echo chamber of violence and trauma, and this is a moment when people can realize that they can have an impact,” said Jen Dean, co-deputy director of Chicago Votes, referring to the opportunity for incarcerated individuals to vote in prison. Dean is part of a growing network of activists fighting for those forgotten in the movement to restore voting rights. Unknown to many Americans, thousands of eligible voters languish in jails, unable to exercise their right to vote.

New developments in the restoration of voting rights to convicted felons have attracted mainstream attention. In 2018, Florida voters passed a referendum that restored the right to vote to 1.5 million formerly incarcerated individuals, and, in 2020, Iowa Governor Kim Reynolds restored voting eligibility to Iowans with past felony convictions. While these are significant achievements that restore the right to vote to those who have been incarcerated, there is still a major oversight: the right to vote for those in jail. Legislative solutions such as voting stations in jails, increased information dissemination, and absentee initiatives are needed to ensure equal access to the ballot for eligible voters in jail.

There is a key difference between jails, which hold people pretrial and those convicted of minor crimes, and prisons, which hold people serving more than a year for a felony conviction. Almost all individuals in local jails have not been convicted of a felony and thus legally have the right to vote: Chicago Votes estimates that 90 percent of individuals in Cook County Jail retain this right. Assuming this rate holds nationally, nearly 700,000 eligible voters remain in jail on Election Day. Additionally, according to the Sentencing Project, in 2017, approximately 64.7 percent of all individuals in jails were there pretrial as a result of their inability to pay bail, not because they had been convicted of a crime.

While non-convicted individuals can legally vote, many barriers prevent them from freely exercising this right. Misinformation is rampant, with many local election officials providing incorrect information that leads incarcerated individuals to assume they cannot vote. This problem is compounded by detainees’ lack of exposure to the internet, where political information can be found. What’s more, the insidious nature of restrictive voting laws is even more pronounced in jails. Thirty-five states require a valid voter identification to cast a ballot, but many individuals have their acceptable forms of identification confiscated at the time of their arrest. While detainees can often request their documents be scanned for inclusion in their absentee applications, this puts a burden on jail staff and can create additional bureaucratic barriers. Sixteen states require an excuse to vote absentee—the primary voting method for jailed individuals since few states have in-jail voting stations—and most of these states do not accept incarceration as a valid reason. Other issues like mail delays in the prison system and lack of access to necessary forms create further difficulties for individuals wishing to vote from jail.

Some states have successfully implemented initiatives that have made it easier for incarcerated individuals to vote. As previously mentioned, a 2019 bill authorized the Cook County jail—a Chicago jail which holds approximately 6,100 people a day—to be an official polling location. About 2,200 inmates, over one-third of the jail’s population, were able to vote in the 2020 Presidential election. This voting rate is significantly higher than the voting rates in jails nationally, demonstrating the effectiveness of hosting polling sites in jails. Since 2019, Colorado has required county clerks to develop and submit plans on how they will assist individuals in registering and voting from jail. Before it was codified, similar coordinated efforts helped over 1,000 inmates register from jail, and progress is likely to continue.

Community groups have also been vital collaborators in these efforts, registering thousands of inmates in recent years. The Los Angeles-based A New Way of Life Reentry has run civic education programs in local jails and the ACLU of Southern California has worked with the County Board of Supervisors and the Sheriff’s Department to set up polling stations inside jails. The ACLU of Southern California also has court-ordered permission to monitor conditions in local jails and ensure that all eligible voters can exercise their right. The success of these efforts proves that effective programs can be constructed to reduce barriers to voting access.

The extension of voting rights to eligible individuals in jail has important moral implications. If we are to respect the principle of “innocent until proven guilty,” individuals being held in jail pretrial should be treated no differently than any other voter, and their ability to express their views at the ballot box should not be impeded. Policies that block their right to vote treat them as if they are already proven guilty, and isolating inmates from civic engagement obstructs the goal of rehabilitation. Additionally, with Black and Latino groups representing 48 percent of individuals jailed nationally while making up just 32 percent of the total US population, preventing individuals in jail from voting clearly exacerbates racial inequities. Thus, the protection of these individuals’ right to vote is not only a voting rights issue, but a civil rights issue.

There are also electoral implications of these individuals’ disenfranchisement. Elections on all levels of government are routinely close; the two most recent presidential elections were won by fewer than 90,000 votes concentrated in key states, and the 2000 Presidential election was famously decided by only 537 votes in Florida. Down the ballot, 2020 Republican candidate Mariannette Miller-Meeks won her seat in Iowa’s 2nd Congressional District by six votes, and in 2017, a single vote flipped control of the Virginia House of Delegates to the Democrats. The ethos that every vote counts is indeed true, and the enfranchisement of any group of individuals, even if perceived as a relatively small group, can have major effects on election outcomes. 

Activists and policy makers can no longer ignore the voting rights of individuals in jail. Efforts such as setting up jails as polling places, properly educating administrators, and instituting absentee voting programs have successfully increased voting rates in jails. Select states and municipalities have proven that, by paying proper attention to mitigating the natural limitations that jails pose to voting, significant inroads can be made to equalize the playing field and make voting an easy-to-exercise right for all eligible citizens. The continued disregard of these issues is a severe injustice that disproportionately affects BIPOC individuals and those who cannot post bail. If the United States wants to fulfill its promise of a fair democracy, all states must pass similar reforms, and the federal government must address these issues in national legislation like the For the People Act. Only through nationwide reforms can this oversight be addressed and this inequity eradicated.