No Simple Solution to Helping Voters in Jail Cast Ballots

By: - September 15, 2022 12:00 am

Each election cycle, thousands of eligible voters are effectively disenfranchised because they sit in a jail cell.

Americans detained before trials are allowed to vote, a status affirmed by a 1974 Supreme Court case. As a matter of law, pretrial detainees are presumed innocent and retain the voting rights they had before being charged with a crime. Yet people in jail face significant, sometimes insurmountable obstacles to registering to vote and accessing a ballot. 

Advocates say that this “de facto disenfranchisement” affects the majority of the roughly 445,000 people in American jails who have not been convicted of a crime.

Many are in jail simply because they can’t afford bail. 

“That is creating a system where if you are rich enough, you can access your right to vote, because you’ll be able to get out of pretrial detention,” said Sylvia Albert of Common Cause, an advocacy group for voting rights. “And if you aren’t rich enough, then you can’t access your right to vote.”

The issue doesn’t only affect those held while awaiting trial. Nationally, about 100,000 people are serving sentences for misdemeanors in jails on any given day, according to estimates from the Prison Policy Initiative, a criminal justice think tank. Depending on state laws, many of them retain their voting rights even while incarcerated.

The burden falls particularly heavily on Black and Hispanic Americans — who, despite making up a combined 30% of the U.S. population, account for 52% of the country’s jail population. Those disparities stem from well-documented racial bias in the criminal justice system, from policing to prosecution to sentencing.

Nor is there a simple fix for those in jail hoping to cast a ballot. 

For one, the average jail stay is 28 days — complicating efforts for anyone to request, cast and return a ballot by mail. It doesn’t stop there: Being in jail is not a recognized excuse for voting absentee in several states. Incarcerated people may worry about the secrecy of their ballots and may not have access to voter guides. And if they do request a ballot, unreliable jail mail may hold it up.

“There are just so many individual logistical problems with trying to vote from jail,” said Wanda Bertram of the Prison Policy Initiative. 

The biggest barrier, she said, is that incarcerated people often don’t realize they’re allowed to vote. Many think their criminal charge disqualifies them. And they have other concerns in jail beyond figuring out how to cast a ballot.

If an eligible voter wants to register, additional obstacles stand in the way. In most cases they must meet registration deadlines, difficult to research from a cell. Furnishing identification in states requiring voter ID can be nearly impossible. And registration forms may not be available in jail.

The lack of government attention to jail voting has persisted even as the number of pretrial detainees in the United States has more than tripled since the 1970s.

Still, activists and officials in parts of the country are working to improve voting access in the nation’s jails.

Registering Behind Bars

For Durrel Douglas, helping people navigate voting from jail seemed like a natural next step in his life.

A native of Houston’s South Park neighborhood, Douglas took a job as a correctional officer in Texas prisons after graduating from high school. After advancing to lieutenant, he left for political and organizing work, including participating in voter registration drives. 

“If you put five years of working in the prison and my organizing work in a blender and boil it down, what you get is: ‘Wait a minute, how do people vote in jail?’” said Douglas, 35.

Douglas remembers being “stunned” to learn that there was no process for incarcerated people in Texas’ Harris County to determine whether they were registered to vote. “There was this huge gaping hole there,” he said. 

Harris County, home to Houston, is the most populous county in Texas. Its jail can house more than 10,000 people, most of them held pre-trial.

In 2017, Douglas’ organization, Houston Justice, launched Project Orange, seeking to register eligible voters in Harris County Jail. Douglas and volunteers went cell-to-cell to register voters on five consecutive weekends. 

The project’s name was a nod to the clothes incarcerated people wear in the jail and the TV series “Orange Is the New Black.” Volunteers wore shirts that said, “Voting Is The New Black.” Their efforts included filming a public service announcement with Houston rapper Bun B informing pretrial detainees of their right to vote.

Since Texas requires voters to register 30 days before an election, Douglas figured the effort would reach many people who would no longer be in jail on Election Day. Douglas says Project Orange has registered well over 5,000 people since 2017. Houston Justice also helped people in jail vote by mail, assisting more than 300 people in 2018.

But for voters jailed shortly before an election, absentee ballots won’t work, and they can’t walk to their local polling place. In some places, advocates and officials have brought the polling places to them.

In Cook County, Illinois, the county jail has served as a polling place since 2020. Spurred by a 2019 law, the sheriff and clerk’s office established several polling places around the sprawling jail complex in Chicago. The polling places were up and running for the 2020 primaries, when the facility was touted by local officials as the nation’s first jail-based precinct.

County officials have continued to operate the polling places in recent years. In the 2022 primary, voters at the Cook County Jail could cast a ballot in one of the five polling places at the complex.

Voters at the jail turned out in higher numbers than voters in Chicago as a whole in that primary. Block Club Chicago reported that roughly half of the 1,384 jail voters made use of Illinois’ same-day registration.

Cook County Sheriff Tom Dart, a Democrat, said the polling place is critical to his agency’s work.

“In all seriousness, what better way to get a person committed to their community? They’re voting for the people that are running their community,” he said. 

Department officials estimate that 80% of people in custody at the jail are eligible to vote.

Working With Sheriffs

In many communities, officials with direct control over the criminal justice system appear on the ballot, including sheriffs, district attorneys and judges. That gives people in jail a powerful reason to vote.

And while neighboring Will County, Illinois, opened a polling place in 2022, jail-based polling places like Cook County’s are a rarity. Advocates say many in law enforcement are apathetic or actively opposed to helping incarcerated people vote. 

Barriers to jail voting cited by other sheriffs and election officials are not insurmountable, Dart said.

“I just don’t find the concerns that I have heard over the years to be serious ones,” he said. “I just don’t.”

Douglas and others in Texas took inspiration from the Cook County polling place and similar efforts in Los Angeles and Washington, D.C.

Houston Justice pushed for a polling place in Harris County’s jail. Advocates determined that a change in state law wasn’t necessary, but Douglas said working with county officials across several departments was a yearslong slog. 

“It should have been a Netflix series,” he said.

The work paid off. By November 2021, a polling place opened to voters in the Harris County Jail for the first time. The option was available again for the 2022 primary. 

Just 13 people cast a ballot there in the most recent election. Texas voting laws make casting a ballot from jail more difficult than in Illinois — the state does not have same-day voter registration, and ID requirements made some people in jail hesitant to vote, Douglas said.

Elections and jail officials nevertheless praised the effort. The county’s elections administrator, Isabel Longoria, said that her office was “honored to provide an opportunity to enfranchise voters in the Harris County Jail.”

But Harris and Cook County are outliers, large places with significant resources. Jail officials in the nation’s more than 3,000 counties typically have smaller budgets, and perhaps less interest, in helping incarcerated people vote.

“The only counties that have really succeeded in getting voter turnout in jails are the ones that have proactively set up a jail polling place,” said Prison Policy Initiative’s Bertram. 

Advocates for changes in the criminal justice system also have to balance jail voting with other priorities. Kentucky is one of just three states with a constitution that permanently disenfranchises people with felony convictions. (The governor has to intervene to restore voting rights, which current Democratic Gov. Andy Beshear did to restore rights to 140,000 people in 2020.) Kentucky also is one of six states that disenfranchises people serving time for misdemeanor convictions.

As Kentuckians have debated changing the state constitution, jail voting has flown under the radar, according to state Rep. Keturah Herron. 

“There has not been a push statewide for that,” Herron said.

Still, the issue is an urgent one for many Kentuckians, she said, particularly potential voters who are Black or have low incomes.  

“We know that there’s a lot of folks who are in our local county jails, who are awaiting trial, who have not been convicted,” she said. “You’re talking about a large population of people whose voices have been denied and shut up.”

Aaron Mendelson is a reporter with the Center for Public Integrity, a Stateline news partner.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.