At a Glance
About 750,000 people are incarcerated in jails across the United States every day, most of whom retain their right to vote. Casting a ballot, however, can be difficult or impossible for these eligible voters simply because they are incarcerated. CLC uses advocacy and litigation to ensure eligible voters in jails have the ballot access they need to exercise their right to vote.Back to top
About this Action
The Problem of Jail-Based Disenfranchisement
Although the Supreme Court affirmed the right to vote from jail almost 50 years ago, eligible, incarcerated voters continue to confront barriers to ballot access that make voting difficult or impossible. As a first order matter, jailed voters lack access to the internet and have highly restricted contact, if any, with the outside world. They must rely on jails, local election officials, or local volunteer groups to provide them with the information and resources they need to cast ballots. Support resources, however, are scarce. Most jurisdictions lack any enfranchisement policies or jail-voting infrastructure, and state and local officials therefore often lack the training, resources, and knowledge necessary to facilitate elections behind jail walls.
The Impact of Jail-based Disenfranchisement
This problem is significant. On average, 750,000 people are incarcerated in jails across the United States every day, most of whom retain their eligibility to vote. Take for example pretrial detainees, who account for about two thirds of the nationwide jail population or 500,000 people. Because pretrial detainees have not been convicted of any crime, they retain their right to vote. The balance of the jail population is comprised of people serving misdemeanor sentences. In most states, these voters also retain their eligibility to cast ballots.
Jail-based disenfranchisement disproportionately impacts low-income voters and—in jurisdictions that impose money bail—can operate like a poll tax. Low-income defendants are often overrepresented in jail populations in part because many pretrial detainees are jailed simply because they cannot afford to pay bail. In such instances, bail functions just like a poll tax; it is the only thing preventing low-income voters from leaving a jailhouse and entering a polling place. A person’s ability to pay, however, cannot stand as a barrier to the ballot box. Just as it is unconstitutional to bar low-income people from voting with the imposition of a poll tax, the imposition of bail cannot and should not function to deny anyone of their right to vote.
Failing to provide ballot access to jailed voters also disproportionately disenfranchises voters of color. Black, Latino, and Native American defendants are grossly overrepresented in jail populations across the country. In many jurisdictions, not only are defendants of color less likely to be released without bail or offered pretrial diversion, they are also often held for longer periods of time than their white counterparts. The fact that jail-based disenfranchisement disproportionately disenfranchises voters of color is not only a matter of constitutional concern, but also can give rise to liability under the Voting Rights Act.
The right to vote is the cornerstone of our democratic system. While the state must facilitate free and unimpaired access to the franchise for any voter, that responsibility is even greater with regard to the voters it incarcerates. Because the state has undertaken the “affirmative act of restraining the individual’s freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty”—the protections of the Due Process Clause are triggered. States and localities have an affirmative obligation to guarantee access to the franchise to the eligible voters they jail.
To live up to this obligation, jurisdictions must do more than simply keep voter registration and absentee ballot paperwork on hand. The Due Process Clause demands there be some process in place to guard against erroneous deprivations of jailed voters’ fundamental right to vote. Voting can be particularly complicated for people who have had contact with the criminal justice system, and untrained people often lack the specific expertise required to provide jailed voters with the accurate information and support they need to cast ballots. Jurisdictions must put clear systems in place to mitigate the risk they deprive jailed voters of their constitutional right to vote because of mistake or lack of training
Why This Work is Important
Racial Justice—The project of turning jails into sites of civic engagement can be understood as a mechanism for resisting mass incarceration and building power within this system that has largely existed to take power away from communities of color. Even short periods of time spent in jail have been shown to negatively affect the future political participation of voters of color, particularly Black men. In a direct way, providing jailed voters of color with the materials they need to cast a ballot could help preserve some of some sense of power, agency, and community connection for those who are incarcerated.
Democratizing Democracy—Democratic participation is not an innate skill. No one is born knowing how to vote, and in our complicated system it takes time, money, and education to learn how—and that is to say nothing of casting an actual ballot. Our system over-relies on privately funded campaigns and partisan volunteers—people with time and money to spare—to come to our door or call us on the phone to tell us when, where, and how we should vote. Unsurprisingly, voters tend to be people with the time and resources to turn out. But democracy should not just be a hobby of the rich and elite. At every opportunity, we must find new ways to put the tools of democracy and political power into the hands of those who need it most—those who are and too long have been marginalized. Putting ballots in the hands of jailed voters is one way we can begin to do that work.
Democratic Accountability—Elected officials make decisions every day that powerfully and often most directly impact jailed voters: legislators make the laws that jailed voters are charged with breaking, district attorneys prosecute their cases, state judges adjudicate their cases, and sheriffs police them on the streets and run the jails in which they are currently incarcerated. Jailed voters have a vantage into the criminal justice system that makes them uniquely qualified to evaluate elected officials. Their participation is crucial if the ballot box is truly to be a site of democratic accountability.
Election Integrity—Jailed voters must rely solely on a select few elected officials—county clerks and sheriffs—to facilitate their participation in the democratic process. Because jail voting is often facilitated without clear rules or oversight, the system is rife with opportunities for those elected officials to interfere.
Fighting Jail-based Disenfranchisement Through Litigation and Advocacy
CLC’s jail voting project takes a multipronged approach to fighting jail-based disenfranchisement. First, CLC seeks to bring litigation to challenge policies and practices like restrictive absentee or emergency voting laws that restrict ballot access or discriminate against jailed voters. CLC also works to support state and local advocacy aimed at expanding ballot access in jails. On the state level, CLC has worked to push secretaries of state to promulgate rules requiring local county clerks to work with sheriffs to create and implement procedures for facilitating elections in jails. CLC has also worked on projects to expand ballot access in jails on the local level, supporting advocacy on measures to put polling places in jails, working with partners to develop jail voting plans and best practices, and assisting with efforts push jails to provide better voter assistance to incarcerated voters.