You Have The Right To Vote -- Maybe Even If You're In Jail

Prisoners voting in Cook County Jail

Photo courtesy of Chicago Votes

They’ve been eligible to vote since 1974. That year, in the case of O’Brien v. Skinner, the Supreme Court of the United States held that “misdemeanants” or accused people who haven’t been convicted of felonies are eligible to vote just as they would be were they not in custody.

Casting a ballot from jail is nice work if you can get it. The ballot that is.

In theory, about 547,000 incarcerated people should be voting on November 8. Most have to vote through an absentee ballot just like they would if they were out of town on Election Day.

But ballots are hard to come by, and usually for specious reasons. A witness at the October 10, 2019 hearing on Washington DC’s Restore the Vote Amendment Act — the first law in the country to actually re-enfranchise incarcerated people since the two states that allow prisoners to vote never took away their rights in the first place — described situations where prison mailrooms failed to deliver the absentee ballots to the inmates. Even if they get the ballot in their hands, inmates have to pay for the postage to return it. Commissary purchases can take as long as two weeks in some places; stamped envelopes aren’t guaranteed.

Of course, barriers start well before the distribution of ballots. In Houston, Texas, Harris County Sheriff Eddie Gonzalez recognized that his jail confiscates the photo ID needed to register and vote.

The same was true in the city and county of Denver, Colorado. It frustrated the voting of the detainees so broadly that the county changed its voter registration rules to allow photocopies of licenses and photo ID’s rather than requiring detainees to have them in hand, as they’re technically contraband.

The solution to these problems was to turn jails into actual polling stations — and that’s exactly what seven jails have done, according to the advocacy and research nonprofit Prison Policy Initiative. Now those seven facilities — the jail in Washington D.C., two in Illinois, including Cook County Jail, one in Los Angeles, two in Colorado, and Harris County Jail in Houston, Texas — will act as polling places on Election Day. That basic right to vote and the logistics to implement it are coming together

But the challenge of getting pretrial detainees to vote goes beyond coordinating how it's done. Ward Six Councilman Charles Allen of the District of Columbia City Council, who chairs its committee on the judiciary and public safety, wondered whether formal civics education was necessary to get detainees to vote; he even speculated whether that would include having a dedicated member of the city's board of elections stationed at the jail.

According to Allen, 73 unsentenced people voted in the primary at the D.C. jail and 127 in the general election in 2018. Those numbers amount to about one percent of the average daily population when it was at its lowest.

To be fair to Washington, the District may be the hardest place in the country to implement detainee voting. Inmates in the city may not be in the facility long enough to vote; the average length of stay for men is 136 days and 70 days for women.

After that, if a sentence is imposed, the federal government ships them out of the city to federal prisons across the country, in states with different laws. About 3700 people — two thirds of incarcerated D.C. residents — vote from somewhere else. That distance requires that they receive a traditional absentee ballot to mail in.

But the results aren’t that great in other jurisdictions. While about 40 percent of Cook County Jail detainees voted in the 2020 presidential election, the exceptional circumstances of that year — reduced inmate populations because of the pandemic and four separate days of early voting over two weekends — enhanced participation.

During the June 2022 primary, only 25 percent of detainees voted, even though same day registration should have made it easier for many more to participate in the democratic process. It was still a higher turnout rate than for citizens at large — and it’s up from seven percent in 2018 — but jail voting participation rates should top 85 percent when the facility becomes a polling place with on-site registration.There’s no concern about transportation, not making it in time, or even competing obligations. Turnout is solely the responsibility of the constituents.

And that’s what proves that it’s not convenience of voting that brings about participation; it’s knowledge of the right. And most incarcerated people don’t know about their rights, even when the voting booth gets installed in the lobby of their building.

An advocate with Speak Up and Vote in Illinois said those detained in jail frequently “didn’t realize they’re eligible to vote, so they didn’t try”-- as did someone working with the Denver Sheriff’s Department, who said that detainees “told us this was their first time voting and they had no idea they had the right the vote.” Harris County Sheriff Gonzalez essentially conceded the “majority of people involved in the justice system don’t vote due to a lack of information on voting.”

The task of turnout is educating people on rights they’ve always had but either didn’t know or didn’t care about.

No matter what the participation level is, putting voting booths inside jails is a bold move. We think of the laboratories of democracy as sterile places, crucibles that cook up only the purest policies. To let detainees and their voluntary behavior — ballot casting isn’t required — teach corrections administrators how to implement these rights takes a lot of trust.

It’s especially brave since granting voting rights for prisoners isn’t a favored political move. James Carville, political consultant and former lead strategist for the Clinton campaign in 1992, complains about it a lot, but his essentially bigoted stance isn’t totally out of touch. A HuffPost//YouGov poll surveyed a group of 1000 US citizens and found that 63 percent favored voting rights for people when they complete their sentences. That support then plummets by more than half, to 24 percent, when the topic of re-enfranchising prisoners comes up.

The opposition to voting rights for incarcerated people is outdated, for sure; our nation’s highest court has allowed unconvicted detainees to vote for almost 50 years. That we’re just figuring out how to let them do that in 2022 is both heartwarming and disheartening at the same time.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

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System Of Injustice Fails Breonna Taylor -- And Protects Donald Trump
Breonna Taylor: Another Innocent Casualty Of Brutal ‘War On Drugs’
Breonna Taylor: Another Innocent Casualty Of Brutal ‘War On Drugs’

You can be sure the FBI and the Department of Justice dotted every “i” and crossed every “t” on the search warrant before they went looking for classified documents at Mar-a-Lago, the home of the former president of the United States, and hit the jackpot. Though I wasn’t there, I’m confident that no agent busted down doors or shot around corners.

According to reports, though not to the hysterical hyperbole employed by Donald Trump on the campaign trail, this was a professional operation, approved at the highest levels of the Justice Department and the federal judiciary.

Still, thanks to Trump-appointed U.S. District Judge Aileen M. Cannon, a special master must sort through and review 13,000 documents and items seized from Mar-a Lago before the investigation can continue. The ruling came after even Trump’s former attorney general, William Barr — who judged Cannon’s ruling “deeply flawed” — eventually came to the conclusion that the federal government had no choice but to act in the face of Trump’s defiance.

More delay, more court review, it seems, before the public gets any closer to finding out why a private citizen who used to be president took classified government documents to his private club or what national, perhaps damaging secrets Trump and company held on to despite entreaties to do the right thing.

I get it, though. I understand why the former president and his followers — the crowd current President Joe Biden accurately labels “MAGA Republicans” — believe that the rules apply only to some, while others get to make them up as they go along. Just look at the excuses they make for his behavior, and the twists and turns of spine and morality necessary to turn violent Capitol rioters into “patriots.”

To realize there really are different and inequitable systems of justice in a country that swears it isn’t so, look no further than the case of a woman who was given none of the protections or attention that those with wealth and power take for granted.

Breonna Taylor was defenseless. In fact, as we’ve found out from a guilty plea by someone tasked with enforcing the law, the search that ended in Taylor’s death was based on lies.

Former Louisville detective Kelly Goodlett late last month pleaded guilty to a federal conspiracy charge, admitting she helped falsify the warrant and conspired with another officer to concoct a cover story when the March 2020 killing of this young Black woman belatedly made national news.

I relate much more to Taylor’s plight than Trump’s, having been seen more than once during my growing-up years as more perp than citizen minding my own business by law enforcement patrolling my working-class Black neighborhood. Then again, I would think that most Americans struggling to get through each day would find more similarities with the emergency room technician who wanted to be a nurse than a former president who refuses to accept defeat in a presidential election.

Yet, one search garners the headlines and boiling outrage, while the other earns little more than a mention, unless you’re a friend or family member or anyone interested in an American system of justice that works fairly.

This isn’t the way it’s supposed to be. But with every day, every new Trump revelation and accompanying pushback by those who would rather not know the truth, it becomes depressingly clear that way too many Americans are not just fine with the status quo, but are willing to fight to make sure certain people get away with everything.

Imagine how any other ordinary citizen would be treated had they defied polite, then stern requests, then a subpoena to turn over documents that were never theirs to begin with, that contain information that could endanger the security of Americans and their allies.

To listen to his constant whining, to skim endless emails begging for cash, Trump doesn’t realize how lucky he is, or has been for his whole coddled life, one littered with bankruptcies and bailouts, lawsuits and settlements. Pain has been cushioned, often erased, by lawyers, toadies and loyal yes-men and yes-women who deflect and sometimes take the fall while he moves on, using his megaphone to spew grievance and claim victimhood.

At rallies, like his recent one in Pennsylvania, he name-called law enforcement, Democrats and anyone who fails to see things his way; he relishes stoking anger, not that he has to do very much. Like The Hulk in The Avengers movie, Trump’s acolytes are “always angry.”

While Breonna Taylor at first did not have millions of followers willing to defend her right to get a peaceful night’s sleep without police officers skating on thin legal ice precipitating a deadly encounter, many did take up her cause and marched to support it.

But I’d wager that some of the same folks who at the time shouted “back the blue” and blamed Taylor herself before all the facts were in now favor defunding the FBI and any other law enforcement agency whose goal is to keep the nation’s secrets out of the hands of random visitors at Trump’s Florida compound, where a fake Rothschild and a Chinese infiltrator have roamed the halls.

If you are truly intent on officers of the law following it, consistency would demand some support for the 26-year-old Kentuckian, now that it’s clear justice was not done in her case. But I don’t think many of the Jan. 6, 2021, crowd would ever link arms with those marching for accountability from authorities for one Black woman and others who fit her profile.

Alas, consistency has gone the way of the courage of mainstream Republicans, who now may not praise Trump but dare not criticize him.

It’s ironic that it fell to the same federal government that is the target of Trump and MAGA ire to seek just a bit of belated justice for Taylor, with the Department of Justice charging four officers involved in that botched Louisville operation, one that was as sloppy as the Mar-a-Lago search was certainly by the book.

In Kentucky, Attorney General Daniel Cameron has dodged responsibility, with his own grand jury speaking out about charges he failed to present. But despite pushback on how he handled or mishandled what happened to Breonna Taylor, the Republican rising star, with the support of Donald Trump and, he hopes, MAGA Republicans in his state, Cameron may yet gain the governor prize he craves.

Not my idea of justice, but maybe America’s.

Reprinted with permission from Roll Call.