The lack of access for eligible voters in pretrial detention is part of a larger constellation of disenfranchisement for people whose lives intersect with the criminal legal system.
Durrel Douglas says most of the people he met during his first get out the vote campaign inside the Harris County jail in January 2018 were surprised to see him there. As he and other volunteers with the Houston Justice Coalition went from pod to pod, registering people to vote and helping them apply for mail-in ballots, jail staff told him they didn’t realize anyone behind bars was allowed to cast a ballot. People incarcerated inside the hulking lockup in downtown Houston were also perplexed. “Many of them were just shocked to learn they could register and vote,” he says.
In 1974, the U.S. Supreme Court upheld the voting rights of people in pretrial detention who, unlike people held in state prisons, haven’t been convicted of a crime. That means the majority of people in local jails likely meet the qualifications to vote. Yet voting rights attorneys say jails and elections administrators across the country have for decades failed to develop plans that allow incarcerated people who are eligible to exercise their right to vote.
Jail-based disenfranchisement has grown with the rise of mass incarceration. The number of people held in pretrial detention in the U.S. has more than tripled since the Supreme Court affirmed the right to vote from jail in the 1970s. Eleven million people now churn through local jails every year, and two thirds of the 745,000 people jailed on any given day are pretrial detainees. Half a million people are booked into Texas jails every year, more than any other state. In July, 60 percent of people incarcerated in local lockups across the state were being held pretrial, representing roughly 36,800 people.
Dana Paikowsky, a voting rights lawyer and fellow with the Campaign Legal Center, says there are numerous hurdles to voting from jail. Sheriffs may be uncooperative or argue that elections volunteers compromise the security of their facilities. Without help on the outside, people in jail may be unable to confirm whether they’re eligible to vote or obtain registration forms because they can’t use the internet or contact their local elections board.
Paikowsky, an expert on jail-based disenfranchisement who works with activists across the country to expand voting access in jails, says some sheriffs and election administrators refuse to provide basic information and forms to incarcerated people.
“Sheriffs and elections officials have a responsibility to provide people who are eligible with a means of accessing the ballot,” she says. “That means they should have access to voter information that tells them when an election is, how to register to vote, and how to request a ballot. Because otherwise, in jail, if you can’t access that information, then you’re just functionally unable to vote.”
In early 2018, the Harris County Sheriff’s Office began allowing Douglas and other volunteers inside the jail in the weeks leading up to voter registration deadlines to circulate election information, voter registration forms, and mail-in ballot applications. He says their group, Project Orange, has since registered more than 2,500 people at the jail.
Harris County Clerk Chris Hollins says voting from the jail has spiked since the group started visiting the lockup. In 2016, before Project Orange began, the clerk’s office sent 32 absentee ballots to the jail, 21 of which were actually cast. This year, in March’s primary election, the clerk’s office sent the jail 204 ballots, 112 of which were mailed back. In the July runoff, 332 were sent and 116 came back. “The fact that so many more people voted in July and March—especially July, which is a much smaller election—than in the last presidential election shows you the direction we’re moving toward,” Hollins says.
In July, Project Orange filmed a PSA about registering and voting from jail with famous Houston rappers Bun B and Trae Tha Truth, which the sheriff’s office will broadcast inside the jail ahead of the next voter registration deadline. In the video, the rappers stress the importance of voting, especially in the next election. “This election is an extremely important election,” Bun B says. “Your voice and your vote is vital. Just because you’re locked up doesn’t mean you can’t be heard.”
The lack of access for eligible voters in jails is part of a larger constellation of disenfranchisement for people whose lives collide with the criminal legal system. Only two states, Maine and Vermont, permit people convicted of felonies to vote in prison. The Sentencing Project estimates that felony disenfranchisement laws have stripped 6.1 million Americans of their right to vote, with African Americans banned from voting at four times the rate of all other racial groups. (In Texas, as in most states, people convicted of misdemeanors are still eligible to vote, even if they’re serving sentences.)
In recent years, there’s been a growing movement to repeal some of the most restrictive disenfranchisement laws in the country that date back to the Jim Crow era. It’s been an uphill fight. Republican opposition has slowed a campaign to restore voting rights for people with felony convictions in Florida; a July Supreme Court ruling allowed the state to bar people from voting until they’ve repaid all court fines and fees, which the American Civil Liberties Union calls a modern day poll tax.
Jail-based disenfranchisement is another area where voter suppression dovetails with mass incarceration. Paikowsky says jail populations are a microcosm of historically marginalized voters—disproportionately Black, Native American, and Latinx. She also pointed to restrictive bail policies that keep people in lockup because they’re poor. When people can’t vote because they can’t make bail, “that starts to sound like a poll tax,” she said. “We shouldn’t be making poverty a barrier to ballot access.”
Ahead of the November election, Project Orange is planning to send mailers to people incarcerated in 34 jails across the country about voting rights behind bars, including lockups in New Mexico, Oregon, Michigan, Indiana, Wisconsin, and Kansas. Activists in Chicago, Denver, Los Angeles, and Philadelphia have also worked to expand ballot access for people in jail, but many worry restrictions to keep coronavirus from spreading behind bars could scuttle those efforts ahead of the November election. A spokesperson said the Harris County Sheriff’s Office still plans to let Douglas and other Project Orange volunteers inside the jail to register people on the four weekends leading up to the October 5 deadline.
Through Project Orange and the Campaign Legal Center, Douglas and Paikowsky are now pushing for the Texas Commission on Jail Standards (TCJS) to adopt guidelines and best practices about voting in jail to send to the more than 200 county lockups across the state. The groups want counties to plan jail announcements, publish election information, and organize voter registration drives ahead of election deadlines, as well as ensure incarcerated voters can cast absentee ballots on time. They’re also sending mailers about jail voting to people incarcerated in Tarrant, Collin, and Montgomery county lockups.
Brandon Wood, executive director of the jail standards commission, says he’s talking with the groups but hasn’t yet agreed to new guidance. He says every two years, the commission reminds jails about their responsibility to accommodate eligible voters. Under current guidance, “TCJS recommends that jails not only deliver absentee voting ballots but that they also provide means for inmates to register to vote who request it.” But jails aren’t required to transport inmates to polls.
Douglas and Paikowsky maintain that jails are required to give people in jail access to election day voting, whether that’s transporting them to a polling place or establishing one in the jail. Even a robust mail-in campaign would miss eligible voters who are arrested and jailed after the deadline to apply for an absentee ballot. Advocates convinced Harris County officials to start exploring options for a polling place at the jail last summer, but the clerk’s office quickly came back concluding there was no “workable solution.” Hollins, the county clerk, says officials are still looking for ways to facilitate election day voting for eligible inmates.
Even if advocates succeed in getting an election day polling place at the jail, Douglas says voter suppression has taken its toll on people who encounter the criminal legal system. New research indicates that people are less likely to vote even after minor charges that lead to short periods in jail. Some people in jail refuse to register and apply for a ballot even though they’re eligible, convinced there will be unforeseen consequences, Douglas says. During one trip to the jail last year, one man mentioned the case of Crystal Mason, a North Texas woman who was arrested, prosecuted, and thrown back in prison for voting while she was still on probation.
“I’m sitting there and saying, ‘No, it’s fine, here’s the sheet with all the rules and you’re OK,’ but it doesn’t matter,” Douglas says. “He sees consequences like that and he thinks the risk is just too much. He doesn’t know me. How can I convince him otherwise?”
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