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| Naila Awan |
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| Wanda Bertram |
Most of the more than 600,000 people locked up in jails nationwide are detained pretrial — and therefore, legally innocent. And in most states, people detained in jails on a misdemeanor conviction remain eligible to vote.
This means that most of those who met the voter registration qualifications in their state at the time of their incarceration remain eligible to vote in elections. In fact, the U.S. Supreme Court has ruled that not only are they eligible to vote, they have a right to cast an absentee ballot just like any other voter who cannot vote in person.[1]
However, an insurmountable series of obstacles and a lack of awareness stop most of them from doing so.
This article breaks down a few of the major barriers to casting a ballot from jail, and explains one promising solution: establishing jail-based polling places.
Why People in Jail Don't Vote
Many of the barriers[2] people face when they try to vote while incarcerated have to do with jail policies. For example, jails typically confiscate people's personal effects, meaning people can't access the forms of ID they often need to register or cast a ballot.
Other barriers are caused by state policies: In 16 states,[3] for instance, voting by absentee ballot is only permitted when a voter claims one excuse from a short list of recognized justifications, and in most of these states, detention in jail is not a recognized justification.[4]
A lack of awareness of voter eligibility rules has held up reform. Local election officials often don't know that most people in jail can vote, and it's not unusual for such officials to provide incorrect information in response to questions about the issue.[5] Misinformation can even make it into registration forms.
There are a number of ways that advocates, state legislators, election officials and sheriffs can tackle this complicated issue.
Below, we explore one promising solution: establishing polling locations in jails.
The Promise of Jail-Based Polling Locations
The boldest solution counties have come up with to address the problem of voting from jail is simply the establishment of jail-based polling places.
A polling place centralizes and streamlines the voting process — including enabling people to register in states with same-day registration — and overcomes some of the difficulties people often encounter in voting, such as requesting absentee ballots, which can take much longer with jail mail delays.
In recent years, advocates have successfully pressured a small but growing list of governments to establish polling locations inside local jails. In fall 2022, we found seven jails that make in-person voting available:
- Cook County Jail in Chicago;
- D.C. Central Detention Facility in Washington, D.C.;
- Denver County Jail and Van Cise-Simonet Detention Center, both in Denver;
- Harris County Jail in Houston;
- Century Regional Detention Facility in Los Angeles; and
- Will County Adult Detention Center in Joliet, Illinois.
After publication of our fall 2022 research, we learned there is also a jail-based polling location in Flint, Michigan.
Data about voter turnout at these jails is hard to come by, so it is difficult to know exactly how many voters have used these polling locations.
However, the emerging evidence shows that when combined with outreach and education to ensure incarcerated voters know what steps they must take to cast their ballots, jail-based polling locations are not only feasible, they're effective. When people know they can vote from jail, they will vote.
Cook County, Illinois
The Cook County Jail first established its jail-based polling location in 2020.
During the 2020 general election, when two weekends of early in-person voting were available, more than 2,000 of the 5,400 people in the jail — or about 37% of the jail's population — cast a ballot.[6] In the June 2022 primary, roughly 25% of people detained at the jail — 1,384 of 5,560 people — cast their ballots.
This location was so successful that people at the jail actually voted at a higher rate than registered voters in the city of Chicago, 20% of whom voted.[7]
About half of these incarcerated voters were able to cast ballots because same-day registration was also available.[8]
Washington, D.C.
Washington has facilitated voting at its jail for more than a decade. In 2012, 88 men voted in person at the D.C. jail.[9] In this case, we don't know how large the pool of eligible voters was.
In 2020, the D.C. Council also passed legislation to abolish felony disenfranchisement, further expanding the number of people eligible to cast their ballots from jail.[10]
While this was unquestionably the right thing to do, it makes it a bit difficult to trace turnout patterns.
In November 2020, 562 incarcerated Washington residents registered to vote and 264 of them cast ballots[11] — but we don't know how many of these individuals voted while detained in jail versus in prison.
Denver
In 2020, voters confined in Denver could cast ballots in person for the first time.
On Nov. 2 and 3, 2020,[12] 136 eligible voters in the Denver County Jail and Van Cise-Simonet Detention Center cast in-person ballots.[13]
Harris County, Texas
In November 2021, Harris County, Texas, established a pilot jail-based polling place. To be eligible,[14] voters had to have been arrested on or after the absentee ballot request deadline, already be registered to vote, not be on probation or parole, and meet all other voter qualification requirements.
That year, 96 people voted from the jail during the county's local elections.[15] While this number may seem small, it came very close to the 100 people who Project Orange, a local nonprofit, estimated would be eligible to vote under the pilot requirements.[16]
Los Angeles
Los Angeles County allows certain people who are detained in their jail to cast ballots in person.[17]
In 2020, the Los Angeles County registrar-recorder and sheriff announced the "We All Count" campaign, which aimed to provide voter education information to people detained in LA County jails and assist eligible voters with registration and the voting process.[18]
In February 2020, a pilot program at the Century Regional Detention Facility allowed certain qualified women voters to cast their ballots in person.[19] In total, 35 ballots were cast at this jail polling location,[20] and 2,200 people incarcerated in LA jails were registered through the "We All Count" campaign.[21]
Will County, Illinois
In June 2022, Will County became the second Illinois county to establish a polling location at its jail.
Approximately 600 people are detained in Will County Jail,[22] and according to county election officials, in June 2022 48 people in the jail — approximately 8% — voted. Twenty-eight of these individuals cast ballots in the Democratic primary, and 20 cast ballots in the Republican primary.
How Counties With Jail-Based Polling Locations Can Ensure Higher Turnout
The early results from these seven facilities show the promise and possibilities of jail-based voting locations. However, they also make clear that simply setting up jail voting sites is not enough.
Access to voter registration, the rules that determine who qualifies to use the polling location, and the timing of when voting is available can significantly affect turnout.
Local governments seeking to establish or improve jail-based voting locations should:
- Do more to raise awareness of the availability of the polling location and any voting eligibility requirements.
- Allow all eligible voters detained at the jail — regardless of when they were first detained — to cast a ballot at the polling location.
- Provide in-person voting at the jail on Election Day, not merely during the early voting period.
- Take advantage of same-day registration if it is available.
- Work to ensure that any ID requirements are able to be satisfied by eligible voters who are attempting to register or cast a ballot in jail.
Because the vast majority of people held in jail are there pretrial, or are serving time for misdemeanors, which do not disqualify people from voting in most states, it's likely that most people in jail are eligible to vote.
As the 2024 elections begin to take shape, the time to act is now to ensure that eligible voters who find themselves behind bars on Election Day are able to exercise this fundamental right.
As the examples above show, there is increasing momentum to make democracy more accessible to people behind bars.
To maximize the impact and use of jail-based polling sites, jurisdictions should ensure anyone detained on Election Day is eligible to both register and vote at the jail, and that voter ID or other requirements do not act as obstacles to voting.
Naila Awan was the advocacy director at the Prison Policy Initiative from 2021-23. She is now the deputy director of policy at the New York Civil Liberties Union.
Wanda Bertram is the communications strategist at the Prison Policy Initiative.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://supreme.justia.com/cases/federal/us/414/524/.
[2] https://www.prisonpolicy.org/reports/jail_voting.html.
[3] https://www.ncsl.org/research/elections-and-campaigns/vopp-table-1-states-with-no-excuse-absentee-voting.aspx.
[4] https://www.ncsl.org/research/elections-and-campaigns/vopp-table-2-excuses-to-vote-absentee.aspx.
[5] See footnote 8 in "Eligible, But Excluded," https://www.prisonpolicy.org/reports/jail_voting.html#fn:8.
[6] https://news.wttw.com/2020/10/28/voting-cook-county-jail-sees-40-turnout-general-election.
[7] https://blockclubchicago.org/2022/07/12/cook-county-jail-voter-turnout.
[8] https://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx.
[9] https://www.usatoday.com/story/news/politics/2012/11/06/dc-jail-helps-inmates-vote/1685161/.
[10] https://www.sentencingproject.org/news/dc-council-approves-voting-prison-ahead-november-election/.
[11] https://www.virginiamercury.com/2022/06/21/the-district-of-columbia-allows-incarcerated-people-to-vote-a-rarity-in-the-u-s/.
[12] https://patch.com/colorado/denver/denver-allows-inmates-vote-person-first-time.
[13] https://www.denvergov.org/files/assets/public/clerk-and-recorder/documents/annual-reports/2020annualreport.pdf.
[14] https://www.houstonpublicmedia.org/articles/news/criminal-justice/2021/11/02/412273/harris-county-jail-polling-place-incarcerated-voters/.
[15] https://www.dallasnews.com/news/elections/2022/08/18/activists-are-pushing-for-a-polling-station-in-the-dallas-county-jail/?mc_cid=fd803fd17a&mc_eid=e796f769e2.
[16] https://www.houstonpublicmedia.org/articles/news/criminal-justice/2021/11/02/412273/harris-county-jail-polling-place-incarcerated-voters/.
[17] https://www.sentencingproject.org/publications/voting-in-jails/.
[18] https://witnessla.com/historic-county-community-partnership-takes-the-vote-behind-bars-in-la-county/.
[19] https://lasd.org/we-all-count-campaign/.
[20] https://witnessla.com/historic-county-community-partnership-takes-the-vote-behind-bars-in-la-county/.
[21] https://lasd.org/we-all-count-campaign/.
[22] https://trends.vera.org/state/IL/county/will_county.