As the United States approaches the crucial midterm elections, hundreds of thousands of people will have trouble accessing the ballot: those incarcerated in county jails.
Of the nearly two million people imprisoned in the US, about 550,000 are held in local jails, where people are commonly sent to serve sentences for low-level offences or before they have had a trial, a practice known as pre-trial detention.
While certain higher-level or felony crimes can sometimes result in temporary or permanent loss of voting rights in the US, those penalties do not apply to most people held in jail. But despite the fact that large numbers of those in jail remain eligible, people behind bars often face numerous obstacles that can keep voting out of reach.
“When it comes to disenfranchisement, where there’s smoke there’s fire,” Durrel Douglas, who authored a report on voting in jail for the criminal justice organisation The Sentencing Project, told Al Jazeera. “And there’s an awful lot of smoke in the US jail system.”
One obstacle, many advocates say, is a widespread belief among incarcerated people that they lost their right to vote when they were sent to jail, as well as the complications people face when trying to complete the voter registration process and a lack of voter outreach efforts.
Advocates have pushed for a more robust effort from local officials to educate people in jail about their voting rights and to make the process more accessible, as the intersection between incarceration and disenfranchisement has gained attention amid conversations about the legacy of racism in the US. More than 50 percent of those incarcerated in US jails are Black or Latino.
“People feel that any criminal justice involvement bars them from voting across the board,” said Saun Hough, who works for the community organisation Californians for Safety and Justice. “You have to convince people they won’t be penalised for voting, and you have to convince them that their voice matters.”
That uncertainty is compounded by the fact that rules and requirements around voting can vary dramatically from state to state, including rules governing participation for currently and formerly incarcerated people.
A confusing patchwork
Electoral participation in the US can be influenced by state and federal laws, along with conditions and the availability of resources in different municipalities. In California, for example, people who have completed their sentences for a felony conviction are eligible to vote. One state over, in neighbouring Arizona, certain restrictions may apply.
This patchwork of rules and requirements can create confusion that is especially troubling for people who have been impacted by the criminal justice system and are wary of accidentally breaking the law.
“Sometimes when we’re registering people to vote in jail you can show someone a pamphlet from a state authority laying out their voting rights, and they might still say ‘I just don’t want to risk it,” said Douglas.
“There are a lot of misperceptions, and those are widespread not just among incarcerated people but among local election and law enforcement officials.”
But while numerous states impose voting restrictions on people with felony convictions, such obstacles are less prevalent for those spending time in jail: no states ban people in pretrial detention, who make up about 80 percent of those held in county jails, from voting, and only a small handful erect barriers for people serving misdemeanor, or lower-level, sentences.
But even if a person being held pre-trial or for a low-level offence is eligible to vote and is aware of that eligibility, participating in an election can still be difficult.
Many US states require a form of government-issued identification to register to vote, and several do not accept jail ID cards as valid forms of identification.
Other states do not include incarceration as a valid reason for requesting an absentee ballot, effectively blocking incarcerated people without access to an in-person polling location from voting.
Even if a person behind bars is able to gather the necessary materials to register, mail sent to and from jail can often experience lengthy delays, adding another barrier to compliance with strict deadlines.
In the highly-regulated landscape of life behind bars, small requirements that would not present a problem for those on the outside can also become prohibitively difficult.
“You have to fill out a ballot using black or blue ink, but in Orange County jails you aren’t allowed to have pens,” said Daisy Ramirez, who has worked to expand voting access for incarcerated people in southern California with the American Civil Liberties Union (ACLU).
“We had to talk with local officials and ask that incarcerated people be allowed to fill out their ballots using pencils instead. These small requirements that wouldn’t be a problem for people outside of jail can become an obstacle.”
‘It falls to local officials’
In recent years, some states and municipalities have taken steps to expand access to the franchise for those in jail, and advocates believe that local officials can do more to provide incarcerated people with the educational material and assistance they need to participate in elections.
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— The Sentencing Project (@SentencingProj) October 14, 2022
“A jail is not like other places when it comes to political organising. A local voting rights group can’t just walk into a jail and pass out flyers like they would if they were trying to reach another group of people,” said Hough. “So it really falls to local officials to make these resources available.”
Some municipalities have taken such initiatives a step further: setting up polling places inside jails with large populations.
While such actions remain the exception rather than the rule, some of the areas offering in-person voting for those in county jails are among the largest jail systems in the country, including Los Angeles County in California, Cook County in Illinois, and Harris County in Texas.
While various logistical, educational, and bureaucratic hurdles exist for those hoping to exercise their right to vote while in jail, advocates often cite another, less concrete barrier: the belief among many incarcerated people that society is not interested in their voice.
“When some people learn that they still have the right to vote, they get excited,” said Hough. “But there are some who have become jaded by their experience with the system. Many people, even prior to their conviction, felt that the system wasn’t interested in hearing from them.”
Hough, who was formerly incarcerated himself, understands that sentiment but feels compelled to push back against it.
“During my period of re-entry, it was empowering knowing that I could vote. It’s a key part of re-establishing yourself in the community,” he said. “I wanted to make sure people have their voice heard. If voting didn’t matter, you wouldn’t see so many efforts to disenfranchise people.”