Eliminating Barriers to the Ballot Justice and Public Policy

Introduction: 

It is not just a single facet of one’s life that changes when they are incarcerated. Suddenly after one is incarcerated they become disenfranchised of many granted rights and freedoms. Currently in the United States, “One out of 50 adult citizens– 2 percent of the total U.S. voting eligible population– is disenfranchised due to a current or previous felony conviction.” (The Sentencing Project) Voting, a fundamental pillar of American democracy, is one of those many rights that incarcerated folks aren’t able to practice, sometimes even much after they’re done serving time behind bars. Due to the several institutional barriers that are still very existent in our system, convicts are hindered from exercising their unalienable rights.

At the rate that America incarcerates folks it’s concerning to imagine all those that cannot practice their democratic and inherent right to vote, something our country takes immense pride in allowing all to do. As a minority in this country, I also recognize how the prison system disproportionately impacts communities of color and those of low-income backgrounds, considering these communities are already prone to marginalization and prejudice within the system, why is it that even behind bars we deprive these individuals even further of their already impoverished rights? In a criminal justice system where discrimination and racial discrepancies are still very much prevalent, especially in imprisonment patterns, it’s important to acknowledge how this is not just about one’s disenfranchisement of voting rights but a testament to how free and accepting our country truly is in the dynamics of it all. From those that are currently serving time for a misdemeanor, to those who may be detained pretrial, to those that are ex-offenders- no one on the basis of their convict status should be denied their rights at the ballot. Regardless of the crime or misdemeanor committed on the convict’s end, the question I raise is: are they not part of our country and our democratic system? Incarcerated individuals and ex-offenders are citizens, pay taxes, participate in a representative democracy- and hence deserve to have an equal opportunity at the ballot like us all.

In our country’s history, voting hasn’t always been an equitable and “free for all” right. Historically aside from felony disenfranchisement, voting was a right that women and colored folks had to fight endlessly for, combatting racially discriminatory laws and policies, initiating “good trouble” and leading suffragist movements to ensure their voices were heard at the place it matters the most. During some of the most crucial times in our country’s determining times, voting was at the height of those conflicts and questions- for which reason many folks found it their personal fight to defy the laws that even at those time were set by institutions and establishments of power and supremacy- something that still prevails today and continues to set hurdles for marginalized groups and communities. Rooted in system and structural oppression, voting has often been restricted to minority populations in this country out of fear and consternation of what would happen if the voices of those who might propose or support the “unpopular opinion” actually had the ability to voice their opinions and amplify their stance leading to the “minority leading the majority.” From public and private institutions to other stakeholders who hold a vested interest in the outcome of one’s time behind bars, voting disenfranchisement lies in not one problem but multiple. While we wish that rehabilitation and restoration would be at the forefront of institutions that are supporting convicts in their journey towards development and progression, forbidding convicts of their rights brings them even closer to recidivism and frustration towards these rehabilitative institutions.

Background: 

Rooted in the antics and tactics of politicians and state leaders, over 48 states in the United States have laws and regulations that bar ex-offenders from voting, sometimes even after paying their dues and paying off their court fines. In The Sentencing Project’s October 2022 edition, Locked Out 2022: Estimates of People Denied Voting Rights, “An estimated 4.6 million Americans will be ineligible to vote due to laws and policies, many of which date back to the post-Reconstruction era. In a year like 2022, where the midterms were incredibly pivotal in determining the stability and control of political parties among legislative bodies like the Senate and the House, at the federal and local level it was integral to have the public be the ultimate arbiter of the elections. With such a large population being excluded from the electoral process, it jeopardizes the factuality of a nation that prides itself in “democratic practices and god-given rights.” Believe it or not, felony disenfranchisement actually began much before the present day partisan policies, in fact felony disenfranchisement was first introduced before it even became legal for all citizens to vote, dating back to 1790. One of the first states of its times to introduce such state legislation, one out of every 17 Kentucky residents are disenfranchised from their voting rights till this date. A cornerstone of our democracy is instituted in the right to vote, some statistics have proven to show just how entrenched felony disenfranchisement has been in our system. While Kentucky is just one example of laws that prohibit felons from voting, many Southern states such as Alabama, Georgia, Mississippi, and Tennessee lead the nation in keeping 3 ex-offenders in their state from voting.

With Florida being the most notorious when it comes to felony disenfranchised laws, according to The Sentencing Project, “Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.” Leading the state with his conservative, Governor Ron DeSantis was also one of the first governors to lead an illogical fight against one of the most treasured amendments of our Constitution, the 4th guaranteeing the abolishment of permanent voting disenfranchisement to all. The question that also arises when looking at felony disenfranchisement, is why is it that partisan politics and policies have infiltrated their way into our democratic rights? Daryl Atkinson, a civil rights attorney that served time himself in the state of Alabama for a misdemeanor said something that truly struck me, “I thought I paid enough with my body through incarceration.” This made me question why such policies exist within our system and allowed me to reflect on how structural and systemic racism exist beyond the spaces we envision.

Issue: 

As for incarcerated individuals that are currently serving time in prison, for a misdemeanor or otherwise, voting is almost impossible. While many jailed voters across the country are eligible from behind bars, evidence shows that institutional barriers from within and from outside the system keep them doing so. In a report by the Prison Policy Initiative, “Many people who are detained pretrial or jailed on misdemeanor convictions maintain their right to vote, but many eligible, incarcerated people are unaware that they can vote from jail. In addition, state laws and practices can make it impossible for eligible voters who are incarcerated to exercise their right to vote, by limiting access to absentee ballots, when requests for ballots can be submitted, how requests for ballots and ballots themselves must be submitted, and how errors on an absentee ballot envelope can be fixed.” While we would think it’s the prisons and law enforcement institutions that prevent voters from voting behind bars, there are many more players involved in the grand scheme of things. Politicians and policymakers work hand-in-hand with these law enforcing institutions to ensure that eligible voters remain unable to vote and exercise their right. Like most criminal justice issues, the solution to this issues doesn’t particularly lie in the hands of one party, yet the most influential at the top of the hierarchy are our policymakers and state politicians and leaders. While many stakeholders hold an exigent role in a jailed voter’s ability to ultimately vote, policymaking is the ultimate decider of an eligible voter’s chances to vote. The matter of voting for legally eligible jailed voters is not only a problem in the criminal justice system but moreover alludes to the equality and righteousness present in our justice system. When dissecting the population of eligible voters who still face hurdles in voting, de facto disenfranchisement played an integral role in it all.

In a conjoint report by the American Civil Liberties Union (ACLU) and the Brennan Center for Justice, it is noted that while disenfranchisement of voting rights is widely dependent upon each state’s approach towards felony voting, there are some notable root causes of de facto disenfranchisement, which is ultimately why there is a lack of understanding between criminal justice agencies and election officials. In the report, some crucial points are listed: “Laws are unnecessarily complicated and 5 difficult for election and criminal justice officials and the public to understand; Administering these laws requires election officials to have expertise in the criminal justice system; Informing individuals of their rights requires criminal justice officials to have expertise in voting laws; Little or no training is given to election officials and criminal justice officials about felony disenfranchisement laws; Few, if any, educational materials explaining these laws are available for officials, the impacted population, or the general public; There is a severe lack of communication between criminal justice agencies and election officials.” (ACLU: De Facto Disenfranchisement) While this only pertains to folks that are currently incarcerated, that still accounts for a large portion of legally eligible voters that wish to have their voices heard even behind the walls of confinement they find themselves in. Incarcerated folks also exclaim that while they are serving time and it seems from the outside as their life has stopped, it’s far from the truth, they still have obligations.

From paying their bills, filing for tax returns, caring for their families in their absence- convicts similar to citizens have to take care of these basic responsibilities even from behind bars. For some folks like Foster Bates, a Maine State Prison inmate, he mentions in an interview with NBC, “When I leave this facility, I’m a citizen still. If the government can take my taxes, then why shouldn’t I be able to vote?” (NBC News: Should Inmates Be Allowed To Vote Behind Bars)

Among those serving their time behind bars, we don’t always acknowledge those that may be detained pretrial or jailed for a misdemeanor. While it’s certainly a group that falls under the larger array of incarcerated folks because they too are serving time, it’s notable that they might be serving limited time or may not have even gone to trial for their case yet. While like with everything, laws and policies vary from state to state, many states restrict voters with disenfranchisement laws even if they might be behind bars for minor convictions or under watch prior to their case has made its way to court. As a population within a population that is largely ignored, typically folks that are jailed on the premise of misdemeanors come from a minority background. As it is, black and brown folks are subjected to imprisonment at a level much more probable than their white counterparts because of racial profiling and it’s very existent play among law enforcement. According to a policy brief by Demos on How to End De Facto Disenfranchisement in the Criminal Justice System, “Black, Indigenous, and Hispanic Americans are 3.5 times, 2.1 times, and 1.08 times, respectively, more likely to be incarcerated in jail than someone who is white.” (Demos) When as it is these minority communities are prone to incarceration at a higher probability then their white counterparts, sometimes even in scenarios where they might have committed a minor crime or felony, it’s important to consider that the prison system undoubtedly disproportionately impacts communities of colors and marginalized communities. One of the biggest issues our community faces at hand is addressing the racial disparities within the system which leads to an array of questions, such as why is it that law enforcement is more likely to pull over a colored person, rather than a Caucasian person on the highway? Why is it that colored folks might face more discriminative practices during their time in prison? And ultimately these questions lead to why is it that colored incarcerated folks have a harder time voting from behind bars? With the pandemic’s rippling effect still heavily present in our criminal justice system, de facto disenfranchisement and felony disenfranchisement of voting rights have only been exacerbated further with the current circumstances.

As Demos policy brief continues to emphasize, “COVID-19 has exposed the cracks in our current democratic system, and advocacy groups have provided recommendations for voting during the pandemic. What groups have largely failed to do, however, is address how we best protect the right to vote for eligible voters being held in prisons and jails. We must not let a pandemic exacerbate the de facto disenfranchisement these individuals face and further restrict the ability of eligible, incarcerated voters to have a say in who and what laws govern them.” With advocacy groups and nonprofits on the frontlines championing for voting rights, there is only so much that they can do without the power of strong legislation that favors incarcerated folks. What we often forget is legislative bodies have an immensely large say in the ultimate outcome of what we can do collectively as communities and societies. Within the system, many prisons and jails play a depraved role in not sharing information about voter registration and access to absentee ballots, leaving many jailed voters who are eligible to vote, unaware of their rights behind bars.

While it’s most definitely a struggle for folks to vote from within the walls of prison, for many it’s even harder to vote much after they’ve left those walls. Restoration of voting rights for ex-offenders is still very much a struggle even after they’re off parole and probation, and that’s all due to state policies and state laws that have been put into place for much longer than we can imagine. With states across the country having their own established patchwork of laws that ultimately specify who and who is not eligible to vote following their time of incarceration, this is one of the biggest hurdles within the criminal justice system for so many ex-offenders. With the District of Columbia, Vermont, and Maine being the only to never deprive felons of their voting rights, even when they are incarcerated, every other state in the country has laws that restrict former felons and those incarcerated in some capacity.

For many following the time they’ve served, the question becomes why aren’t their voting rights restored? In a video by The Sentencing Project, many incarcerated felons exclaim that much after they left prison, for the years they were on probation they were still deprived of their right to vote. A line that struck me was, “I’m much more than my crime. I did that, and I paid my dues. Why can I not vote?” (The Sentencing Project) A legitimate question that many face much after they’ve left is why they can’t vote, and that lies in the policy barriers that stand between voters and the ballots. In 2020’s presidential election, an estimated 5.2 million Americans were forbidden from voting, with all 5.2 million of those Americans being former felons who served the entirety of their time and are now free citizens. According to The Sentencing Project, out of those 5.2 million Americans, 1 out of 16 of them were Black Americans eligible to vote and of voting age. With it being no surprise that where these laws are most egregious is among the Southern States, where originally the Jim Crow era prevailed in which felony disenfranchisement for some states was first introduced. From a holistic standpoint, this ends up accounting for 8% of the adult population in Alabama, Mississippi, and Tennessee, and in the state of Florida alone, that accounts for over 1.1 million Floridians that are unable to access the ballot even after they’ve served their sentence. One’s criminal records haven’t just recently been a modern-era embargo on their voting rights, but it is now that we are seeing states introduce more legislation that tackles these issues, but still not at the core.

Tasha Williams, was an ex-felon that served time for a non-violent drug offense, was prohibited from voting in Louisiana until 2020, when the state government restored voting rights to previously incarcerated folks. In her case, she could have easily voted from behind bars and much after her sentence, but her state made it almost impossible. She exclaims that institutions such as prisons and jails that are supposed to guide in bringing justice and restoration to offenders in fact in many cases do the opposite as they set institutional barriers with fellow stakeholders such as state governments and politicians that are aiming to promote their individual agendas. However in some states like Louisiana where small steps are being taken towards restoring voting rights, other states have also joined in the same wave. In 2021 alone, three major US states passed legislation that restored voting rights to those on parole (Connecticut, New York, Washington). This was a big win for incarcerated folks, and coming out of the most populous states in the country, this was a victory on many fronts.

Policy Approach:

While there are several eligible voters in the system that are prohibited from voting, it comes down to policies around incarcerated folks that will change felony disenfranchisement. The policy solution I propose is rooted in challenging the status quo and funding more efforts and initiatives that help incarcerated folks get the resources they need even from behind bars. A state that I admired for their approach towards tackling felony disenfranchisement was Illinois. Like all states except Maine, Vermont, and District of Columbia, Illinois had laws similar to other states that prevented ex-felons from voting while they were incarcerated in a state prison, while that law is still in place, despite a proposal in March of this year that aimed at permitting felons from within jails and prisons of Illinois to vote without regulations or restrictions. While this bill SB 282 did not pass the Illinois House, infringement upon voting rights is something Illinois takes very seriously.

And it was reported by PEW Research Center that, “Most of the 6,000 people detained at the jail on Chicago’s southwest side maintain their voting privileges as they await trial or serve time for misdemeanors. During November’s presidential election, around 2,200 people voted from four polling places across the jail’s eight-block campus. Corrections officials have opened the jail to visitors for monthly voter registration drives and civics lessons.” (PEW Research Center: Many in Jail Can Vote, but Exercising That Right Isn’t Easy) With community organizers and activists present to help eligible voters have the access to absentee ballots and other voting resources. In awe of the Illinois’ approach, I feel if we created a criminal justice system that involved both organizations and lawmakers we could potentially be on our way to eliminating the barriers in felony disenfranchisement for both the incarcerated and formerly incarcerated alike. Yet on the policy front, I think it’s imperative that we have legislators at the state and federal level address how felony disenfranchisement is not only an impact on our communities, but a severe impact on those that are in prison and ultimately the policies that come out of Congress impacts the imprisoned too. Beyond the legislative front, governments can also initiate county-wide election polls and local governments/boards should be held accountable for establishing voting plans. Illinois being one of the states which was successful with the approach, proves that while felony disenfranchisement stands as a criminal justice issue, it is only with the help of legislative and governmental bodies and advocacy organizations that it will be possible, because at the intersection that both entities meet is where there is ultimately change. When state governments remove disenfranchising provisions and governors restore voting rights via commutation and other political means they have, we can stay assured that laws will be in favor of incarcerated fellows and their voting rights. “Illinois SB 2090 (2019) established a polling location at Cook County Jail and required election authorities and county jails to work together to facilitate absentee voting. In addition, in 2019 the Colorado Secretary of State adopted a rule requiring the state’s 64 sheriffs to coordinate with county election clerks to facilitate voting in jails.” (Prison Policy Initiative) With such monumental states advancing their policies and curating solutions that can be of help in creating new pathways and directions for the freedoms of incarcerated individuals, we could see actual progress through this policy approach on several fronts, not just felony disenfranchisement.