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Inmates at Illinois' Cook County Jail cast ballots in the March primary. A county ordnance requires more access to voting in jails.
Jail presents special challenges for a half-million voters
The vast majority of states allow those serving misdemeanor sentences in jails to vote. And the Supreme Court ruled back in 1974 that eligible voters being held in jails — those who have been arrested but not yet convicted — could not be denied their right to vote because they were incarcerated.
On any given day, the number of eligible voters locked up by cities and counties ranges from half a million to 700,000, numbers big enough to tip the outcome of close legislative or congressional contests — or even a presidential battleground state.
But in a year in which the coronavirus pandemic has made everything about elections more difficult, this particularly hard-to-reach segment of the electorate is even tougher to reach.
<p>Recently, for example, when a voting rights group sent postcards with election registration and voting information to some incarcerated voters in Arizona for a July primary, officials confiscated the mailings with little explanation, according to Dana Paikowsky, a jail voting expert at the <a href="https://thefulcrum.us/campaign-legal-center" target="_self">Campaign Legal Center</a>, which advocates for voting rights. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Voting while incarcerated is hard, and the turnout rate among jailed voters is already low. During a pandemic that has further cut off outside visits into jails and prisons — including, in many cases, voter registration drives — the situation has only worsened. </p><p>"Jail-based disenfranchisement is a complex system of conditions and factors and laws that make it incredibly difficult for incarcerated people to cast their ballots," Paikowsky said. "Covid-19 has exacerbated all of those problems."</p><p>Even in normal times, Paikowsky said there are a variety of hurdles incarcerated voters must overcome to cast largely absentee ballots.</p><p>Few jailed voters know they remain eligible to vote from behind bars. Neither do many officials, who Paikowsky said often don't know what obligations they have to facilitate that process. There's little oversight from the states. Nor are there many policies from jail administrators or election officials that clearly explain how to vote from the inside.</p><p>And for those jailed after their state's deadline for obtaining an absentee ballot, there may not be another way of voting. This reportedly happened to some Black Lives Matter protesters who were arrested during the wave of demonstrations early this summer, when many states were holding primaries. </p><p>"If the state doesn't provide them with an alternative means of exercising that right," Paikowsky said, "then they're just disenfranchised."</p><p>Among other solutions to combat this, jails often rely on groups such as the <a href="https://thefulcrum.us/directory/league-of-women-voters" target="_self">League of Women Voters </a>and the <a href="https://thefulcrum.us/naacp" target="_self">NAACP</a> to run voter registration drives. </p><p>"Those efforts are severely hampered if not entirely halted as a result of a pandemic," said Sean Morales-Doyle, senior counsel for democracy issues at the <a href="https://thefulcrum.us/directory/brennan-center-for-justice" target="_self">Brennan Center for Justice</a>, a voting rights group. "You can't go into a jail to register people to vote when you've got a pandemic that hits incarcerated people particularly hard."</p><p>Both Morales-Doyle and Paikowsky said the onus to make sure jailed voters can exercise their political rights is on local election and jail officials. They say polling stations should be set up inside the lockups and election officials should work with sheriff's offices, which run most jails, to get jailed people vote-by-mail ballots in time. </p><p>"The state takes responsibility for all kinds of things for them because the person is locked up," Morales-Doyle said. "They take responsibility for their health care and their meals, and all the other things that they're constitutionally entitled to. This is another one of the things that they're constitutionally entitled to."</p><p>Morales-Doyle pointed to places such as Chicago, where a Cook County ordinance mandates more access to voting in jails, as an example of how the system can improve. The County Jail set up multiple polling centers for the primary in March. Other states have taken additional measures. </p><p>To minimize the risk of Covid-19 exposure for presidential election voters, Vermont — one of only two states, with Maine, that allows prison inmates to vote — is also among the handful of states that have decided to send all registered voters a mail-in ballot this fall. And that will include incarcerated registered voters with a prison address. Emily Tredeau, an attorney for the Vermont Prisoners' Rights Office, predicted that because the ballots will be sent out with a postage-paid return envelope, prison turnout will increase this year. </p><p>But while some jurisdictions are taking steps to make voting more accessible for pre-trial detainees during the pandemic, Morales-Doyle said many counties and states still have much work to do. He notes how the pandemic has put a spotlight on voting by mail and the hurdles that come with it — especially for people who are effectively quarantined because they're ill or have been in close contact with infected people. </p><p>"That's always been the case for people in jail that they face all those obstacles and then some," Morales-Doyle said. "We should use this renewed focus to shine a light on and pay more attention to the people who are both experiencing the brunt of the pandemic from a public health perspective and the highest obstacles when it comes to casting a ballot. Those are people who are currently in custody." </p><p>After the Arizona voting postcards were confiscated, one jailed person was connected with the Campaign Legal Center, which arranged for him to get an absentee ballot. But after the confiscation, which meant he didn't have the information from the postcard about voting, he said he felt intimidated. He didn't end up voting in the July primary.</p><p>"That situation shows, in order to even get a ballot, you might have to be an agitator," Paikowsky said. "In order to be able to use that ballot, you need access to lots of information and resources. It's something that can be incredibly difficult for people who are incarcerated." </p>
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Virtual Book Event: Trevor Potter in Conversation with Katherine Gehl
Organizer: Campaign Legal Center
Join us virtually for a conversation between Campaign Legal Center President Trevor Potter and Katherine M. Gehl, author of "The Politics Industry: How Political Innovation Can Break Partisan Gridlock and Save Our Democracy." In the book, political innovation and business leader Katherine M. Gehl and world-renowned economist Michael E. Porter take a fresh, nonpartisan deep dive into American politics and prescribe a unique, targeted package of political innovation that revolves around changing the rules regarding elections and legislating.
Location: Webinar
So Many Digital Ads, So Little Regulation: Why We Need Digital Ad Transparency Now
Organizer: Campaign Legal Center
Disclosure requirements have long been considered central to the free and transparent functioning of our democracy, but our democracy is modernizing, and our disclosure laws are not keeping up.
From the 2014 election cycle to 2018, digital political spending increased by an astonishing 2,400%. Meanwhile, federal law governing transparency requirements for political ads hasn't been updated since 2002. Thanks to outdated statutes and FEC regulations, a political ad subject to legal transparency requirements when aired on TV can remain shrouded in secrecy when that same ad is run online.
Fortunately, there are several legislative solutions that can restore transparency to digital advertising. Join us to learn more about why digital ad regulation is important and what we can do to fix it.
Location: Webinar
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The Tennessee Supreme Court's ruling represents the first time a state's top court has used an appeal to restrict absentee voting in November.
Tennessee off the list of states allowing all to vote by mail because of Covid
The persistence of the pandemic is not a sufficient rationale for allowing everyone in Tennessee to vote by mail this fall, the state's top court has ruled, putting the state back on the otherwise shrinking roster of places with excuse requirements for getting an absentee ballot.
Wednesday's 4-1 decision by the state Supreme Court overturned a lower court's declaration two months ago that all eligible voters be permitted to use the mail this year in order to avoid Covid-19 exposure. It stands as the first time a state's top court has used an appeal to make absentee voting in November more restrictive.
As a result, there are now eight states where a reason beyond fear of the coronavirus will be needed to vote for president. Other than New York and Indiana, the rest are spread across the South; of those, all but emerging battleground Texas are reliably Republican red: Kentucky, South Carolina, Mississippi and Louisiana now joined again by Tennessee.
<p>Eight other states have effectively dropped their excuse requirements for this year, one of the reasons why voting from home is destined to surge — maybe accounting for more than half of all votes cast, double the usual share, despite President Trump's efforts to discredit the practice with <a data-linked-post="2646107277" href="https://thefulcrum.us/vote-by-mail-california" target="_blank">unfounded claims</a> it produces fraud.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>The Tennessee justices did not alter the rules for the record number of absentee ballots already cast for the primary Thursday. But their decision came just in time to govern the entire period for applying to vote by mail in the general election, which also began Thursday.</p><p>The state initially wanted the court to block any expansion of mail voting in light of the coronavirus, arguing local election officials could not accommodate, logistically or budgetarily, the subsequent avalanche of ballots. They also cited the risk of election fraud. </p><p>But at oral arguments, government lawyers said that being quarantined as a precaution, caring for someone with the virus or having an "underlying health condition" — which voters were free to decide for themselves — allows voters to check the "illness" box on their application forms.</p><p>"The state's interests in the efficacy and integrity of the election process are sufficient to justify the moderate burden placed on the right to vote" for people not covered by the newly promised easements, Justice Cornelia Clark wrote for the court. </p><p>She also told Tennessee officials to quickly detail for the public the state's new view of Covid-19 and mail voting.</p><p>That prompted a qualified embrace of the decision from the <a data-linked-post="2638969815" href="https://thefulcrum.us/american-civil-liberties-union" target="_blank">American Civil Liberties Union</a>, which helped sue over the expansion. </p><p>"The court should have gone further, however, and ruled that all eligible voters have a right to vote safely by mail," said the ACLU's top voting rights attorney, Dale Ho. "But this ruling remains an important victory for many Tennessee voters."</p><p>The General Assembly also returns next week for a special session, where minority Democrats are expected to take another run at legislation expanding the excuse rules. Republican Gov. Bill Lee has vowed to veto such a measure, though.</p><p>Fewer than 3 percent of the state's votes have arrived in envelopes in recent elections, one of the smallest shares in the nation. Even before the court's decision, Republican Secretary of State Tre Hargett was preparing for that percentage to soar — because 1.4 million voters, more than a third of those registered, are automatically eligible to vote absentee because they've had their 60th birthdays.</p><p>The Lawyers' Committee for Civil Rights Under Law and the <a data-linked-post="2638765151" href="https://thefulcrum.us/campaign-legal-center" target="_blank">Campaign Legal Center</a> have filed a federal lawsuit seeking unfettered mail voting and also challenging three other curbs on the practice. One is an unusual rule preventing the newly registered from casting their first votes by mail unless they apply for the ballot in person and show proof of identity.</p><p>Trump can count on the state's 11 electoral votes, which he won last time by 26 points. Turnout in the 2016 election was 62 percent, but it may be less this year because of a lack of any competitive statewide races. </p><p>The winner of Thursday's hotly contested GOP primary for the Senate seat held by Republican Lamar Alexander, who's retiring, is a near shoe-in come November. That race is between Bill Hagerty, who was Trump's ambassador to Japan, and Manny Sethi, an orthopedic trauma surgeon running as a conservative outsider ready to take on the "establishment" while still supporting the president.</p>
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