The mission of the National Association for the Advancement of Colored People (NAACP) is to secure the political, educational, social, and economic equality of rights in order to eliminate race-based discrimination and ensure the health and well-being of all persons.
Sign up for The Fulcrum newsletter.
Tennessee's requirements for felons to regain their voting rights are unconstitutionally complicated, according to a lawsuit filed Thursday.
Civil rights groups have returned to the cause of criminals' political rights for the second time this week — this time in Tennessee, which has some of the strictest and most complex rules in the nation.
A federal lawsuit the NAACP filed Thursday alleges the constitutional rights of perhaps 350,000 Tennesseans have been violated by the "unequal, inaccessible, opaque and error-ridden implementation" of the law permitting felons to apply to vote again after completing their sentences.
The state stands out in a nation where such rules have a disproportionate effect on people of color, which critics see as an affront to both racial justice and an engaged electorate. The Campaign Legal Center, which drafted the suit, says one in five Black adults in Tennessee can't vote because of their convictions, the second highest disenfranchisement rate after Wyoming, which has a tiny Black population. The same is true for 10 percent of Latinos, a higher share than anywhere else.
Bids to make it easier for felons to register have gained considerable ground in the past decade, adding about 2 million to the rolls — not counting Florida, where a 2018 ballot measure was largely nullified by the GOP Legislature and the subsequent legal fight is ongoing. Another 50,000 will soon be added, because voters in California agreed last month to allow felons to vote as soon as they get out of prison. The ACLU this week appealed the dismissal of a lawsuit that would make that the case for another 53,000 in Minnesota.
Sign up for The Fulcrum newsletter
That is already the rule in 16 states, and 21 others allow felons to vote after completion of probation and parole. Tennessee is among the remaining states where such restoration is not automatic, and usually includes a requirement to pay court costs and restitution — an impossible challenge for many ex-convicts, especially in tough economic times. Moreover, granting a felon's application is largely at the discretion of the state's 95 counties.
That "wild goose chase" violates the due process clause of the 14th Amendment, the suit says, by making Tennesseans confront conflicting bureaucracies among court systems, the department of corrections and local election commissions to get their voting restoration approved.
The result, according to state records, is that in the past four years only 3,415 felons have secured their voting rights.
Of the more than 5 million felons effectively blocked from the ballot box, the nonprofit Sentencing Project estimates almost 10 percent live in Tennessee, a state with 2 percent of the nation's population. The 360,000 people who have finished probation and parole account for 7 percent of the state's adult population, the second-highest share in the nation after Florida.
Legislation to smooth the process has been consistently blocked in the General Assembly, where the Republcian majority is generally of the view that rewarding criminals too soon is an injustice to their victims. Proponents say that democracy is improved by allowing people who have paid their debt to society to perform the civic duty of voting. (The debate mainly falls on party lines, since the felon vote is reliably Democratic.)
Indiana is the ninth state to extend the deadline for accepting mailed ballots since the outbreak of the coronavirus.
A federal judge extended the deadline Tuesday for mail-in ballots to arrive at the election offices in reliably red Indiana, while an appeals court upheld a similar extension in battleground Wisconsin.
Judge Sarah Evans Barker of Indianapolis ordered a 10-day extension for absentee ballots, meaning as long as they are postmarked by Election Day they will still be tabulated if they arrive by Nov. 13.
That ruling makes Indiana the ninth state where the window for accepting mailed ballots this year has been extended, either by the state voluntarily or as a result of a court order. The longer deadlines, which have become one of the more frequent easements for the record surge of voting by mail because of the coronavirus pandemic, mean results of close contests up and down many ballots may not be reliably clear for many days after Nov. 3.
That now looks quite likely to be the case in Wisconsin, a presidential tossup with 10 electoral votes on the line. The 7th Circuit Court of Appeals ruled that the Republican Party did not have standing to appeal last week's trial court ruling extending the deadline to count ballots in that state by six days.
The Indiana case was brought by the NAACP and Common Cause. They were represented by, among others, the Chicago Lawyers' Committee for Civil Rights.
Sign up for The Fulcrum newsletter
"Indiana's early deadline would have posed a particular risk to the voting rights of young voters and voters of color," said Jenny Terrell, an attorney for the plaintiffs. "This ruling will certainly help avoid mass disenfranchisement for all Hoosiers."
Indiana remains one of five states that still require an excuse, beyond fear of contracting Covid-19, for requesting an absentee ballot.
Inmates at Illinois' Cook County Jail cast ballots in the March primary. A county ordnance requires more access to voting in jails.
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.
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 Campaign Legal Center, which advocates for voting rights.
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.
Sign up for The Fulcrum newsletter
"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."
Even in normal times, Paikowsky said there are a variety of hurdles incarcerated voters must overcome to cast largely absentee ballots.
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.
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.
"If the state doesn't provide them with an alternative means of exercising that right," Paikowsky said, "then they're just disenfranchised."
Among other solutions to combat this, jails often rely on groups such as the League of Women Voters and the NAACP to run voter registration drives.
"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 Brennan Center for Justice, 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."
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.
"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."
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.
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.
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.
"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."
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.
"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."
Mississippi is facing a lawsuit challenging its restrictive law governing who can vote by mail and who must go to the polls, like this 2018 voter in Ridgeland.
A lawsuit filed Thursday in federal court challenges the requirements governing voting by absentee ballot in Mississippi — among the most restrictive of any state.
The suit takes issue with the rule that people have an excuse in order to vote by mail, that absentee ballots must be notarized, and that the state has no provision for notifying people if an absentee ballot has been rejected so voters can fix the problem.
Mississippi is one of just seven states that requires an excuse for people to receive an absentee ballot for the November election, according to the National Conference of State Legislatures. A majority of states already have "no excuse" absentee voting and several more are making an exception for the 2020 general election because of the coronavirus pandemic.
The Lawyer's Committee for Civil Rights Under Law and the Southern Poverty Law Center, among others, filed the lawsuit on behalf of the League of Women Voters Mississippi, the Mississippi State Conference of the NAACP and three voters. The defendants are Secretary of State Michael Watson and Attorney General Lynn Fitch.
The plaintiffs are asking that the requirements for absentee ballots be ruled unconstitutionally strict and that preliminary and permanent injunctions be granted to block them in advance of the November election.
Sign up for The Fulcrum newsletter
"Mississippi has some of the most restrictive burdens on absentee voting in the nation that run afoul of the Constitution and have a particularly stark impact on Black voters," said Jennifer Nwachukwu, counsel at the Lawyers' Committee for Civil Rights Under Law.
Legislation signed this summer by Gov. Tate Reeves adds being under "physician-imposed quarantine" for Covid-19 or "caring for a dependent" with the disease as valid reasons for allowing people to cast an early in-person absentee ballot.
But the law does not make those excuses allowable for voting by mail.
The legislation passed this summer did make one change praised by voting rights activists. Previously, absentee ballots had to arrive at the election offices by Election Day in order to be valid.
Now, absentee ballots will be counted if they arrive within five days after the polls close and are postmarked by Election Day.
