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.
"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."
"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."
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While most voters believe their health will not be at risk while casting ballots in November, attitudes about the election depend greatly on political affiliation and demographic factors, a recent report found.
The study, released Thursday by the Rand Corp., details expectations among voters about public safety, election integrity and the preparedness of local officials to run the 2020 presidential election amid the Covid-19 pandemic. Most voters — 55 percent — trust that their vote will be properly counted after months of President Trump and other administration officials casting doubts on voting by mail. F
Political affiliation significantly influenced responses. Among Republicans, 86 percent feel voting will be safe from health risks, while only 54 percent of Democrats agree. Republicans were also more concerned than Democrats that their votes won't be properly counted.
Race and age also affected how people responded. White and older respondents had significantly more trust that their votes would be counted than Black, Hispanic and younger respondents. As a previous survey found, many young voters are worried about the integrity of the election. Overall, older voters — despite being at higher risk of Covid-19 infection — had more positive perceptions of election safety, integrity and preparedness.
"This might reflect the fact that, in recent decades, older Americans have generally tended to have greater trust in government institutions than younger Americans," the report concluded.
The survey also found a correlation between those who question election safety or integrity and those less likely to vote. More than seven in 10 of those who voted in 2016 or 2018 believe in the election's integrity, while just four in 10 of those who did not vote in the last two elections have that same belief.
Despite these differences, there was widespread support "for sanitation and social distancing at poll locations but lower support for sending mail-in ballots to all registered voters or using online voting."
While the number of voters casting their ballots by mail has increased steadily over the past 30 years, a large jump is expected this year due in part to the pandemic and correlated health fears. Almost half of voters plan to vote remotely, up from about a third in the last election.
The report, though, said expanding no-excuse mail-in voting as well as targeting messages at the most skeptical groups might mitigate voter concerns.
Rand surveyed more than 2,000 respondents in late May and early June across the country and considers its findings to be a snapshot in time, when the pandemic had mostly affected the Northeast and Midwest. Because of the ever-changing dynamics of the virus, current attitudes on voting could vary, the company said.
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RepresentUs, a leading good-governance advocacy group, will host a star-studded virtual event on Sunday, hoping to raise $2 million for increased access to secure mail-in ballots and safe in-person voting.
Dubbed United to Save the Vote, the event will be emceed by actor Ed Helms with performances from Jennifer Lawrence, Zooey Deschanel, Sia, Dave Matthews, Sarah Silverman and other A-listers. It will support VoteSafe, a cross-partisan coalition chaired by Republican Tom Ridge, a former governor of Pennsylvania and first secretary of Homeland Security, and Democrat Jennifer Granholm, a former governor of Michigan.
"American voters face unprecedented threats to casting their ballots safely and securely during November's critical elections — from the ongoing pandemic to a dramatic shortage of poll workers to interference with the United States postal service, which undermines the security and validity of mail-in voting," the group said in announcing the event.
The money, part of a final push for a monthslong campaign, will go toward increasing trust in mail-in voting through ad buys, spreading the word that it will take more than a day to get election results and ensuring absentee voting and safe in-person polling locations for every voter.
Ridge has already begun making the rounds in national networks, trying to dispel the notion of an election day and educating people about "election week or election month."
According to RepresentUs, which advocates overhauling lobbying, transparency and campaign finance laws, a $10 donation would help spread information to 200 people. With $2 million, the group could reach 40 million Americans.
While the event is free to attendees, the hosts hope the big-name music and comedy performances will generate a large number of small donations for VoteSafe.
"VoteSafe fills critical gaps not covered by other organizations," RepresentUs co-founder Joshua Graham Lynn said.
Seven state election officials have endorsed VoteSafe's principles since it formed in May: Republicans Brad Raffensburger (Georgia), Kim Wyman (Washington) and Ben Clarno (Oregon) and Democrats Jocelyn Benson (Michigan), Jena Griswold (Colorado), Maggie Toulouse Oliver (New Mexico) and Denise Merrill (Connecticut). Caroline Fawkes, the supervisor of elections of the U.S. Virgin Islands, has also signed on in support.
"When it comes to preparing our voting systems for November, we must be prepared to execute two simultaneous elections," Ridge and Granholm said in a joint statement. "An in-person option with all of the secure infrastructure and health accommodations that requires, plus a robust and secure absentee ballot process with the support needed to run efficiently."
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