Behind Bars but Free to Vote

earlier this year. She has been a registered voter for more than three decades, but never participated in any elections.

“I just thought if I voted, it really wouldn’t mean anything. I’m just one person,” the 53-year-old Harris said of her long absence from the polls. “I didn’t know I had a voice then. I didn’t know my voice could be through my vote. I just lately learned that.”

Harris’ aha moment came when a correctional officer at the jail asked if she was registered and wanted to vote in Chicago’s March 2020 primary. She didn’t realize voting was one of the few rights she retained while awaiting trial. So she jumped at the chance. Harris saw it as an opportunity to let her voice be heard on issues like substance abuse, housing and jobs, especially for justice-involved individuals.

“I want to be a part of change,” says Harris, who admitted the lack of information on candidates made voting somewhat challenging. “If we are going to be allowed to vote, we need more information on who’s running. I need to know how can I benefit from voting for a particular candidate.”

Harris’ ability to vote inside the Cook County Jail marked the test of a law passed last year designating the nation’s largest single-site detention facility as a polling place. She was among the 1,850 inmates who voted in the March primary, compared to the 1,183 votes cast in the 2016 primary.

Advocates, who had long fought to strengthen ballot access among Illinois’ nearly 20,000 pretrial detainees, attributed the high turnout to the jail being an actual polling place. But that effort was nearly sidelined. During a June board meeting, the city’s election authority floated the idea of jail inmates casting absentee ballots as the country grapples with the novel coronavirus. Since March, the Cook County Jail has had more than 900 confirmed positive cases and seven deaths.

Chicago Votes’ Deputy Director Jen Dean understood the need for keeping the jail population safe as well as the contingent of volunteers that register inmates. But she expressed concern that doing absentee balloting was a step “backwards.” The young-adult-led civics organization has headed up the city’s jail-based voting efforts for the last three years.

“We heard that and immediately started raising the flag of that’s going backwards…,” Dean said. “We definitely [were] advocating to allow machines to protect same-day voter registration at jail as our No. 1 goal….”

Concerns about the global pandemic, which has claimed the lives of more than 200,000 US citizens, prompted many election officials to find ways to hold elections safely without voters choosing between their health and their right to vote. Some elections authorities

expanded online voting, mailin balloting or extended early voting days. Others were less accommodating, say voting rights advocates.

But all these initiatives excluded the nation’s nearly 740,000 jail inmates, some of whom are still eligible to vote but face barriers to ballot access and information. As of midyear 2018, 66 percent or 490,000 of these inmates retain the right to vote because they’re awaiting trial and have not been convicted of a crime. Others serving certain misdemeanor convictions can also vote. Nationally, there has been growing momentum to ensure eligible incarcerated individuals have access to the ballot.

But the coronavirus is compounding those efforts during a critical presidential election. Many jails and prisons have become hotspots for the virus and were put on lock down, including Cook County, to stop the virus from spreading. Advocates who do jail-based voting outreach across the nation had to pivot to find alternative ways to do voter outreach for incarcerated individuals and ensure election authorities or jail administrators won’t use the global pandemic to disenfranchise eligible jail voters. Some community groups mailed voter registration information to people in jails, established voter registration hotlines or piloted polling places inside jail facilities.

Chicago Votes and its partners wanted to ensure Cook County Jail remained a polling place. It will allow inmates to take advantage of same-day voter registration and voting. During the March primary, more than 600 jail inmates chose that route. That wouldn’t happen under the absentee balloting system, which the jail used in the past to allow individuals to vote. A person incarcerated in the jail a few days before the election but after the deadline for absentee ballot application would be disenfranchised, Dean said.

“From our perspective those voters could possibly be disenfranchised if those machines weren’t in there and they only did an absentee program,” she said.

The group is already back in jail doing voter registration and will have two weekends of in-person early voting this month. Since COVID-19 limited jail access, the group hasn’t been able to register as many voters. In 2019 and 2018, they registered 1,765 and 2,735 new voters respectively. At the time of the March primary they registered only a little over 500. “It is a giant relief and a privilege that we are given that I know a lot of people don’t have access to,” Dean said. “I am definitely making sure that people are trained and ready to be in there again because it is a whole different environment.”

In a statement, the outgoing executive director of the Chicago Board of Election, Lance Gough, reaffirmed the board’s commitment to ensuring jail inmates have ballot access. The board runs the jail election with the Cook County Clerk’s office and Sheriff Tom Dart’s office.

“The board will work with the Sheriff’s Department, as it did ahead of the March Primary, to provide a polling place with voting equipment inside the jail,” the statement read. “The board has routinely provided voting and registration services to all pretrial detainees at the Cook County Jail since the 1970s. Only this year, under new legislation that the Chicago Election Board supported, did we gain the ability to grow the program to include placing voting equipment inside the jail so that detainees could cast … there [votes].”

A scaled-down version of early voting is returning to the jail for the general election. The jail will have four polling stations down from seven as it did during the March primary to allow for social distancing and to stay within its COVID-19 protocols, said Cook County Jail’s Marlena Jentz, who added that anyone wanting to vote will have a chance to do so.

“We feel that we can run the operation we need to run and be as successful as we were in March using the four polling locations,” said Jentz, the jail’s assistant executive director of programs. She noted that the volunteer-led voter registration drive is one of many programs returning to the jail as part of its larger initiative to gradually return community-based programming inside the jail.

But she added that allowing detainees to vote is part of Sheriff Dart’s larger efforts to help individuals leaving custody return to their communities as productive citizens. “...[W]hat better way to empower people in a positive way than to say your voice and your vote matters.”

Ballot access in jail depends on the jurisdictions, said Dana Paikowsky of the Washington, DC-based, Campaign Legal Center. Some jurisdictions like Cook County are making strides to provide ballot access while others are not. Though several U.S. Supreme Court decisions, including the case of O’Brien v. Skinner, affirmed that states cannot deny eligible voters who are incarcerated access to the ballot. That’s more theory than practice, Paikowsky said.

Bureaucratic obstacles to voting and establishing jail-based voting policies and procedures limit voter participation, Paikowsky said. Many jails and election officials are unaware that inmates are eligible to vote — even some inmates themselves are uninformed, she said. Access to the internet, reliable mail service as well as information on ballot applications and registration deadlines are not always available to inmates. Unless third parties, like election officials, family members or volunteer groups provide that information, detainees face disenfranchisement, Paikowsky said. Administrative delays also add to those barriers, especially getting election authorities and jail administrators to work in tandem to set up voting infrastructure in jails. The pandemic, Paikowsky noted, just exacerbates those barriers.

“Jails just have layers of bureaucracy that slow the process of requesting and casting a ballot down,’’ said Paikowsky, the center’s Equal Justice Works Fellow. “COVID-19 is taking a situation where voting is enormously

difficult and making it that much more impossible.”

Even more concerning is who jail-based disenfranchisement affects. Jail-based voters are often people of color, low-income, have a disability and can’t afford to bond out, Paikowsky said. It mirrors the history of mass incarceration. Both, she noted, are rooted in this country’s legacy of racism and exclusion of marginalized people. It’s no surprise, she added, that society has not found a way to prioritize their voices.

“It should be more intuitive to the state to put election infrastructures in jails where you know eligible voters will be…,” Paikowsky said. “This is literally a captive population of eligible voters that have been overlooked and unserved for forever. It is time to change it.” The landscape for jailbased disenfranchisement is changing slowly. A handful of jail administrators are putting polling places in their facilities. The Los Angeles Sheriff’s Department rolled out an initiative early this year to put “ballot marking devices” in one of its detention facilities. Last year, advocates urged Harris County officials in Texas to consider placing a polling station inside its jail, but logistical issues stalled the effort.

And Colorado could be the first state in the nation to have on-site polling places in all its county-run jails if Juston Cooper gets his way. His Denver-based organization, Colorado Criminal Justice Reform Coalition, partnered with the Denver County sheriff and the city’s election commission to pilot polling places inside the city’s detention center and the county jail for several early voting days and on Election Day. If the pilot succeeds, Cooper hopes this encourages state officials to make jail-based polling places a statewide policy. But Cooper admitted that the pandemic opened the door to have those conversations.

“Prior to COVID there wasn’t even a conversation,” said Cooper, the coalition’s deputy director. “There wasn’t even an option because Denver [jail] stayed overpopulated. But with COVID, what we are able to do now because of the decreased population is push more for this access.”

Cooper’s group has been doing voter registration and education since 2016. That year, he noted the jail turnout was higher than the county’s. Cooper hopes for a repeat this year even though COVID cut short his group’s outreach.

“We are able to see that folks in jail regardless of being confined who are eligible would actually vote if they are engaged,” Cooper said.

While efforts exist to end jail-based disenfranchisement, another movement is slowly gaining traction to enfranchise people incarcerated in the nation’s prisons. Vermont and Maine were the only two states allowing those serving felony convictions to vote in prison. Washington, D.C., began a similar policy this year. The nation’s capital passed a police reform package in July that included restoring voting rights to D.C. residents serving time in U.S. federal prisons. The district does not have any prisons so those convicted of a crime serve their time in federal penitentiaries.

“So many of us believe that incarcerated people have always been disenfranchised or that somehow losing the right to vote is part and parcel for punishment of a crime. Frankly these are two very different things,” said D.C. Councilman Robert C. White, who dovetailed his “Restore the Vote” amendment into a broader police reform bill.

The law mandates the district’s board of election and the Federal Bureau of Prisons identify residents in federal prisons and send them absentee ballots. It affects about 4,500 incarcerated D.C. residents serving time in federal facilities. Enacted on an emergency basis, the law will enable D.C. incarcerated residents to vote in the November general elections. The City Council is expected to pass a permanent version of the bill later this year. “I think my bill will help incarcerated people be seen as an important constituency,” White said. Giving them a voice through their vote will result in greater accountability within the prison system, which he noted, overuses solitary confinement, offers inadequate reentry support and subpar health care.

“People impacted by these bad policies have no vote to hold elected representatives accountable,” he said. “With the vote I certainly expect incarcerated people to demand better services and, frankly, that is going to make us much safer and help decrease recidivism across the country.”

White hopes his bill inspires others to follow suit. There have been unsuccessful attempts in Hawaii, Connecticut, Massachusetts, New Mexico and New Jersey to enfranchise people incarcerated in prisons. U.S. Congresswoman Ayanna Pressley of Massachusetts introduced a comprehensive criminal legal reform resolution in the House last year. The resolution aims to ensure voting rights for all citizens, including those incarcerated in prisons, the formerly incarcerated and those awaiting trial. Attempts to reach Pressley for comments were unsuccessful.

Back in Illinois, State Rep. LaShawn Ford is building on Illinois’ efforts to eliminate jail disenfranchisement. Ford introduced two bills this year that could grant residents in Illinois prisons the right to vote. One bill goes as far as to amend the state constitution to enfranchise those sentenced to prison while the other seeks to change state election code.

Incarceration, Ford noted, disproportionately affects Black people who suffer from collateral consequences long after they complete their sentence. Individuals with felony convictions find it difficult to get employment, housing, or even scholarships to attend college. Prison, he said, should be about the rehabilitation of a person, not the loss of one’s citizenship.

“The loss of one’s freedom and being away from family should be the punishment for breaking the law,” he said. “Taking voting rights away is modern-day enslavement. How does that help them reintegrate into society? How is that a good punishment saying, ‘You can’t vote.’”

Harris, the Chicago resident who voted for the first time in Cook County Jail, hopes to be home for the November general election and plans to vote. She landed back in jail on a probation violation in July. But she has a message for critics reluctant to enfranchise incarcerated citizens.

“My ancestors already paid the price so that we may vote. The price has been paid,” said Harris, who plays several reed instruments and aspires to write scores for motion pictures. “Because we are incarcerated does not mean we don’t have principles and morals. It doesn’t mean we don’t want change.”