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Voting rights advocates in Alabama achieved a major victory this week, with absentee ballot applications updated for the first time to indicate that people currently incarcerated who retain the right to vote can request an absentee ballot. The fight to allow absentee voting in Alabama is just one part of an ongoing nationwide push to raise awareness and secure ballot access and even polling places for currently incarcerated people.

While there has been coverage around restoring the right to vote to formerly incarcerated persons, few are aware of the rights of people like those in Alabama who are being held in jail while awaiting trial—those who’ve been charged with a crime, but not yet convicted of anything. Under existing laws, people who are incarcerated pretrial still have the right to vote. The same is true for those who are incarcerated after conviction for a misdemeanor, since those crimes don’t trigger felony disenfranchisement laws. According to the American Bar Association, an overwhelming majority of “pre-trial detainees have been charged with only drug or property crimes.” It is estimated that over 30% of those detained pretrial nationwide are in jail because they can’t afford to pay bail. Although these folks retain their right to vote, accessing that right poses several challenges.

First, people who are incarcerated pretrial or for crimes that do not lead to disenfranchisement must know their rights. Many don’t even know they can still vote, how to register, or how to access the ballot. Voting rights advocates and civil rights organizations seeking to reach these folks have had some success in voter registration efforts. While raising awareness and getting them registered expands the potential for electoral organizing with those who are incarcerated (with full voting rights intact), it also requires cooperation from county jail administrators, which may not be easy to obtain. Still, organizers have taken up the challenge. In Georgia, Southerners on New Ground (SONG) has launched a community education effort to inform those detained and incarcerated who still retain their voting rights about how to participate in upcoming elections. SONG organizers held a community forum earlier this month in Muscogee County, Georgia.  

Once people incarcerated pretrial or for misdemeanors are aware of their rights, they need a way to exercise them. Absentee ballots are the main tool used to allow people incarcerated pretrial to vote. In fact, in October 2018, more than 200 people detained at the Dougherty County Jail in Georgia were reportedly able to vote by absentee ballot. But absentee ballot rules vary from state to state. While 33 states and the District of Columbia provide for absentee voting with “no-excuse” or mail in ballots for all eligible voters, the remaining states and territories require eligible voters to provide a reason or excuse for voting absentee. The excuses that make a voter eligible for an absentee ballot are usually listed, and in some instances, being detained or incarcerated is not among them, even though such voters are physically unable to vote in person at the polling place near their homes. This week, Alabama joined just a handful of other states that specifically list detention in jail or incarceration as an acceptable reason for using an absentee ballot,  including New York State, West Virginia, Missouri, Texas, Kentucky, and South Carolina.

However, even in states where use of an absentee ballot is an option, logistical and administrative issues often prohibit detained and incarcerated people from voting. During the 2018 midterm election cycle, civil rights advocates called on the Mississippi Secretary of State and county clerks to address a legal quirk that allowed incarcerated citizens to vote by absentee ballot only if they were being detained outside their county of residence. Similarly in Louisiana, a lack of information about the right to request an absentee ballot has raised concerns of de facto disenfranchisement. Requesting absentee ballots usually takes time, and someone detained may not be able to meet the required deadlines for requesting one in order to vote.

Late last year, Cook County, Illinois emerged as a template for how to organize to protect voting rights for those detained pretrial or incarcerated with their rights intact. There, advocates worked with county officials to set up a temporary polling location in Cook County Jail. They also successfully lobbied for legislative changes at the state level that would guarantee voting rights for those detained, as well as civic education programming. Their advocacy led to the passage of a law last summer that not only establishes a temporary polling location within any jail in a county with a population over 3 million, and requires a process for absentee ballot voting for those incarcerated in counties with fewer than 3 million people.

Through their work, Chicago Votes, a non-partisan non-profit civic organization, moved beyond mere voter registration by working on state level legislative advocacy and helping to execute elections at the Cook County Jail in partnership with the Cook County Clerk’s Office, Chicago Board of Elections, and the Chicago Lawyers Committee for Civil Rights.

The question remains: will other counties follow? A similar effort to bring a polling location to the Harris County Jail in Harris County, Texas was scrapped just before Houston’s 2019 municipal elections. Harris County is home to one of the largest county jails nationwide. Although the Harris County Sheriff’s Office remained interested in figuring out a way to implement an effort at the Harris County Jail, Harris County Clerk Diane Trautman raised objections due to alleged administrative burdens and safety concerns. While those detained pretrial in Texas can request an absentee ballot, the speed of the process depends on the jurisdiction. Like Louisiana and many other states, the delays in processing as well as strict timelines in requesting an absentee ballot can lead to detained voters missing the opportunity to vote entirely. A 2016 report estimated that some 30,000 people across Texas were incarcerated pretrial due to inability to afford bail.

It should be noted that providing for polling locations at county jails should not be used as a means to disenfranchise voters outside of these facilities. Such polling locations should be in addition to those provided for the surrounding community, not in lieu of. In many areas around the country, poll closures and consolidations are forms of voter suppression, leaving many stations with hours-long wait times. Further, moving polling locations to facilities with a law enforcement presence can deter people from engaging civically.

As another election cycle is underway, those committed to positive, forward-moving change should not be content with the status quo. De facto disenfranchisement should not be accepted. Absentee ballot strategies alone may not be enough to enfranchise those who retain the right to vote while detained pretrial or incarcerated, suggesting the need for larger districts to consider the Cook County Jail model. Having a temporary polling location specifically designated for those detained or incarcerated who retain the right to vote ensures people can still cast a ballot without the additional administrative burden. A combination of legislative and community advocacy is needed to ensure rights are enforced and protected. Every vote counts.

Anoa Changa

Anoa Changa is a journalist and organizer focused on innovating electoral justice coverage. Follow her on Twitter at @thewaywithanoa.