CHICAGO, ILLINOIS - OCT. 17: A Cook County jail detainee uses a touch screen to cast his votes at a polling in the facility set up for early voting on Oct. 17, 2020 in Chicago, Illinois. It is the first time pretrial detainees in the jail will get the opportunity for early voting in a general election. (Photo by Nuccio DiNuzzo/Getty Images)

Voter disenfranchisement is one of the longest lasting effects of incarceration. How people lose the right to vote upon entering the system varies across the country, but those most deeply impacted nationwide are those with felony convictions. With the exception of Vermont, Maine, and Washington, D.C., every state currently disenfranchises people convicted of felonies while they are incarcerated. And in many places, people returning home don’t fare much better. In 2020 approximately 5.2 million people were disenfranchised nationwide due to a felony conviction, and almost 2.23 million of them were no longer incarcerated.

As voter suppression issues have taken center stage in the most recent elections, expanding voting access to those still incarcerated or who have returned home has also taken precedence. Initiatives like drafting legislation to expand voting access for eligible incarcerated voters and campaigning for ballot initiatives have been an incredibly fruitful tool for advocates working to return the ability to vote to people who are or have been entrenched in the criminal legal system. 

In 2018, five million Floridians cast ballots for Amendment Four, ending the state’s lifetime ban on voting with a felony conviction—excluding those convicted of murder or felony sexual offenses—after they complete probation or parole. Since 2018, 11 other states and Washington D.C., have made steps toward restoring the voting rights of those who have felony convictions. In addition to legislation, ballot initiatives have been used to push voter enfranchisement policies forward, using the vote itself to galvanize public support behind expanding voting access. 

In 2020, Washington, D.C., restored voting rights to incarcerated people currently serving sentences on felony charges. Advocates have proposed legislation to establish polling places in county jails so that people who are in pretrial detention or serving short sentences can still participate while other efforts are exploring how to extend resources and information about voting eligibility and how to restore the right to vote for those currently inside, on probation, on parole, or who have had past felony convictions. 

Despite the potential of these laws and the shift they signal in how the country views the ongoing punitive nature of incarceration, passing voter enfranchisement legislation doesn’t automatically translate to the immediate restoration of voting rights for those trapped by the carceral system. Advocates face multiple barriers, such as inadequate implementation, a lack of awareness about these legislative efforts and initiatives and how they benefit those who’ve been disenfranchised, and purposeful attempts by opposing forces to thwart their success.   

Blunting the impact of re-enfranchising voters in the system

When Amendment Four passed in Florida, it was a watershed moment for voting rights. In 2018, Florida was responsible for almost a quarter of the nation’s disenfranchised voters with an estimated 1.7 million Floridians not eligible to vote due to a past conviction. As in other communities across the country, voter disenfranchisement acutely impacted Florida’s Black community—one-fifth of all Black adults in the state had been rendered ineligible to vote.  

However, barely a year after Amendments Four’s successful passage—during which over half of Florida voters voted in favor of the policy—Gov. Ron DeSantis threw an almost inconceivable wrench into the success by signing Senate Bill 7066 into law in June 2019, which added new requirements to the amendment. Under SB 7066, only Floridians who had completed “all terms of their sentence,” including the full payment of any restitution or fines, fees, and costs associated with their incarceration, could regain their right to vote. 

Analysis from the Sentencing Project estimates that roughly 900,000 Floridians who have completed their sentences, including probation or parole, remain disenfranchised due to such outstanding debts, making the state a leader in the number of residents stripped of their right to vote. Advocates for Amendment Four argue that the legislation intentionally stifles the scope and impact of the amendment, particularly for low-income Black Floridians, and have filed a handful of lawsuits that have been unsuccessful so far. 

Amendment Four’s successful passage and the fervent backlash that followed may have elevated the policy to the national stage. Still, in some counties and states, policies attempting to increase access to the vote can make their way through the legislature with such little fanfare or so much misinformation that those who are formerly incarcerated or are still inside don’t know they have the ability to vote. That knowledge gap between those pushing forth these policies and those who are intended to benefit has been a primary barrier to the success of these initiatives. While criminal justice agencies and authorities may be quick to inform those returning home about their disenfranchisement, it is less common and not always mandated that they provide resources about their voting eligibility.  

According to a 2021 analysis by the Marshall Project in Nevada, Kentucky, Iowa, and New Jersey, all states with recent legislation expanding voting access for the formerly incarcerated—including Iowa, which in 2020 became one of the last states to lift a lifetime voting ban for those with felony convictions—an overwhelming majority of those whose rights had been restored did not register to vote. In fact, none of the four states registered more than one-fourth of such eligible voters. While voter apathy likely contributed to such a low turnout, the Marshall Project analysis points to the fact that many of those eligible voters simply weren’t aware that their right to cast ballots had been restored.

Confusion about the criteria for eligibility under voter restoration legislation can be compounded by the grave risks that can come with casting ballots. High-profile cases such as that of Crystal Mason in Texas can create a chilling effect that thwarts the possibility of new policies. In 2016, Mason was arrested after casting a provisional ballot in that year’s presidential election at the advice of a poll worker. Mason maintains that she was unaware that she was ineligible to vote due to the fact that she was still on supervised release for a federal conviction—she subsequently was sentenced to five years in prison in a case that has made and sustained national coverage. Cases like Mason’s can dissuade eligible voters from attempting to engage in political processes. 

In Florida, recent arrests of formerly incarcerated residents for registering to vote despite being eligible have also created new barriers and fears for potential voters. Neil Volz, deputy director of the Florida Rights Restoration Coalition (FRRC), a group that helped lead the movement to pass Amendment Four, says that this fear of rearrest has kept those who returned home from exercising their voting rights. Volz says that even though individuals were registered to vote, given government-issued voter ID cards, or otherwise told by government officials they were eligible to vote, they’ve still been arrested for casting their ballots. For advocates like Volz, it’s essential to implement structural remedies to counter these chilling effects and ensure formerly incarcerated people in Florida have full access to their voting rights.

“Returning citizens in Florida are on the front lines of our fight for democracy,” said Volz in an interview with Prism. “This is really personal to us, but it’s also about something bigger than politics; it’s about our democracy. Our view is that until the states can verify eligibility on the front end, they should not be arresting people on the back end for voter fraud.” 

For those who are still inside, policies meant to aid their democratic participation can be limited by the structure of the carceral system itself. In July 2020, Washington, D.C., passed watershed legislation extending the right to vote not just for those with past felony convictions but for those currently incarcerated on felony charges as well. But the amendment has faced logistical challenges to full implementation. Authorities found it difficult to ensure that all of those inside were aware of these new voting regulations, and identity confirmation turned out to be an unanticipated complication. Proof of one’s identity is a key part of voting registration, which becomes even more difficult in facilities where incarcerated individuals aren’t able to easily produce traditional IDs or other documentation. Further, the Federal Bureau of Prisons oversees the ability of the D.C. Board of Elections to locate individuals who are federally sentenced and then ensure that they receive adequate information about their voting eligibility. 

“We know who is in our D.C. jail, but when it comes to who’s in the federal system, we don’t know,” said Kathy Chiron, president of the D.C. League of Women Voters. “Because we’re not a state, we have no control over our incarcerated people who are in the federal system. It’s not like other states that have a federal prison in their area. Our people go into the federal system and are scattered in 88 of the 122 facilities around the country, and we have no way of knowing who is where.”  

The D.C. chapter of the League of Women Voters is a part of the Restore The Vote coalition, a group of D.C.-based organizations that worked to pass the 2020 amendment and ensure that all incarcerated D.C. residents can register and cast their ballots if they so choose. The coalition worked with the Federal Bureau of Prisons to craft signage notifying D.C. residents of their right to vote along with an email and a phone number to a hotline for anyone who has questions about the registration and vote-by-mail process. However, the signage’s effectiveness remains unclear, and it’s unknown if the BOP actually put up this signage in the bureau’s facilities to begin with.  

“During COVID, people were locked down 23 out of 24 hours, so maybe the sign is [posted] on an electronic bulletin board or in the reentry center or something, but we don’t know who has access to that,” said Chiron. “Even if they saw the signage with the phone number, not everyone has access to the phone, and if they’re on lockdown for any reason, then nobody has access to a phone.” 

Chiron and her team are also aware that for those inside, there are a limited number of people who can be added to one’s phone list—adding the League’s voting hotline can mean that there’s one fewer loved one or family member that a person can contact. They’re hoping to work with the BOP to allow the voter hotline to be included outside of the phone list, similar to if someone wanted to call their attorney.  

For those who do successfully register, there’s another barrier specific to incarceration. As a vote-by-mail jurisdiction, the local board of elections sends wardens and reentry clerks voter registration forms and ballots to distribute to D.C. residents incarcerated in their facilities. Aspiring voters must then mail back their forms and ballots while knowing that these items can easily be intercepted by facility personnel. 

“Mail going to and from a prison—unless it’s marked special mail or privileged mail—is opened and scanned, and the incarcerated person gets a photocopy of the letter,” Chiron said. “So we don’t know if the voter registration forms were opened. Then they’re registered, and they get their ballot by mail because we’re entirely a vote-by-mail jurisdiction, but we know from the last election that ballots were opened and partially marked, making them potentially invalid. It’s supposed to be special mail so that they’re not opened. But that’s really at the mercy of the mail clerk. We don’t know, and it’s challenging.” 

In November 2020, only 562 of roughly 4,000 incarcerated D.C. residents registered to vote—less than half of those who registered would actually cast ballots. However, according to reporting from the Virginia Mercury from earlier this summer, voting advocates and the city’s Board of Elections are hopeful that participation will increase this year. As of June, 650 incarcerated residents in the District are registered to vote, and the registration rate is notably higher among people detained in the jail as opposed to those incarcerated in federal facilities across the country.  

How are activists course-correcting?

While advocates and state officials in favor of voting restoration have to deal with new, often unanticipated difficulties, those problems are also reminders that lower registration is not a result of general apathy or a desire to willingly relinquish voting rights. As a result, interventions ranging from new legislation to innovative outreach and programming run by local grassroots organizations could make a profound impact.

In states where successful integration of formerly incarcerated voters in the electorate is based on public education, reentry groups are filling that need. These groups are able to target their Get Out the Vote efforts toward those in their community who are  already receiving services and who may remain unaware of their eligibility under new legislation. Furthermore, legislation continues to be an avenue for opening new pathways to the ballot and remedying some of the pitfalls of past policies. After years of failed campaigns, advocates in New York, including the Brennan Center, successfully passed legislation in 2010 requiring criminal justice agencies and authorities to inform returning citizens of their right to vote. 

While there are still barriers to implementing D.C.’s new policy for those incarcerated in federal facilities, outreach efforts for those detained in the D.C. county jail have been far more successful, and organizers have developed strategies that are proving to be effective. 

“We go cell door to cell door and work with every incarcerated person [to get registered],” said Chiron. “The only unit we did not go into before the primary was the suicide watch unit, but otherwise, we visited every corridor, including the infirmary.”

In April, George Washington University and the League co-hosted candidate forums for the attorney general and mayoral races, and a video of the panel was uploaded to tablets available for purchase at the D.C. county jail in advance of the primary elections. Additionally, PDF versions of the League’s district-specific voter access guides were made available to those in the jail as well. While nonpartisan candidate information can be difficult to provide to those in federal facilities because of the BOP’s restrictions on materials sent in by nonprofits, such resources are profoundly important in getting folks registered and helping them feel knowledgeable and confident when it comes time to cast their ballots. 

Meanwhile, when Florida’s Senate Bill 7066 created obstacles for formerly incarcerated voters, groups like FRRC quickly developed new ways to bridge the gap. According to Volz, the bill included provisions that advocates had asked for, such as giving judges the power to modify a person’s sentence and modify financial obligations into community service or waive them completely. For those who still had fines to pay, advocates created the Fines and Fees Modification Program to provide financial assistance to Floridians who have returned home and remain barred from voting. Through an Attorney Assistance Program developed in partnership with We The Action, FFRC also connects pro-bono attorneys with formerly incarcerated clients. 

“Once the bill passed, and even before it was signed into law by the governor, we began to talk with people we had relationships with—state attorneys, public defenders, court judges, and clerks,” Volz said. “We [began] to see that if you put yourself in the shoes of somebody who might owe $700 or $1,200, we also began to ask ourselves: could you pay those financial obligations directly?”

Volz says that the fund has raised $30 million from over 90,000 donors nationwide to date, offering 40,000 Floridians the opportunity to register, cast their ballots, and access a host of other resources that unpaid fines and fees had obstructed them from.

“From our perspective, it’s a long march,” Volz said. “We won’t rest until every single individual impacted by Amendment Four has access to the ballot box.”

Tamar Sarai

Tamar Sarai is a features staff reporter at Prism. Follow her on Twitter @bytamarsarai.