UPDATE:
It’s with great pleasure to announce as of Saturday, Election Day May 6, 2023, those detained in Dallas Lew Sterrett Jail will be allowed to exercise their constitutional right to cast their vote as well as the public.
Only 3 cities in the nation allow Jail Based Voting with two cities in Texas, Houston, and now Dallas.
Although Texans convicted of felonies lose their right to vote while serving prison sentences, most of the 6,000+ people detained at the Dallas Lew Sterrett jail maintain their voting privileges as they await trial or serve time for misdemeanors.
Amazing work to all of our coalition partners, and a win for Dallas County. #JailBasedVotingDallas
Executive Summary
An issue at the intersections of voting rights, criminal legal reform, and racial justice is jail-based voting. Thousands of people, disproportionately people of color, are currently incarcerated in Texas jails while maintaining their eligibility to vote in our elections, but are effectively disenfranchised from these processes due to not having reliable means to cast ballots from behind bars. Local county officials should establish polling locations inside local carceral facilities to address this problem so that all eligible voters can exercise their right to vote.
Background
There are currently about 750,000 people in jails in the United States, including about 55,000 in Texas. The vast majority of those incarcerated – usually around 75% of all incarcerated persons in the state – are pre-trial detainees alone, while others are incarcerated for misdemeanor-level charges. This is important because these specific persons maintain their right to vote; only persons convicted of felony charges are currently not allowed to vote. This is the result of a Supreme Court decision from 1974, O’Brien v. Skinner, which ruled that certain incarcerated persons maintain their right to vote despite being incarcerated depending on the level of the offense. Accordingly, there are likely thousands of eligible voters inside Texas jails who should be able to vote in every election they so choose. Unfortunately, this is not the case.
Although incarcerated people have a lawful right to vote, this does not happen in practice. There are very few, if any, reliable means for incarcerated people to vote. Mail-in voting is the primary way incarcerated persons can vote, but this method has two main issues. The first is that there are deadlines for when a voter can request a mail-in ballot (typically in the weeks leading up to Election Day), and if someone is arrested and jailed after the deadline passed, they miss the opportunity to vote by mail. Secondly, many jail officials and Sheriffs refrain from actively providing to people in their jail mail-in ballot applications or ways to register to vote, so in practice, people inside jails largely do not have any options to vote at all.
Defending the right to vote of incarcerated people is critical to having an inclusive and fair democracy. Mass incarceration effectively serves as a means of voter suppression in our state. While movements advocate for criminal legal and justice reforms, it is also incumbent upon local elected leaders to establish the necessary voting infrastructure so that all eligible voters can participate in our elections.
Policy Analysis
Efforts to establish jail-based polling locations will often face common implementation challenges which require bold, innovative, and collaborative solutions from elections and law enforcement officials. For instance, per the State Elections Code, every polling location must be accessible to all voters. A jail-based polling location can comply with this by designing a floor plan which allows incarcerated persons to vote in one area of the jail (often referred to as the “secure side”) and non-incarcerated persons in a separate one (“non-secure side”). Moreover, jail-based polling locations also have to comply with jail rules and protocols. Some jails may require that women and men be separated and not convene in the same area, so a jail-based polling location could schedule either group to enter the voting area earlier in the day and the other group to enter later.
But perhaps the most challenging issue that jail-based polling locations often run into – which is also a uniquely Texas problem – is that all voters are required to present a specific form of identification to vote at polling locations. Many people often lose possession of their IDs upon being incarcerated, so what Harris County has done – as only the fourth locality in the nation to establish a jail-based voting site and the first in the South – is they have worked with community groups and volunteer deputy voter registrars to produce voter registration certificates which incarcerated persons can use to vote. The main complication with this method is that it is very time and resource-consuming, as each person has to fill out and submit an application individually. This is not the case in Cook County, Illinois, where the first jail-based polling location in the nation was established and where state ID rules are laxer (people can vote with only a social security number).
If fully implemented in jails across the state, it is likely that thousands of more people across Texas will be re-franchised into our civic and electoral processes. The Harris County Jail alone has allowed hundreds of incarcerated persons – largely people of color – to vote since its jail-based polling location was first piloted in November of 2021.
Jurisdiction Analysis
Per the State of Texas’ Elections Code, County Governments are responsible for administering all elections in the state. Specifically, depending on the county, Elections Administrators or the County Clerk design and execute elections plans for their local populations. But to bring a polling location inside jails takes a more coordinated effort among multiple county-level officials, including the local County Attorney, Sheriff’s Office, and Commissioners Court.
The Elections Administrator needs to have the equipment, staffing, training, civics curriculum, and elections plans ready to bring to the jails to establish polling locations and educate justice-involved voters on how they can participate. The County Attorney needs to work with the Elections Administrator to ensure that jail-based polling locations are compliant with state elections laws and, in the face of litigation, be willing to go to court if necessary to defend the rights of justice-involved residents to vote from inside jails. The Sheriff needs to authorize local elections officials to establish polling locations inside their carceral facilities and collaborate with the Elections Administrator to create elections plans specifically for justice-involved voters. Finally, Commissioners Court reviews the elections plan and, critically, provides the necessary funds to pay the costs to administer the election, including poll workers, voting machines, elections information marketing, and more. They would need to be willing to vote in favor of an elections plan which includes a polling location inside a jail.
On account of this, campaigns that seek to establish polling locations inside their local jails must be based on a multi-targeted approach and ensure that all these County officials support jail-based voting and collaborate in good faith toward full policy implementation.
Additional Resources