This article was first published in The Chicago Reporter.
The gym could pass for any Election Day polling place. Two volunteer election judges hurriedly sorted dozens of sealed manila envelopes containing ballots for last April’s suburban Cook County municipal elections. One of the judges propped two white plastic shields on top of a long metal table, creating a makeshift voting booth.
Voting, Jail, and Illinois Law
Under Illinois law, people awaiting trial in jail are eligible to vote. But if you’ve been convicted of a crime and incarcerated, you cannot vote. The law applies to people serving time for misdemeanors in local jails and for felonies in prisons.
Once you are released from prison or jail, you regain the right to vote–that includes people who are on parole or probation.
Source: The Chicago Lawyers’ Committee for Civil Rights; Cook County Clerk’s Office
Minutes later a Cook County Jail guard ushered in the first voters—two female inmates dressed in pink jumpsuits.
On March 28, for the first time in nearly a decade, eligible inmates were allowed to vote in person and submit their ballots to election officials rather than mail them in. Cook County Jail is among a few places in the nation that permits in-person voter registration and voting. The county clerk’s office and volunteers worked with jail officials to set up two polling places—the gym for women, a chapel for men in maximum security.
Michelle Mbekeani-Wiley, of the Sargent Shriver National Center on Poverty Law, a social and economic justice organization, spearheaded the effort. Since last year she and a band of volunteers have visited the jail every weekend to do voter education and register inmates awaiting trial.
“People who are currently detained are impacted by those very same policies that our elected officials are making critical decisions on,” said Mbekeani-Wiley, explaining why inmates should be able to vote. “They should be part of that process.”
In Illinois, inmates awaiting trial have the right to vote, but the state law is vague and the ability to vote may depend on having a supportive jail administrator and election authority official who allow voter education drives behind bars. There is no way to track whether eligible inmates are being denied access to the vote.
Millions of African Americans cannot vote because they are imprisoned for committing felonies, as Michelle Alexander chronicles in her book “The New Jim Crow: Mass Incarceration in the Age of Color Blindness.” But thousands of people are in jails across the country, and a majority can still vote. In 2015, 700,000 people were in the nation’s jails, according to the U.S. Justice Department’s Bureau of Justice Statistics. Of those, at least 63 percent were still eligible to vote, say prison reform experts. These inmates are often poor Blacks and Latinos who cannot afford bail, creating what activists say is two classes of voters.
In the last presidential election, civil rights groups blasted voter identification laws but ignored the jail population, said Marc Mauer, executive director of the Washington, D.C., based The Sentencing Project, which advocates for sentencing reform.
“It is not only the system,” he said. ”I think the advocacy community needs to pick up on this issue as well.”
Before volunteer election judges and poll watchers fanned out among Cook County Jail’s 10 divisions in March, Mbekeani-Wiley sat in an office sorting blue bags containing ballots. Mbekeani-Wiley’s curiosity about voting access in jails brought her to this moment.
“When you engage face-to-face with people,” she said, “I think they’re more likely to register to vote than getting a packet in the mail.”
Last year, Mbekeani-Wiley began going inside the jail with volunteers from various groups to register eligible voters. By the time the 2016 general election rolled around, they had registered 1,000 new voters at the jail.
In the 2016 general election, nearly 1,200 ballots came from Cook County Jail, whose population hovers around 7,000 and is 74 percent black.
Mbekeani-Wiley’s efforts are not the first. The civil rights organization Operation Rainbow/PUSH has gone inside the jail since 1974 when a Supreme Court decision found it unconstitutional for states to deny access to the ballot for people in jail awaiting trial. The ruling left it to the states and election administrators to determine how inmates could vote.
Jurors are selected from voter rolls, which adds to the importance of voter registration in communities of color, said the Rev. Janette Wilson, senior advisor to the Rev. Jesse Jackson Sr., the organization’s founder. She said blacks are woefully absent from the jury pool, which can affect the outcome of a trial. Black men, Wilson added, are more adversely affected by the criminal justice system. On a recent visit, Wilson said Jackson asked inmates if they would serve on the jury in the trial of a Chicago police officer accused of shooting teenager Laquan McDonald in 2014; all said yes.
Wilson said, “So part of the push was to get Blacks to see the links between voter registration and jury selection.”
Cook County Clerk David Orr, who oversees county elections, said in a statement to The Chicago Reporter: “I believe everybody entitled to vote should be able to vote. … It’s a matter of human dignity and how society chooses to treat those in jail.”
Orr’s office will look at the resources devoted to in-person voting before deciding whether to do it again.
Cara Smith, Sheriff Tom Dart’s chief policy officer, said the county jail has had an extensive absentee voting process for quite some time. The sheriff’s office sends inmates’ names to the clerk’s office, which determines who is registered to vote and who is eligible to vote. Then officials send voting packets to the inmates. But in-person voting represents “the next evolution to that commitment,” she said.
“To the extent we can create these opportunities that they have on the street while they are in custody, we are going to continue to do so.”
In 2005 Illinois amended a law that disqualified people in jail from voting. But legal experts say the law is ambiguous and could lead to voter disenfranchisement because it doesn’t spell out procedures for inmates to register and vote. And the law doesn’t require election authorities to report vote totals from the state’s jails. As a result, only 23 of 109 election authorities in Illinois reported the votes from the 2016 general election, according to records from the Illinois Board of Election.
Interviews with election and jail officials in Cook, Will, Kankakee, Kane, St. Clair and Lake counties, which have among the largest combined Black and Latino populations in the state, reveal disparities in jail voting practices. Some election officials work closely with jails, like the Lake County Clerk’s office. The clerk’s office emails registration forms and mail-in ballot applications to jail officials, who distribute them to inmates. Near the election, inmates can cast their ballots in person.
Other election officials pass the duty to volunteer deputy registrars who often are not affiliated with the election authority and may not have access to the jails. In most cases, the onus is on inmates to alert jail or election officials that they want to register or vote. In Will County, election officials have no process to go inside the local jail to register inmates and have never been asked to do so.
The disparities in voting procedures in the state’s jails are problematic for the nonprofit Chicago Lawyers’ Committee for Civil Rights. Ami Gandhi, director of voting rights and civic empowerment for the group, said the interpretation and application of the law can vary widely because it is so vague.
“The onus is on the voter and advocates to figure out the lay of the land, where voter access is and is not happening and how to go about making it more uniform and fair,” Gandhi said, adding that there is also little outreach to inmates about their voting rights.
If inmates don’t know their rights, she said, they’re less likely to exercise them. Gandhi cited the example of ex-offenders who are routinely told by parole or probation officers that they do not have the right to vote, which is incorrect.
Unlike officials in Cook, a lot of other Illinois county election officials haven’t considered in-person voting or registration. The reasons can run the gamut, said The Sentencing Project’s Mauer. Logistics and staffing for registering inmates, setting up polling places and even high turnover in the jail population are valid concerns, he said. Most jail officials would say they are not preventing inmates from voting, “but in most cases it hasn’t occurred to them that this is something that they should be considering in their local jails.”
Nationally, grass-roots voter education and registration efforts targeting inmates have met with mixed results.
Philadelphia has farmed out voting to an outside agency for 15 years. There have been problems with the contractors, including not following election procedures.
In Los Angeles County, which has the biggest jail system in the world, the group A New Way of Life has gone inside the jails to register inmates since former President Barack Obama ran for re-election in 2012. But in the last presidential election the group met with resistance from some jail officials. When the group’s request to register voters in the county’s eight jails went unanswered, Susan Burton, the group’s founder, filed an intent to sue in October in the Los Angeles Superior Court.
“Sometimes we get the cooperation of the sheriffs. Sometimes we don’t,” said Burton, whose nonprofit provides supportive and re-entry services for formerly incarcerated women.
“We were communicating with them and they were not being responsive,” said Burton, who cycled in and out of prison for nearly two decades before she started the organization.
The two-month delay between filing the lawsuit and the deadline to register voters left members with only five days to register inmates. There was some urgency to get inside the jails because of a new law allowing people serving minor felony convictions in California county jails access to the ballot box.
The group registered 450 inmates. The average daily population of the Los Angeles County jail is 18,000.
“So when you talk about voter suppression, this is just a perfect case of it,” said Burton. “For African Americans who are incarcerated at an elevated rate from the rest of the populace, it’s like the wins of the civil rights movement are lost on the backs of the criminal justice system.”
In Washington, D.C., prison reform activist Charlie Sullivan galvanized support to pass a law in 2009 requiring the district’s jails to register inmates when they are admitted. The effort grew out of his 17 years going inside the jails to register inmates. Sullivan, co-founder of CURE National, or Citizens United for Rehabilitation of Errants, believes inmates’ right to vote should not hinge on volunteers, but should lay with D.C.’s board of elections and the jails.
“It’s very important that it becomes part of the system,” he said. “The department of corrections must have someone ready to explain the voting process to someone processed into the jail rather than wait for [volunteers] to do it.”
Sullivan traces his interest in voting rights and prison reform to the days following the 1971 Attica prison uprising in New York State. The inmates had rioted over conditions at the facility.
“Always in the back of my mind is people who are not even convicted who are sitting in jail because they can’t afford bond to get out and they are eligible to vote,” said the former priest. He likened denying inmates’ access to the ballot to a poll tax based on ability to pay bond.
“So we have two classes of voters,” he said.
Getting election and jail officials to let inmates register and vote was a tough sell, he said. He recalled when a high-risk inmate shackled at his waist and surrounded by guards was brought into an area in the D.C. jail to vote.
“They took all those things [off] and he sat down at the table and voted. … It brought tears to my eyes,” Sullivan said. “He has not been found guilty of anything, and he was eligible to vote.”
Voting rights advocates in Illinois would like for jails and prisons to be sites for automatic voter registration. Prisoners would be registered upon release. The idea is similar to the D.C. law and taps into the state’s recently passed automatic voter registration law, which allows people to register at certain Illinois agencies. The measure awaits Gov. Bruce Rauner’s signature.
The Illinois Advisory Committee to the U.S. Commission on Civil Rights, which held public hearings on the issue in the spring, is developing recommendations to improve voter access in the state, including for pretrial detainees.
Gandhi says incarcerated voters should have the same options to vote as other citizens. State law gives Illinois residents access to online and same-day voter registration, as well as early voting. In general, jail inmates can only vote by mail, which Gandhi said is a limited way to engage in the political process. The solution, she said, is to have voting machines in jail like a regular polling station.
Doing so will require more collaboration between voting rights advocates, jail officials and election authorities, she said. Gandhi acknowledges Cook County’s efforts to allow inmates to register and vote in person, but she said there needs to be statewide action to end disenfranchisement.
“It’s a step in the right direction,” Gandhi said, “and there is even more progress that is necessary to fully respect the rights of voters in pretrial detention.”