Elections often inspire conversations about “forgotten voters” — people who are left with little motivation to vote because most politicians have ignored their needs. It’s a dubious term, sometimes used by politicians to describe whichever group of people they’re courting on a given day, and it serves little purpose other than to advance campaign narratives. But regardless of who, exactly, the forgotten voter is, there is a group of voters that is so left out of the conversation that it’s physically impossible for some of them to cast a ballot despite having the right to do so: people in prisons and jails.
There are, on average, over 700,000 people in American jails at any given moment. And while most of them are still eligible to vote — since they are either in pretrial detention and legally presumed to be innocent or are serving post-conviction sentences for minor offenses — many are effectively barred from doing so because of various obstacles they face to cast a ballot, like jail mail delays and limited access to registration forms.
The de facto disenfranchisement of jailed citizens is a democratic failure, and it has the effect of hurting some communities more than others. That’s because people in jails are “disproportionately likely to be poor, Black, and have chronic health problems,” said Wanda Bertram, a spokeswoman for the Prison Policy Initiative. “Counties and cities are locking up their most vulnerable residents, often for very minor infractions. And as a consequence, those people who are stuck in jail on Election Day are not able to exercise the franchise, which means we are missing the voices and the input in our elections of some of our most vulnerable and marginalized people.”
So how is it that people who maintain the right to vote are more or less prohibited from doing so? In many cases, it’s a matter of mass confusion. Even people administering elections are themselves unsure of whether people in jail have the right to vote, because election officials are often not trained on their state’s disenfranchisement laws. As a result, there is widespread — sometimes unintentional — misinformation that trickles down from election offices to the criminal justice system to those who are incarcerated, who aren’t made aware that they are still eligible to vote.
In other cases, it’s a lack of legal protection: Sixteen states, for example, require voters to provide a reason to receive an absentee ballot. Many of those states, however, do not consider incarceration a valid excuse, which means that even though most people in jail are still technically allowed to vote, there is no actual way for them to do so.
Few of these barriers affect people who can afford to post bail, because they can vote in person — although the lack of clarity about their rights that persists even upon release might discourage them from registering to vote. In the end, this kind of disenfranchisement mostly impacts the poor. “What we’ve done in our criminal justice system is ensure that the poorest people who end up in the justice system are the least likely to be able to exercise the franchise,” Bertram said.
This is why disenfranchisement laws of any kind make democracy harder to maintain. Since many prisoners lose the right to vote, there isn’t enough election infrastructure — such as polling locations or registration drives — in jails and prisons, and that leaves hundreds of thousands of eligible voters de facto disenfranchised. That’s one reason prisoners should never lose the right to vote in the first place: Once a nation deems one class of people unworthy of the franchise, other classes will follow until the only voting bloc that matters is that of the privileged and powerful.
Every person who has the right to vote should be able to do so with ease, no matter their circumstance. And until the most marginalized people are able to effortlessly cast their ballots, fair democracy in America will remain an ideal, not a reality.