Of the 550,000 people detained in city and county jails across the United States, 448,000 are detained awaiting trial. The number of people detained pretrial increased 433% between 1970 and 2015. Legally innocent, pretrial detainees never lose the right to vote — but procedural and logistical barriers to casting a ballot from jail systematically disenfranchise them. Nevada’s Assembly Bill 286 (effective January 1, 2024) attempts to actualize the right to vote from jail, requiring city and county jail administrators to establish policies ensuring that every detained, eligible would-be voter can register to vote and vote from jail. The Bill’s aspirations were realized when, for the first time, detained individuals voted from a polling booth within the Clark County Detention Center on June 11, 2024. Yet, the Bill’s major liability — the broad discretion it vests in individual jail administrators — was borne out upstate in Elko County, where no detainees registered to vote or voted from jail in the presidential preference primary election on February 6.
Nevada’s mixed success in realizing jail-based voting is the output of Supreme Court jurisprudence that has made an empty promise of eligible detainees’ legal right to vote. Though the Court held in O’Brien v. Skinner that states may not arbitrarily deny the right to vote based on detention status, it has never affirmatively obligated jail or election administrators to provide meaningful ballot access. So long as there exists some mechanism by which detained voters could vote, notwithstanding the practical impossibility of doing so, the Court has been unwilling to vindicate detained would-be voters’ rights. For example, in McDonald v. Board of Election Commissioners of Chicago, the Court upheld an application of Illinois law that prevented pretrial detainees from voting by absentee ballot. Because the detainees had not been cut off from the exercise of the franchise at large, the Court sustained the absentee provisions. Of course, being expressly denied the right to vote versus being denied an absentee ballot is often a distinction without a difference in jails, where mail-in ballots are typically the only mechanism by which to vote. As it stands, though, disenfranchised would-be voters in jail have no recourse for anything less than outright denial of the franchise. The result is a democracy crisis largely affecting those whose political power has already been marginalized: the population of pretrial detainees is 43% Black and overwhelmingly low-income given racially disparate money bail systems that trap poor people in jail before trial.
Enter AB 286, which picks up the slack by obligating jail administrators to formulate policies to facilitate jail-based voting. It does so by combining direct obligations with a great deal of policymaking delegation to individual jail administrators.
The highlights of AB 286 are the specific obligations it imposes on jail administrators to address common barriers to voting from jail. The Bill mandates that each jail provide voters with a pen with which to vote, a crucial intervention given many detainees’ inability to access basic necessities. (Nevada already provides for postage-paid election mail, obviating the need for stamps.) It requires that jails cooperate with the county clerk’s process for ballot collection and transmittal to the relevant election authority. This element stands in stark contrast to the laws in other states prohibiting or even criminalizing absentee ballot collection, which likely chill volunteer activity sometimes relied upon to get registration forms and absentee ballots to and from detained voters. The law also provides that jails must prominently post guidance for detained voters including procedures for registering to vote and voting at the jail; access to information is key given that a lack of voter information impedes exercise of the franchise even where all those in prison can vote.
These are all laudable steps toward enfranchising thousands of individuals detained during election periods. What, then, explains the voter access chasm between Clark and Elko Counties? AB 286 leaves its crux — the mandate to enfranchise jail-based voters — largely to the discretion of individual jail administrators. The centerpiece of AB 286 provides that “[e]ach person who administers a county or city jail shall establish a policy that ensures that: (a) A person who is detained in the jail and is a registered voter may vote in each [election of various types] in which the person is eligible to vote; and (b) A person who is detained in the jail and is a qualified elector may register to vote in each [election of various types] in which the person is eligible to register to vote.” That leaves room for any number of approaches — it invites the possibility of Clark but runs the risk of Elko in the same breath.
Clark County’s implementation of AB 286 exemplifies what is possible when jails take seriously their duty to provide meaningful ballot access to detained voters. Crucially, the detention center embraced jail-based polling sites, which have emerged as the gold standard for advancing detained voters’ ballot access. (The Illinois legislature did the same in 2019, requiring the Cook County election authority to establish a polling place in the county jail. The Cook County jail, where less than 7% of detainees voted in the 2018 primary election, outperformed the rest of Chicago in registered voter turnout by 2022.)
Elko County and others like it, though, showed reluctance to meet even the baseline requirements of AB 286. When the ACLU of Nevada obtained records from the twelve covered jails three months after the law took effect, it found that five had no policy or policies unresponsive to AB 286, six had no policies for same-day voter registration, and ten had no procedures on how a voter detained outside of their home county could vote, all requirements of AB 286. Elko County’s AB 286 implementation policy provided in a series of conclusory, boilerplate bullet points that the jail administration would, for example, “[e]nsure that a person who registers to vote or votes in a jail may do so without coercion or intimidation” and “[p]rovide each person detained . . . with a reasonable amount of privacy to vote.” As the ACLU’s lawsuit noted, Elko County’s “policy . . . is that [it] will create a policy to comply with AB 286.” Many counties eventually adopted compliant policies only at the behest of the ACLU of Nevada, which worked with administrators to develop policies and threatened to sue for noncompliance.
Delegating policy discretion to jails can be the difference between a detained voter’s ballot counting and spoiling. Take AB 286’s ballot-curing provision, which mandates that jails “allow [detained voters] to cure any defect in the signature on a mail ballot.” Ballot curing tends to involve online portals or time-sensitive mail or telephone calls to voters, a system untenable in jails where internet access and telephone communication are burdened and slow. A robust ballot-curing policy could overhaul what is ordinarily not a jail-friendly process. But is the generic directive in AB 286 sufficient to spur jail administrators to develop comprehensive policies facilitating and encouraging ballot curing in jails?
While Clark County’s embrace of the spirit of AB 286 is cause for optimism, it should not be taken to vindicate the strategy of delegating broad discretion to individual jails or localities. Experience suggests that jail-based voting policies are most effective when they come from the top, in the form of strong, specific mandates. Consider rising jailed-voter registration in the District of Columbia, whose Board of Elections is statutorily obligated to provide every resident in the custody of the D.C. Department of Corrections and the Federal Bureau of Prisons a voter registration application, educational information, and — for registered voters — an absentee ballot. Recall that Illinois requiring Cook County to open a jail-based poll site turned the jail into one of Chicago’s most active voting precincts.
A state-level approach that places detailed, affirmative obligations on jail and election administrators (up to and including the establishment of jail-based poll sites) would also facilitate comprehensive voting-from-jail information dissemination. That could go a long way toward combating the chilling effect of misinformation that swirls around voters in contact with the criminal legal system. A state that imposes comprehensive and consistent vote-from-jail procedures supported by robust detained-voter outreach can take the fear out of voting from jail.
AB 286 is a welcome experiment in the effort to actualize the right to vote from jail. And it is no surprise that its crowning achievement has been the establishment of the Clark County jail-based poll site. Evidence from early jail-based poll sites suggests that when detained voters know they can vote from jail, they will. State legislatures should take AB 286 as a starting point and impose comprehensive, strong obligations on jails to eliminate the barriers to voting in jail and encourage detained Americans to exercise their legal right to vote.
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