Voting Rights for Pretrial Detainees
by David Singleton
The right to vote is one of the most fundamental and cherished rights in a free and democratic society. People arrested the weekend before the election are presumed to be innocent. If they are registered and otherwise qualified to participate in the process, voting is still their right. That hasn’t been how it was working in Ohio, but a ruling from federal court on one of my cases is making sure it will work exactly that way. A federal judge this week ruled that the State of Ohio and its county boards of elections must make provisions for eligible voters to request absentee ballots if they are placed into custody the weekend before an election.
The Ohio Justice & Policy Center (OJPC) filed FEO v Husted in 2012 on behalf of Plaintiffs the AMOS Project, Fair Elections Ohio, and CURE-Ohio—all community groups dedicated to making sure underrepresented communities get to participate fully in electoral politics. In registering voters in 2012, workers for the AMOS project fielded questions about what would happen to a registered voter who got arrested just before the election. AMOS and OJPC learned that Ohio law prevented a registered voter from casting a ballot if the voter was arrested the weekend before the election and was unable to pay bail in time to go to the polls on Election Day. The State of Ohio already has in place a special voting procedure for voters who are hospitalized right before an election, where they can vote through absentee ballot. However, the same opportunity was denied to voters arrested and jailed in those same final pre-election days.
In the course of the litigation, Plaintiffs provided expert evidence that showed that at least 400 voters were denied their right to vote in 2012 as a result of the state’s law and policies. Federal District Judge S. Arthur Spiegel, in ruling for the Plaintiffs, stated, “The Court sees no value in taking away this fundamental voting right, even for a short period of time.” The ruling requires the state to extend the opportunity to vote absentee to “late jailed electors” in Ohio.
Human rights are human rights–not just for humans who have money or humans of a certain community or humans of a certain color. This ruling confirms that basic truth using the US constitution and the Voting Rights Act. In brief, the opinion holds that by providing a special voting procedure for voters who are hospitalized right before an election, and denying that same opportunity to voters arrested and jailed in those same final pre-election days, the Ohio law violates both the US Constitution and the federal Voting Rights Act:
The challenged law violates the Equal Protection Clause of the Fourteenth Amendment,
by depriving late-jailed voters of the fundamental right to vote without adequate justification;
by treating jailed voters differently from hospitalized voters even though there is no meaningful difference between the two groups; AND
by effectively creating a wealth-based restriction on the right to vote, since many late-jailed voters could obtain release in time to vote on Election Day, but only if they have the financial means to post bond.
The statute also violates the Due Process guarantee of the Fourteenth Amendment by depriving late-jailed voters of the fundamental right to vote with “no compelling justification.
It violates Section 2 of the Voting Rights Act by disproportionately disenfranchising African-American voters.
It violates the Seventeenth Amendment to the U.S. Constitution by effectively preventing qualified electors from exercising their rights to vote for U.S. Senators and Representatives.
You can find a link to articles covering the case here: Columbus Dispatch, Cincinnati Enquirer. You can find a link to the court’s opinion here.
[Editors’ Note: Prior Blog coverage of prisoner disenfranchisement is available here.]