Sheriffs Have A Lot Of Power Over Whether Hundreds Of Thousands Of People Can Vote

They can either make necessary voter registration and ballot materials accessible to people in their custody, or make them impossible to obtain.

Kira Lerner   |    August 10, 2020

DeKalb County Sheriff Melody Maddox (Maddox/Facebook)

This article originally appeared on The Appeal, which hosted The Political Report project.

They can either make necessary voter registration and ballot materials accessible to people in their custody, or make them impossible to obtain.

This article is part of The Badge, a series on the powers of sheriffs.

On any given Election Day, roughly 700,000 people are detained in jails across the country. A disproportionate number are Black. On paper, most of the people held in county jails are eligible to vote because they have not been convicted of a felony—most are being held awaiting trial or are serving sentences for misdemeanor convictions. 

But being detained compounds other forms of voter suppression that target Black voters. And sheriffs, who oversee most of the nation’s jails, have a lot of power in determining whether people in their custody will have access to registration and ballot materials.

Early this year, before the coronavirus forced the jail to close to visitors, the sheriff of DeKalb County, Georgia, partnered with the local chapter of the NAACP to host a voter-registration drive in the county jail. Throughout the day, 38 incarcerated people filled out applications and became registered voters. 

“It is important that every citizen who has the right to vote also has a chance to exercise that right,” DeKalb Sheriff Melody Maddox said in a statement about the drive. “Many incarcerated individuals don’t realize that they can still cast absentee ballots in elections while they are in custody, but they must first be registered voters.”

In neighboring Gwinnett County, though, Sheriff Butch Conway was taking a vastly different approach. The day after the registration drive in DeKalb County, the Gwinnett County Jail administrator reminded the jail staff that all prisoners who have not been convicted of a felony are eligible to vote and are entitled to request applications from jail staff. But in an email obtained by American Oversight and shared with the Political Report, the sheriff’s captain told the office’s staff that “it is the voter’s responsibility to ask for the opportunity to vote in the 2020 election cycle.” 

“We do NOT need to make any special announcements,” Gwinnett County Sheriff’s Captain Jon Spear said in a later email in bolded, underlined text.   

These contrasting policies illustrate the power sheriffs have over voting rights. The decisions of thousands of individual sheriffs across the country will determine how easy it will be for people held in the nation’s jails to cast a ballot in November and beyond.

While those in jail are largely eligible to vote, in practice, incarcerated people are often cut off from information and resources they need in order to register to vote and cast a ballot, a situation advocates call de facto disenfranchisement. These jails are typically run by county sheriffs—or in some places, county-appointed administrators or boards who run the jails—who play a critical role in compounding, or alleviating, these hurdles. 

“Sheriffs are of paramount importance to providing incarcerated, eligible voters access to the ballot,” said Dana Paikowsky, a fellow at the Campaign Legal Center whose work focuses on expanding opportunities for voting in jails. “There’s a spectrum of what the sheriff can do, and it can be making it everything from very accessible to completely impossible.”

And when the sheriffs themselves are running for office, they might have an extra incentive to exert control over the voting rights of people in their custody. “The system is pretty wild when the sheriff, who is on the ballot, is up for re-election, and the people who can re-elect him are people who he has a profound control over whether they can take part of that process,” she said. 

The most straightforward way to protect against disenfranchisement in jails is to reduce jail populations—and sheriffs directly influence this as well. 

They can adopt policies to avoid arresting and booking people in jail—as an earlier edition of The Badge, the Political Report’s series on the roles of sheriffs, explained. They can also advocate for shrinking pretrial detention, as The Badge has also laid out; some even have direct authority to order pretrial releases.

Ultimately, they are given tremendous discretion over what happens to people’s voting rights while they are in jail. This edition of The Badge dives into what they have been doing with this authority.

What happens when a sheriff makes it difficult for incarcerated people to vote?

By requiring that incarcerated people proactively ask for voter registration materials in Gwinnett County, Conway is not formally blocking jailed people from voting. But the effect of his actions is to depress electoral participation. Studies show that voters are more likely to cast ballots if they receive some kind of voter contact, and that’s also true in jails.

Often, outside volunteer groups or election officials come into jails to make that contact with the people detained there. But a sheriff who is unwilling to work with outside groups or who does not proactively seek them out can be an insurmountable obstacle. 

“When you’re in jail, your access to the ballot depends on third parties having the time and willingness and knowledge to provide you with the resources you need to cast a ballot, whether it’s an application form, election information, even things as simple as an envelope and a stamp,” Paikowsky said. “The list of people who can provide you that stuff is finite. It’s the local election official, it’s a volunteer group, it’s a family member.” 

“But all of those people cannot get access to you to provide you that support if the sheriff doesn’t let them,” she added.

Sheriffs commonly prevent voting rights groups from talking to or contacting people detained in their jails. In the run-up to the 2018 midterms, the infamous Orange County sheriff’s department prevented organizers with the ACLU of Southern California’s Unlock the Vote program from entering the jail. 

An analysis of the 2018 election conducted by the ACLU of Ohio and other nonprofits found that in jails with no direct contact between detainees and volunteers, the turnout rate was much lower than in jails where sheriffs authorized such communication. 

In Franklin County (Ohio’s most populous county and home to Columbus), for instance, volunteer outreach was limited to simply dropping off registration and absentee ballot request forms because of opposition from the sheriff to volunteer efforts, according to Mike Brickner, who previously served as Ohio state director of All Voting Is Local. There were only four requests for voter registration forms in that jail, which typically holds over 1,500 people each day. 

By contrast, in Cuyahoga and Lake Counties, the sheriffs allowed volunteer groups inside to talk to detainees. In the Cuyahoga County Jail (Cleveland), hundreds of people requested ballots, and the eventual voter turnout rate was 79 percent. In Lake County, volunteers helped 77 incarcerated people complete voter registration or absentee ballot request forms, and 48 of them successfully cast ballots for a turnout rate of 62 percent.

Some states require sheriffs to at least assist election officials in delivering registration forms and ballots to jails. For example, the Colorado secretary of state in 2019 mandated that the state’s 64 sheriffs coordinate with county clerks. Arizona officials enacted a similar rule in 2019, according to the Sentencing Project.

But often, those requirements aren’t enough. In July, the Arizona Coalition to End Jail-Based Disenfranchisement surveyed the state’s counties on voter access in their jails, and sounded the alarm on sheriff compliance. In Maricopa County (Phoenix), the coalition said it has spent significant time with the county recorder’s office to develop jail voting procedures and educational resources, but the office of Sheriff Paul Penzone has declined to implement the procedures or use the materials. According to The Intercept, Penzone’s office told the coalition that it would not be able to turn around a jail voting plan “on such short notice” before the 2020 presidential primary, but advocates claim they had been in conversations for months. 

Penzone’s office told The Appeal in an email that “MCSO always has and will continue our support of those who wish to exercise their constitutional right to take part in the election process.”

The COVID-19 pandemic has further empowered sheriffs to control people’s voting rights, since many of the outside groups that typically go into jails to help with registration and voting efforts are now prohibited from entering. As a result, voting rights organizations, including the Campaign Legal Center, are sending memos to sheriffs reminding them of their constitutional obligation to ensure that eligible voters can cast ballots. “In the short term,” they write in one of the memos, “your jail staff may have to shoulder more of the responsibility for facilitating voting in jail internally.”

With the pandemic likely to continue through the presidential election, advocates worry that uncooperative sheriffs will end up disenfranchising potential voters—even more so than usual. 

What does it look like when they actively work to make it easier?

First elected in 2016, Harris County (Houston) Sheriff Ed Gonzalez has been supportive of Houston Justice’s Project Orange, which mobilizes volunteers to go into jails to facilitate voter registration, and he has encouraged people in his jail to register to vote and cast ballots. 

“I’ve always fundamentally believed that we need to do more to empower individuals and uplift them while they make their temporary home in our Harris County jail,” he told the Political Report. “Nothing is as fundamental to them as being able to cast their vote.” 

Gonzalez has also denounced the county’s unconstitutional bail system, which has ballooned the jail population. A legal settlement reached in 2019, and which Gonzalez backed, unlike the county’s district attorney, will significantly lower pretrial detention and the number of people in jail during an election in the first place.

Other sheriffs have taken similar steps. In Henrico County, Virginia, the sheriff’s office works with outside volunteer groups to register detainees. BeKura Shabazz, a local criminal justice reform advocate who got involved in those efforts after she spent time in the county jail, told the Political Report that Sheriff Alisa Gregory has been very cooperative.

“If sheriffs are not wanting to participate in this, I think we need to look deeper into their reason why, because that means there could be some type of discrimination,” she said. 

In 2019, a new law adopted by Illinois set a milestone for sheriffs nationwide to emulate. 

It forced Cook County (Chicago) to provide in-person voting options at its local jail. As a result, in the March 2020 primary, the Cook County Jail (the nation’s second largest) became an official polling location. Sheriff Tom Dart, who supported the effort, has also worked with Chicago public television to air short videos inside the jail to inform voters about candidates’ positions. 

Chiraag Bains, director of legal strategies at Demos, said that turning jails into polling places is a good way to ensure that people can vote because it cuts down on the burdensome process of having detained people request and receive absentee ballots. 

“It’s a solution that should spread across the country,” he said. 

Now, other sheriffs are facing questions about whether they, too, will turn their county jails into voting centers.

A proposal in Houston hit a roadblock when the former county clerk raised concerns and delayed implementation, but Gonzalez says he is confident that the proposal will be successful, if not before November, then before the next election cycle. “We expect for it to happen and we hope to become one of the models around the country to do it and to advocate for it,” he said. “We think it’s the right thing to do.” 

In some jurisdictions, sheriffs are also helping to facilitate candidate forums inside their jails. In 2018, the Suffolk County House of Correction held a district attorney forum, hosted by the sheriff’s department and the local chapter of the ACLU. 

Ensuring that fewer people spend any time in jail would make efforts to facilitate voting in these facilities less important. But until that happens, voting advocates want sheriffs to stop withholding voting rights and restricting the electorate. 

“They’re poor people … they’re people of color, they’re people from certain communities,” said Durrel Douglas, executive director of Houston Justice, which runs Project Orange. “If anyone deserves access to the ballot, it’s those who have been impacted the most by society.”