By Shervin Shahnazi
March 25, 2025, 1:40 PM

Hundreds of thousands of presumptively innocent Americans on pre-trail detention are constructively being denied the right to vote. In mid-year 2023, 70% of the jail population, or 467,600 people, were unconvicted and awaiting adjudication, or incarcerated for a reason unrelated to a sentence.^[1] The Supreme Court has held that pretrial detainees do not lose their eligibility to vote; therefore, denying an eligible voter’s ability to do so violates the Equal Protection Clause of the Fourteenth Amendment.^[2] Yet, states engage in the practice of de facto disenfranchisement as they wash their hands of any responsibility to facilitate a pretrial detainee’s ability to exercise their right to vote. This commentary begins by exploring the legal framework that allows disenfranchisement of pretrial detainees to occur. It then looks at this disenfranchisement in action, comparing the offending states with those that are maintaining voting rights protections. Lastly, it examines the important policy implications of this practice to which voting rights advocates should be urgently paying attention. 

The Legality of De Facto Disenfranchisement 

The Supreme Court’s landmark decisions concerning a pretrial detainee’s right to vote began with O’Brien v. Skinner.^[3] In that case, detainees at a county jail awaiting trial challenged the state’s refusal to allow them to register or to vote absentee.^[4] The plaintiffs attempted to establish a mobile voter registration unit in the county jail, but that request was denied.^[5] They then requested to be transported to polling places or, alternatively, be permitted to register and vote by absentee ballot, which was also denied.^[6]The state argued that “they were under no obligation to permit the [plaintiffs] to register to vote in person and that inmates did not qualify for absentee voting.”^[7] The O’Brien Court found that incarceration alone is insufficient to prohibit voting.^[8] Therefore, eligible voters in detention have a constitutional right to vote, and the state may not outright prohibit their exercise of such a right.^[9]

The O’Brien decision on detainee’s right to vote was overshadowed by McDonald v. Board of Election Com’rs of Chicago, a landmark case addressing the ability to exercise the right to vote.^[10] Here, unsentenced inmates of a county jail sought to enjoin enforcement of statutes excluding them from casting absentee ballots while incarcerated, arguing such statutes violated the Equal Protection Clause of the Fourteenth Amendment.^[11] The core issue was whether the Plaintiffs had a claimed right to receive an absentee ballot.^[12] The Court applied a rational basis review because the statute was not based on suspect categories, such as race.^[13] The Court ultimately held that since “there [was] nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise,” the legislature did not err in prohibiting access to absentee ballots.^[14] McDonald thus signals that states can prohibit specific means for a pretrial detainee to cast their ballot, so long as there is some possible mechanism for them to vote. 

O’Brien and McDonald, together, create a legal framework that enables the de facto disenfranchisement of eligible pretrial detainees. While O’Brien holds that the state cannot outright prohibit an incarcerated eligible voter from exercising their right to vote, it does not require states to affirmatively implement realistic alternative voting mechanisms. Compounding the issue, the McDonald court enables the state to disenfranchise by denying specific means of voting. As discussed below, the combined effect of these cases allows for de facto disenfranchisement. Facilities leave eligible detainees to navigate burdensome statutory requirements, constructively denying them the ability to vote while technically not outright prohibiting it. 

De Facto Disenfranchisement in Jails Today

States constructively disenfranchise voter-eligible detainees while complying with O’Brien and McDonald by either outright prohibiting polling stations in jails or making it very difficult to vote absentee. In Louisiana, for example, jails, penitentiaries, or other penal institutions cannot host a polling place.^[15] Detainees are nonetheless technically not outright prohibited from voting because incarceration is an excuse to receive an absentee ballot.^[16] However, first-time voters are barred from using absentee ballots.^[17] Thus, it is currently impossible for a first-time voter to vote in jail. 

Like Louisiana, North Carolina uses the current legal framework to practice de facto disenfranchisement. Under North Carolina statutes, election-day polling locations are established by precinct of residence.^[18] However, a jail is explicitly precluded from falling under the definition of a “residence.”^[19] What is even more problematic, though, is the state’s absentee voting requirements. To vote absentee, a North Carolina detainee must apply with either a State Identification or Social Security number.^[20] The ballot must then be notarized or signed by two witnesses.^[21] Including such requirements makes obtaining an absentee ballot unrealistic for a pretrial detainee. Practically, jail populations skew younger and often do not know their own Social Security numbers.^[22] Finally, a notary or willing witnesses may not be readily accessible in jail. As such, while facially compliant with O’Brien and McDonald by not outright prohibiting voting, there are practical barriers that make it constructively unfeasible to vote while incarcerated. 

States are not left to their own imaginations when facilitating absentee jail-based voting, as states such as Massachusetts and Illinois offer a model to follow. In Massachusetts, jail and prison officials must provide means for absentee voting, all necessary materials, and voter education.^[23] Illinois goes one step further. Counties with more than three million residents must establish early voting polling stations in county jails.^[24] If a county has less than three million people, the sheriff may, at their discretion, establish a polling place in the county jail.^[25] Evidence shows Illinois’s efforts have materialized. In 2020, Cook County hosted the country’s first jail-based polling place.^[26] That year, the Cook County jail had a 50% voter turnout, surpassing the 36% citywide.^[27] The Cook County jail polling place stands for the proposition that jail-based voting can increase civic participation, generating social dividends.

Policy Implications of De Facto Disenfranchisement

De facto disenfranchisement has voter suppression implications on state and local elections. To be sure, it is undeniable that the numerical impact of pretrial detainees losing their right to vote pales in comparison to voter turnout outside the carceral system.^[28]  However, de facto disenfranchisement matters in local or state elections, where candidates are elected based on razor-thin margins.^[29] For instance, in 2019, the Kentucky gubernatorial race was decided by a margin of 0.36%, or 5,086 votes, in favor of Andy Beshear.^[30] While the data is unclear on the exact number of eligible voters in pretrial detention in 2019, Kentucky in 2015 was one of the nation’s leaders in pretrial incarceration, with 9,104 pretrial detainees.^[31] Furthermore, in 2019, Kentucky had a host of constructive barriers to voting while in jail. These issues ranged from no on-site polling, a lack of internet access to register for an absentee ballot, and a poor mailing system.^[32] Thus, after setting aside de facto disenfranchisement, there is real potential for pretrial detainees to influence an election. 

Constructively denying the ability of pretrial detainees to exercise their right to vote disproportionately impacts historically marginalized communities. Studies show that Black and Latino defendants are systematically more likely to remain on pretrial detainment compared to their White counterparts.^[33] The problematic nature of the bail system, for the most part, accounts for such a disparity, as racial biases lead to the inequitable imposition of bail, and their often insurmountable amounts leave defendants in jail while awaiting trial.^[34] In large urban areas, for instance, Black felony defendants are over 25% more likely than White defendants to be held pretrial.^[35] Making matters worse, a study conducted in Miami and Philadelphia, both cities in key battleground states, found Black defendants have bail amounts that are, on average, $14,376 greater than White defendants.^[36]

There are practical reasons why voting rights advocates should pay attention to de facto disenfranchisement’s impact on historically marginalized peoples. If states purport to be interested in reducing recidivism, de facto disenfranchisement runs contrary to that interest. Indeed, it is widely accepted that exercising the right to vote fosters social integration; therefore, losing the ability to exercise such a right contributes to recidivism.^[37] There is also, arguably, a social interest in preventing a two-tiered voting system based on wealth. Economic privilege determines political participation because defendants of color are more likely to face pretrial detainment and higher bail amounts, even after controlling for offense severity.^[38] In effect, de facto disenfranchisement creates a modern version of a poll tax, violating principles of democratic fairness. 

Conclusion

Ensuring access to voting for pretrial detainees remains an important yet often overlooked aspect of election policy. While legal precedent affirms their right to vote, practical barriers in many states make it difficult for detainees to exercise this right. These challenges can disproportionately affect historically marginalized communities and highlight broader concerns about accessibility in the electoral process. However, models from states like Massachusetts and Illinois demonstrate that facilitating jail-based voting is both feasible and effective. By adopting similar approaches, states can take meaningful steps toward ensuring that all eligible voters, regardless of their circumstances, have a fair opportunity to participate in the democratic process.

^[1] Bureau of Just. Stat., Preliminary Data Release: Jails, 2023, U.S. Dep’t of Just. (Feb. 2024), https://bjs.ojp.gov/preliminary-data-release-jails-2023.

^[2] O’Brien v. Skinner, 414 U.S. 524, 530 (1974).

^[3] 414 U.S. 524 (1974). 

^[4] Id. at 525-527. 

^[5] Id. at 525.

^[6] Id.

^[7] Id. at 527.

^[8] Id. at 530.

^[9] Id. at 534. 

^[10] 394 U.S. 802 (1969). 

^[11] Id. at 803. 

^[12] Id. at 807.

^[13] Id. at 809. 

^[14] Id.

^[15] L.R.S. § 18:533(C)(2).

^[16] L.R.S. § 18:1303(G).

^[17] L.R.S. § 18:115(F). 

^[18] NCS § 163-128. 

^[19] NCS § 163-57. 

^[20] NCS § 163-230.2.

^[21] NCS § 163-231. 

^[22] Margaret Barthel, Getting Out the Vote from the County Jail, Atlantic (Nov. 4, 2018), https://www.theatlantic.com/politics/archive/2018/11/organizers-fightturn-out-vote-county-jails/574783.

^[23] Mass General Laws c. 54 § 25C.

^[24] ILST 10 § 5/19A-20(e)(1).

^[25] ILST 10 § 5/19A-20(e)(2).

^[26] Terrence Lee, Cook County Jail Bringing Democracy to Detainees, FOX 32 Chicago (Oct. 22, 2024),https://www.fox32chicago.com/election/cook-county-jail-bringing-democracy-detainees.

^[27] Id.

^[28] Jackie O’Neil & Christina Das, Democracy Detained: Fulfilling the Promise of the Right to Vote from Jail, Thurgood Marshall Institute at LDF (June 2023), https://tminstituteldf.org/voting-in-jails/.

^[29] Id. 

^[30] The New York Times, Kentucky Governor Election Results, N.Y. Times (Nov. 5, 2019),https://www.nytimes.com/interactive/2019/11/05/us/elections/results-kentucky-governor-general-election.html.

^[31] Jasmine Heiss & Jasmine Hanout, Jail Incarceration in Kentucky, Vera Inst. of Just. (July 12, 2019),https://apps.legislature.ky.gov/CommitteeDocuments/8/11972/Jul%2012%202019%20VERA%20Jail%20Incarceration%20in%20KY%20Heiss%20Hanout.pdf.

^[32] Kevin Muench, Expanding Pre-Trial Carceral Voting, ACLU of Kentucky (Dec. 2024), https://www.aclu-ky.org/sites/default/files/field_documents/mmc_aclu_pretrialvotingexpansion_report_v3.pdf.

^[33] Jennifer Skeem, Lina Montoya & Christopher Lowenkamp, Place Matters: Racial Disparities in Pretrial Detention Recommendations Across the U.S., 86 Fed. Prob. 5 (2022), https://www.uscourts.gov/sites/default/files/86_3_2_0.pdf.

^[34] Joshua Page & Christine S. Scott-Hayward, Bail and Pretrial Justice in the United States: A Field of Possibility, 5 Ann. Rev. Criminology 91 (2022), https://doi.org/10.1146/annurev-criminol-030920-093024.

^[35] Wendy Sawyer, How Race Impacts Who Is Detained Pretrial, Prison Policy Initiative (Oct. 9, 2019),https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/.

^[36] David Arnold, Will Dobbie & Crystal S. Yang, Racial Bias in Bail Decisions, Nat’l Bureau of Econ. Res. Working Paper No. 23421, 17 (2017), https://www.nber.org/system/files/working_papers/w23421/w23421.pdf.​

^[37] Neil Sobol, Defeating De Facto Disenfranchisement of Criminal Defendants, 75 Fla. L. Rev. 287, 339 (2023),https://scholarship.law.tamu.edu/facscholar/1782/.​

^[38] Joshua H Williams, Paige E Vaughn, Matt Vogel, How Do County-Level Ethno-Racial Composition and Residential Segregation Influence Prosecutorial and Judicial Decision-Making?, 24 Punishment & Soc’y 3, 6 (2022), https://doi.org/10.1177/14624745241308582.​