New Massachusetts Law Requires Jails to Expand Ballot Access
People detained in local jails are often eligible to vote but have routinely been denied access by sheriffs and jail officials.
Khawla Nakua | July 22, 2022
Corey “Al-Ameen” Patterson sat inside the Suffolk County jail in south Boston as Barack Obama ran for president in 2008. Paterson badly wanted to vote for the first Black president and, as a pretrial detainee, he was eligible to cast a ballot, but he didn’t know that at the time. He said nobody mentioned the possibility of voting from jail in the months before the election. There were no ‘know your rights’ flyers, no voter education, no registration drives, no information on submitting an absentee ballot.
Patterson remembers that he was watching TV when news broke that the election was called for Obama. “All I could really think was I really wish that I could go out so I could vote for him.”
In recent years, Patterson has pushed for changes to prevent jails from disenfranchising other incarcerated people who remain eligible to vote but are routinely denied access. His advocacy alongside other Massachusetts organizers eventually proved successful. The Democratic legislature adopted provisions this spring expanding ballot access in jails as part of a larger voting rights bill, dubbed the VOTES Act, that Republican Governor Charlie Baker signed into law in late June.
Under the VOTES Act, the secretary of the commonwealth, who is the state’s chief elections officer, must prepare posters explaining voting rights and procedures for jail officials to “display in prominent locations” inside their facilities, as well as written forms to distribute to everyone inside who may be eligible to vote. The law also directs jails to “ensure the receipt, private voting, where possible, and return of mail ballots” for incarcerated people and prohibits jail staff from opening and inspecting any completed mail ballots “unless it is to investigate reasonable suspicion of a prohibited activity.” It also requires sheriffs to track the number of people incarcerated in their jails who sought to vote, any complaints related to voting issues and the outcome of those requests.
“I think this bill does an excellent job reaching into those who have been forgotten in voting and it gives them the ability to have their voices be heard,” Patterson told Bolts.
Massachusetts formally disenfranchises people while they are in prison if they have been convicted of a felony. Other residents remain eligible to vote, at least on paper, including if they are in jail. The average daily jail admission rate in Massachusetts is 10,228, according to 2019 data from the Prison Policy Initiative. Around 5,000 people jailed in the state on any given day are awaiting trial; numerous court decisions upholding the voting rights of pretrial detainees, who are legally innocent. Others in jail are serving misdemeanor convictions.
Yet in practice, incarcerated people who are eligible to vote face numerous barriers to exercising that right, from difficulties obtaining mail ballots to mailing them and ensuring that they are counted. Advocates claim some election officials have even wrongly thrown out ballots coming from jails.
“One thing we realized is that a lot of local officials don’t understand the law that people in jails could vote,” Cheryl Clyburn Crawford, executive director of MassVOTE, told Bolts. “In the past, local election officials would reject ballots coming from jails.”
“We see that people are constitutionally denied the right to vote for felony convictions,” said Austin Frizzell, an organizer at Mass POWER. “Yet we also see that people who do have the right to vote are also denied that right. The similarities behind these populations is that they are predominantly Black people and people of color.”
Katie Talbot, an organizer for Neighbor to Neighbor Massachusetts Action Fund, says that widespread misinformation and confusion over who can vote also prevents people in pretrial detention from understanding their own rights. “I was formerly incarcerated and I could speak to personal experience that when I was in jail I knew nothing about when elections were happening and what’s the process to vote,” Talbot said.
Policies around jail voting, or lack thereof, vary in large part because jails are typically run by each county’s elected sheriff. Advocates who took part in past jail outreach efforts in Massachusetts pointed to the Bristol County Jail and the House of Corrections as an example of barriers to voting that incarcerated people face. Kristina Mensik, a policy consultant and co-chair of the Democracy Behind Bars Coalition said the sheriff’s office would not provide advocates with information on procedures around voting in lockup and the handling of absentee ballots. James Vita, a local defense attorney, told Bolts that the jail’s mail room is often so slow it’s hard to make deadlines for forms and ballots, saying, “Unless election officials make every jail a polling place that would be a problem.”
Bristol County Sheriff Thomas Hodgson, who is seeking re-election this year, declined to be interviewed for this story, but his office told Bolts that it hasn’t received any complaints about voting access from people in the jail.
Hodgson, who was first elected in 1998, has faced other criticism over poor conditions at the jail he runs, including spate of detainee suicides on his watch and a hunger strike by immigrant detainees. In 2021, federal immigration authorities ended their contract to house detainees in Bristol County after a scathing report by the state’s attorney general finding that Hodgson and his staff violated the civil rights of detainees during a violent confrontation the year before.
Hodgson, a Republican, has run unopposed in every election since 2010, but three Democrats are running to replace him this year.
Elizabeth Matos, the executive director of Prisoners’ Legal Service of Massachusetts, says confusion and misinformation among jail staff prevents eligible voters from casting a ballot. Matos said that when looking into voting policies and procedures at the Middlesex County jail, “We interviewed people who worked there about what they do and there was definitely some misinformation and confusion about who has access or should have access to the ballot and who is entitled to vote.”
While the VOTES Act didn’t require Massachusetts officials to create polling places behind bars, advocates for expanding voting access to incarcerated people say the legislation ultimately included much of what they wanted. The African American Coalition Committee at MCI-Norfolk, an organization that Patterson joined in 2018, drafted jail-based voting legislation and eventually found an ally in state Representative Russell Holmes, a Democrat who represents parts of Boston, and who in 2021 helped introduce multiple bills to expand voting access jails.
This year, the jail voting bills were folded into the larger VOTES Act, which also contains measures to promote public awareness of Election Day voter registration, permanent voting by mail, and increased early voting access. The law also requires Massachusetts to join the Electronic Registration Information Center (ERIC), a national organization that helps states maintain accurate voter rolls and is now the target of right-wing conspiracies.
Pastor Franklin Hobbs, the founder and CEO of Healing Our Land Inc. Ministry, says advocates plan to build on the jail-related provisions of the VOTES Act, such as pushing for a ballot box initiative, which was to provide timely receipt and return of mail-in ballots and secure drop boxes in the jail. “I think this legislation would bring awareness to the rights that people in jail have when it comes to voting as well as providing forms and reporting who would be eligible to vote,” he said.
Mensik said that while not everything that advocates wanted was in the final draft of the bill, it had “most of what we had asked for and lobbied for.” For instance, the Democracy Behind Bars Coalition wanted language clearly stating that unhoused people in jail can use their jail address on absentee ballots, which could impact a significant number of eligible voters in county lockup. According to a 2020 report by the Vera Institute of Justice, homelessness is 7.5 to 11.3 times more common among people in jail than on the outside. Advocates also wanted the bill to require that sheriffs track information on jail voting related to race and ethnicity, which didn’t make it into the final draft.
Chris Robarge, an organizer with the Massachusetts Bail Fund, pointed to other barriers to voting in jail that he says won’t be resolved when the VOTES Act takes effect. He cited language in the state’s absentee ballot application warning of potential criminal penalties for people who submit one but are not eligible to vote—which might especially frighten someone who is incarcerated and has little access to outside information.
And perhaps most importantly, the law won’t go into effect until January 1, 2023, two months after the midterm elections.
“We had wanted them to be implemented as emergency provisions so they would be in place in time for fall primaries,” Mensik said. “So we will just do our jail-based voting organizing and call on everyone to do the things the bill required so we could ensure access this fall.”
Carol Doherty, a member of the state legislature’s Joint Committee on Election Laws, said the law wasn’t set to take effect in time for this year’s primaries because local election officials “need time to gear up that implementation, and in my opinion the state needs to provide resources and training to local election officials in terms of implementation.”
Advocates say they’ll be closely watching whether sheriffs and election administrators comply with the law’s new safeguards for incarcerated voters in future elections. “Passing a bill is one thing but implementation is really where the rubber meets the road,” Mensik said.