President Biden orders DOJ to facilitate voting for people in federal custody or under supervision
On election day in 2016, Crystal Mason, a Texas mother of three, cast a provisional ballot. She was unaware that Texas considered her ineligible to vote because she was on federal supervised release at the time. Six months later she was arrested. A year and a half later, she was convicted of voter fraud and sentenced to five years in prison. Mason, who is Black, believes that her prosecution was “politically and racially charged.” An appeals court upheld the conviction, ruling that whether Mason knew she was ineligible to vote was irrelevant to the case against her. She is pursuing further appeals.
At trial, one of Mason’s supervision officers, Ken Mays, testified that he had not informed her that she could not vote in Texas while on federal supervised release because it was not part of standard procedure: “That’s just not something we do.”
Now, a few years later, a new executive order issued by President Joe Biden will change standard procedure to require the notice Ms. Mason never received. The order also directs the Justice Department to facilitate voting for people in federal custody or on supervision who are eligible to vote in their state of residence.
In recent years, there has been growing attention to the racist origins of felony disenfranchisement, to its racially disparate effect, and to how restoration of voting rights strengthens our democracy. This past Sunday, March 7, 2021, was the 56th anniversary of “Bloody Sunday,” an infamous day when Alabama troopers violently beat civil rights marchers—including the late John Lewis, civil rights leader and longtime member of Congress—on the Edmund Pettus Bridge in Selma. While delivering an address to mark the occasion, President Biden announced that he had issued an Executive Order directing every federal agency to promote access to voting.
The Order includes an ambitious directive to the Attorney General to provide voter education materials to hundreds of thousands of individuals in federal custody, under federal supervision, or formerly incarcerated, and to facilitate voting for those who are eligible under state law. See Sec. 9 (“Ensuring Access to Voter Registration for Eligible Individuals in Federal Custody”). This represents “the first time the federal government has ever taken action to ensure justice-involved voters can participate equally in our democracy.”
As Crystal Mason’s case demonstrates, many people with a record lack clear information about their eligibility to vote, due to misinformation and the complexity of state laws and policies governing voting rights for people with a record. (CCRC documents and explains these laws and policies in our 50-state resources.) Further, eligible voters in jail and prison face practical challenges that often make registration and voting difficult or impossible.
Newly-confirmed Attorney General Merrick Garland will surely direct sufficient resources and expertise to implementing this directive. The result could be a radical expansion of voting education and access for millions of individuals with federal criminal records, with ripple effects benefiting tens of millions with state criminal records. Moreover, given the widespread racial disparities in the criminal justice system, this effort could significantly improve access to voting for Black communities and other communities of color, issues that Garland prioritized at his Senate confirmation hearing.
This article briefly outlines the state of the law governing loss and restoration of voting rights due to conviction. It then reviews the specifics of Biden’s directive, discussing its potential impact on four groups: (1) individuals in the custody of the Federal Bureau of Prisons; (2) individuals detained in jails under contracts with U.S. Marshal Service; (3) individuals under the supervision of the Office of Probation and Pretrial Services in the Administrative Office of U.S. Courts; and (4) formerly incarcerated individuals.
Loss and restoration of voting rights due to conviction
Currently, voting rights depend upon state law, for people with both state and federal convictions. The following chart roughly outlines current state law regarding loss and restoration of voting rights due to conviction:
Loss of voting rights
Restoration of voting rights
(In addition to the statutory restoration mechanisms above, voting rights may be restored in any state by executive clemency.)
A recent report by The Sentencing Project estimates that 5.17 million people are currently disenfranchised due to a felony conviction, with disproportionate impacts on Black and Brown communities. This figure does not include additional people in 9 states who remain disenfranchised solely due to unpaid court debt, a barrier with obvious socioeconomic impacts.
There has been a flurry of reforms in this area during the last five years. Just since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility. This year alone, at least 19 state legislatures are considering bills to further expand the franchise for those with a conviction. The House of Representatives passed a bill last week that, if enacted, would limit conviction-based disenfranchisement in federal elections to persons currently incarcerated for a felony conviction. (Congress has the constitutional authority to regulate federal elections, including eligibility to vote based on a conviction record.)
President Biden’s new executive order is poised to significantly expand awareness of voting eligibility. Notably, it will also facilitate voting for those who are eligible, a particular challenge for those in custody, and those reentering society.
1. Individuals in the custody of the Federal Bureau of Prisons
First, the executive order directs the Attorney General to “establish procedures, consistent with applicable law, to provide educational materials related to voter registration and voting and, to the extent practicable, to facilitate voter registration, for all eligible individuals in the custody of the Federal Bureau of Prisons.”
Of the 151,703 individuals currently incarcerated by the Federal Bureau of Prisons, most are not eligible to vote, since they are probably incarcerated for a felony conviction, which disqualifies them from voting in at least 46 states (plus 2 others, depending on the offense). But those who are eligible can receive indispensable assistance to exercise their voting rights from custody.
The executive order further provides that “educational materials should also notify individuals leaving Federal custody of the restrictions, if any, on their ability to vote under the laws of the State where the individual resides and, if any such restrictions exist, the point at which the individual’s rights will be restored under applicable State law.” Our 50-state chart and additional state-specific information is perhaps the most up-to-date national survey of this information.
Determining the point at which voting rights will be restored under applicable state law will be fairly straightforward in 40 states. As discussed above, 2 states do not revoke voting rights due to conviction and 18 states restore the vote immediately upon release from incarceration. Another 3 states restore voting rights upon completion of any parole or earlier, and 13 states do so upon completion of any remaining supervision. An additional 4 states never restore lost voting rights unless a person obtains executive clemency (or, in the case of Mississippi, legislative clemency). The governors of 3 of these states currently restore voting rights for many people upon completion of supervision, pursuant to executive orders.
However, for the remaining 10 states, determining the point at which voting rights are restored can be quite complex. This is because these 10 states require satisfaction of legal financial obligations associated with a disqualifying conviction to regain the vote: 4 states require payment of all court debt and 6 states require payment of specific types of debts. For people with in-state convictions, there are significant administrative barriers for determining how much is owed, whether the debt falls into a disqualifying category (i.e. restitution, fine, cost, etc.), and whether it is associated with a disqualifying conviction—challenges illustrated in great detail during last year’s federal litigation regarding Florida’s voting restoration system. For people with out-of-state convictions, some states require a person to regain their voting rights in the jurisdiction of conviction, whereas others require that they meet the requirements where they reside and propose to vote. In the latter case, procedures can be unclear or impracticable for demonstrating that court debt for an out-of-state conviction has been satisfied (a problem illustrated in detail by a recent legal complaint filed by the Campaign Legal Center on behalf the Tennessee Conference of the NAACP and five residents).
2. Individuals in jails under federal authority
The second part of Biden’s directive relating to people in federal custody requires the Attorney General to “establish procedures, consistent with applicable law, to ensure the United States Marshals Service includes language in intergovernmental agreements and jail contracts to require the jails to provide educational materials related to voter registration and voting, and to facilitate voting by mail, to the extent practicable and appropriate.”
Of the roughly 631,000 people detained in local jails at a given time, about 24,000 people are held for the U.S. Marshals, according to the Prison Policy Initiative (PPI). Therefore, while Biden’s executive order would bring awareness to and facilitate voting for only a small fraction of those held in jails, it could indirectly improve the voting landscape for people in many detention facilities, since federal detainees are held in facilities spread throughout the United States. PPI reports that most people in jail are legally eligible to vote but in practice usually cannot, because of factors such as widespread misinformation about eligibility, a range of barriers to voter registration, and challenges to casting ballots. Some states, like Illinois, have recently enacted legislation to facilitate voting in jails, and the DOJ’s efforts could spur further advancements.
3. Individuals under federal supervision and formerly incarcerated
The next part of Biden’s directive requires the Attorney General to “establish procedures, consistent with applicable law, for coordinating with the Probation and Pretrial Services Office of the Administrative Office of the United States Courts to provide educational materials related to voter registration and voting to all eligible individuals under the supervision of the Probation and Pretrial Services Office, and to facilitate voter registration and voting by such individuals.”
The Probation and Pretrial Services Office supervises people in pretrial services, including pretrial release and diversion; and people on post-conviction supervision, including probation and supervised release. On September 30, 2019, there were 237,510 individuals under the office’s supervision, including 108,606 in pretrial services and 128,904 under post-conviction supervision. Many of these individuals are likely eligible to vote, particularly those in pretrial services, and those on post-conviction supervision who are serving a misdemeanor sentence or who reside in the 18 states that restore the vote after release from custody, or in the two states and D.C. that don’t disenfranchise at all.
4. Obtaining voter identification for those formerly incarcerated
The last part of Biden’s directive requires the Attorney General to “take appropriate steps, consistent with applicable law, to support formerly incarcerated individuals in obtaining a means of identification that satisfies State voter identification laws, including as required by 18 U.S.C. 4042(a)(6)(B).”
A “bureaucratic maze” in the federal government leaves many incarcerated individuals without identification upon their release, according to The Atlantic. Helping released individuals obtain ID is important not only for overcoming voting barriers, but for successful reentry more generally, including obtaining housing and employment.
While President Biden’s executive order will not limit or eliminate conviction-based disenfranchisement under state laws, it has the potential to transform a primary barrier to voting for many people with a record: lack of awareness about who is and who is not eligible to vote. The confusion that currently prevails is laced with intimidation and fear caused by state prosecutions of people who make innocent mistakes about their eligibility, like Crystal Mason whose case was described in the introduction.
By implementing a robust program to inform and empower the hundreds of thousands, or millions, of voters or potential voters who pass through federal custody and supervision in the coming years, the Justice Department can help revive its earlier reputation as a stalwart protector of voting rights in the states.