By: Kelsey Nickerson

Recently, a surge of vote restoration initiatives has gained ground throughout the United States. The primary right addressed—restoring voting rights to those who have completed an incarceration for a felony conviction—is now at least partially granted in every state but two, with the vast majority of states re-enfranchising these citizens thanks to community advocacy. However, in some states, re-enfranchisement has been hampered by a spate of litigation and counter-legislation attempting to stem the tide of reform, complicating the process of restoration in multiple states. As the administration of these rights churn through state legislatures, the constitutionality of these contestations to incarcerated people’s voting rights will inevitably need to be addressed.

One such state that has faced thorny issues as a result of reform is Maryland. In 2016, Maryland restored the right to vote for incarcerated citizens in the state legislature by passing HB 980, overriding a veto by Governor Larry Hogan. The law granted the right to vote immediately upon completion of a term in a carceral facility. Over 40,000 Maryland citizens were re-enfranchised, and in a state where 70% of the population in a carceral facility is Black, the law was a big step forward in cementing both one-person-one-vote and racial enfranchisement equality in the state.

HB 980 proved to be the tip of the iceberg, and advocates continued to push forward with voting rights expansion. Introduced by the League of Women Voters in Maryland, HB 0222 (formerly HB 0568), or more colloquially known as the “Value My Vote Act,” proposed not only requiring those completing a sentence be informed of their right to vote and provided with proper registration materials, but also demanded expansion of access to the ballot for those awaiting trial and serving sentences for misdemeanors in a carceral facility. In Maryland, this population is estimated to be about 24,000 people.

The bill would have mandated absentee ballot drop-boxes in all state facilities for incarcerated eligible voters which, via state law, are currently run on a district-by-district basis, and the ability to cast an absentee ballot while incarcerated therefore varies. While it was noted that in the bill that the drop boxes were required under the Equal Protection Clause of the Constitution, this portion of the legislation was stuck before the bill’s passage. However, it seems that drop boxes remain essential and protected under the 1972 Supreme Court holding of O’Brien v. Skinner; in Maryland, it’s likely that courts would similarly find that the denial of these drop boxes amount to an Equal Protection violation.

In O’Brien, incarceration was found not to be an excuse for ballot denial when the person incarcerated had not yet been convicted or was serving a sentence for a misdemeanor. New York’s absentee qualification statute gave a list of instances where citizens qualified for absentee voting. The Court focused on the general physical imprisonment imposed by a bar to voting, writing that “by reason of not being able physically—in the very literal sense—to go to the polls on election day or to make the appropriate registration in advance by mail.” Providing absentee ballots or a way to cast a ballot was found to be necessary under the Equal Protection clause because absentee ballots in New York had been administered on a district-by-district basis, and so “two citizens awaiting trial—or even awaiting a decision whether they are to be charged—sitting side by side in the same cell, may receive different treatment as to [their] voting right[s].”

Maryland’s analogous absentee qualification statute is comparably vague to that of New York’s, stating that anyone in the state may vote via absentee ballot “to the extent preempted under an applicable federal law.” Federal law does not preempt people in carceral facilities from voting and, in fact, Maryland is one of 34 states that allow no-excuse absentee voting. Since there is no text to be interpreted and also no excuse needed, it seems this lack of absentee ballot access would amount to an Equal Protection violation. The Court stated in O’Brien that when “statutes are silent concerning registration or voting facilities in jails and penal institutions,” each incarcerated person must be afforded the same opportunity to vote. The continued silence from Maryland’s legislature on the issue puts in place the exact same scheme that was earlier found to be unconstitutional in New York: different districts administering absentee ballots in a different way, the very source of an Equal Protection violation.

There is also a slim possibility, though, that the Court would find the lack of language designating qualifications for absentee ballots means that none are expressly promised to these incarcerated people, and so there cannot be a violation of something not pledged by the state. Ultimately, the Maryland state constitution vests the power to regulate absentee voting in the state legislature. While HB 0222 would have tackled this problem, the omission of the drop box portion before its passage brought a lot of incarcerated individuals back to square one. However, advocates for vote restoration are still hard at work, and another wave of reform is due to follow, speaking loudly for those still denied their political voice.

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