By: Stephanie Perry

Recent criminal justice reforms have eased access to the ballot for tens of thousands of New Yorkers with criminal records post-release, but perennial state Senate and Assembly bills to stop the disenfranchisement of people with felony convictions in the first place remain stuck in state Election Law Committee purgatory. So, uninterrupted enfranchisement throughout a felony sentence is currently impossible.

Jailhouse voting may sound unexpected, but a Supreme Court decision protecting the right to the ballot for qualified, incarcerated voters arose from a case originating in upstate New York. In 1972, a group of detainees at the Monroe County Jail in Rochester brought a state case that ultimately resulted in the 1974 decision, O’Brien v. Skinner, that affirms the right of pretrial detainees and others in jail who are not otherwise disqualified from voting to access the ballot. At that time (and today), New York did not eliminate the voting eligibility of people convicted of misdemeanors. Of course, people serving short sentences and those awaiting trial in jail could not easily appear at their polling places to vote.

State laws regarding absentee ballot eligibility in 1972 were similar to current rules requiring New Yorkers to certify that an excuse regarding illness, disability, health-related institutionalization or out-of-county travel or business necessitated an absentee ballot (absentee ballot rules beginning in 2020 have allowed for risk of exposure to Covid-19 to qualify as “temporary illness,” thus allowing widespread mail-in voting without changing the no-excuse absentee system). The plaintiff in O’Brien v. Skinner convinced a trial court and appeals court in New York that detention in jail was akin to the acceptable absentee ballot excuse of “‘physical disability’ in the sense that he was physically disabled from leaving his confinement to go to the polls to vote.” The highest court in New York reversed the decision, stating that “[t]he right to vote does not protect or insure against those circumstances which render voting impracticable.” A 7-2 Supreme Court reversed this decision and held that when states incarcerate people who are not otherwise disqualified from voting, they must allow for a way to actually vote.

The Supreme Court held that New York’s absentee ballot rules presented a “paradox” so arbitrary as to violate the Equal Protection Clause of the Fourteenth Amendment (if not also to delight the Albany cynic):

If a New York resident eligible to vote is confined in a county jail in a county in which he does not reside, paradoxically, he may secure an absentee ballot and vote, and he may also register by mail, presumably because he is ‘unavoidably absent from the county of his residence.’ … Thus, under the New York statutes, 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 voting rights. … [I]f the citizen is confined in the county of his legal residence, he cannot vote by absentee ballot, as can his cellmate whose residence is in the adjoining county. Although neither is under any legal bar to voting, one of them can vote by absentee ballot and the other cannot.

As a result, unless it made other means of voting such as in-jail polling places or transportation available, New York was required to update its rules to allow incarcerated people qualified to vote to use absentee ballots. This decision ensured ballot access for pretrial detainees in all fifty states.

Since at least 2005, members of the New York state legislature have introduced bills to end the disqualification of voters who are convicted of felonies. In the 2021-2022 session, Assembly Bill A5360 and Senate Bill S5210 propose to strike language disenfranchising people convicted of felonies from state law. Restoration of voting rights is unnecessary if they are never revoked to start. However, forty-eight states restrict voting rights for people convicted of felonies for lengths of time ranging from the duration of incarceration and duration of parole or probation, to longer periods contingent upon additional action or waiting. A decade-and-a-half in committee shows that these legislative proposals have not yet gained wide appeal in New York.

Only Maine and Vermont have never revoked voting rights for people with felony convictions. In these states, as well as the District of Columbia as of 2020, prisoners convicted of felonies are able to vote from prison. While New York’s Senate bill merely sets out to maintain voting rights for people convicted of felonies, the Assembly bill additionally provides affirmative methods for voting while in prison.

In May 2021, then-Governor Andrew Cuomo signed into law a bill restoring voting rights to New Yorkers after release from prison, statutorily ending the restrictions on people released from prison but still on parole. This law followed Cuomo’s 2018 executive order restoring voting rights for people on parole and reinforces the progress advocates for voting rights restoration have made in New York by protecting parolees from future gubernatorial administrations’ unpredictable, contrary executive orders.

Post-release rights restoration is gaining popularity throughout the country but ending felony disenfranchisement for those in prison lags behind. Even for qualified detainees, the organization Prison Policy Initiative has found that confusion about eligibility, jail mail delays, registration deadlines, fear and lack of access to identification documents prevent people in jail from registering to vote and casting ballots. As with rights restoration, the campaign to maintain voting rights for people in prison will need to be legal and cultural.

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