Series: From the President

How Mass Incarceration Shapes Our Elections

Nicholas Turner President & Director // Sam McCann Senior Writer
Oct 26, 2022

As we approach the first midterm election since the January 6 Capitol Hill riot, the integrity of our elections is under more scrutiny than ever. Fearmongering around the myth of voter fraud is a deliberate tactic at the local, state, and federal level, and mass incarceration is central to that strategy.

This summer, Florida Governor Ron DeSantis brought charges against 20 Floridians who thought they had regained the right to vote after being convicted of a crime. He described the prosecutions as an “opening salvo” in the fight against voter fraud, with his efforts specifically targeting people released from jail or prison. But a New York Times review of roughly 400 similar prosecutions nationwide found that rather than protecting election integrity, these prosecutions typically find a small handful of people who did not even realize they were breaking the law—despite convictions for voter fraud requiring criminal intent. Moreover, the investigation found that Black people and people experiencing poverty were most likely to receive the stiffest sentences, while “comfortable retirees” charged with the same felony often received no jail time.

DeSantis’s prosecutions of community members returning home underscores the pivotal role mass incarceration plays in U.S. elections. He and others using scare tactics to inflame debates about election integrity insist that people who have been released from jail or prison are perpetrating voter fraud en masse. That is simply not true. However, the sad reality is that mass incarceration does influence our elections, just in ways that have nothing to do with voter fraud. Instead, jails and prisons make our election less fair: they narrow our electorate by barring people from exercising fundamental rights and are used to gerrymander voting lines in ways that marginalize communities of color.

Prison gerrymandering disempowers communities of color

This is the first year we’ll be voting in districts drawn based on data from the 2020 census. That data has a massive inaccuracy, though: roughly 1.4 million people in prison were counted not in the communities where they live, but rather in the districts where they were incarcerated when the census was taken.

The impact of this practice reverberates across our political and economic system. Mass incarceration has most severely devastated communities of color and people experiencing poverty. Black and Latino people make up 56 percent of the U.S. prison population, despite constituting only 32 percent of the population at large. They are overpoliced and overincarcerated before being economically marginalized upon release.

By refusing to count incarcerated people in their homes, the census compounds this vicious cycle by marginalizing communities most harmed by mass incarceration. Census data is also used to allocate key federal funding for basic needs like schools, hospitals, and roads. This deliberate miscount funnels that money away from these communities.

Drawing districts based on this flawed data can swing the balance of a legislature. For instance, in Pennsylvania, a 2019 study found that if incarcerated people had been counted in their homes, rather than in the prison where the state assigned them, four majority-white rural legislative districts would not have large enough populations to meet the federal minimum threshold for legislative representation. If all the residents of Philadelphia were counted in this way, communities with high populations of people of color would gain as many as two additional seats to represent their voices. The state rolled back some prison gerrymandering practices last year, but left a carve-out in place.

Gerrymandering disincentives prison closures. When rural communities derive their economic and political power from mass incarceration, they are denied the opportunity to grow in ways independent of it.

There is simply no need to count incarcerated people incorrectly. In 2016, the Census Bureau solicited public comment on whether to end the practice. It received 77,887 comments, 99 percent of which supported the change. Still, the Bureau declined to end the practice, and passed the decision on to states. Although there has been some progress on the state level, with 11 states passing legislation that ends prison gerrymandering, it’s past time for action on the federal level.

Despite progress, people returning home remain disenfranchised

In 2018, 64 percent of Floridians voted to amend the state constitution to grant voting rights to people who had been convicted of certain felonies. That decision was the culmination of decades of organizing by local activists and part of a national movement to restore voting rights to people returning home from incarceration.

Sixteen states and the District of Columbia enacted voting rights reforms from 2016 to 2021. Their efforts rolled back laws that have their roots in Reconstruction, when state legislatures sought to disenfranchise people convicted of crimes they believed to be committed most frequently by Black people. Today, 6.2 percent of the adult Black population is unable to vote because of a felony conviction, compared to 1.7 percent of non-Black voters. An estimated 5.2 million people remain disenfranchised because they were once ensnared in the criminal legal system—a population larger than that of most states.

Although the reforms of the last decade are a step in the right direction, they are insufficient. As soon as a change is enacted, opponents set up elaborate red tape to prevent people from exercising their rights. For instance, in an effort to blunt the impact of the 2018 Constitutional amendment, the Florida legislature passed a bill that requires people to pay all fines, fees, court costs, and restitution associated with a criminal conviction before voting. Fines and fees already trap people in cycles of poverty and criminalization; this law adds a bureaucratic nightmare on top of it. And while Florida burdens people who interact with the legal system with more than a billion dollars in fines, the state does not even expect to collect that money. From 2013 to 2018, it collected an average of 19 percent of its fines annually. That’s because it’s nearly impossible for people to figure out how much they owe—there’s no centralized database that tracks that information, so people are forced to guess how much, and to whom, they need to pay before they can vote.

Other states have taken similar bureaucratic approaches to undermine voting rights for people who have been involved with the legal system. In Tennessee, Derrick Sprouse sought to vote in 2020, following a conviction for stealing from Target in 1985, for which he served a year of probation. He paid off the outstanding $197 in fees before the election and thought he had cleared the last hurdle standing between him and suffrage. However, the clerk denied his application because he was behind on child support.

Rather than setting up arbitrary hurdles to basic rights, states must provide good-faith paths forward for people who have been involved in the criminal legal system. Narrowing the electorate based on interactions with the criminal legal system disproportionately denies already overpoliced communities the chance to exercise their rights.

Pretrial incarceration denies rights to people waiting for their day in court

There is a world of difference between having the right to vote and the ability to vote. For hundreds of thousands of people held in jails pretrial, they retain their right to vote but are denied any meaningful way to exercise it.

Nationwide, roughly 550,000 people are held in jails on any given day, and most are eligible to vote—but a 2019 Prison Policy Initiative report found that few do. The report cited obstacles like strict voter ID laws, bureaucratic registration obstacles, and restrictive absentee voting policies as some of the barriers to exercising that right.

Perhaps the most fundamental obstacle, though, is access. Often, election officials and corrections departments do not provide the necessary infrastructure for people accused of crimes to vote. New York City provides a case study in this: public defenders say that the Department of Correction (DOC) ignores its legal mandate to inform people in jail of their right to vote. The state requires that people held in pretrial custody receive a packet with voter information, including an absentee ballot application, but DOC simply fails to provide this. DOC also fails to comply with early voting requirements.

Effectively disenfranchising people accused of crimes compounds the racialized harm of overpolicing and mass incarceration. Jail officials and boards of elections must ensure that the right to vote is meaningfully protected at every step. The communities most hurt by mass incarceration have the right to voice their vision for thriving communities at the ballot box. Denying them the ability to do so undermines the fundamental principles of democracy and traps us in an endless loop of criminalization and marginalization.