I Was Unconstitutionally Disenfranchised in Jail

Dark blue background with American flag laid over the Massachusetts state shape and two hands coming out of the state holding a mail-in ballot.

In 2008, I witnessed our nation elect its first Black president from a Nashua Street Jail cell in Boston. Through the glass window on my cell door I stared across the unit where the TV was mounted to the wall, anxiously waiting for the race to be called. As fate would have it, the Associated Press declared Barack Obama our next president. Admittedly I was amped. I know my neighbors heard me yelling, ”Word! Yeah! That’s wassup!” But something else happened that I’ll never forget — the entire unit I was on erupted in celebration. It was as if the city won another championship ring. Men were hollering, banging and kicking their cell doors. After my outbursts came to an end, I just stood there in between my reality and expectations, eyes fixed on the television screen, pleased to be a witness to this moment in history. 

I was genuinely excited when Obama won, but I’m genuinely bothered whenever I think about his election. Here’s what I know now, that I didn’t know then — as pretrial detainees we were all eligible voters, yet none of us were given the opportunity to cast a ballot in an election we all obviously felt deeply connected to. 

But this is not an isolated problem. In Massachusetts, in every election, close to 9,000, mostly Black and Latino, incarcerated eligible voters (people incarcerated pretrial, for misdemeanors or civilly committed) are purposefully kept uninformed of their right to vote and in some cases they are illegally denied absentee ballots or these ballots get rejected. This long standing practice has come to be known as jail-based ”de facto” disenfranchisement.

Once a victim of de facto disenfranchisement and now a casualty of de jure felony disenfranchisement, I share this experience with nearly all the men incarcerated in the Massachusetts Department of Corrections. We know all too well the humiliating sting that comes with being denied suffrage. That’s why, in 2018, when given the opportunity to propose legislation to members of the Massachusetts Black and Latino Legislative Caucus, my colleagues and I in the African American Coalition Committee (AACC) based in MCI-Norfolk — the largest correctional facility in Massachusetts — prioritized expanding democracy even if not directly for ourselves.

We realized that jail-based disenfranchisement was a statewide problem in desperate need of a legislative solution. Currently, Massachusetts has no system in place across its 14 counties to ensure incarcerated voters have equal — or any — access to casting ballots. These eligible voters think they have lost their right to vote, often because they’ve been told as much by corrections officers. For so long, this system failure has fostered a culture of disenfranchisement that extends beyond the wall, as incarcerated citizens are released from prison or jail with the belief or fear that they have permanently lost the right to vote.

Every citizen of Massachusetts — incarcerated or not — deserves to have their voices heard with equity and should not have to wait until the next election to do so.

The jail-based voting legislation the AACC proposed was initially filed in 2019 by state Rep. Russell Holmes (D). In the years since, we have worked with advocates in the Democracy Behind Bars Coalition and in the Massachusetts Legislature — including with state Reps. Liz Miranda (D) and Chynah Tyler (D) and Sen. Adam Hinds (D) — to shepard critical legislative provisions into the VOTES Act, an omnibus election reform bill. 

In June, Gov. Charlie Baker (R) signed into law the VOTES Act, which makes mail-in and early voting permanent fixtures in future Massachusetts elections. The bill also includes numerous provisions to ensure that eligible voters who are incarcerated can request and cast mail-in ballots. 

This commonsense legislation creates a formal system to provide eligible incarcerated voters with ballot applications, voting materials and private locations to vote. It also provides guidance and processes for sheriffs and jail officials to help return applications and ballots via secure drop boxes. The VOTES Act would make voter registration and know-your-rights part of the reentry process for those returning to the community. Just as importantly, the legislation requires that all data on the number of ballots applied for, rejected and cast be documented and made public.

This major piece of legislation will be game changing for voting while incarcerated. However, the bill is not perfect. The VOTES Act excludes an important provision that would protect access for incarcerated voters who have experienced housing instability by allowing them to use the prison or jail where they are incarcerated as their voting address. The legislation, though signed by the governor, will not be implemented until Jan. 1, 2023, and consequently will leave thousands of voters out of this fall’s general election. Baker and Massachusetts elections officials should commit to implementing the jail-based voting provisions early, in time for incarcerated individuals to vote in November’s statewide election. 

Every citizen of Massachusetts — incarcerated or not — deserves to have their voices heard with equity and should not have to wait until the next election to do so. Our mission at the AACC is to eliminate racist policies that harm Black and Latino communities, and unfortunately the criminal legal system in Massachusetts is racist. Black and Latino residents are incarcerated at much higher rates than white residents, approximately 8:1 and 5:1 respectively. As a result, Black and Latino residents make up nearly 60% of those disenfranchised despite comprising less than 20% of the total population. The inevitable consequence of racialized disenfranchisement is the distortion of political representation in communities of color. We already know this is a recipe for bad public policies that hit our neighborhoods the hardest, including the hyperincarceration of our communities and the unequal distribution of resources.

We are tired of seeing racism, in all of its forms, continuously impede progress within Black and Latino communities. Through initiatives — restoring the voting rights of incarcerated citizens, establishing commissions to study structural racism within Massachusetts, reestablishing the furlough program and more — we work together with our communities to break down some of these impediments. We turn inequity into initiatives to avoid rage. 

Civic engagement is fundamentally good for people and communities on both sides of the wall. As the Sentencing Project notes, “voting appears to be part of a package of pro-social behavior that is linked to desistance from crime.” Increasing civic participation reduces recidivism; one study found that among individuals who had been arrested previously, 27% of non-voters were rearrested, compared with 12% of voters. 

We do this work because we know personally the good that civic engagement does for us as individuals and our communities. We are fathers and community members who want to weigh in on our children’s school committees, just like any other parent. Our fight to dismantle voting barriers is not just about impacting policy: It’s about remaining connected to our communities and our families.

Prioritizing ballot access is critical not just because denying it to eligible voters is unconstitutional and not only because this is so plainly an issue of racial justice. It is also critical because political inequality and the outsized influence of special interests like the American Legislative Exchange Council have driven up mass incarceration. Those most impacted by incarceration — namely, the currently incarcerated — have no consistent recourse to participate in policy debate. 

Ensuring that incarcerated eligible voters can use their political voices at the ballot box is a first, but critical step to guaranteeing the expertise of directly-affected communities is part of the policymaking process, and building a more equitable democracy.

Corey “Al-Ameen” Patterson is the chair of the African American Coalition Committee (AACC), a group based in MCI-Norfolk that is focused on dismantling systemic racial inequities within the criminal legal system that disproportionately harm Black and Latino people. The AACC is also dedicated to organizing, uplifting and training men of color to improve their lives both inside and outside the walls.