Yonas Kahsai spent much of high school encouraging members of his Phoenix, Arizona, community to get out and vote. The child of a Somali refugee turned union organizer, he’d worked with a group that registered over 150,000 mostly Latino voters ahead of the 2016 Maricopa County race that unseated controversial Sheriff Joe Arpaio after over two decades in office. When he turned 18, he eagerly registered to vote himself.
But by the time the next election rolled around, Kahsai was in jail.
In most states, people who are convicted of a felony cannot vote — but people who are in jail awaiting trial and have no prior felony conviction can. Kahsai knew his rights, so he requested a ballot from inside his cell. At first, a guard told him that he couldn’t have one. Kahsai pushed back and was eventually granted a request to temporarily change his address to the facility and get an absentee ballot.
The ballot never came. The election passed, Kahsai was found guilty, and he lost his ability to vote forever.
Many people don’t know it’s possible to vote from jail. But in 1974, the Supreme Court affirmed that eligible voters who are detained have a constitutional right to the ballot. The court, however, left it up to states and local jurisdictions to decide how they wanted to ensure pretrial detainee voter access in their jails.
That access widely varies by state and even more so by county. Oftentimes neither jail staff nor inmates are aware of detainee voting rights. Restrictions on mail can make receiving ballots impossible, and a lack of access to the internet and fear of unknowingly breaking the law can dissuade inmates from requesting a ballot in the first place. When they do, corrections officers may deny it. The result is de facto disenfranchisement for people incarcerated in jails.
Take Arizona, a historically conservative but rapidly changing state, which will hold its Democratic presidential primary on Tuesday. Jail voting there is scant, despite the state’s anticipated importance as a potential swing state in the general election.
In 1974, the Supreme Court affirmed that eligible voters who are detained have a constitutional right to the ballot.
In the 2018 midterm elections, only eight people in Arizona voted from jail, according to data obtained by public records requests made out to each county and shared with The Intercept by the organization Campaign Legal Center, which works on ballot access issues for incarcerated voters. Kahsai, despite his attempts, was not one of them — he later found out that his ballot never arrived because it was too large for the Maricopa jail’s mail size limits.
This election cycle, a coalition of public defenders, voting advocates, and formerly incarcerated people sought to change the situation in Arizona, starting with its largest county, Maricopa. Through partnerships with voting officials and the local sheriff, the plan was to end voter disenfranchisement in Maricopa jails by the Democratic primary on March 17. They hoped to establish a model that they could bring to every county in the state in time for the general presidential election in November.
But as Tuesday’s primary approaches, no one is sure what the county has done to support jail voting and ensure that eligible voters are aware of their rights.
The Right to Vote
A decade before Kahsai entered Arizona’s jail system, Joe Watson found himself inside Lower Buckeye Jail in Maricopa County. He’d robbed a series of convenience stores to satisfy a worsening gambling addiction.
It was 2008, and Watson, a longtime local journalist, was excited about the upcoming presidential election — the young Democratic senator from Illinois piqued his interest.
But when he requested an absentee voter registration form from each passing correctional officer, he said they merely laughed.
“They just ignored me. There was nothing I could do,” said Watson, who now works as a researcher and consultant at the American Friends Service Committee – Arizona. “I was just denied my right to vote. It was very deflating. There’s a culture inside of guards telling you that you don’t matter, and this — this was them proving it. And that’s the end of it, because less than two years later, I had been convicted and sentenced, and I have not had the right to vote since.”
“These are exactly the kinds of voters that our system has excluded through the course of American history.”
Arizona currently holds an estimated 14,000 people in its jails, according to the Department of Justice’s National Institute of Corrections. It’s hard to know exactly how many of these individuals are eligible voters; the sheriffs’ offices that oversee county jails rarely track this information.
But Alex Gulotta, Arizona director of All Voting Is Local, an organization that works to increase voting access in several key election states, said the group currently estimates that about 60 percent of people in Arizona jails are preconviction and eligible voters.
As with other forms of disenfranchisement, access to voting in jails plays out along lines of race and class. Those who can afford bail are less likely to be incarcerated while awaiting trial, and people of color, particularly black and Native people, are disproportionately represented in Arizona’s jail population.
“These are exactly the kinds of voters that our system has excluded through the course of American history. In Arizona and across the country, the vast majority of people in jails are there because they cannot afford to pay bail,” said Dana Paikowsky, a legal fellow at Campaign Legal Center. “Which means that in the case of voting, your bail functions like a poll tax: The only thing preventing you from accessing the ballot is an inability to pay.”
Many Arizona county sheriffs’ offices told The Intercept that they would provide absentee ballots to detainees who requested them.
“But the thing is, we know they don’t always,” said Adrienne Carmack, advocacy director of Arizona Advocacy Network and Foundation, an organization that works to expand voter access in the state, referring to Kahsai’s case.
Kahsai, who was awaiting trial for robbing multiple Circle K convenience stores, was known to local voter advocates because of his organizing work. Hearing about his difficulty voting in 2018, they got together and pressured city officials to make sure that he received a ballot for last year’s special runoff election for the mayor of Phoenix.
This is how jail voting works in many states: When it happens, it’s often because of committed individuals, either from advocacy groups or within local sheriff’s or county registrars’ offices.
Kahsai said he still felt ecstatic.
“Because I knew that would likely be my first, and probably last, chance to vote for a really long time,’” Kahsai said in an interview with The Intercept inside Lewis prison, where he is currently incarcerated. “I got to use my voice and opinion while I was locked up. You know how empowered that makes you feel, when everything around you tells you that you’re not in control of the situation?”
“I got to use my voice and opinion while I was locked up. You know how empowered that makes you feel, when everything around you tells you that you’re not in control of the situation?”
Kahsai was convicted of a felony sentence two months later and lost his right to the ballot.
“Once opportunities are available, people take advantage of them,” Paikowsky said. “When you invest resources into the jail — and these resources don’t have to be significant — you see that more people vote.”
The Intercept contacted the sheriffs’ offices in all 15 Arizona counties about their plans for Election Day. Of the eight that responded, only two, Gila and Yuma, had something of a plan for ensuring detainees were aware of their right to vote. The counties will put up educational posters and flyers and facilitate voting for people who enter the jail 11 days or less before the election — the deadline to request an absentee ballot in Arizona. Two other counties tell detainees about their right to vote during the intake process.
It’s this patchwork that motivated the coalition to form in 2018. They resolved to start with Maricopa County, the fourth-largest county in the nation and where all eight of the people who voted during the 2018 midterms hailed from.
Last August, the coalition began meeting regularly with the county recorder’s office, who in turn said it was communicating with the sheriff’s office to develop a system before Arizona’s primary the following March.
By November, the coalition had drafted a three-page policy of procedures to ensure the rights of incarcerated voters. The plan, approved by the Maricopa County Recorder’s Office and reviewed by The Intercept, provides a process for every aspect of in-jail voting — from voter registration, to educating inmates about their right to vote, to the casting and receiving of ballots by mail.
It would resolve the issue of mail-in ballots not arriving, as in Kahsai’s case, by having Maricopa jails count all official election-related mail as “legal mail.” It also included a provision for a special election board to facilitate the voting process for people who enter the jail system after the absentee ballot cutoff.
“Our goal is to have the procedures in place in Maricopa County, to pilot it, by the presidential primary election,” Carmack told The Intercept in January. “And by November, we want to have all the counties have a procedure.”
With the approval of the proposal by the recorder’s office, all that remained was for the Maricopa County Sheriff’s Office, now led by Democratic Sheriff Paul Penzone, to implement the policies in the jails: to hang posters and make announcements alerting voters of upcoming elections and their rights, begin facilitating monthly voter registration and absentee voting education visits from the recorder’s office, and in the 11 days before the election, inform voters of their right to a special election board.
But the coalition said its December meeting with the sheriff’s office to check in on its progress was rescheduled. And rescheduled again in January. Finally, in February, the group had a meeting with Tommy McKone, director of government and external affairs for the sheriff’s office.
McKone told the coalition that it would not be possible for the sheriff’s office to turn this around “on such short notice,” Gulotta recalled. That made no sense to him, after three months of meetings with the recorder’s office, which was supposedly in talks with the sheriff. “They acted like it was the first time that they had ever seen them. Or heard of them,” he said.
Kathren Coleman, deputy recorder for communications for the Maricopa County Recorder’s Office, maintained that her office communicated with the sheriff’s office throughout the process. “The Recorder’s Office has worked with detainee-voting advocates, the formerly detained, and public defenders through a coalition-style group to determine the resources needed to provide a program serving jail voters,” Coleman added.
The Maricopa County Sheriff’s Office declined to comment on the meeting with the coalition or on the proposed reforms to the jail voting process. Penzone declined requests for an interview.
A global pandemic might not have been on county officials’ minds a few months ago, but jail voting should have been.
“I know this is very general, but this is something that MCSO has done for many years and continues to do, which is make ballots available to all inmates who request to vote,” said Norma Gutierrez-Deorta, the office’s director of public information, in an emailed statement. “All inmates are granted the opportunity to practice their constitutional right to vote. We will continue to comply with all requirements of Arizona’s election laws.”
As elected officials, sheriffs are tasked with facilitating voting for the jail population in their care, even during election cycles when their own name may be on the ballot.
Penzone will be on the ballot in November, running against Arpaio; so will Maricopa County Recorder Adrian Fontes, who is also a Democrat.
“The thing they have to be careful of,” said Paul Bentz, longtime political pollster in the state and senior vice president of research and strategy at HighGround, “is being attacked for wanting to get these individuals the right to vote so they can vote for them. The county still leans Republican right now. The demographics are changing some, but I think this’ll be a high turnout election. That’s the other thing Penzone is being very mindful of — he has to make sure he’s doing things that appeal to that Republican base. This doesn’t seem like one of them.”
“I’m sure that’s part of the reason why the sheriff’s office doesn’t seem to be at least engaging on it at this point,” he added.
On Tuesday, the coalition — and jail voters — will be back to where they were before: practicing ad hoc advocacy to help eligible voters who try to cast their ballot in the primary. They don’t know how successful that will be, or if people who got to jail in the last 11 days will be allowed to vote at all. The county is mailing ballots to all registered Democratic voters in light of the coronavirus threat, but those ballots likely won’t reach people who have just entered the system. A global pandemic might not have been on county officials’ minds a few months ago, but jail voting should have been, coalition members noted.
“It’s frustrating to have initiated a conversation of that far ahead of the election, and to be here in March of 2020 and still not have accomplished anything meaningful,” said Gulotta. “The number of meetings we had, the number of people who were at the table … the fact that they haven’t actually done anything with that seems to be a huge waste.”