A Mississippi attorney general’s opinion last month on absentee voting has thrown into confusion the voting rights of individuals in jail.
The Sept. 29 opinion addressed the question of whether qualified electors held in the county of their residence in jail can select disability on their absentee ballot, saying disability and other reasons for voting absentee are decided on a case-by-case basis by local election officials.
The absentee ballot application requires the person check a box stating the reason for voting absentee. Incarcerated individuals have typically checked disabled.
However, the opinion didn’t provide clarity about incarcerated individuals’ access to voting, said Jarrius Adams, a research associate for Mississippi Votes.
Mississippi residents can vote if they are in a county jail awaiting trial or serving time in state prison, and they are able to exercise that right through absentee mail-in ballots, voting advocates say.
Many people think any interaction with the criminal justice system makes them ineligible to vote, but that isn’t true, Adams said. People who are convicted of most felonies, misdemeanors, out-of-state convictions or federal convictions don’t lose their right to vote.
The opinion did go on to say: “We do note that a qualified elector who is otherwise eligible to vote does not lose the right to vote because he or she is being detained.”
Adams said guidance from the secretary of state’s office for circuit clerks who manage voter registration is if someone hasn’t been convicted, they can say their reason for voting absentee is because they temporarily live outside of their place of residence.
The secretary of state’s office did not immediately respond to a request for comment.
Mississippi Votes aims to educate people about their voting rights and combat rhetoric that can discourage incarcerated people from voting, he said.
“Folks should be able to exercise their right to vote,” he said.
Absentee voting by mail is the main way incarcerated people are able to vote. Once determining they are eligible to vote and register, an incarcerated person can request an absentee ballot from their county circuit clerk’s office by mail.
Voting groups including Mississippi Votes visit jails and prisons throughout the year to get people registered to vote and help fill out voting materials.
Adams said the organization can provide sample ballots, information about voting procedure and help people notarize documents.
“We do it like we do with anyone else,” he said. “The only thing we don’t do is tell them who to vote for. We encourage them to vote up and down the ballot. Their opinion matters.”
Representatives from Mississippi Votes, the Mississippi Center for Justice, the NAACP Legal Defense Fund and the Mississippi Center for Re-Entry visited women at the Flowood Community Work Center last month. The work center is run by the Mississippi Department of Corrections and is for people who are close to release.
Cynetra Freeman, founder of the Center for Re-Entry and a formerly incarcerated person, said the visit was the first of several planned visits to facilities around the state.
So far, voter advocates on the tour have helped educate 200 incarcerated people, she said, and 35 people have registered to vote.
“It was a great response,” Freeman said. “Everyone was engaged and everyone wanted to learn if they could register to vote.”
Once people leave incarceration, there can also be challenges to being able to vote.
A form of picture identification such as a driver’s license or passport is required to be able to vote in Mississippi. Obtaining a driver’s license requires a certified birth certificate and Social Security card – documentation that can be difficult for a formerly incarcerated person to gather, Freeman said.
She said the center is working with local Social Security offices and the Office of Vital Records to help people use their prison license as a form of identification to obtain their birth certificate, which can be used to get a Social Security card and driver’s license.
While most incarcerated and formerly incarcerated people don’t lose their right to vote, those who are convicted of 22 designated crimes in Mississippi lose suffrage.
Among the disenfranchising crimes are nonviolent offenses such as timber larceny, issuing a bad check and receiving stolen property. Murder, rape and armed robbery were added later in 1968.
Eleven percent of the state’s population is unable to vote because they were convicted of a disenfranchising crime, Adams said. That’s about 236,000 people and 62% of those people are Black.
Framers of the 1890 Constitution placed a lifetime voting ban for those crimes because they believed Black Mississippians were more prone to commit them. That provision has been challenged in court for having discriminatory intent, but in August the 5th U.S. Circuit Court of Appeals upheld it, saying “the racial taint” had been removed.
A person convicted of a disenfranchising crime can regain the right to vote through a bill passed through the Legislature or an executive order or pardon by the governor.
“That’s a lot of people who can decide whether a person gets the right back,” Adams said, adding that the process can be hard to start if you don’t know your state lawmakers who would have to file a bill on your behalf.
Between 2007 and 2017, the Legislature considered 128 suffrage applications and 45 people had their voting rights restored, according to a 2021 report about felony disenfranchisement by Mississippi Votes and One Voice.
During the recent legislative session, five people had their rights restored because their suffrage bills became law without the governor’s signature.
Multiple groups including Mississippi Votes, the ACLU of Mississippi, the Mississippi Center for Justice and the Southern Poverty Law Center help people with voting rights restoration and have information online about the process and ways to contact staff to help.
“Our votes matter, too,” Freeman said. “It matters just as much as someone who has never been involved in the criminal justice system.”