On any given day, approximately 2.3 million individuals are incarcerated, many of whom are eligible voters and are disproportionately people of color. The majority of state and local governments do not affirmatively provide incarcerated voters with special accommodations to ensure that they are able to exercise their right to vote, leaving many effectively disenfranchised. What is the constitutional harm to these persons: Is the harm the denial of the right to vote, which society owes to every eligible citizen? Or the failure of the duty of care that the state owes to every prisoner in its charge? Is the constitutional harm the denial of Fourteenth Amendment equal protection? Or the imposition of Eighth Amendment cruel and unusual punishment? Or is it somewhere in between, or in some sense, all of these? Controlling Supreme Court jurisprudence approaches this question through a limited standalone application of the Equal Protection Clause. This Article revisits the controlling interpretation of the right to vote in jails and develops an alternative interpretation that integrates the Due Process Clause and Equal Protection Clause to fully account for the liberty-based harms specific to incarcerated voters. At the core of the current interpretation lies a fundamental misconception that fails to recognize both the profundity and centrality of the right to vote and the inequalities between incarcerated and non-incarcerated individuals. For detainees, an interpretation integrating substantive due process and equal protection might clarify the contours of the state’s obligation to ensure protection of this fundamental right.
. Press Release, Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://
perma.cc/Z7G2-FASF]; Chris Uggen, Ryan Larson, Sarah Shannon & Arleth Pulido-Nava, Sent’g Project, Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction 8 fig.1 (2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/#III.%20Disenfranchisement%20in%202020 [https://perma.cc/8DTP-KNDC] (indicating that 25% of people in prison are disenfranchised).
* Assistant Professor, University of Baltimore School of Law. I would like to sincerely thank Aderson B. Francois, Deborah Epstein, Robin West, Colin Starger, Michele Gilman, Lisa Iglesias, Brandon Garrett, and Brandon Figg for their insightful comments and suggestions. Thanks also to the participants of the NYU Clinical Writer’s Workshop and Mid-Atlantic Clinical Writer’s Workshop for their invaluable feedback on early drafts. I am also immensely grateful for the research support provided by three brilliant students I had the pleasure of teaching while serving as a fellow in the Georgetown University Law Center’s Civil Rights Clinic: Alexander Afnan, Rachel Guy, and Olivia Grob-Lipkis. Finally, many thanks to the editors of the Southern California Law Review for their assistance bringing this Article to publication.