American Civil Liberties Union Sues Delaware for Disenfranchising Inmates

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The A.C.L.U.’s lawsuit notes that, under the Delaware state constitution, inmates awaiting trial or convicted of certain non-felony offenses are still afforded the right to vote. However, a recent Supreme Court ruling limiting mail-in voting could prevent many detainees from participating in elections.

The American Civil Liberties Union has filed a lawsuit against Delaware and several of its highest-ranking government officials, asserting that the state unfairly deprives certain inmates of the right to vote.

According to The Delaware News Journal, the lawsuit was filed earlier this week in U.S. District Court for Delaware. In their complaint, A.C.L.U. attorneys allege that recent court rulings restricting mail-in ballots do not guarantee that eligible inmates will be afforded the opportunity to cast their votes in upcoming elections.

The complaint lists defendants including Delaware Gov. John Carney, state Election Commissioner Anthony Albence, and Correction Commissioner Terra Taylor.

Under Delaware state law, persons are only ineligible to vote if they have been convicted of a felony and have not yet completed their sentence, or if they have been convicted of certain disqualifying offenses, including murder, manslaughter, and a number of specified sex crimes.

In most cases, though, detainees awaiting trial can still participate in elections, as can inmates convicted of lower-level misdemeanor offenses.

The A.C.L.U. argues that recent events may either prevent or deter eligible inmates from casting a ballot.

“States around the country have also been regularly and increasingly prosecuting voters—especially voters who have been previously arrested, charged with, or convicted of certain crimes—for trying to vote, even when those voters have made good-faith mistakes as to their voting eligibility due to confusion about rights restoration procedures under state law,” the complaint states.

Voting materials and stickers. Image via U.S. Embassy in Chile via Wikimedia Commons (CCA-BY-2.0).

“A Delaware eligible incarcerated voter’s reasonable fear that casting an absentee ballot may result in a challenge or prosecution will continue to chill citizens from exercising their right to vote unless the State adopts a mechanism that provides these voters the opportunity to cast a ballot in person by voting machine,” the lawsuit says, adding that, “The current climate in Delaware surrounding voting in jail or detention—a complex environment of threat, confusion, and fear—has been found to lead to de facto disenfranchisement of otherwise eligible voters in other states.”

Delaware’s Supreme Court, notes WBOC, recently invalidated universal mail-in voting, making it difficult for a substantial portion of the population—including inmates—to participate in state- and federal-level elections.

“We reached out to the Delaware Department of Correction and the Delaware Department of Elections to figure out what they were going to do in light of this new reality in which it was now clear that these voters, while entitled to vote, couldn’t do so by absentee ballot,” said Andrew Bernstein, Cozen Voting Rights Fellow at the Delaware chapter of the American Civil Liberties Union.

“This disenfranchisement falls particularly hard along lines of race and class, as low-income people and people of color are more likely to be incarcerated while awaiting trial,” Bernstein said. “We’re suing to make sure everyone who is eligible to vote has the opportunity to do so.”

The A.C.L.U. is seeking a court order correcting Delaware to correct its elections laws and to provide inmates with in-person voting facilities.

“The A.C.L.U. of Delaware wants it to be that these voters can cast a ballot without fear of prosecution, without fear of challenge, and without fear that they won’t be counted,” Bernstein said.

The Delaware Department of Correction has since issued a statement, saying that it “remains committed” to ensuring that eligible inmates can participate in elections.

“While we cannot comment on pending litigation currently before the Court, the Delaware Department of Correction remains committed to protecting the right of eligible voters who are in D.O.C. custody to choose to express their constitutional right to participate in the voting process,” it said.


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