For people in New York’s carceral system, a struggle to access the ballot

There’s a pressure that comes with being the first of anything – Assembly Member Eddie Gibbs knows that well. Since the East Harlem representative made history by becoming the first formerly incarcerated person elected to the state Legislature, he’s honed that pressure into what he says is a duty to empower and enlist others with conviction histories into local politics.

That work starts in part with educating formerly incarcerated New Yorkers about their voting rights. The Second Chance Democratic Club, Gibbs’ recently launched citywide political group, is one of the ways he’s trying to get the word out to people who’ve spent time in prison that they can be a part of the political process. 

The state has significantly expanded ballot access to formerly incarcerated New Yorkers in the three decades since Gibbs was released. Up until a few years ago, the majority of people with a felony conviction were barred from voting. Gibbs, having been granted a Certificate of Good Conduct from the state Department of Corrections and Community Supervision, was a rare exception. While these certificates are no longer a key to the ballot box, Gibbs said many people leave prison with limited knowledge of their voting rights. 

“I don’t think they want us to be part of this process and when I say us I mean formerly incarcerated individuals,” he said. “If they did, they would have had the carpet rolled out for us in terms of structures and instruction. It’s an uphill battle and struggle.”

In recent years, New York lawmakers have begun rolling back some of the laws and procedures that currently bar an estimated 4.6 million Americans nation-wide from voting due to a felony conviction. The most significant of these measures came in 2021 when New York lawmakers passed legislation that automatically restored voting rights to people on parole for a felony. While former Gov. Andrew Cuomo had issued an executive order to restore access on a case by case basis nearly three years earlier, 2021’s legislative victory sealed voting rights for the approximately 35,000 New Yorkers out on parole after a felony conviction as well as everyone else who will be released in the years ahead. This policy change also requires the state Department of Corrections and Community Supervision, which oversees state prisons, to provide all individuals with “assistance with the voter eligibility and registration processes” upon their release. A spokesperson for the New York City Correction Department said the department regularly provides voter information and registration forms to people in their custody as well as those who have been recently discharged.

Still, advocates say there is much work to be done to combat the long-standing effects of felony disenfranchisement in the state. These laws, which vary state to state, impose the heaviest burden on low-income and Black and brown communities given the racial disparities in criminal enforcement and sentencing. And voting access within New York prisons and jails – while legal for the many incarcerated people who are awaiting trial and as such haven’t been convicted of anything – remains limited, according to advocates. 

The difference between having the right to vote and actually voting

Anyone with a criminal conviction can currently vote in New York if they’ve been charged with a misdemeanor instead of a felony, or if they are on parole, pardoned or discharged from prison. They will however need to re-register before they can participate in any local, state and federal elections.

Incarcerated New Yorkers being held before standing trial and those serving time for a misdemeanor are allowed to vote without restriction, though there are few if any in-person polling sites in New York jails. Instead, incarcerated people rely almost entirely on absentee ballots. In New York City, the Department of Corrections is tasked with ensuring they are delivered to the Board of Elections in a timely manner. 

Despite about 90% of Rikers Island’s population being eligible to vote, only around 300 people within the jail’s 5,000+ population voted in the November 2020 general election, according to Rigodis Appling, an attorney with the Legal Aid Society. Turnout was even more dismal during the more recent June primary where a mere 133 ballots were delivered to the Board of Election, she said.

“We are proud of the work we’re doing to encourage voter engagement in our facilities. From distributing voter registration forms and ballots, putting up flyers and signs, supplying voter materials in our Law Library and centralized locations, to educating individuals in our custody about their right to vote,” a spokesperson for the New York City Correction Department said in a statement. “We are dedicated to ensuring that individuals have an active voice in matters that affect our communities.”

The Legal Aid Society, New York Civil Liberties Union and a myriad of other organizations and impacted New Yorkers have urged the New York City Board of Elections to open at least one early voting location on Rikers Island or to establish in-person absentee voting at the facility. They argue that incarcerated people who are eligible to vote are being deprived of their rights under state law, which dictates that early voting polling places be located in a way that gives voters “adequate and equitable access.”

Appling said the law is clear. “It's a matter of upholding constitutional rights,” she said. “There was plenty of sentiment against giving women the right to vote, Black people the right to vote – there’s always going to be sentiment against allowing people to do this, but they have the right. It’s not anyone else’s decision. There’s nothing else to weigh in on. It’s just the duty of the state to actually perform their duties.”

A confusing post-conviction landscape

When the state voted to automatically restore voting rights to people on parole, New York joined around 20 other states that only bar people who are currently in prison for a felony from voting. The United States is a patchwork of different felony disenfranchisement laws that range in severity state to state. Maine and Vermont are the only two states without any restrictions. About 11 states, including Florida, Alabama and Arizona, don’t allow anyone with a felony conviction to vote even after completing parole and probation, according to the Sentencing Project’s latest figures.

When people talk about voter disenfranchisement, the issue always comes back to the disproportionate burden that marginalized communities have faced. Of the roughly 11 million Americans booked in county jails, many are awaiting trial because they couldn’t afford to post bail or are serving a misdemeanor sentence. More than 88% of New York City’s jail population is Black and Latino. And that’s just people currently behind bars: More than four million other people are currently disenfranchised due to a felony conviction. 

But voter disenfranchisement is more complicated than the laws in place – it’s a layered intersectional issue, according to Kirk James, a clinical assistant professor at the NYU Silver School of Social Work.

He said many people who’ve been released from prison and are once again eligible to vote don’t do so – both because of a lack of information that those restrictions have been lifted and because they don’t often even feel like their vote will have an impact. “Issues that are actually connected to them are often never on the table because their voices and their voting power is not factored into consideration,” Kirk, who is formerly incarcerated, said.

Fear and a general sense of uncertainty can also be major deterrents. In August, Florida Gov. Ron DeSantis announced the arrests of several formerly incarcerated people for voter fraud because they’d voted in the 2020 election despite the fact that they had a felony conviction. People with conviction histories took notice of this and other crackdowns, even when it happens in another state. Even if someone theoretically showed up to distribute absentee ballots at Rikers Island to everyone one day, Kirk said he doubts the majority would participate.

“I think these things have to be rights that are engendered in the system and aren't compromised, just because someone is in a jail or prison – especially knowing the history of disenfranchisement, of these people, Black and brown communities in the United States,” he said. 

In the leadup to the November midterm election, organizations like the Legal Aid Society and now Gibbs’ Second Chance Democratic Club have continued to work to quell fear, tackle misinformation and increase the number of incarcerated and formerly incarcerated people who are registered to vote. Staff members have been working with the New York City Department of Corrections’ current administration for about a year to register prospective voters at Rikers Island. According to Appling of the Legal Aid Society, an average of 35 new people are registered each month and the corrections department says it has registered about 402 people since January,  2022. On the outside, volunteers from the Legal Aid Society held educational forum after forum where impacted speakers tried to relay why voting is important.

“It’s trying to empower people with the knowledge that local elections do matter – these are the people who decide on your housing, who decide on all the programs that you’re in,” Appling said. “We try to let people know that those are the things that really matter and (they) can make a difference.”