(The Daily Signal) – Federal officials have promoted a voter registration and voting program for prison inmates that may conflict with or outright violate state laws governing prisoner voting rights and felons’ voting rights restoration, legal experts say.
As The Daily Signal reported, in an executive order signed in 2021, President Joe Biden directed all federal agencies to help increase voter registration and turnout, including the Department of Justice and the Federal Bureau of Prisons.
In a letter written earlier this year, Democrats on the Senate Judiciary Committee assured: “Hundreds of individuals in federal prisons successfully registered and voted in the recent election.”
When asked how many federal prisoners voted where, a spokesman for the Federal Bureau of Prisons told The Daily Signal on Tuesday: “That information is not available to the agency.”
The same letter from Senate Democrats to Attorney General Merrick Garland and Bureau of Prisons Director Colette Peters called on the Biden-Harris administration to do more to ensure the voting or future voting of those currently incarcerated.
In general, states have not disenfranchised people based on convictions of minor offenses.
Only Maine, Vermont and the District of Columbia allow incarcerated felons to vote, according to the National Conference of State Legislatures. In 10 states, felons lose their right to vote indefinitely after being convicted of certain crimes; 25 other states have different procedures for restoring the right to vote to convicted felons who have completed their sentences.
“The Federal Bureau of Prisons is likely to register ineligible voters,” Ken Cuccinelli, national chair of the Election Transparency Initiative, told The Daily Signal. “Any inmate outside of Maine, Vermont or Washington, DC, is ineligible to vote.”
Cuccinelli, a former Virginia attorney general, advocates for criminal justice reforms and procedures to restore voting rights to a convicted person after serving his sentence, but he says he has no confidence in the ability of any federal agency to follow each state’s standards during a mass voter registration exercise.
“The laws and procedures for restoring voting rights to convicted felons vary widely from state to state, and I don’t seriously believe the Federal Bureau of Prisons will ignore those differences,” Cuccinelli said.
The Federal Bureau of Prisons informed inmates about voting before Biden’s Executive Order 14019, agency spokeswoman Randilee Giamusso said.
“FBOP recognizes that educating people about voter registration and facilitating the registration of eligible voters is a valuable exercise in American democracy and an important aspect of successful reintegration into society,” Giamusso said in a written statement to The Daily Signal.
Giamusso said the agency’s press office did not have information on how many federal prisoners were registered and voted in the recent election, as stated in the letter from Senate Democrats in March.
“Since at least August 2020, FBOP has provided general voting rights information to all individuals in its custody at the time of admission and prior to release,” Giamusso said. “Information provided by FBOP includes which counties incarcerated individuals are permitted to vote and what restrictions their state may have imposed on their ability to vote.”
The Justice Department invoked presidential privilege in a Freedom of Information Act lawsuit filed by the Foundation for Government Accountability to obtain information about Biden’s executive order.
“There is very little about this executive order that doesn’t horrify me,” Cuccinelli said of Biden’s order. “They’ve covered everything up and are circumventing the Freedom of Information Act.”
The Federal Bureau of Prisons may be violating state law, claims former Justice Department attorney Hans von Spakovsky, who now heads the voting reform initiative at the Heritage Foundation.
“Federal officials who register people in prisons to vote have no idea whether it is legal in the state where the prisoner lives,” von Spakovsky, also a senior legal fellow at Heritage, told The Daily Signal. “What are prisoners supposed to do when a government official says, ‘Here, you can vote’? Federal Bureau of Prison officials could be helping to violate state law.”
Von Spakovsky authored a Heritage report on Biden’s executive order published Friday that included information about the Bureau of Prisons. It states, in part:
The order specifically directed the Attorney General of the United States to “facilitate voter registration and voting … for all eligible persons in the custody of the Federal Bureau of Prisons,” although such eligibility is governed by state laws governing the conditions under which felons may vote; federal Bureau of Prisons officials lack the knowledge, training, and authority to make such eligibility determinations.
“The U.S. Marshals Service has been instructed to include such requirements in all ‘intergovernmental agreements and prison contracts,'” von Spakovsky writes in the report.
“In other words, state and local prisons and detention centers that house inmates at the request of the federal government would be required to register inmates as voters and assist them in voting by mail,” the report continues.
It adds:
In the three jurisdictions that allow incarcerated felons to vote—Maine, Vermont, and the District of Columbia—these individuals (along with others in prison awaiting trial or serving a misdemeanor sentence) can register to vote and cast their ballots by mail themselves, without the assistance of federal, state, or local prison officials.
A lawsuit filed by nine Republican attorneys general challenges the constitutionality of Biden’s election policy executive order, which specifically refers to voting rights for prisoners.
The lawsuit argues that Garland, as U.S. Attorney General, “registered incarcerated felons as voters – but this practice was never announced or commented on, so the public could have judged whether it was correct.”
“And in many states, it is illegal for felons to vote,” the attorneys general’s lawsuit states. “Because the U.S. Attorney General failed to follow neutral procedures, the likelihood of potential conflicts between federal actions and state law is increased.”
