Voters jailed immediately before elections must be permitted to vote, rules federal court

A federal judge in Cincinnati ruled Tuesday that voters who are jailed the weekend before an election still have the right to vote and must be accommodated with absentee ballots, the Cincinnati Enquirer reports. The circumstances affect a specific group of people: potential voters who have been arrested after 6 pm the Friday before the election and not yet released by 3 pm on Election Day. This is because under the current framework of Ohio election law the deadline to request and cast an absentee ballot in person is 6 pm on the Friday before an election.  Voters who are incarcerated after 6 pm the Friday before an election are not able to cast an absentee ballot, and, if those individuals are not released by Election Day, they will not be able to cast votes in person. The current timeline created by Ohio law essentially bars this group of incarcerated individuals from voting at all in that election.

Judge Arthur Spiegel of the U.S. District Court for the Southern District of Ohio found that this violates several aspects of the U.S. Constitution and federal law, including the Equal Protection and Due Process Clauses of the Fourteenth Amendment, voting rights under the Seventeenth Amendment and the Voting Rights Act. In his opinion, Judge Spiegel took into account statutory procedures for voting by other confined voters. Under Ohio law, many confined individuals, including inmates arrested before the 6 pm Friday deadline, fall into special circumstances exceptions, allowing them to obtain and cast absentee ballots before an election. In order to effectuate this, boards of elections must send two-member teams comprised of individuals from both major political parties to jails and other places of confinement, such as hospitals and nursing homes, to pick up the ballots.

Because of the 6 pm deadline to obtain absentee ballots, however, the small group of inmates arrested after this time are unable to vote in that election, unless they are released in time on Election Day. Citing the fact that the board of elections teams are already going to jails and prisons, and the fact that this affects a small number of individuals, Judge Spiegel found that the actions required to allow voting in these circumstances are not so burdensome as to merit stripping away the fundamental right to vote. In his opinion, Spiegel also stressed that there are procedures in place to allow people that are confined in hospitals during this same time period to vote, yet there are not similar provisions for those confined in jails, despite the fact that they are "similarly-situated."

The Court concluded: "if an elector is taken into state custody after 6:00 P.M. on the Friday before Election Day, such an elector should be entitled to absentee voting assistance until 3:00 P.M. on Election Day if  '[t]he elector is confined in a county jail as a result of an unforeseeable arrest or misdemeanor sentence of incarceration occurring before the election.'"

For more information about this case see this article from the Columbus Dispatch.