Many states have election laws that disenfranchise citizens who have past criminal convictions or have served time in prison. Unlike most jurisdictions, Michigan law does not prevent convicted felons from voting who have already served their jail or prison sentences. However, those voting rights are curtailed while the offender is serving of incarceration.
Michigan law provides the following:
- “The legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution.” Const of 1963, art. II, §2.
- “A person who, in a court of this or another state or in a federal court, has been legally convicted and sentenced for a crime for which the penalty imposed is confinement in jail or prison shall not vote, offer to vote, attempt to vote, or be permitted to vote at an election while confined.” MCL 168.758b.
The prohibition on voting rights only applies to those offenders who have been convicted and sentenced. Once released, the right to vote is automatically restored without the offender having to make application to any government agency or the court. The convicted offender may even cast a ballot if currently on probation or parole. As long as he or she is not incarcerated, an eligible Michigan resident can vote no matter what criminal background he or she has.
What about those individuals in jail awaiting arraignment or trial but not yet convicted or sentenced? Do they have the right to vote by absentee ballot while incarcerated?
In Arlee v Wayne County Sheriff, 55 Mich App 340; 222 NW2d 233 (1974), several pretrial detainees in a the Wayne County Jail brought a mandamus action that they were unconstitutionally denied the opportunity to exercise their right to vote in the 1972 election by the sheriff. The circuit court denied the request, holding that there was not a statutory means to allow these detainees to vote from jail anyway. At the time, an applicant for an absentee ballot was required to show a physical disability, religious restriction, is 65 years or old, or expected to be absent from the polls on election day for non-incarceration reasons. There was no provision for an absentee ballot due to being confined in jail or prison. The Michigan Court of Appeals disagreed with the trial court and found that the statutory scheme cannot stand. First, they determined that the pretrial detainees were denied the right of equal protection under the Fourteenth Amendment because they cannot claim they were absent from the polls on Election Day for the purposes of an absentee ballot application like everyone else. However, there was a more compelling reason:
- “Further, since we are here concerned with pretrial detainees, we are impressed with the argument that they are denied their right to vote because of their inability to make bail. Clearly a right as fundamental as that of voting cannot and must not be prohibited in such a manner as will give rise to a situation whereby wealth will be a substantial factor in determining who shall have the right to vote. There is also a question of whether the present statutory scheme, or in fact any statutory scheme which effectively prohibits pre-trial detainees from exercising their right of franchise, can stand on due process grounds. Since these pre-trial detainees are presumed in the eyes of the law to be innocent of the crimes of which they are charged until convicted, due process would seem to demand an adjudication of guilt of those charged with crimes before a prohibition as grave as disenfranchisement may be imposed.” 55 Mich App at 346.
The Michigan Court of Appeals concluded that pretrial detainees are permitted to vote as absentee voters during elections. Ultimately, in November 2018, voters amended the Michigan Constitution of 1963 by passing Proposal 3 and securing the right to vote an absentee ballot without a reason. The right to vote is still suspended as to anyone serving a sentence of incarceration for a misdemeanor of felony, but lawmakers and police agencies cannot prevent unsentenced inmates from casting a ballot.
If you have any questions about election law or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
