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ACLU of Delaware raises possibility of legal action on voting access in prison

Delaware Public Media

The ACLU of Delaware has asked the state Department of Correction to provide assurance that it will expand voting outreach and access in prisons.

In a letter sent to the DOC as voters went to the polls for Tuesday's primary election, the ACLU asked the department to demonstrate it had provided people in custody an opportunity to register for the primary — and whether the department plans to do the same ahead of the general election.

ACLU of Delaware Director Mike Brickner says current voter outreach – mainly displaying voter information posters in cell blocks – falls short, pointing to data showing no one in DOC custody cast a ballot in 2020. Hundreds of people in pretrial custody are eligible to vote.

Brickner argues that those in custody may face barriers to voting, including obtaining identification documents needed to register. The ACLU has also suggested that DOC mailroom employees may need training on how to handle election mail, raising concerns that mailroom staff might throw away return envelopes and render ballots invalid — a concern drawn from a general prohibition on sending return envelopes through prison mail.

“I think that all of the anecdotal and actual data we have shows that this is not a successful program that the Department of Corrections is running, and that they have a duty to make sure these eligible voters can access their ballot and successfully cast that ballot," he said.

The ACLU and its partners, including some state lawmakers, met with DOC last summer to discuss voting access concerns. They suggested allowing outside outreach teams to help those in custody register and request absentee ballots.

“Seeing a poster is a very passive form of advertisement," he said. "And so having somebody to go in and provide them the information face-to-face to allow them to fill out the registration form or absentee ballot form is going to be much more effective than simply just hanging a poster.”

The DOC maintains that low voter turnout within its facilities does not necessarily reflect a lack of voting access, and the department has previously indicated that its legal team is considering how to train mailroom staff on how to approach election mail.

"Inmates in Department of Correction facilities, just like members of the community, have access to receive voter registration applications, absentee ballot request forms, and absentee ballots through the mail," wrote DOC spokesman Jason Miller, adding that registration and absentee ballot request forms are also available within DOC facilities. "Just like members of the community, it is ultimately always an inmate’s individual decision whether to participate in the voting process."

The ACLU’s letter notes the organization may take legal action if the DOC doesn’t provide a satisfactory response.

Paul Kiefer comes to Delaware from Seattle, where he covered policing, prisons and public safety for the local news site PubliCola.