How Biden’s executive order boosts felon voting and registration

(The Daily Signal) – Federal government officials have promoted voter registration and voting for prison inmates that might be inconsistent—or outright violate—state laws on prisoner voting and restoration of felons’ voting rights, legal experts say. 

As The Daily Signal has reported, an executive order signed in 2021 by President Joe Biden directs every federal agency to help boost voter registration and turnout, including the Justice Department and the Federal Bureau of Prisons. 

In a letter earlier this year, Democrats on the Senate Judiciary Committee asserted: “Hundreds of individuals inside federal prisons have successfully registered and voted in recent elections.”

Asked Tuesday how many federal prisoners have voted and where, a Federal Bureau of Prisons spokesperson told The Daily Signal, “That information is not available to this office.”

That same letter from Senate Democrats to Attorney General Merrick Garland and Bureau of Prisons Director Colette Peters called for the Biden-Harris administration to do more to ensure voting or future voting by those currently incarcerated. 

Generally, states haven’t revoked voting rights as a result of misdemeanor convictions.

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 voting rights indefinitely after being convicted for some crimes; 25 other states have varying procedures for restoring voting rights to convicted felons who have served their sentences. 

“The Federal Bureau of Prisons will likely register nonqualified voters,” Ken Cuccinelli, national chairman of the Election Transparency Initiative, told The Daily Signal. “Any inmate outside of Maine, Vermont, or Washington, D.C., is not legally qualified to vote.”

Cuccinelli, a former Virginia attorney general, has advocated criminal justice reforms and procedures to restore voting rights after a convict has served his or her sentence. But he said he lacks confidence in a federal agency’s ability to follow each state’s standard in a mass voter registration drive. 

“States have very different laws and procedures for restoring voting rights for convicted felons, and I don’t seriously believe the Federal Bureau of Prisons will keep those differences straight,” Cuccinelli said. 

The Federal Bureau of Prisons had informed inmates about voting before Biden’s Executive Order 14019,  agency spokesperson Randilee Giamusso said. 

“The FBOP recognizes that voter registration education and the facilitation of registering eligible voters is a valuable exercise of American democracy and an important facet of successful reentry into the community,” Giamusso told The Daily Signal in a written statement. 

Giamusso said the agency’s press office doesn’t have information on how many federal inmates were registered and voted in recent elections, as described in the Senate Democrats’ letter in March. 

“Since at least August 2020, FBOP has made general information on voting rights available to all individuals in its custody at the time of admission and prior to release,” Giamusso said. “The information FBOP provides includes which districts allow incarcerated individuals to vote and any restrictions their state may have placed on their ability to vote.”

The Justice Department claimed presidential privilege in a Freedom of Information Act lawsuit by the Foundation for Government Accountability to obtain information on Biden’s executive order.  

“There is very little about this executive order that doesn’t appall me,” Cuccinelli said of Biden’s order. “They have hidden everything and are evading the Freedom of Information [Act].” 

The Federal Bureau of Prisons could be in violation of state laws, contends former Justice Department lawyer Hans von Spakovsky, who now manages the Election Law Reform Initiative at The Heritage Foundation.

“Federal officials who are registering people to vote in prisons have no idea if it’s legal in the state where that prisoner resides,” von Spakovsky, also a senior legal fellow at Heritage, told The Daily Signal. “What are the prisoners supposed to do when a government official says, ‘Here, you can vote’? Federal Bureau of Prison officials could be helping to violate state laws.”

Von Spakovsky authored a Heritage report published Friday about Biden’s executive order that included information about the Bureau of Prisons. It says, in part:

The executive order specifically directed the attorney general of the United States to ‘facilitate voter registration and voting … for all eligible individuals in the custody of the Federal Bureau of Prisons,’ despite the fact that such eligibility is determined by state law governing the circumstances under which felons can vote; federal officials in the Bureau of Prisons lack the knowledge, training, and authority to make such eligibility determinations.  

“The U.S. Marshals Service was ordered to include such requirements in all ‘intergovernmental agreements and jail contracts,’” von Spakovsky writes in the report.

“In other words, state and local jails and prisons that house prisoners at the request of the federal government would have to register prisoners to vote and assist them in casting absentee ballots,” the report continues. 

It adds:

In the three jurisdictions that allow incarcerated felons to vote—Maine, Vermont, and the District of Columbia—those individuals (along with others who are in jail awaiting trial or are serving a misdemeanor sentence) can register to vote and cast a ballot on their own through the mail. No assistance is required from federal or state and local prison officials.

A lawsuit filed by nine Republican state attorneys general challenges the constitutionality of Biden’s electioneering executive order specifically referring to prisoner voting.

The lawsuit argues that Garland, as U.S. attorney general, “is registering imprisoned felons to vote—but there was never notice nor comment on that policy to allow the public to weigh in on whether that is right.” 

“And in many states, felons voting is illegal,” the lawsuit by state attorneys general says. “Because the U.S. attorney general failed to follow neutral processes, the likelihood of potential conflicts between federal action and state laws is heightened.”