Mike Andrews

Durham County Sheriff’s Office

PO Box 170
Durham, NC 27702
Via email to sheriff@durhamsheriff.org

Derek L. Bowens
Durham County Board of Elections
PO Box 868
Durham, NC 27702
Via email to dbowens@dconc.gov

CC: Lowell Siler

Durham County Attorney
Via email to lsiler@dconc.gov

October 5, 2018

P.O. Box 28004 Re: Access to voting in Durham County Detention Facility
Raleigh, NC 27611
(919) 834-3466 Dear Sheriff Mike Andrews and Director Derek Bowens:
acluofnc.org

Jennifer Watson Marsh People in jail face steep hurdles to casting a ballot, even when they
President are unquestionably eligible to register and vote.1 As the November
election approaches, the ACLU of North Carolina Legal Foundation is
Karen M. Anderson deeply invested in upholding the constitutional rights of all eligible
Executive Director
voters in our state. We write to inquire about the steps Durham
County is taking to ensure access to voting for those in the county jail
who are eligible to vote and to offer guidance on the law.

I. People in jail are entitled to register and vote by mail

The Supreme Court has ruled that states cannot categorically restrict
access to voting for incarcerated people.2 In other words, states must
provide those who are incarcerated and eligible to vote some way of

1 Approximately 86% of people incarcerated in North Carolina jails are being held pre-trial, the
overwhelming majority of whom are in jail because they cannot afford the bond amount set on their case.
because they cannot afford the bond amount set on their case. MEASURES FOR JUSTICE,
https://measuresforjustice.org/portal/exploration?l=NC&m=13&sl=NC&sm=108&fg=1&f=1&c=m&md=0
(last visited Oct. 4, 2018). Many of these individuals are eligible to vote.
2 O’Brien v. Skinner, 414 U.S. 524, 531 (1974) (overturning a New York State statute that did not allow

those who were incarcerated to register to vote or vote absentee if already registered); McDonald v. Board
of Elections, 394 U.S. 802, 80-10 (1969) (holding that states must provide people who are incarcerated and
eligible to vote some method of voting).
 voting.3 The law requires at a minimum that eligible voters in the
county jail be provided timely access to voter registration and
absentee voting by mail.4 Ensuring access to election-related mail and
instituting proper procedures for handling it are particularly
important because election mail implicates not only the constitutional
right to vote, but also the right to a secret ballot.

A. Eligible voters are entitled to register to vote by mail before

the October 12 deadline.

Under state law, people in jail are eligible to register to vote if they
are U.S. citizens, 18 or older, moved to their home address at least 30
days before Election Day, and are not currently serving an active
sentence for a felony conviction or on probation or parole for a felony
conviction.5 People in jail who meet these four criteria must be
permitted access to register to vote before the deadline.

Under North Carolina statute, the deadline to register to vote in the

November 2018 election is 25 days before Election Day.6 This year,
that’s Friday, October 12 in most counties.7 Each county board of
elections must register all qualified voters whose completed
applications are postmarked on or before October 12.8

Before that deadline, all people in jail who are eligible to vote in North
Carolina are entitled to register to vote, which includes the following
steps:

(1) Obtaining a voter registration application.

(2) Filling out the application.
(3) Returning the completed application to the county board of
elections in their county of residence.

At each step of this process, county officials, in the interest of

protecting the constitutional right to vote, should take all available
measures to keep detained voters’ transactional costs down and
provide the least time-consuming methods possible for people in jail
to complete the voter registration process before the statutory
deadlines.

3 Id.
4 See O’Brien, 414 U.S. at 530-31.
5 N.C. Const. Art. VI, §§ 1-2.
6 G.S. § 163A-865.
7 On October 2, 2018, the North Carolina General Assembly passed a bill to extend the voter registration

deadline to Monday, October 15 in the 28 counties declared federal disaster areas in the wake of Hurricane
Florence. As of this writing, that bill awaited the governor’s signature.
8 § 163A-865.

2
 B. People in jail who are registered to vote are entitled to vote
via mail-in absentee ballot before the 5 p.m. November 6
deadline.

Under state law, people in jail who are registered to vote must be
permitted access to vote via mail-in absentee ballot before the
statutory deadline. This is a two-stage process in which people in jail
first must submit an absentee ballot request form and then submit
the absentee ballot itself.

The statutory deadline to request an absentee ballot is 5 p.m. on the

Tuesday before Election Day.9 This year, that’s October 30. Each
county board of elections must issue an absentee ballot to all qualified
voters whose completed absentee ballot requests are by received by 5
p.m. October 30.10

Before that deadline, all people in jail who are registered to vote in
North Carolina are entitled to:

(1) Obtain an absentee ballot request form.

(2) Fill out the absentee ballot request form.
(3) Return the completed absentee ballot request form to the
county board of elections in their county of residence.

After the absentee ballot is requested, the deadline to submit a

completed absentee ballot is 5 p.m. on Election Day, which this year
falls on November 6. Each county board of elections must process all
completed mail-in absentee ballots that are postmarked on or before
November 6 and received by 5 p.m. November 9.11

Before that deadline, all people in jail who have requested an absentee
ballot are entitled to:

(1) Receive an absentee ballot.

(2) Mark the absentee ballot in the presence of two witnesses or a
notary public in a way that preserves ballot secrecy.
(3) Complete the absentee ballot application and certification in
the presence of two witnesses or a notary public, who must also
sign the application and certification.
(4) Return the completed absentee ballot to the county board of
elections in their county of residence.

9 § 163A-1308.
10 Id.
11 § 163A-1310.

3
 With two stages each involving multiple steps, the mail-in absentee
voting process can be lengthy and complicated, particularly from
inside a jail. As with the voter registration process, county officials
should take all available measures to keep transactional costs down
and provide the least time-consuming methods possible for people in
jail to complete the mail-in absentee voting process before the
statutory deadlines.

II. Request for information on Durham County procedures

In order to ensure that all eligible voters in North Carolina are being
given access to voting, we ask that the Durham County Sheriff’s Office
and Board of Elections provide the ACLU-NC with the following
information under North Carolina public records law:

 A written description of all Durham County policies and

procedures for allowing eligible individuals who are
incarcerated in the county jail to register and vote;

 All policies the county has put in place or followed regarding

voter registration and voting for people in jail;

 Electronic communications, meeting minutes, guidelines, and

all other documents outlining the procedures the county has
put in place or followed to give individuals access to voter
registration and voting from the county jail;

 Records of all requests for voter registration and access to

voting from people in jail;

 Documentation and/or a description of how many people in jail

have been offered voter registration, registered to vote,
requested absentee ballots, and cast a ballot.

For the above requests, we ask that the county produce all documents
that were in effect or applicable from September 1, 2012 through
November 9, 2018. We also request that before producing documents,
the county redact any protected personal information as defined under
N.C.G.S. Chapters 132 and 163A.12 Further, as a nonprofit, tax-
exempt organization dedicated to the protection of constitutional
rights and serving an important public education function, we request
that the county waive all fees related to fulfilling this request because
such a waiver is in the public interest. If you challenge our entitlement

12 See § 132-1.10(b)(5).

4
to a waiver of fees, and if fees will exceed $50, please contact us before
the charges are incurred. We are happy to accept records in electronic
format emailed to sshah@acluofnc.org to reduce duplication costs.

In recognition that county officials are in the midst of a busy election

season and may be grappling with disaster recovery efforts in the
wake of Hurricane Florence, we are not asking for your response to
this records request until December 1, 2018, after the results of the
November election have been certified. We would be happy to accept
partial responses on a rolling basis as you’re able to turn your
attention to this request, and we welcome you to reach out with any
questions or for clarifications on the request in the meantime.

We know we all agree on the importance of ensuring access to voting

for all qualified voters in Durham County, including those who
happen to be detained during an election. We look forward to hearing
about the steps you have already taken to protect access to the
franchise for those in jail, and working collaboratively with you on
ways to ensure continued access to voting for people in jail going
forward.

Sincerely,

/s/ Sneha Shah

Sneha Shah
Staff Attorney*
sshah@acluofnc.org

*Licensed to practice law in the

State of New York

/s/ Emily Seawell

Emily Seawell
Staff Attorney
eseawell@acluofnc.org