County inmates denied right to vote get certified as class

Civil Rights attorney David Frank easily lists the ways inmates in the Allen County Jail could have voted in the November 2016 general election: a temporary ballot booth could have been erected at the jail or the inmates could have been transported one block to the voting center in the lobby of the Allen County Election Board building.

Instead, Frank said, Sheriff David Gladieux did nothing and the inmates who were eligible to vote could not cast their ballots. Under Indiana law, those incarcerated at the local jail either for pretrial detention or serving a sentence for a misdemeanor would still have the right to vote.

“The sheriff didn’t even try,” said Frank, associate at Christopher C. Myers & Associates in Fort Wayne. “He made no effort whatsoever to uphold the voting rights of people who had to rely on him to accommodate and facility their right to vote.”

Frank filed a complaint, Demetrius Buroff and Ian Barnhart v. David Gladieux, 1:17-cv-124, in the U.S. District Court for the Northern District of Indiana. The court dismissed Buroff as a party because he had not been registered to vote. But Chief Judge Theresa Springmann recently certified a class, finding the members of the class are identifiable, but she left open the question of whether the county sheriff had an affirmative duty to facilitate the voting.

J. Spencer Feighner of Haller & Colvin PC in Fort Wayne, an attorney for the defendant, did not return a request for comment.

The class of roughly 150 is limited to individuals who were held in the Allen County Jail on Nov. 8, 2016. They would have had to be over 18-years-old, U.S. citizens, residents of Indiana and not serving a sentence for a conviction of a felony. In addition, they would have been registered to vote and had not previously cast a ballot in the 2016 general election.

Gladieux argued the class was overinclusive because it contained hundreds of individuals not entitled to relief. In particular, the sheriff asserted the proposed class included incarcerated individuals who had the opportunity to request an absentee ballot but did not do so.

The defendant then cited Long v. Pierce, 2:14-cv-224, where the Southern Indiana District Court stated the plaintiff could not point to any case from either the U.S. Supreme Court or circuit courts that held it is unconstitutional to fail to provide the means for detainees to vote.

However, Springmann noted Long only ruled that “there was not a clearly established right.” The decision did not state that such a right did not exist.

Frank countered that O’Brien V. Skinner, 414 U.S. 524, 530 (1974) established as unconstitutional denying a detained voter an alternative means to cast a ballot when absentee voting is unavailable. In Allen County, the class members were detained either after the deadline for requesting an absentee ballot had passed or during the time when the sheriff had the affirmative obligation to assist them in getting absentee ballots.

Springmann pointed out the Indiana Administrative Code, which the plaintiff also cites to support his argument, is from 2011. The current code, effective since 2016, does not contain provisions about inmates’ ability to vote.

Even so, Springmann stated, the sheriff does not dispute the inmates who are eligible do have a right to vote.

Reviewing the ruling from the Northern Indiana District Court, Frank said, “Legally there is no question that we have a group of over 150 people who were entitled to vote and denied the right to vote.”

The newly certified class has standing to only seek damages. Frank acknowledged assigning a dollar figure to the denial of voting rights is a “little bit squishy” but he would tell jurors to think about the worth in terms of how they would feel if they were turned away from the polling place and not able to vote in a general election.

If the parties reach a settlement, Frank said the plaintiffs will ask that a plan be put in place for future elections. He speculated that the voting problem in Allen County may be happening in other local jails around the state, so there is a real need to find a way to ensure the right to vote.

“This is an opportunity for our sheriff to develop and implement a model for how other counties can run an inmate voting program,” Frank said.