Con Census
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Relying on evidence that shows Washington state’s criminal justice system is riddled with racial discrimination, a federal appeals court shot down the state’s law that banned felons from voting.
The January ruling in Farrakhan v. Gregoire makes the 9th U.S. Circuit Court of Appeals at San Francisco the first to bar state restrictions on voting by felons. It also draws a circuit split between other appeals courts that have upheld similar state laws.
Lawyers on either side dispute whether minority prisoners were disproportionately denied the right to vote.
“There are great racial disparities in the criminal justice system at every point in the process: from who is picked up and investigated, to adverse bail decisions, to who is convicted, to the prison system,” says Estelle Rogers of the ABA Standing Committee on Election Law and the director of advocacy at Project Vote, a nonprofit organization based in Washington, D.C., that promotes voting in low-income and minority communities.
But, says Washington Attorney General Rob McKenna, “it’s a false argument that proof of discrimination would bring felons within the Voting Rights Act. The law was clearly not meant to apply to felons—whether you can show discrimination in the justice system or not.” He and Secretary of State Sam Reed are appealing the ruling.
In 2000, the 9th Circuit had reversed and remanded an earlier district court ruling. The lower court found that evidence of discrimination in Washington’s criminal justice system, while compelling, was insufficient to invoke federal intervention.
In the renewed case, plaintiffs sought the help of two sociologists, and their work proved pivotal when the case returned to the 9th Circuit on appeal.
Robert Crutchfield’s work in criminology and race relations, the court said, shows that the racial disparities in the state’s criminal justice system cannot be explained by legitimate factors, such as racial minorities’ higher level of involvement in criminal activity or racial disparities in vehicle searches.
The 9th Circuit also cited Katherine Beckett, the author of a 2004 study of Seattle’s racial disparities. Beck ett’s study found that blacks were overrepresented among Seattle’s drug arrestees, and that law enforcement’s focus on crack cocaine, outdoor drug activity and the downtown area was not race-neutral.
As a result, the percentage of minority state felons is significantly greater than the percentage of minorities in the general population.
The Farrakhan plaintiffs also argued that the ban on voting by incarcerated felons weakens the electoral power of minorities.
“People locked in the state’s prisons disproportionately come from urban, minority communities,” Crutch field says. “They serve their time in rural, predominantly white communities.” Since the census counts prisoners where they are held, disenfranchisement alters the racial breakdown. “This is especially important in some of Washington’s smaller counties where adding a few hundred or a thousand prisoners really shifts the population,” he says.
VOTING RIGHTS VIOLATION ALLEGED
The case was originally filed in 1996 by Muhammad Shabazz Farrakhan, who was convicted of felony theft and was serving a three-year sentence at the Washing ton State Penitentiary in Walla Walla. His lawsuit was later joined by other minority inmates, some serving life sentences and some who had already been released.
The plaintiffs argued that the state’s disenfranchisement law—which bars voting by felons in prison or under community supervision—violated the federal Voting Rights Act of 1965, which prohibits practices that disenfranchise minority voters.
“Plaintiffs have demonstrated that the discriminatory impact of Washington’s felon disenfranchisement is attributable to racial discrimination in Washington’s criminal justice system,” wrote Judge A. Wallace Tashima.
In dissent, Judge M. Margaret McKeown said: “In granting summary judgment to plaintiffs, the majority has charted territory that none of our sister circuits has dared to explore.”
Felony disenfranchisement laws vary throughout the country. But in every state—except Vermont and Maine, where voting is allowed from prison—felons face some prohibition.
Some states permanently ban felons from voting—even after they’ve been released, completed parole and probation, and paid all fines. Virginia and Kentucky bar citizens with felony convictions from voting unless the governor affirmatively re-enfranchises them. In January, civil rights groups asked Virginia’s outgoing governor to re-enfranchise former felons en masse via executive order; he refused.
For its part, the Washington legislature last year passed a law allowing convicted felons to reregister to vote once they are no longer on parole or probation. Previously, felons in Washington needed to pay off fines and court costs before voting rights were restored.
CONFUSION PREVENTS PARTICIPATION
Proponents of felon re-enfranchisement say the inconsistency among states leads to confusion and may discourage legally eligible voters from registering. That unfairly excludes them from the kind of civic participation that can promote rehabilitation. Low-income and minority communities are especially affected because a disproportionately high number of individuals in those communities are disenfranchised due to felony convictions.
“If you’re trying to reintegrate former felons into society, these laws deter them from going back into the system,” says Rogers from Project Vote. “We want them involved in civic life, to have a stake in what’s going on, to participate in the process.” She adds, “It’s counterproductive to keep people segregated in that way.”
Rogers insists disenfranchisement laws are racially motivated. “They’re a Jim Crow-era invention designed to try to keep minority citizens out of the voting population. They say, ‘You’ve sinned so you don’t deserve this right.’ ”
But McKenna, Washington’s AG, says disenfranchisement is equivalent to temporarily removing other rights that citizens lose “for harming fellow citizens and break ing a social contract—like liberty or holding office.”
Trent England, who runs the Voter Integrity Project and is the director of constitutional studies at the conservative think tank Evergreen Freedom Foundation in Olympia, Wash., similarly believes the public policy behind disenfranchising felons “is the same as locking them up in the first place: If we’re willing to take drastic action, isolating them from society and depriving them of their most serious rights, then it makes sense to deprive them of their say in the public process, at least while they’re incarcerated.”
Larry Weiser, a criminal law professor at Gonzaga University School of Law and director of the school’s clinical program, represented—along with two dozen students—the Farrakhan plaintiffs. He says the right to vote is part of one’s citizenship. “If you commit a crime, should you lose your citizenship and be deported?”
According to Weiser, the case hinged on the Crutchfield report. “The part of this decision that will live on in other cases is that it affirms the fact that there is discrimination in the criminal justice system. Our experts were two of the biggest experts in this field and they are at the University of Washington studying Washington’s criminal justice system. They concluded that the disparities could be explained only by race.”
Conservative advocate England believes the social science evidence was a red herring. “There’s no question that there are troubling racial disparities in the criminal justice system. But felony re-enfranchisement is not the answer to these serious problems.” He calls the Farrakhan decision “yet another 9th Circuit embarrassment” and insists that disenfranchisement policy is under the domain of each state’s legislature, not the federal courts.
Some conservative thinkers also suggest that re-enfranchisement proponents are simply seeking to increase electoral control of Democratic voters. But according to Weiser, empirical studies suggest that the prison population votes no differently from the rest of the population. “In fact, in the Farrakhan case, the [lead] plaintiff was a registered Republican,” he notes.
PROPOSED LAW FOSTERS INCLUSION
Though no federal laws exist on felon voting, the Democracy Restoration Act of 2009—which would make it impermissible for a state to disenfranchise in a federal election anyone who has been incarcerated and served his or her sentence—is pending in both houses of Congress.
Specifically, the proposed law would restore voting rights in federal elections to about 4 million Americans who’ve been released from prison; ensure that probationers never lose their right to vote in federal elections; and notify individuals about their right to vote in fed eral elections when they are leaving prison, sentenced to probation or convicted of a misdemeanor.
“At least there would be a floor,” Rogers says. “States could be more liberal” in their voting laws. “The right to vote is simply too important to allow accidents of geography and confusion by election officials to erect barriers to the ballot box,” Rogers wrote in a Project Vote blog post after the Farrakhan decision.
McKenna agrees that discrimination in the criminal justice system “should be rooted out,” but says there are more appropriate mechanisms—such as appealing racially motivated convictions—to address prejudice in the system. “Discrimination doesn’t bring felons within the Voting Rights Act, which is clear from the legislative history,” he says. “Disenfranchisement of felons has a long history. It’s a legislative policy decision. So felons should seek to change the voting laws in the legislature, not through the courts.”
