A legal hot potato: Should felons vote?

The 9th Circuit Court of Appeals suspends its controversial ruling that felons should be able to vote, while Washington state prepares to appeal. The central legal issue: Are minorities unfairly targeted?
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Jay Inslee, left, and Rob McKenna at a debate.

The 9th Circuit Court of Appeals suspends its controversial ruling that felons should be able to vote, while Washington state prepares to appeal. The central legal issue: Are minorities unfairly targeted?

Many people will blow off their right to vote in February's low-key elections, as they do in even sexier elections, but some people locked up in Washington prisons — who are kept from the ballot box as well as the street — would like to have that right. If the 9th Circuit's recent decision in Farrakhan v. Gregoire is upheld by the U.S. Supreme Court (never a safe bet where the 9th Circuit is concerned), they will gain that right. Currently, only two states in the nation, Maine and Vermont, let prisoners help choose their elected representatives. Denying prisoners the franchise is as old as the nation; it's older, actually, with roots in English law.

The 9th Circuit majority has found, however, that Washington's felon-disenfranchisement law violates the federal Voting Rights Act. So, presumably, do laws that keep felons from voting in the other 9th Circuit states and territories of California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Guam, and the Northern Mariana Islands.

On Jan. 28, the court said it would suspend this ruling so that the state can appeal it to the Supreme Court. Attorney General Rob McKenna and Secretary of State Sam Reed have already said the state will appeal, McKenna saying he'll argue the case himself. (A hard one for an ambitious politician to resist.)

The 9th Circuit's ruling rests on the unarguable premise that members of some minority groups are locked up more often than white people, and that not all the disparity can be explained by the fact that they commit more crimes. The lower court in Farrakhan had found 'ꀜcompelling'ꀝ evidence of bias in Washington's criminal justice system, and concluded that disproportionate rates of incarceration had, in fact, prevented minorities from voting.

However, the lower court didn't view that bias in isolation; considering all the circumstances of the case, it couldn't say that Washington's law violated the Voting Rights Act. The 9th Circuit majority followed a different thought process. It said basically that if a racially biased system kept minorities from voting, there was no need to look further.

The judges didn't suggest that the inmates of Washington's prisons had been railroaded. The felons had presumably committed the felonies of which they'd been convicted, and had acted of their own free will. But the cops could have arrested white people instead. The majority noted that police tend to arrest people who deal drugs in public, and who commit crimes downtown, and those people turn out to be disproportionately members of minority groups.

Farrakhan deals narrowly with felon disenfranchisement. But its underlying premises are much broader. If courts or policy makers extended those premises, the implications for law enforcement would be profound. Presumably, cops would have to drive or walk right by people openly selling drugs or prostitution if the people soliciting were non-white. Presumably the idea of enforcing the law against 'ꀜcrimes of civility'ꀝ that in theory lead to a breakdown of public order would be DOA. Does anyone really want that?

Seattle City Councilmember Tim Burgess said a couple of years ago that 'ꀜwe need to change our view on street crime and what people refer to as quality-of-life/nuisance crimes. We've allowed a level of social disorder for a long time, and I don't think we have to." His Safer Streets Initiative noted that 'ꀜcity residents complain bitterly to the council about the deterioration of their neighborhoods caused by street crime and social disorder.'ꀝ The solutions include 'ꀜadditional emphasis patrols — officer presence — in areas with recurring problems. Our police officers must know that city officials support — and expect — proactive and assertive response to these problems. There is no justification for allowing open-air drug markets, street prostitution, graffiti, aggressive panhandling and other social disorder to continue on our streets.'ꀝ But not allowing it might have a disparate racial impact. Should that be a problem?

The 9th Circuit dissent did 'ꀜnot deny the existence of discrimination.'ꀝ Instead, 'ꀜmy point rests on the evidence presented. For example, [one expert cited by the majority] notes that within the drug-crime category, the police department focuses most heavily on 'observable street level drug markets,' which have much more of a 'minority flavor' than the general population. [He] goes on to explain that '[b]usiness owners and residents call the police when visible drug activity threatens their interests' and that drug sales in the 'street markets' are more likely to affect those interests than other sorts of drug crimes.'ꀝ

Under those circumstances, a 'ꀜreasonable fact-finder may very well conclude that the police focus on street markets has little to do with racial discrimination, but instead relates much more strongly to the police department'ꀙs desire to target crimes likely to affect the well-being of the greatest majority of businesses and individuals. Alternatively, a fact-finder may determine that the focus results from the fact that police are tasked with responding to citizens'ꀙ calls; if people are more likely to call the authorities only when they can actually view a drug crime occurring out in the open, i.e. on the street, then of course it is more likely that police arrests will over represent street market drug sales, as compared to other types of drug crimes. Or finally, it may be that this approach to policing is race-based. The point is that there are material factual questions as to cause and effect.'ꀝ His point was that the majority should not have granted the plaintiffs summary judgment.

The state's felon disenfranchisement law does not raise a Constitutional issue. The Supreme Court ruled 36 years ago in Richardson v. Ramirez that felon disenfranchisement laws don't violate the Fourteenth Amendment's guarantee of 'ꀜequal protection.'ꀝ The justices reasoned that since the amendment says people guilty of 'ꀜparticipation in rebellion or other crime'ꀝ shouldn't be represented in Congress, it wasn't meant to guarantee their right to vote.

Three other federal circuit courts, the 1st, 2nd and 11th, have upheld prisoner voting bans. The 9th Circuit decision sets up a conflict, which is why Washington Attorney General Rob McKenna thinks the Supreme Court will take the case.

When the 2nd Circuit upheld New York's Voting Rights Act in its 2006 Hayden decision, Sonia Sotomayor dissented. The future Supreme Court justice joined another judge's dissent and wrote a separate opinion 'ꀜonly to emphasize one point. I fear that the many pages of the majority opinion and concurrences — and the many pages of the dissent that are necessary to explain why they are wrong — may give the impression that this case is in some way complex. It is not. It is plain to anyone reading the Voting Rights Act that it applies to all 'voting qualification[s].' And it is equally plain that [New York's felon disenfranchisement law] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis.'ꀝ Presumably she thinks the 9th Circuit majority got it right. We'll see whether or not four of her colleagues agree.


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.