Federal Court Rules on Voting Rights of Incarcerated Felons

A 9th Circuit Court of Appeals panel ruled 2-1 [1] that Washington State felony inmates are entitled to vote under Section 2 [2] of the Voting Rights Act of 1965 [3]. The court held that current restrictions, which strip convicted felons of the right to vote while incarcerated or under Department of Corrections supervision, unfairly discriminate against minorities.

In Farrakhan v. Gregoire [1], six "minority citizens of Washington state who have lost their right to vote pursuant to the state’s felon disenfranchisement provision, filed [suit] in 1996 challenging that provision on the ground that, due to racial discrimination in the state’s criminal justice system, the automatic disenfranchisement of felons results in the denial of the right to vote on account of race, in violation of Section 2 of the Voting Rights Act," according to the appeals court's opinion.

Section 2 of the Voting Rights Act (VRA) states that "No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color."

The lawsuit focuses on the disparate impact that felon disenfranchisement laws have on racial minorities. It contends that because "nonwhites make up a large percentage of the prison population, a state law prohibiting inmates and parolees from voting is illegal because it dilutes the electoral clout of minorities," according to the Spokane Spokesman-Review [4].

The 9th Circuit agreed, finding that "the discriminatory impact of Washington’s felon disenfranchisement is attributable to racial discrimination in Washington’s criminal justice system" and therefore violates Section 2 of the VRA.

The decision is a major victory for nonprofit organizations that advocate on behalf of incarcerated individuals. Ryan Haygood, co-director of the NAACP Legal Defense Fund, which participated in the suit, told the Seattle Post-Intelligencer [5] that the "disparities aren't reflective of the actual participation in crime. They're reflective of the discrimination in the criminal justice system."

Lawrence A. Weiser, a Gonzaga University law professor involved in the case since the mid-1990s and director of Gonzaga's clinical law program, told the Post-Intelligencer that "the disenfranchisement law has always been used to disenfranchise minority communities." Weiser also said that "attorneys for the prisoners turned to a series of studies conducted in Seattle and elsewhere in the state showing that racial minorities were charged with crimes at rates far higher than could be explained by differences in levels of criminal activity."

If the decision stands, it could have a major impact on felon disenfranchisement statutes nationwide. Felon disenfranchisement laws vary from state to state. According to the Spokesman-Review, nearly 40 states and the District of Columbia have less restrictive felon disenfranchisement laws than Washington. Only two states, Maine and Vermont, allow incarcerated felons to vote. Kentucky and Virginia deny the right to vote to all individuals convicted of a felony.

Felon disenfranchisement was a big issue during the 2000 and 2008 presidential elections. Grassroots and nonprofit organizations urged eligible ex-offenders to vote. They also educated ex-offenders, who often erroneously thought they were barred from voting.

During the 2008 election season, a Washington Post article [6] focused on efforts to urge ex-offenders in Florida to vote. Ex-offenders in Florida with felony convictions are eligible to vote thanks to a law passed in 2006, which allows nonviolent ex-offenders with felony convictions to vote if they have completed probation, paid restitution, and do not have any charges pending. The Post article focused on the efforts that nonprofits, such as the ACLU and People for the American Way, played in "reaching out to ex-offenders through Web sites that help people figure out whether the state [of Florida] has acted on their cases."

According to the Post-Intelligencer, "Attorneys for [Washington State] have two weeks in which to request a hearing by the 11-judge [en banc] Circuit Court panel. Should they decide instead to request a review by the Supreme Court, that petition must be filed within three months."