electionline Weekly

In Focus This Week

Court overturns Washington State felon disenfranchisement law
State to appeal decision to U.S. Supreme Court

By Kat Zambon

In 1996, Muhammad Shabazz Farrakhan, with other convicted felons from racial minorities in Washington State, filed a complaint with the U.S. District Court for the Eastern District of Washington, arguing that the state was violating their civil rights under Section 2 of the Voting Rights Act (VRA) by not allowing them to vote from prison.

Fourteen years later, in a 2-1 decision filed January 5, the U.S. Court of Appeals for the 9th Circuit ruled in the plaintiffs’ favor, overturning Washington’s felon disenfranchisement law and marking the first time a federal appeals court found that felon disenfranchisement laws violate the VRA. 

“Plaintiffs have demonstrated that the discriminatory impact of Washington’s felon disenfranchisement is attributable to racial discrimination in Washington’s criminal justice system thus, that Washington’s felon disenfranchisement law violates Section 2 of the Voting Rights Act,” Judge A. Wallace Tashima wrote for the majority.

The VRA is frequently associated with Section 5 which requires “covered” jurisdictions to obtain Justice Department approval or pre-clearance before making any election administration changes to prevent such changes from having a discriminatory impact on voters.

However, unlike Section 5, Section 2 applies to the entire country and “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2),” according to a Justice Department web site. Since 1988, the Justice Department has filed 34 Section 2 cases.

Washington State’s constitution previously disenfranchised felons until they repaid all of their legal financial obligations. “For some inmates … that was essentially a lifetime ban on voting,” David Ammons, communications director for Sam Reed, Republican secretary of state, said. “We thought that was unfair and that it was not good social policy.”

Additionally, the Help America Vote Act requirement for statewide voter registration databases made it difficult to tell when felon voters were eligible, Ammons said, so Reed worked with Democratic legislators and the ACLU of Washington to pass a new law. In May, Democratic Gov. Christine Gregoire signed HB 1517 which allows felons to vote once they are no longer under corrections department supervision.

In fact, Farrakhan’s right to vote was restored following the amendment, Ryan Haygood, counsel for the plaintiffs and co-director of the political participation group for the NAACP Legal Defense Fund said, though the rest of the plaintiffs are still serving lengthy prison sentences.

“That development is a positive one to be sure,” Haygood said. “But it doesn’t have any impact on our clients because they are still incarcerated. Neither does that amendment shield victims of discrimination as they enter the criminal justice system on the front end.”

Farrakhan v. Gregoire marks the first time that a circuit court has ruled that felon disenfranchisement laws violate Section 2 of the VRA, according to The Seattle Times. Three similar cases – Simmons v. Galvin in 2009, Hayden v. Pataki in 2006, and Johnson v. Bush in 2005 – all found for the state. 

“If I remember correctly, [previous circuit court cases] were dismissed earlier and plaintiffs were not even allowed to put forth their evidence,” Erika Wood, deputy director of the Democracy Program at the Brennan Center for Justice said. “I think this is the first time plaintiffs were actually allowed to put forth evidence that demonstrates the impact of the criminal justice system on communities of color in Washington State.”

That evidence came from research by University of Washington sociology professors Dr. Robert Crutchfield and Dr. Katherine Beckett, who found evidence of racial discrimination in each step of the state’s criminal justice system, from policing and investigation to prosecution and sentencing.

“The numbers in Washington State are stark. Twenty-four percent of black men and 15 percent of the black population in the state can’t vote because of a felony conviction and we argue that that result is exactly what Section 2 was enacted to proscribe,” Haygood said. “The court was clear that we provided compelling evidence of racial discrimination in the criminal justice system that served to shift any inequality into the political process.”

According to Larry Weiser, Gonzaga University School of Law associate professor and plaintiffs’ counsel, the other circuits had issues with whether state disenfranchisement laws apply to the VRA. He noted that although there are two or three circuits that have cases on that basis, there remains much dissent.

“It is plain to anyone reading the Voting Rights Act that it applies to all ‘voting qualification[s].’ And it is equally plain that [N.Y. Election Law] Section 5-106 disqualifies a group of people from voting,” Sonia Sotomayor, judge for the U.S. Court of Appeals, 2nd Circuit wrote in Hayden in 2006. “These two propositions should constitute the entirety of our analysis.”

In her new position as associate justice Supreme Court, Sotomayor may get a chance to weigh in on Farrakhan v. Gregoire. The day after the decision was handed down, Rob McKenna, Washington state attorney general and Reed announced they will appeal the decision to the Supreme Court.

“This case began back in 1996, it’s been to the 9th Circuit twice already and now it’s time for the U.S. Supreme Court to step in to resolve the split between the federal courts of appeals that the 9th Circuit has created,” McKenna said in a press release. “The felon disenfranchisement laws of Washington and 47 other states hang in the balance [Maine and Vermont both allow incarcerated felons to vote from prison].”

Before the decision can go into effect, the 9th Circuit must issue its mandate on the case, though McKenna’s office plans to file a motion to stay the mandate, allowing current election administration practices to continue unchanged until the Supreme Court makes a decision. The request for appeal to the Supreme Court or petition for certiorari must be filed within 90 days.

“At this point there are no changes being made in the way elections are administered,” Kim van Ekstrom, chief communications officer for King County elections said. “This is such a recent decision and at this time we are basically waiting to see what the state is going to advise us on. Like everyone else, we are taking our lead from them and we support statewide consistency regarding voter registration matters.”

In the meantime, Wood plans to pursue federal legislation. The Democracy Restoration Act (H.R. 3335/S.1516) was introduced in the House by Rep. John Conyers, D-Mich, and Sen. Russ Feingold, D-Wisc., this summer. The bill “would restore voting rights in federal elections to people who are out of prison living in the community across the country,” Wood said.