OLYMPIA, Wash. — Incarcerated felons should be allowed to vote in Washington to ensure that racial minorities are protected under the Voting Rights Act, a federal appeals court ruled Tuesday.
The 2-1 ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals means the more than 18,000 felons behind bars in the state could get back their right to vote – without having to wait until they are released from prison and are no longer on probation or parole. The ruling also could open the door to similar lawsuits in the 9th Circuit's eight other states and two territories.
The issues it raises about racial bias in the justice system are not unique to Washington, said Marc Mauer, executive director of The Sentencing Project, a Washington, D.C., group promoting sentencing reform.
"They are issues that permeate the justice system and are relevant in every state," he said, adding that an estimated 5.3 million people nationwide are ineligible to vote because of felony convictions.
The panel's ruling overturned a 2000 decision by a district judge in Spokane. That judge had found that Washington's felon disenfranchisement law didn't violate the Voting Rights Act, and had dismissed a lawsuit filed by a former prison inmate from Bellevue.
The two appellate judges ruled that disparities in the state's justice system "cannot be explained in race-neutral ways."
Of the more than 18,000 felons in state custody in Washington who could get back their right to vote, 37.1 percent are minorities. Of that group, blacks make up the largest percentage, at 19.2 percent.
Tuesday's ruling affects only Washington state but could be the basis for litigation in any area covered by the 9th Circuit – Oregon, Idaho, Montana, California, Nevada, Arizona, Alaska, Hawaii, Guam and the Northern Marianas, said Janelle Guthrie, spokeswoman for Attorney General Rob McKenna.
Guthrie said McKenna is weighing the state's next step. It could either ask a larger group of judges from the 9th Circuit to reconsider the ruling or go straight to the U.S. Supreme Court, she said. If it appeals, the state likely would seek a stay on inmates' ability to vote until the case is resolved.
A policy director with a conservative think tank in Washington state called the ruling "an embarrassment."
"It flies in the face of precedent," said Trent England of the Evergreen Freedom Foundation. "Not only is felon disenfranchisement constitutional, but it's good policy. People who commit the most heinous crimes should be deprived of their voice in our system of government at least for a time."
The lawsuit was filed in 1996 by Muhammad Shabazz Farrakhan, who was serving a three-year sentence at the Washington State Penitentiary in Walla Walla for a series of felony-theft convictions at the time.
Ultimately, five other inmates, all members of racial minority groups, joined as plaintiffs.
The lawsuit contended 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. That violates the U.S. Voting Rights Act of 1965, the lawsuit said.
Farrakhan's lead attorney, Gonzaga University School of Law professor Larry Weiser, equated some disenfranchisement laws to poll taxes and literacy tests of the past. He said Washington state's criminal justice system "is biased against African-Americans, and the impact has been a violation of their voting rights."
The state argued the lawsuit should be dismissed because the law was not intended to discriminate against minorities.
Washington's head elections official, Secretary of State Sam Reed, supports minority rights but believes it is a "rational and reasonable sanction for society to demand that felons lose their voting rights while in prison or under community supervision," spokesman David Ammons said.
Last year, lawmakers passed a law that allows convicted felons to reregister to vote once they're no longer on parole or probation. Previously, felons who were no longer in Washington state custody but owed court-ordered fines and restitution were barred from voting. The new law that took effect in July removes the requirement that felons must pay off all their debts before their rights are restored. However, felons' voting rights could be revoked if they fail to make regular payments on their legal obligations.
Other states and the District of Columbia have varying restrictions on restoring felons' voting rights. Washington's neighbor, Oregon, automatically returns voting rights to felons once they're released from prison.
Maine and Vermont are the only states that allow those behind bars to cast ballots.
In her dissent, 9th Circuit Judge Margaret McKeown wrote that the majority "has charted territory that none of our sister circuits has dared to explore." She noted that three other appellate courts – the 1st Circuit in a Massachusetts case, the 2nd Circuit in a New York case, and the 11th Circuit in a Florida case – "have all determined that vote denial challenges to felon disenfranchisement laws are not cognizable under the Voting Rights Act."
Felon voters were central to a Republican court challenge to the results of Washington state's 2004 gubernatorial race. The challenge focused heavily on votes cast by felons who hadn't had their rights restored. Gov. Chris Gregoire beat Republican Dino Rossi by 133 votes after two recounts and the unsuccessful court challenge.
The case is Farrakhan v. Gregoire.
On the Net:
The Sentencing Project: http://www.sentencingproject.org
Attorney General Rob McKenna: http://www.atg.wa.gov