US federal court requires Washington State to allow the vote to felons in prison

You may have seen a headline like this one following a January 5 decision issued by the United States Court of Appeals for the Ninth Circuit (usually shortened to "Ninth Circuit"), the federal appellate court which handles appeals from federal district (that is, trial) courts in the State of Washington, California, and other western states. The headline seemed, shall I say odd?, so I was prompted to read this Ninth Circuit decision (Farrakhan v. Gregoire), as well as other decisions on the same problem issued by three other federal appellate courts: Johnson v. Governor of the State of Florida (Eleventh Circuit 2005); Hayden v. Pataki (Second Circuit 2006); and Simmons v. Galvin (First Circuit 2009).

As we all learned from the Bush v. Gore Supreme Court case following the 2000 presidential election, most of the law governing the eligibility of individuals to vote is state, not federal, law. One such federal law, however, is the Voting Rights Act of 1965, which was enacted to enforce the Fifteenth Amendment to the U.S. Constitution, one of the amendments that followed the Civil War.

In the Ninth Circuit case, the plaintiffs bringing the suit were African-American, Latino American, and Native American incarcerated felons. The suit was a class action, meaning that these individuals represented the class of African-American, Latino-Americans and Native American felons incarcerated by the State of Washington. They sought a declaration by the court that the State of Washington's constitutional provision denying the franchise to incarcerated felons was a violation of their right to vote under Section 2 of the Voting Rights Act of 1965, as amended, found in Title 42 of the United States Code, Section 1973.

The Ninth Circuit found that the practices of the State of Washington with respect to policing, investigation, prosecution and sentencing resulted in racial disparities among the incarcerated that cannot be explained in race-neutral ways. For example, African Americans were "over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrests for violent offenses was only 3.72:1…Native Americans were more than twice as likely to be searched as Whites…" (In the Second Circuit case, the plaintiffs alleged that African Americans and Latino Americans constituted 86% of the New York prison population but only 31% of the state's overall population.) Please note that intentional discrimination is not necessary to prove that the government violated the Voting Rights Act. Furthermore, the Ninth Circuit assumes that the convictions of incarcerated felons were lawful; that is, they were not innocent of the crime for which they were convicted. It is the criminal justice system that was found to be systemically racist, causing the plaintiffs to be investigated and prosecuted much more frequently, and to be given longer sentences, than Caucasians.

Under these circumstances, the Voting Rights Act has posed a problem for the courts because it would appear that the law would be plainly triggered and would require the courts to negate state laws (and state constitutions, as in the case of Washington) that disenfranchise these individuals who have been incarcerated on account of their race or color. The Second Circuit provided a litany of reasons why this law's plain text should not apply to incarcerated felons, including:

(1) the Fourteenth Amendment allows the disenfranchisement of felons;

(2) there is a long history "and continuing prevalence" of such disenfranchisement;

(3) statements made in House and Senate committee reports and on the Senate floor as part of the legislative process leading to the enactment of the Voting Rights Act declare that the Act does not affect felon isenfranchisement;

(4) the introduction after 1965 of bills by supporters of the Voting Rights Act to allow explicitly disenfranchisement;

(5) the enactment by Congress of felon disenfranchisement in the District of Columbia soon after the Voting Rights Act was enacted; and

(6) the enactment of laws to facilitate removal of felons from the voting rolls. All of these circumstances persuaded the Second Circuit that Congress did not intend its language to have literal effect. To apply the statute literally, the Court wrote, would be "demonstrably at odds with the intentions" of Congress. It would be an "unthinkable disposition."

Whether the Ninth Circuit court is right to apply the statute literally or whether the other courts are right not to do so is obviously a matter of debate among lawyers and judges, and ultimately for the U.S. Supreme Court to decide -- unless Congress acts first. And Congress should.

We do not have to be judges or lawyers to think that it is unthinkable, absurd, to have incarcerated felons voting. Some Massachusetts history is telling. In 1997, there was a proposal in Massachusetts to disenfranchise prisoners incarcerated for certain felonies. Prisoners started a PAC to oppose this proposed legislation and for other purposes. In reaction, Massachusetts voters approved an amendment to their Constitution, effective in late 2000, to disenfranchise incarcerated felons. (There remain but two states that allow incarcerated felons to vote. Under our federal system, they can do the unthinkable.)

To demonstrate how unthinkable it is, let us discuss what can happen in the State of Washington should the State not appeal the Ninth Circuit's decision to the U.S. Supreme Court and the federal trial court should now consider what lawyers call "the remedy" or "the relief" for the winning plaintiffs in the case.

The Ninth Circuit noted that "the state has never argued that there are administrative difficulties in permitting incarcerated felons to vote…" -- at least no more difficulties than those that obtain with allowing non-incarcerated felons to vote. Although I have no background in prison administration, let me suggest a few difficulties, both administrative difficulties and other types of difficulty.

First, the only incarcerated felons allowed to vote would be members of the classes represented by the plaintiffs: African Americans, Latino Americans, and Native Americans. Consider two cellmates who are incarcerated for the same crime and have been in prison for the same length of time. One of them, a Latino American, would be allowed to vote; the Korean-American would not. Caucasians and Asian Americans of Korean, Filipino, Chinese, Indian, Japanese, and Hawaiian extraction would all be denied this special privilege. Resentment would build.

Second, how does a prison administration determine, for the purposes of complying with the Voting Rights Act and the Ninth Circuit decision, which of its incarcerated felons are African Americans, Latino Americans or Native Americans and therefore entitled to vote? It would most definitely not be because a felon could prove discrimination against him or her individually. So, would it be by the shade of the skin, the last name, the genealogy, the felon's self-identification?

Third, the right to vote would extend to prisoners in State of Washington facilities who were arrested and convicted in the State of Washington. Thus, an African American convicted in Kansas who is housed in a Washington prison would not be allowed to vote. Conversely, a Washington prisoner housed in Kansas must be allowed to vote and Kansas authorities would need to be notified.

Fourth, the incarcerated felons can vote only in elections in the districts in which they reside. There is a debate, especially in the context of the federal census, over whether prisoners should be regarded as residents of the districts in which their prisons are located or elsewhere. Many prisons are in localities of small populations. If the prisoners are regarded, for voting purposes, as residents of the town where the prison is located, the number of voting prisoners could exceed the number of other residents. If the right to vote under the Voting Rights Act were the right to vote only in federal elections, this might not make much of a difference. But the right to vote is not limited to elections for federal office. The vote includes state and local elections. It also includes ballot measures -- referenda, initiatives, taxes.

On the other hand, if the prisoners are regarded as residents of localities other than where the prison is located, what locality might that be? A prisoner may have been arrested in Seattle while visiting Seattle, but was a resident of Grand Junction, Colorado. What litigation might an incarcerated felon bring with regard to his or her residency?

Fifth, the right to vote under the Voting Rights Act is not limited to general elections. The right to vote is extended to "nominations," thus, primary elections and nominating conventions. In fact, the Voting Rights Act is more extensive yet. It refers to "political processes" and "participat[ion] in political processes." Thus, "the right to vote" when used under the Voting Rights Act constitutes shorthand for political participation generally, including fund-raising, political action committee work, door-to-door soliciting, poll-watching, etc.

The Second Circuit opinion states that, because incarcerated persons, cannot engage in such activities, Congress could not have intended to allow incarcerated prisoners to vote under the Voting Rights Act. But, since it was not "unthinkable" for the Ninth Circuit to determine that incarcerated prisoners have a right to vote under the Voting Rights Act, it may not be "unthinkable" that the Ninth Circuit would insist on having the trial court fashion a remedy that would require prison administrators to ensure maximum political participation by incarcerated felons, even if this would mean providing special telephones, special email accounts, and transportation.

Not only may prisoners have the right to participate fully in political processes, but conversely, candidates, and proponents and opponents of ballot measures, would have the concomitant right to seek the votes, and other forms of support, of prisoners.

Sixth, the mantra during the count of the 2000 Bush v. Gore presidential election was "make every vote count." The right to vote is the right to make a difference. A real vote is not like the one that the Delegate of the District of Columbia has in the Congress; by law, his or her vote is ignored if it makes a difference in whether a bill is passed or rejected. Rather, a vote is like that of the Vice President who, per the Constitution, votes only in the case of a tie.

We have seen in recent elections, like the 2000 presidential one, and the 2008 Coleman v. Franken Minnesota election for U.S. Senator, how close elections can be. In the latter, it was 312 votes out of 2,887,646 votes cast (or 0.011%). One of the legal briefs in Bush v. Gore cited instances, like one involving Illinois State Representative Penny Pullen, where the votes were tied. I ask you: Is it thinkable or unthinkable for our Congress to retain language in the Voting Rights Act that would require our judges to demand that an American citizen of color in a state prison who

• bilked thousands of elderly of their life savings millions of dollars in a Ponzi scheme (a Bernie Madoff of color),

• conspired to commit voter fraud or intimidation (like the Black Panthers or ACORN),

• killed four police officers in the State of Washington, or

• committed an act of terrorism resulting in the deaths of hundreds,

would cast the deciding vote –-- in an election for sheriff, for district attorney, for judge, for governor, for president of the United States?

I also ask you: What person of honor would agree to hold office where the margin of his or her victory was less than the number of voting prisoners? (Not a good question, I suppose, since Roland Burris accepted his Senate seat from a governor charged with corruption.)

Finally this observation. In a typical Voting Rights Act case, the defendant State can resolve the issue by modifying its voting procedures and there is no other alternative. In the Ninth Circuit case, the State of Washington could go through the process of amending its Constitution to remove the ban on voting by incarcerated felons. (No one could predict how the people would vote on this, of course.)

There is an alternative, however, for the State of Washington: making systemic changes to its criminal justice system. The order by the trial court would provide criteria which, when met, would allow the State to get out from under the requirement to allow incarcerated felons to vote. What racial balance would the State be required to achieve among individuals searched, arrested, convicted, and sentenced to satisfy the Voting Rights Act? Must it be approximately the same as the racial balance in the general population? Note that, even if the racial balance required were achieved tomorrow among newly convicted criminals, it could take decades before that same racial balance was achieved in the entire prison population.

Congress should end this litigation by amending the Voting Rights Act.

James Thunder is an attorney practicing in the Washington DC area. He contributes regularly to American Spectator and Speroforum.com