9th Circuit Strikes Down Washington's Felon Voting Law

Last week the 9th Circuit Court of Appeals ruled in favor of disenfranchised felons in Washingtonholding in a summary judgment order that the state's practice of denying the vote to felons violates the federal Voting Rights Act (VRA).  Notably, instead of basing their argument on the nature of the felon disenfranchisement law at issue, the case centered on the interaction between felon disenfranchisement and the discrimination in the criminal justice system itself.  Plaintiffs argued that systemic racial discrimination in who is arrested, charged, convicted and punished for felonies in Washington combined with the otherwise racially-neutral disenfranchisement policy to result in racial discrimination in voting. 

Evidence of this discrimination is compelling.  As the Seattle Post Intelligencer has reported:

[R]ecent Department of Corrections figures show that about 28 percent of the state's prison population is African-American, according to statistics cited in the suit.  In contrast, African-Americans account for about 3 percent of Washington's population.  A review of arrest records, the plaintiffs argued, showed that increased criminal behavior could not account for the disproportionately high incarceration rates among black Washingtonians.  

Confronted with the evidence, two of three judges on the panel  found "a durable, sustained indifference in treatment faced by minorities in Washington's criminal justice system — systemic disparities which cannot be explained by 'factors independent of race.'"

A Landmark Ruling for the Nation:  This case is a landmark ruling as the first in the nation to find that the relationship between discriminatory criminal justice systems and felon disenfranchisement does indeed violate the VRA.  Three other circuit courts have previously ruled on this issue.  However, none of those courts entertained evidence of racial discrimination, finding that felon disenfranchisement laws didn't apply to the VRA.  Now that the 9th Circuit, after actually examining evidence, has come to a different conclusion, the case is likely to be reviewed by the US Supreme Court, a request the Attorney General has indicated that he will make.

Reaction to the ruling has, not surprisingly, been largely uninformed, with many commentators seeming to believe that only intentional discrimination violates the VRA.  In reality, it is the effect of the law and not its intent that matters under the statute.  And, of course, many seem to be blissfully ignorant of the benighted history of felon disenfranchisement laws, which were explicitly designed to reduce minority voting power at the time of their introduction in the 1800s.  Perhaps the most telling response has come from the Attorney General of Washington who stated that "The felon disenfranchisement laws of Washington and 47 other states hang in the balance."  Of course, this is only true because as the AG tacitly acknowledges, the criminal justice systems in all of our states show signs of pervasive racial bias.

This ruling may also have some immediate reverberations in Virginia and Wisconsin where felon disenfranchisement is on the public agenda.  In Virginia, it may give a lift to efforts by advocates to have outgoing Gov. Tim Kaine order the restoration of all formerly-incarcerated felons currently disenfranchised.  In Wisconsin, a law to automatically restore voting rights upon release from prison is also under consideration and the sponsor, Rep. Joe Parisi, has lauded the ruling as a vindication of his views.

Farrakhan v. Gregoire (9th Circuit Ruling)
Seattle Post Intelligencer - Washington Prisoners Entitled to Vote, Federal Court Rules
Brennan Center for Justice - Farrakhan v. Gregoire Case Materials
Project Vote - Court Finds Washington Voting Law Racially Discriminatory