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January, 6th 2010

Felon voting: Coming soon to Washington State (and your backyard, too)?

– Liz Mair

It's a general rule in America that if you get convicted of a felony and are given a sentence that involves time in prison, you don't get to vote from your jail cell. But yesterday, it turns out, a federal appeals court ruled that Washington State's ban on incarcerated felons voting violates the Voting Rights Act because it disenfranchises minority voters. 

The ban is contained in Article IV of the Washington Constitution, which bars people convicted of "infamous crime" from voting until their civil rights are restored.  "Infamous crime" is defined by reference to incarceration, specifically.  As it stands, felons' voting rights cannot be restored until their prison sentences are completed and the terms of any community supervision are met.  But were the Supreme Court to uphold the federal court's ruling, that would change in Washington and 47 other states that currently ban felons from voting in given circumstances (Maine and Vermont allow felons in prison to vote).  Clearly, that would represent a major shift, and one that a lot of people would find highly objectionable.  By contrast, allowing ex-offenders to vote is a position that a lot of people (including myself) find unobjectionable, or generally reasonable.  Allowing those still serving out a sentence in jail to do so is a different matter, and I suspect there's going to be plenty of outrage about this decision, both in Washington, and elsewhere, irrespective of the merits of what was argued by those bringing the case-- which, while the court obviously found them compelling, strike me (as they do Washington's Attorney General, Rob McKenna) as questionable.

Undoubtedly, in Washington as in most other states, minorities are more likely to be stopped, searched, arrested, charged, tried and convicted than are whites.  Per the Seattle Times (link above), in this case, evidence was presented that "blacks are 70 percent more likely — and Latinos and Native Americans 50 percent more likely — than whites to be searched in traffic stops."  Furthermore, "the research also showed that blacks are nine times more likely to be incarcerated than whites, despite the fact that the ratio of arrests for violent crime among blacks and whites is less than four-to-one. One result of that: 25 percent of black men in Washington are disenfranchised from voting."  All this is undoubtedly true, and clearly the court took it into account in examining the effect of Washington's ban on felon voting.  However, a key point would seem to me to be that unlike laws and practices voided and banned by the Voting Rights Act, the purpose of Washington's law is not to stop minorities, as such, from exercising their right to vote; the law applies to plenty of white prisoners, too.  As such, this feels like a prime example of court overreach-- something that might be further underlined by the fact that federal courts in Massachusetts, New York and Florida have all taken an opposite view to the court in this case.  Furthermore, it feels like the wrong remedy to a problem that many people freely concede exists.  If one accepts that there is racism evident in the justice system, then the better long-term, policy answer would be to root it out and institute fundamental reforms to deal with that problem-- not, to put a tagline on it, "keep the racism, just let the inmates vote."

McKenna plans to appeal this decision, either back to the 9th Circuit (but with a larger panel) or to the Supreme Court.  Back in 1974, of course, in Richardson v Ramirez, SCOTUS determined that a ban on felon voting was not unconstitutional-- and that, combined with the previous decisions in other states, would seem to suggest that SCOTUS would reverse the decision if the case ultimately made its way to them.  Of course, the Supreme Court is not bound by its own precedent (though I struggle to think that it would reverse its own previous course here). 

What's clear is this much: If the decision were upheld, those responsible for ensuring that felons do get to exercise their right to vote will be in for lots of headaches.  Presumably, felons would need to vote by mail (in Washington, pretty much all voting is now vote-by-mail anyway).  But in Washington, anyway, the Department of Corrections typically inspects outgoing inmate mail. Meanwhile, the state's voting laws bar opening mail-in ballots.  [intro]

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