The American Spectator

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 disenfranchisement; (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.