Metropolitan News-Enterprise


Monday, July 28, 2003


Page 5


Ninth Circuit Revives Suit by Washington Inmates Over Voting Rights for Prisoners


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals on Friday revived a challenge by minority inmates to Washington’s practice of taking away felons’ voting rights while they’re behind bars.

The San Francisco-based court didn’t side with the inmates and restore voting rights for convicts, but agreed that their claims of bias deserve a full airing.

The case was sent back to U.S. District Court in Spokane for a full hearing on whether there is bias in Washington’s criminal justice system. The hearing also is to determine whether taking away voting rights of minority felons violates the federal Voting Rights Act.

The court acknowledged that it’s asking the District Court to wade into a thorny case.

“We recognize that this is a difficult issue and that it requires a searching inquiry into all factors,” Judge Richard A. Paez wrote for the court.

The court said the Voting Rights Act, a centerpiece of civil rights legislation in the 1960s, is rigorous in its demands for equal access to the ballot box.

“Permitting a citizen, even a convicted felon, to challenge felon disenfranchisement laws that result in either the denial of the right to vote or vote dilution on account of race animates the right that every citizen has of protection against racially discriminatory voting practices,” Paez wrote.

Judge Robert H. Whaley of the Eastern District of Washington had previously dismissed the case brought by six inmates.

He said their research on racial discrimination and underrepresentation in the electorate was compelling. But he said the convicts had failed to show the state’s disenfranchisement policy was “motivated by racial animus, or that its operation by itself has a discriminatory effect.”

The appeals court said states conceptually can take away felons’ voting rights without violating the U.S. Constitution, but when that has the effect of racial discrimination, inmates have a right to seek redress.

In this case, the district court “erred in failing to consider evidence of racial bias in Washington’s criminal justice system in determining whether Washington’s felon disenfranchisement laws results in denial of the right to vote on account of race,” Paez wrote.

As an example, the court noted this statistic that came up during the trial: Blacks constitute about 3 percent of the state population, but account for 37 percent of the “persistent offender” sentences handed down.

The judge said Whaley, relying on the courtís 1997 decision in Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, erroneously applied a test under which plaintiffs were required to show that the disenfranchisement scheme, by itself, had a discriminatory effect.

ì[T]he Salt River courtís statement regarding the need for evidence of ëa causal connection between the challenged voting practice and [a] prohibited discriminatory resultíÖsimply does not stand for the proposition that the practice must, ëby itself,í cause the discriminatory result,î Paez explained. Instead, the judge said, Whaley should have considered the schemeís interaction with other social and historical conditions.

“The bottom line is that the District Court applied the wrong standard,” said Assistant Attorney General Jeff Even, representing the state, Gov. Gary Locke, Secretary of State Sam Reed and prison chief Joseph Lehman.

The court, though, made it clear that it wasn’t drawing any conclusions yet. “We ... express no opinion on the merits of plaintiffs’ claim and leave that determination to the district court,” the appeals judges said.

Even said it’s not clear how long it will take to get a new court date, and a decision. The state hasn’t decided whether to ask the circuit court to rehear the case, or even to appeal to the U.S. Supreme Court.

The state “stacks up rather well” in minority voting issues, Even said in an interview. “I think we have a strong argument,” he said. “We’re not discriminating based on race.”

Even said taking away felons’ voting rights has been Washington’s practice since statehood in 1889-and even before that in territorial days. It is demanded in the state Constitution.

The rights are restored once inmates are released and fulfill all requirements, such as drug treatment or restitution. The court said Friday the plaintiffs had not shown anything discriminatory about the restoration process in Washington.

Even said critics are trying to bring down the whole practice, not just as it applies to minority inmates. Similar laws are under attack in federal courts across the country, he said.

The case was brought by Muhammad Shabazz Farrakhan, Marcus Price, Ramon Barrientes, Timothy Schaaf, Clifton Briceno and Al-Kareem Shadeed. Farrakhan, Price, Schaaf and Shadeed are black; Briceno is American Indian; and Barrientes is Hispanic.

Even said Farrakhan and Price are now out of prison, but haven’t had their civil rights restored because they still have restitution to make. The others are behind bars for various crimes, he said.

Their attorney is Lawrence Weiser, Gonzaga Law School professor who is supervising attorney for the legal clinic, University Legal Assistance.


Copyright 2003, Metropolitan News Company