Metropolitan News-Enterprise


Wednesday, January 6, 2010


Page 1


Court: Washington Felon Inmates Should Get to Vote


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals ruled yesterday that incarcerated felons in Washington should be allowed to vote to ensure that racial minorities are protected under the Voting Rights Act.

A split three-judge panel overturned the 2000 ruling of a district judge in Spokane, who held that the state’s felon disenfranchisement law did not violate the act and dismissed a former prison inmate’s lawsuit.

Writing that disparities in Washington’s justice system “cannot be explained by non-racial reasons,” Judge A. Wallace Tashima said the state’s automatic disenfranchisement of felons resulted in the denial of the right to vote on account of race in violation of the act.

However, Judge M. Margaret McKeown dissented that the case should be remanded to the district court for findings on whether there was racial discrimination in the Washington criminal justice system and for the court to weigh other factors to determine if there was a violation.

 Marc Mauer, executive director of The Sentencing Project, a Washington, D.C. group promoting sentencing reform, said the issues the ruling raises about racial bias in the justice system are not unique to Washington state.

“They are issues that permeate the justice system and are relevant in every state,” he said.

A spokeswoman said Washington Attorney General Rob McKenna is weighing the state’s next step.

The lawsuit was filed by Muhammad Shabazz Farrakhan of Bellevue, Wash. He was serving a three-year sentence at the Washington State Penitentiary in Walla Walla for a series of felony-theft convictions when he sued the state in 1996.

Ultimately, five other inmates, all members of racial minority groups, joined as plaintiffs.

The lawsuit contended that because nonwhites make up a large percentage of the prison population, a state law prohibiting inmates and parolees from voting is illegal because it dilutes the electoral clout of minorities, violating the 1965 act.

The state contended that the lawsuit should be dismissed because the law was not intended to discriminate against minorities.

Last year, lawmakers amended the law to allow convicted felons to reregister to vote once they are no longer on parole or probation. Previously, felons who were no longer in Washington state custody but owed court-ordered fines and restitution were not allowed to vote.

Washington’s neighbor, Oregon, automatically restores voting rights to felons once they are released from prison. Nearly 40 other states and the District of Columbia also have less onerous restrictions on restoring voting rights to felons.

Maine and Vermont are the only states that allow those behind bars to cast ballots.

The First, Second, and Eleventh Circuits have determined in other cases that vote denial challenges to felon disenfranchisement laws are not cognizable under the Voting Rights Act.

However, the Ninth Circuit arrived at a contrary determination earlier in the case, and Tashima said yesterday that the prior ruling was binding because the other circuits’ opinions neither represented intervening and controlling authority, nor indicated that the Ninth Circuit’s prior ruling was “clearly erroneous.”

Tashima also wrote that U.S. District Judge Robert H. Whaley of the Eastern District of Washington erred in granting summary judgment for the defendants after the case was remanded, and should have granted summary judgment for the plaintiffs.

Pointing to Whaley’s finding of “compelling evidence” of racial discrimination and bias in the state criminal justice system, Tashima said the plaintiffs, under a “totality of the circumstances” analysis, were not required to prove the existence of any other “typical factors” of discrimination listed in the Voting Rights Act where not all factors were equally relevant, or even necessary, to the analysis.

Judge Stephen Reinhardt joined Tashima in his opinion.

The case is Farrakhan v. Gregoire, 06-35669.


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