Editorial by the NAACP Legal Defense and Educational Fund
In a precedent-setting decision, the Ninth Circuit Court of Appeals struck down the state of Washington’s law barring felons from voting on Jan. 5, just in time to honor Dr. Martin Luther King, for whom the issue of voting rights for the disenfranchised was a top priority. The Ninth Circuit ruled that the law violates the federal Voting Rights Act because of widespread racism, racial discrimination and bias in the state’s criminal justice system.
The court declared that there was “compelling” evidence – which Washington state officials did not contest — that “in the total population of potential ‘felons’ … minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted.”
It went on to say, “If those decision points are infected with racial bias, resulting in some people becoming felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the VRA, disqualify felons from voting.”
Section 2 of the Voting Rights Act forbids any unit of government from enacting any law or regulation that prevents or dilutes the voting rights of Blacks, other Americans of color and members of a language minority group.
The ruling came in a law suit, Farrakhan v. Gregoire, originally brought in 1996 by several Black, Latino and Native American citizens of Washington state who had lost their right to vote because of felony convictions. It marks the first time a federal court has declared that systemic racism infects the procedures of the criminal justice system to such a degree that a record of incarceration cannot be used to deny an ex-offender the right to vote. The NAACP Legal Defense and Educational Fund was the lead counsel for the plaintiffs in the case.
John Payton, LDF president and director-counsel, said: “This landmark ruling recognizes that racial discrimination in Washington’s criminal justice system has infected the state’s political process. The result is that Black, Latino and Native America persons convicted of felonies in Washington are disproportionately denied the right to vote.”
Officials of LDF, along with many others, have long asserted that the structural racism of the criminal justice system plays a significant role in the sharply disproportionate numbers of African Americans, Hispanic Americans and Native Americans incarcerated in the country’s jails and prisons.
The substantial increase in the latter groups’ rate of incarceration – along with the greater exercise of political power by Blacks and Latinos — since the 1970s has, in turn, led to a more aggressive questioning of the fairness of state laws which bar temporarily or forever persons convicted of a felony from voting. Those assertions and the demand that felon disenfranchisement laws be significantly changed have grown more numerous since the mid-1990s due to several highly visible election controversies.
This week’s federal court ruling is sure to stoke the debate even more.
As a result of Washington state’s current felon disfranchisement statute, 24 percent of Black men in the state and 15 percent of its entire Black population have lost their voting rights because of a felony conviction. Collectively, African Americans, Latinos and Native Americans represent only 12 percent of Washington’s population, but comprise 36 percent of the state’s incarcerated population.
“The evidence showed that the rate at which Blacks, Latinos and Native Americans are convicted of felony offenses and consequently disqualified from voting is not reflective of their actual participation in criminal behavior,” said Ryan P. Haygood, co-director of LDF’s Political Participation Group.
“These racial disparities tell a troubling story,” he continued, “of minority overrepresentation in the criminal justice system resulting not from any public safety imperative but rather from discrimination. The court recognized that our democracy cannot be eroded by compounding this serious injury through felon disfranchisement.”
The plaintiffs in the case are represented by the University Legal Assistance law clinic at Gonzaga Law School and LDF.
“We are pleased by the Ninth Circuit’s ruling today, which recognizes that discriminatory disfranchisement laws undermine core American ideals of fairness and democracy,” said Larry Weiser, director of the University Legal Assistance law clinic at Gonzaga Law School.
Nationally, more than 5.3 million Americans are denied the right to vote, the foundation, Haygood said, of all of Americans’ other rights. An estimated 2 million of the disfranchised, roughly 38 percent, are African Americans. Maine and Vermont are the only states which permit those incarcerated to vote by absentee ballot from prison.
This editorial first appeared in The Defenders Online: A Civil Rights Blog, a project of the NAACP Legal Defense and Educational Fund.