US appeals court reverses course, upholds Wash. ban on voting by prison inmates

By Gene Johnson, AP
Thursday, October 7, 2010

9th Circuit upholds Wash. ban on voting by inmates

SEATTLE — A federal appeals court reversed course Thursday and upheld Washington state’s ban on voting by prison inmates in a case that challenged the disproportionate effect it has on minority voters.

A three-judge panel of the 9th U.S. Circuit Court of Appeals caused a stir by ruling in January that Washington’s inmates should be allowed to vote. That decision was expected to give momentum to other efforts to expand voting to inmates; only Maine and Vermont allow those behind bars to cast ballots.

But an 11-judge panel reconsidered the case at a hearing in San Francisco last month and unanimously upheld Washington’s ban, which dates to 1866, before statehood.

“This ruling affirms the rights of states to withhold the right to vote from those who’ve committed the most serious crimes against society,” Washington Attorney General Rob McKenna said.

The judges said that to challenge the ban under the Voting Rights Act, inmates would have to demonstrate intentional discrimination in the state’s criminal justice system — not just a disparity in the racial make-up of the prison population.

The inmates suing in Washington made no such showing, they said.

“Felon disenfranchisement laws have a long history in the United States,” the court said. “These laws predate the Jim Crow era and, with a few notable exceptions, have not been adopted based on racial considerations.”

The suit against Washington’s law was filed by Muhammad Shabazz Farrakhan, formerly of Bellevue. 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.

Five other inmates, all members of racial minority groups, later joined as plaintiffs. They argued the voting ban “results in a denial or abridgement of the right … to vote on account of race,” and thus violated the Voting Rights Act.

The first milestone ruling in the case came in 2003, when a 9th Circuit panel ruled 2-1 that inmates could challenge the voting ban by presenting evidence of racial disparities in the prison population.

The 9th Circuit and the U.S. Supreme Court declined to reconsider that ruling, but the 11-judge panel backed away from it, saying Thursday it was too sweeping and ran counter to opinions from other federal appeals courts. Instead, they adopted the rule that inmates must show intentional racial discrimination.

McKenna and Secretary of State Sam Reed said they were pleased the court recognized there is no evidence of intentional discrimination in the criminal justice system, but said they remain concerned about the disproportionate number of blacks in state prisons.

Blacks make up about 4 percent of the Washington’s population, but 17 percent of the people under the Department of Corrections’ supervision. McKenna said that’s a dramatic improvement from a few decades ago, when the disparity was far more stark.

He also said that some minorities — Hispanics, Asian-Americans and Pacific Islanders — are actually underrepresented in the prison population.

Last year, the Legislature passed a law that allows convicted felons to register to vote once they’re no longer on parole or probation. Previously, they couldn’t regain their voting rights until they paid all court-ordered fines and restitution — a hurdle that many found nearly impossible to overcome.

Farrakhan was represented by a law clinic at Gonzaga University. The clinic did not immediately return a message seeking comment Thursday.

Sarah Dunne, legal director of the American Civil Liberties Union of Washington, which filed a friend-of-the-court brief, said she was disappointed by the ruling.

“The reality is that there are many imperfections in the criminal justice system, and the statistics bear this out,” she said in a written statement. “People of color are searched, arrested, charged and convicted in disproportionate numbers. The ACLU will continue to work against the racial bias that does in fact exist in the system.”

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