Felons call voting ban unfair to minorities

By Maureen O'Hagan
Seattle Times staff reporter

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Candidates for president conduct focus groups with soccer moms. They curry favor with the NASCAR dads, kowtow to the seniors and hobnob with doctors and lawyers.

Ex-cons aren't on anyone's list. In Washington, like 47 other states, most felons can't vote anyway.

But a lawsuit pending here and similar cases across the country have asked the courts to overturn state laws that keep felons from the ballot box, claiming the laws discriminate against minorities who make up a disproportionate number of the nation's prisoners.

So far, the felons have won some key rulings here and in Florida.

Still, they face major hurdles, considering the U.S. Supreme Court ruled long ago that prohibiting felons from voting is constitutional. Such state laws date to the 1800s. In Washington, the prohibition applies to those convicted of felonies, including those in prison and those still under supervision on the outside. At least 111,000 people in Washington are in those categories, according to figures from the state Department of Corrections.

"Someone who has shown they're not going to obey the laws doesn't get to participate in making them or choosing the people who make them," said Jeffrey Even, the assistant attorney general handling the state's case.

Last week, the Washington case passed a major hurdle when the 9th Circuit Court of Appeals looked at the issue from another angle and decided that the felons' arguments have merit. The appeals court sent the case back to the District Court to examine the issue further and decide whether to grant the voting rights.

The crux of the issue is this: Does Washington's felon-disenfranchisement law discriminate against minorities?

Lawrence A. Weiser, a Gonzaga School of Law professor who represents the six plaintiffs, says yes.
 
On its face, he acknowledges, the voting law is race-neutral. Yet he argues that the justice system as a whole discriminates against minorities — with the result that the felon-disenfranchisement law discriminates against them, too. For example, statistics cited by the plaintiffs show that minority defendants receive longer sentences than white defendants, and are less likely to get first-time-offender waivers. The statistics are corroborated by the Washington Sentencing Guidelines Commission.

African Americans constitute 22 percent of the prison population in Washington, but only three percent of the overall population.

As a result, one in four African-American men in Washington is unable to vote, Weiser said, citing statistics from The Sentencing Project, a national organization that is advocating for a change in the voting law.

"Quite frankly, when we started, a lot of people said this isn't something we should do, felons shouldn't have the right to vote," he said. "But the more we thought about the cause of felony disenfranchisement — that the criminal-justice system is biased against African Americans — you realize this is a really important issue. ... They're not fully participating in society, and they're forever second-class citizens."

Weiser says the laws are sort of like the old poll taxes and literacy tests — Jim Crow laws that were race-neutral on the surface, but that kept poor minority voters from the polls. Those laws have been overturned.

In the Washington case, six inmates filed their own lawsuit in 1996. The case was taken up not long afterward by the law firm of Carl Maxey, a noted Spokane civil-rights lawyer. Finally, it was passed to Weiser, who has worked on it with his students ever since.

In the next three months, the Attorney General's Office must decide whether to appeal the case to the U.S. Supreme Court or argue the discrimination issue in front of the District Court, where any decision could be appealed.

Only two states — Vermont and Maine — allow felons the right to vote while they're in prison. In other states, a felon can vote after he gets out of prison; in still others, felons' voting rights can never be restored.

In Washington, criminals can regain voting rights after they are released from prison, have completed community supervision and have paid all of their fines. Those convicted of felonies before 1984 are permanently barred from voting under an older law.

Lead plaintiff Muhammad S. Farrakhan, a convicted thief who ran in 1998 for the state Legislature, is unlikely to regain his voting rights. Although he's out of prison and off supervision, he owes fines, restitution and interest of more than $28,000 in connection with his conviction, according to Even.

One more Washington plaintiff was released from prison; the remaining four are still inside. Some will never get out. Five of them hadn't registered to vote before they got to prison, Even said.

Meanwhile, The Sentencing Project has focused on the issue and is helping with four similar lawsuits elsewhere in the country. Their argument is similar to Weiser's, but also focuses on "vote dilution," the idea that some minority neighborhoods have so many people in prison that the remaining citizens are harmed because their community voting bloc has been broken up.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

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