Washington state felons should have voting rights, federal court rules

A federal appeals court on Tuesday tossed out Washington's law banning incarcerated felons from voting, finding the state's criminal-justice system is "infected" with racial discrimination.

The surprising ruling, by a three-judge panel of the 9th Circuit Court of Appeals in Seattle, said the law violates the 1965 Voting Rights Act by disenfranchising minority voters.

The decision is the first in the country's federal appeals courts to equate a prohibition against voting by incarcerated felons with practices outlawed under the federal Voting Rights Act, such as poll taxes or literacy tests.

But Washington's 37,000 felons in prison or on community supervision should not yet break out their voter pamphlets. State Attorney General Rob McKenna said he will appeal — either back to a larger 9th Circuit panel, or directly to the U.S. Supreme Court.

The two-judge majority apparently was persuaded by the plaintiffs' argument that reams of social-science data filed in the case showed minorities in Washington are stopped, arrested and convicted in such disproportionate rates that the ban on voting by incarcerated felons is inherently discriminatory.

The decision, written by Judge A. Wallace Tashima, said the studies "speak to a durable, sustained indifference in treatment faced by minorities in Washington's criminal justice system — systemic disparities which cannot be explained by 'factors independent of race.' "

McKenna said the ruling, if upheld by the U.S. Supreme Court, would apply to all 48 states that ban voting by felons in prison or on supervision. But he disputed the research and the court's legal reasoning.

"What the 9th Circuit did here is misapply the Voting Rights Act," he said. "They just got it wrong."

The case was first filed in Spokane in 1996 by Muhammad Shabazz Farrakhan, who was serving a three-year sentence at the Washington State Penitentiary in Walla Walla for a series of felony-theft convictions. Ultimately, five other inmates, all members of racial minority groups, joined as plaintiffs.

The case has twice bounced between district court and the appeals court.

It was built on research by University of Washington sociologists who found that blacks are 70 percent more likely — and Latinos and Native Americans 50 percent more likely — than whites to be searched in traffic stops.

The research also showed that blacks are nine times more likely to be incarcerated than whites, despite the fact that the ratio of arrests for violent crime among blacks and whites is less than four-to-one. One result of that: 25 percent of black men in Washington are disenfranchised from voting.

"When this important right to vote is taken away in a manner that discriminates against a whole population, the real reason to do it doesn't make sense anymore," said Lawrence Weiser, a Gonzaga University law professor who represented the inmates.

The National Voting Rights Act of 1965, a landmark civil-rights law, banned electoral practices that were commonly used to disenfranchise black voters. Lawsuits similar to the one in Washington have been filed around the country, but federal courts in Massachusetts in 2009, New York in 2006, and Florida in 2005 reached opposite conclusions.

Ryan Haygood of the NAACP's Legal Defense Fund said such cases are "very hard to win." But he described voting by incarcerated felons as the "best tool to re-integrate them into society."

"There is this view that there is reason to be fearful, but there is no danger of people participating in a democracy," said Haygood, who worked as co-counsel with Weiser on the case. "You don't lose when people participate in a democracy. That's especially true of people who are incarcerated."

Two law-enforcement groups and several prominent Washington officials — including two former U.S. attorneys and former Seattle Police Chief Norm Stamper — supported the plaintiffs in court, arguing that there is "no legitimate penal interest" in disenfranchising felons.

Only two states — Vermont and Maine — allow prison inmates to vote.

Article IV of the Washington Constitution bans voting by people convicted of "infamous crime," described as one that merits incarceration in prison, until their civil rights are restored.

Under current law, felons cannot get their voting rights restored until they finish their prison sentences and terms of community supervision. Previously, felons also had to pay off any fines and court costs before their voting rights were restored, but the Legislature dropped that provision last year.

Secretary of State Sam Reed supported that change, but said he was "disappointed" in Tuesday's ruling because it did away with a rational consequence of committing a felony.

"If they need to deal with the law and justice system, deal with that," Reed said. "We don't think it's an appropriate remedy to say because there is racial discrimination, we're going to solve that by allowing people to vote" in prison.

If the court's ruling is upheld, it is unclear how felons in custody would vote. Washington's Department of Corrections inspects outgoing inmate mail, and most counties with state prisons are vote-by-mail counties. But state voting laws prohibit such opening of mail-in ballots.

The Associated Press contributed to this story.

Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com