Published on
the San Francisco Chronicle

Court Tosses Washington Voting Ban for Felons

Implications for Voting Rights in Other States

Bob Egelko

(photo by flickr user Daquella manera)

A federal appeals court overturned Washington state's ban on voting by convicted felons Tuesday in a ruling that could extend ballots to prisoners in other states where studies showed racial bias in the criminal justice system.

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said the Washington law violates the federal Voting Rights Act because evidence showed discrimination against minorities at every level of the state's legal system: arrest, bail, prosecution and sentencing.

If the ruling survives, it will be binding in the circuit's other eight states, including California, which denies voting rights to 283,000 convicted felons in prison or on parole, according to a report from the nonprofit Sentencing Project.

About 114,000 are African Americans, who are disenfranchised at seven times the rate of the general population, the report said.

Among those in Washington state who commit crimes, "minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted," Judge A. Wallace Tashima said in the appeals court's majority opinion.

For example, he said, studies showed that African Americans in Washington were more than nine times as likely to be in prison as whites and 70 percent more likely to be searched, even though a study of one police department found that officers were more likely to find contraband when searching whites.

Findings were similar for Latinos and Native Americans, none of which could be explained by differences in crime rates, Tashima said.

The Voting Rights Act "demands that such racial discrimination not spread to the ballot box," he said.

Dissenting Judge Margaret McKeown said the court should have told a trial judge to reconsider the Washington law based on an amendment last year that made it easier for paroled felons to vote.

She also said the court was relying too much on statistics and should consider other factors, such as minority access to the political process, before finding racial discrimination.

The ruling is the first by an appeals court to overturn a state's prohibition on voting by felons, which exists in different versions in every state except Maine and Vermont.

Imprisoned felons of all races would become eligible to vote if the courts concluded, based on studies like those in Washington, that a state's justice system was racially skewed.

The studies "concluded what a lot of people feel, that a disproportionate amount of minorities are convicted of crimes even though there might be the same amount of crimes committed by the white population," said attorney Lawrence Weiser, who directs the legal clinic at Gonzaga Law School. He has worked on the Washington case since a group of minority prisoners filed suit over the law in 1996.

A state appeals court in San Francisco upheld California's voting law last year. Three other federal appeals courts have ruled that the Voting Rights Act does not apply to bans on voting by felons.

"Part of being a good citizen is obeying the laws and not doing things to other citizens that are so egregious that you end up in prison," said Washington Secretary of State Sam Reed, who promised an appeal of the ruling. "If you do, you are going to be denied your right to participate as a full citizen in our society."

But Ryan Haygood of the NAACP Legal Defense Fund, lead attorney for the plaintiffs, said the evidence showed that minorities and whites who committed crimes in Washington aren't treated equally. Allowing felons to vote benefits everyone, he said, because "participation legitimizes democracy."

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