Panel Rejects Washington State's Felon Disenfranchisement Law

By Leland Ware

On January 5, 2010, a panel of the U.S. Court of Appeals for the Ninth Circuit held in Farrakhan v. Gregoire that the State of Washington’s felon disenfranchisement law violated Section 2 of the federal Voting Rights Act because it disenfranchised a disproportionate number of racial minorities. The Washington law prevented felons from voting until they were released from prison and off parole.

The evidence presented by experts during the trial showed that the State of Washington’s criminal justice practices disproportionately affected minorities beyond that which could be explained by race neutral reasons. African Americans were more than nine times more likely to be incarcerated than Whites, even though the ratio of Black to White arrests for violent offenses was only 3.72:1.

The evidence also showed that in one city, Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched of those stopped for traffic violations. The evidence also showed that African Americans were nearly twice as likely to be searched as Whites, and Latinos were three times more likely to be searched. However, searches of Whites more frequently resulted in the seizure of contraband than searches of African Americans and Latinos.

The Seattle Washington Police Department arrested African Americans and Latinos for drug possession at rates much higher than their proportion among drug users. Whites were arrested for drug possession at rates much lower than their proportion among users. There was also evidence of discrimination in bail practices. Minority defendants were less likely to be released on their own recognizance than others, even after adjusting for differences among defendants in the severity of their crimes, prior criminal records, ties to the community, and the prosecuting attorney’s recommendation.

A violation of Section 2 of the Voting Rights Act is established when the evidence shows that under the “totality of the circumstance of the local electoral process,” the practice being challenged has the result of denying a racial minority group an equal opportunity to participate in the political process. A showing of discriminatory intent is not required.

The case was decided by a three-judge panel, with one judge dissenting. Three other appellate courts; the 1st Circuit in a Massachusetts case, the 2nd Circuit in a New York case, and the 11th Circuit in a Florida case held that vote denial challenges to felon disenfranchisement laws cannot be brought under the Voting Rights Act. Washington’s Attorney General said he will seek a rehearing before all of the Circuit judges or appeal directly to the U.S. Supreme Court.

This case could have far reaching consequences, as most states have felon disenfranchisement laws and many of them have racial disparities similar to those found in Washington. However, the Supreme Court’s current majority has not been receptive to discrimination claims. It has suggested last term that a different provision of the Voting Rights Act, Section 5, might be unconstitutional.

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A recent report by the Southern Regional Council on Trends in Voting Policy includes a survey of felon disenfranchisement laws in six southern states. To view a complete copy of the SRC report, click here or on the image of the report (which appears to the right).

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About the Author

Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.