Posted on November 11, 2004

Courts At Odds In Legal Battle Over Felons And Voting Rights

Warren Richey, Christian Science Monitor, Nov. 10

WASHINGTON — In the final days before last week’s presidential election, campaign operatives in Florida were engaged in a bitter debate over enforcement of a state law that bars convicted felons from voting.

Republicans urged strict enforcement of the law to prevent some 47,000 suspected felons listed on the state’s voter rolls from casting illegal votes. Democrats charged the effort was a vote suppression campaign aimed at holding down turnout in minority neighborhoods.

In the end, President Bush coasted to victory in Florida by more than 380,000 votes, but the preelection debate highlighted a surprising fact: Some 600,000 Florida residents are barred by law from participating in the democratic process. One of every 6 African-American men in Florida is ineligible to vote because of a prior felony conviction. Such policies nationwide are being challenged increasingly by critics who see them as a form of racial discrimination that is eroding black political clout. All but two states, Vermont and Maine, restrict the ability of convicted felons to vote.

The issue has been pushed toward the nation’s highest court, but it won’t be settled there — for now at least. On Monday, the US Supreme Court let stand two conflicting federal appeals court rulings on whether laws that disenfranchise all felons (regardless of race) may nonetheless result in illegal racial discrimination against African-Americans in voting.

A federal appeals court had ruled in a Washington State case that it could. A federal appeals court concluded the opposite in a New York case.

The justices did not explain why they decided not to settle the issue. The action leaves a clear split within the lower appeals courts and could result in successful challenges to state felon disenfranchisement laws in western states covered by the Ninth US Circuit Court of Appeals. At the same time, states covered by the Second US Circuit Court of Appeals could cite that court’s precedent to win any challenges to their disenfranchisement laws.

The next opportunity for the high court to examine the issue may arise from a lawsuit challenging Florida’s felon disenfranchisement law. The full 11th US Circuit Court of Appeals in Atlanta heard arguments in that case two weeks ago.

Civil rights lawyers say felon disenfranchisement laws violate the federal Voting Rights Act because of a discriminatory criminal justice system that convicts and imprisons blacks and other minorities at higher rates than whites. The higher minority conviction rate translates to a higher rate of disenfranchisement.

“Historically, disenfranchisement laws have been used against minorities to prevent them from voting, as a vote-suppression device like literacy tests,” says Larry Weiser, a professor at Gonzaga University Law School in Spokane, Wash., who is challenging that state’s disenfranchisement law on behalf of a group of felons.

Supporters of disenfranchisement laws say they apply equally to everyone convicted of a felony — regardless of race. Those who break the law should not be entitled to participate in the process of making the laws, they say.

Supporters add that in order to violate federal antidiscrimination laws there must be evidence of an intent to discriminate. The fact that a race-neutral law results in a greater hardship to a minority community does not amount to illegal racial discrimination unless there is evidence of intent to harm, they say.

In 1985, the US Supreme Court struck down a provision within Alabama’s state constitution authorizing voter disenfranchisement. The justices ruled 8-0 that the provision had been intentionally adopted in 1901 to disenfranchise blacks and help establish white supremacy in the state.

No such evidence of intent to discriminate exists concerning passage of the felon disenfranchisement statutes at issue in the New York and Washington State cases. Instead, the lawsuits rely on a slightly different theory: that the discrimination is not in the disenfranchisement statute itself but in the criminal justice system.

The Voting Rights Act bars any voter “qualifications” that result in a denial of the right to vote because of someone’s race. Under disenfranchisement laws, a felony conviction is a kind of qualification.

If that qualification is being distributed in a racially unequal manner because of the higher proportion of minorities being convicted, it violates the act, these lawyers say.

Others counter that while judges can look at unequal “results” to fight discrimination, plaintiffs must produce evidence of intentional bias, not just statistics.

In upholding the Washington lawsuit, a three-judge panel of the Ninth Circuit Court of Appeals embraced an expansive view of the Voting Rights Act. Saying the law requires judges to consider the “totality of the circumstances” surrounding denial of the right to vote, the panel said the law could be used to challenge state disenfranchisement statutes.

A Second Circuit panel in New York reached a different conclusion. It said Congress never clearly authorized such lawsuits under the Voting Rights Act, and if it did such an expansive reading of the law would exceed congressional authority and violate the principles of federalism.

“This is a difficult question that can ultimately be resolved only by a determination of the United States Supreme Court,” wrote Judge Jose Cabranes, in the Second Circuit decision. But the high court has left that for another day.