Prison Law Blog

Sara Mayeux

Posts Tagged ‘voting rights act

En Banc Ninth Circuit Upholds Felon Voting Ban in Washington State, Reversing Three-Judge Panel

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Thanks to a reader who alerted me that the en banc Ninth Circuit has issued its ruling in Farrakhan v. Gregoire, the Washington inmate voting rights case in which it heard oral arguments just a few weeks ago. The SF Chronicle reports:

A state can prohibit felons from voting even if the ban disproportionately harms minorities, a federal appeals court ruled Thursday in a Washington state case that bolsters a similar law in California.

The Ninth U.S. Circuit Court of Appeals in San Francisco overturned a 2-1 decision by one of its panels in January that struck down the Washington law on the grounds that the state’s criminal justice system was racially biased.

That ruling, the first of its kind in the nation, would have allowed prisoners as well as parolees to vote in Washington. It also could have invalidated laws in the eight other states in the circuit, including California, if courts found that a state’s system of arresting and prosecuting suspects was racially skewed.

Two quick thoughts upon my initial scan of the full ruling (PDF link here): Read the rest of this entry »


Tomorrow: Ninth Circuit Oral Argument in Important Felon Voting Rights Case

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Tomorrow, Tuesday, Sept. 21, the Ninth Circuit will hear oral argument in Farrakhan v. Gregoire, an important case that could affect the voting rights of prisoners in Alaska, Oregon, Washington, Idaho, Montana, Nevada, California, Hawaii, and Arizona. Back in January, a split Ninth Circuit panel ruled that, in Washington State, “minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted,” and that, because “some people becom[e] felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the [Voting Rights Act], disqualify felons from voting.” Washington State appealed for en banc review, which is what tomorrow’s proceeding will be.

The proceedings will be broadcast live at 2 PM PST/5 PM EST on C-SPAN 3 available on C-SPAN 3 at a later time.* If you are in or near San Francisco, you could also attend the hearing in person — it’s scheduled for 1:30 PM in the Ninth Circuit courthouse at Mission and 7th. Legal Services for Prisoners with Children and All of Us or None are organizing a group to attend — here’s the flyer (.doc file).

* EDIT: When I first visited the NAACP LDF case page, it suggested there would be a live broadcast, but it looks like they’ve since edited the page to reflect otherwise.

Voting Rights Act Turns 45; Will Felon Disenfranchisement Prove Its Midlife Crisis?

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A couple weeks ago, Linda Greenhouse of the New York Times noted a few lawsuits coming through the pipeline that threaten to challenge felon disenfranchisement laws under the Voting Rights Act. It’s a timely topic, since the Voting Rights Act turns 45 this year. As noted by ACSblog, as many as one-third of black men in Alabama and Florida are permanently disenfranchised by criminal convictions. While this is primarily a legal blog, I also study history; and whether or not felon disenfranchisement is found to violate the Voting Rights Act, it certainly has an ugly past. (See the Brennan Center’s report, Jim Crow in New York.) As I’ve noted before (the below reproduces an excerpt from this earlier post):

Felon disenfranchisement laws were typically first passed in the late nineteenth century specifically with the intention of disenfranchising black voters. As Pippa Holloway has demonstrated, in many states this was done in tandem with legislation to expand the definition of “felony” to include petty theft, making it easier to use felony prosecutions as a tool of disenfranchisement. Not coincidentally, in the late nineteenth century, felony conviction rates of black men would rise markedly in the months leading up to elections. A South Carolina Republican complained after the 1884 elections (quoted by Holloway, p. 950):

“Negroes are frequently arraigned before petty magistrates on the most trivial charges of larceny, and a conviction in these petty courts is sufficient to disfranchise them forever. This conviction is readily obtained, and the whole proceedings clearly indicate, in many cases, that the prosecution is merely a pretext to deprive the negro of his vote.”

States that Don’t Fix Prison-based Gerrymandering May Face Lawsuits

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If you want political power, you should move to City Council Ward 2 in Anamosa, Iowa. There, you’ll only have to share your City Council representative with 57 other constituents! In any of Anamosa’s other three wards, you’d have to share your representative with about 1,370 other constituents. How is this possible? Through the magic of prison-based gerrymandering. Anamosa’s Ward 2 contains a state penitentiary home to about 1,320 inmates, who get factored into the population count for the purpose of City Council districting even though they can’t vote, and are unlikely even to be from Anamosa.

That’s an extreme instance of prison-based gerrymandering, but it’s not as extreme as you might think. The NAACP Legal Defense Fund has produced an informative publication, Captive Constituents (PDF download), that outlines the democracy-distorting effects of counting prisoners where they’re incarcerated when drawing state and local election districts. As the example of Anamosa demonstrates, prison-based gerrymandering is not primarily an urban-rural or racial issue. It dilutes the votes of everyone who doesn’t live in a district with a prison — like the rural Iowans who live in Anamosa City Council Wards 1, 3, and 4.

That said, prison-based gerrymandering undeniably has unique effects on urban minority communities. Read the rest of this entry »

Supreme Court May Take on Felon Voting Rights

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As explained by Lyle Denniston over at SCOTUSblog, the Supreme Court signaled today that it may take on the issue of felon voting rights:

In a brief order, the Justices invited the U.S. Solicitor General to offer views on the case of Simmons, et al., v. Galvin (09-920), a test of Massachusetts’ law prohibiting voting by those who were convicted of serious crimes, while they remain in prison. Once the Court receives that response, for which there is no timetable, the Justices will decide whether to accept the case for review. That is not likely to come until the next Term, starting in October.

In the Massachusetts case, the inmates raise two issues: whether denial of voting rights to imprisoned felons violates federal voting rights law, on the theory that race bias in the criminal justice system sends more minorities to prison so the resulting loss of voting privileges is in effect based on race, and whether it violates the Constitution’s ban on ex post facto laws to impose the loss of voting as an after-the-fact punishment for an earlier crime.

Though the First Circuit rejected both of those arguments, the Ninth Circuit recently ruled that an antidiscrimination challenge to felon disenfranchisement may proceed. That ruling is now being reconsidered by the en banc Ninth Circuit.

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