By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
By Raillan Brooks
With blacks being incarcerated at a rate seven times higher than whites, felon disenfranchisement laws threaten a hemorrhaging of minority political power into the future.
Historians say the racial voting imbalances born of felon disenfranchisement are hardly a coincidence. It is well-known that white majorities in former slave states used criminal-law enforcement to retain power following emancipation. Sociologist Christopher Uggen has mapped today's most restrictive felon voting bansthose disenfranchising not only during incarceration, but also during parole, probation, or even for lifeto Southern states, which also hold the highest percentage of nonwhite prisoners.
In Alabama, Florida, Mississippi, and Virginia, for instance, approximately one in 25 people are disenfranchised. Florida and Texas have disenfranchised the most peoplein each state more than 600,000. Together they have taken away the right to vote from over 1 million Americans. Alabama, Virginia, and California disenfranchise around a quarter of a million people each.
The only two states that allow even felony inmates to vote, Maine and Vermont, house relatively few minority prisoners. The prevalence of felon disenfranchisement in Northern and Western states, scholars say, illustrates that racism, or at least indifference to the fate of racial minorities, is misunderstood to be only a "Southern" problem.
A documented history of state discrimination tends to win the greatest sympathy from courts. The strongest felon disenfranchisement challenge today, then, is Johnson v. Bush, in which a class of some 600,000 former felons from Florida are fighting their lifetime ban from the polls. The Brennan Center, which will represent the plaintiffs before the 11th Circuit Court of Appeals later this month, points to racist legislative language it unearthed from the time of the voting ban's creation. The 1868 lawmakers were determined to "prevent a negro legislature" and keep Florida from being "niggerized," according to documents cited by the plaintiffs.
Lawyers for Governor Bush insist that the voting ban was later re-enacted without such racist intent. But plaintiff lawyer Jessie Allen points out that the Supreme Court's own juris-prudence requires governments wishing to continue once discriminatory policies to demonstrate an entirely new and legitimate justification. Allen claims there is no reason good enough to overcome a clear history of racism, especially considering the contemporary data showing the disenfranchisement rate for blacks to be more than twice as high as for nonblacks.
A panel of the 11th Circuit had ruled for the Florida plaintiffs last year, reasoning that "although felon disenfranchisement does not apply only to African Americans, racially discriminatory policies can be deliberately overinclusive. Poll taxes, for example, surely disenfranchised some whites as well as blacks even though they were discriminatorily intended to impact blacks." Jeb Bush's lawyers appealed and were granted the upcoming rehearing en banc. Some observers wish that Johnson v. Bush, with its historical evidence and especially stark disenfranchisement numbers, were up for possible review by the Supreme Court, instead of the ones that are there now.
Yet the Voting Rights Act is intended to prevent not just intentional racism, but also seemingly neutral voting restrictions that result in racial discrimination.
Armed with data on racial disparities in law enforcement and voting loss, but without a historical record of intentional discrimination, felons in Washington state filed one of the challenges currently appealed to the Supreme Court. In the early stages of Farrakhan v. Locke, a federal trial court came to the ratherremarkable conclusion that the plaintiffs' "evidence of discrimination in the criminal justice system, and the resulting disproportionate impact on minority voting power, is compelling." Nevertheless, the court dismissed the case, deciding that proof of discrimination in law enforcement was not relevant to voting rightseven though the criminal justice system directly produces the pool of convicts summarily stripped of the right to vote.
The state, after all, was not disenfranchising only black felonsit was also disenfranchising white felons. How people were accused and convicted of felonies in the first place was simply a criminal justice question and not relevant to voting, the court concluded.
A three-judge panel of the Ninth Circuit Court of Appeals reversed the district court. Discrimination in law enforcement was part of the "totality of circumstances" that the Voting Rights Act covers in forbidding discriminatory voting practices, the panel concluded, law enforcement being a necessary "circumstance" to disenfranchising people based on felony convictions. Over the vigorous objection of a widely respected and conservative judge, the full circuit refused to reconsider the panel's decision. The state then appealed that decisionfrom the most notoriously liberal and most overruled circuit in the nationto the Supreme Court.
If the Supreme Court declines to review the case, then minority felons in all nine states within the Ninth Circuit will be able to use evidence of law enforcement discrimination to challenge felon vote denial. But minority advocates fear that the courtgenerally impatient with the Ninth Circuit, unfriendly to federal interference in state criminal matters, and faced with a split among the nation's various courtswill not be able to resist. The conflicting case from New York, Muntaqim v. Coombe, then gives the court an alternative that is dreaded by the civil rights community.
Originally filed by an inmate without counsel, the New York case lacks the sort of factual record that civil rights lawyers prefer to build, one that would fully show the racial disparities in the state. For even in liberal New York, the figures are grim: Blacks and Latinos compose 80 percent of the state's prison population, even though they are just 30 percent of the general population. The state-friendly decision questions whether Congress believed disenfranchisement laws to be a possible means of racial oppression when it was deciding how far into state affairs the protections of the federal Voting Rights Act could be extended. Not far enough to help the plaintiffs, the New York appeals court concluded.