PLF files amicus brief in Farrakhan v. Gregoire to protect state electoral practices


Author: Ralph W. Kasarda

Last week the Pacific Legal Foundation and Center for Equal Opportunity filed an amicus brief in support of the State of Washington in Farrakhan v. Gregoire.  That case concerns an attempt by convicted criminals to nullify a section of the Washington State Constitution that prohibits felons from voting.  (Previous Liberty Blog posts about this case can be found here and here.)

The authority of states to enact felon disenfranchisement laws is specifically set forth in the United States Constitution.  In fact, forty-eight states have such laws.  But in Farrakhan, the plaintiffs claim that a disproportionate number of racial minorities are being disenfranchised following felony convictions.  Therefore, plaintiffs argue, they are denied the right to vote based on race in violation of the Voting Rights Act.

The district court rejected plaintiffs' vote denial claim – twice!  But each time the court was reversed by a three-judge panel from the Ninth Circuit.  But now, the Ninth Circuit has ordered the case to be reheard en banc

The district court's original decision tossing plaintiffs' vote denial claim is consistent with the decisions of every other federal circuit that have already held the Voting Rights Act does not apply to felon disenfranchisement laws.  That's because the Fourteenth Amendment explicitly permits states to adopt such laws, which have long been accepted in the American legal system and by every other civilized society dating back to ancient Greece.

In Green v. Board of Elections, Judge Henry Friendly explained the wisdom behind denying the vote to felons: 

"[I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases."

The Voting Rights Act's legislative history shows that it was never intended to cover felon disenfranchisement laws.  And since enacting the Voting Rights Act, Congress has also enacted laws making it easier for states to keep felons from voting. Moreover, if the Act were to be construed to encompass such laws, the Act would exceed Congress's enforcement powers under the Fifteenth Amendment according to the "congruence and proportionality" test set forth by the Supreme Court in City of Boerne v. Flores.  That is because there are no congressional findings that felon disenfranchisement laws have been used to discriminate against minority voters.

Regarding the earlier reversal of the district court, the Chief Judge of the Ninth Circuit, Judge Alex Kozinsky, warned:

"The panel's decision . . . has widespread implications for other legitimate state electoral practices.  All sorts of state and local decisions about the time, place, and manner of elections will be subject to attack by anyone who can show a disparate impact in an area external to voting that translates into a disparate impact on voting."

Were the Ninth Circuit to accept plaintiff's' argument and find Washington's felon disenfranchisement law to be void under the Voting Rights Act, the result would be the disruption of legitimate state electoral practices in the entire Western States.  Should states have to erect voting booths inside of prisons?  PLF says: "No!"