JURIST - Paper Chase: Ninth Circuit upholds Washington ban on felon voting

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Thursday upheld [opinion, PDF] Washington's ban on voting by felons, reversing a prior ruling by a three-judge panel. That ban is enshrined in Article VI of the state constitution [text], which bars from voting, "All persons convicted of infamous crime unless restored to their civil rights." The plaintiffs, convicted felons who have lost their right to vote under the Washington Constitution, argued that such a ban violates section 2 of the Voting Rights Act (VRA) [materials], which forbids laws that deny the right to vote based on race. In overturning the ruling of the three-judge panel [JURIST report], the court noted that other circuits have disagreed with the panel's original ruling, finding that felon disenfranchisement laws have long been part of US history, and Congress would have taken those laws into account when it crafted the VRA. The full court then proceeded to set a high bar for individuals bringing a VRA challenge to a disenfranchisement law, saying in its per curiam opinion:

[W]e hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state's criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2.

Washington Attorney General Rob McKenna expressed satisfaction [press release] with the ruling and reiterated the state's belief that those convicted of the most serious crimes should not be permitted to vote.

Washington is in the majority of states in terms of voting rights for convicted felons, as only two states, Maine and Vermont, permit those individuals to vote [San Francisco Chronicle report] without any conditions. The American Civil Liberties Union (ACLU) [advocacy website], a significant force in the area, released a report in 2008 showing widespread disenfranchisement [JURIST report] among ex-convicts, including a lack of knowledge of state laws regarding voting rights. Earlier that year, the ACLU filed suit [JURIST report] challenging additions to Alabama's felon voting disenfranchisement law made by the state's attorney general. In February 2008, the ACLU filed suit [JURIST report] alleging that a Tennessee law requiring ex-convicts to pay all outstanding legal obligations before being granted the right to vote violates the Fourteenth Amendment.