[B]ecause the holding of Farrakhan I places us in a crowd of one among the circuits, I believe we should be particularly mindful before reversing the district court and invalidating felon disenfranchisement in the State of Washington.
— Judge M. Margaret McKeown, dissenting, Farrakhan v. Gregoire, 590 F.3d 989, 1016 (9th Cir. 2010)
Early this year, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in Farrakhan v. Gregoire, a challenge to Washington State’s felon disenfranchisement law. The court’s decision stands alone among the circuits in holding that state law denying felons the right to vote is a violation of section 2 of the Voting Rights Act (VRA), where discrimination in the state’s criminal justice system results in race-based denial of the vote. Although there has been substantial speculation in the media over the implications of the decision, suggestions that the Farrakhan decision signals the demise of Alaska’s disenfranchisement law are overstated. Nevertheless, the case is noteworthy for reopening the conversation about why we deny certain offenders the right to vote, and whether these laws reflect viable public policy or are simply relics of an era in which racial and class prejudices limited participation in the political process.
Background: Felon Disenfranchisement and the Voting Rights Act
State laws throughout the country have traditionally barred those with certain types of criminal convictions from participating in the political process. Currently, 48 states and the District of Columbia have offender disenfranchisement statutes. These disenfranchisement laws are one component of the “civil death” once accorded criminal offenders. The concept of civil death dates back to ancient Athens and Rome, where those convicted of certain crimes entered a state of infamy marked by civic penalties such as the inability to vote, hold public office, and speak publicly on political issues. In medieval Europe and England, similar laws caused forfeiture of property and political rights for crimes punishable by death or life imprisonment. Laws disenfranchising felons were received into the American colonies as part of the general reception of the laws of England. Following the Revolution, in the allocation of power between the states and the federal government under the Constitution of 1787, the states retained control over access to the ballot. Almost immediately, the newly formed states adopted felon disenfranchisement laws, either constitutionally or through codification.
State control over access to the ballot was limited with ratification of the 15th Amendment, which prohibits states from abridging the right to vote “on account of race” and grants enforcement powers to Congress. Pursuant to the enforcement clause, and in conjunction with the mid-twentieth century civil rights movement, Congress enacted the Voting Rights Act of 1965. Its explicit purpose is to eliminate racial discrimination in voting throughout the United States in accordance with the mandate of the 15th Amendment. Section 2 of the Act provides that no prerequisite to voting shall be imposed in a manner that results in a denial of the right to vote on account of race or color (42 U.S.C. § 1973(a) (2010)). This standard is violated where, “based on the totality of the circumstances,” it is shown that political processes in a state are not equally open to members of a class, in that such members “have less opportunity than other members of the electorate to participate in the political process...” (42 U.S.C. § 1973(b)).
Section 2 challenges to felon disenfranchisement laws are not new. Broadly speaking, these challenges assert that disproportionate numbers of minorities in the criminal justice system, and the concomitant denial of the vote to this class of citizens, result in de facto race-based exclusion of class members from the political process. To date the Courts of Appeals for the First, Second, Ninth, and Eleventh Circuits have analyzed the validity of such claims. Among the circuits, only the Ninth has held that challenges to felon disenfranchisement statutes raise valid Section 2 claims. The First, Second, and Eleventh Circuits are in accord (the latter two circuits sitting en banc as full courts rather than three judge panels) that such challenges fall outside the purview of the Voting Rights Act. These courts have concluded that Congress never intended the Act to deprive the states of their right to disenfranchise felons; such a result would impermissibly alter the balance of power between the federal government and the states, impinging on the states’ traditional right to establish voter qualifications.
The Farrakhan Opinion
In a departure from this majority view, two members of the three judge panel in Farrakhan v. Gregoire held that the discriminatory impact of Washington state’s disenfranchisement law stems from racial discrimination in the state’s criminal justice system; the resulting denial of the vote is, therefore, a violation of section 2. At the trial court level, the plaintiffs, minority citizens of Washington who lost their right to vote under the state felon disenfranchisement statute, presented reports of expert witnesses on racial disparities in all levels of Washington’s criminal justice system. The reports highlighted studies showing that these disparities could not be explained by legitimate factors such as minorities’ higher levels of criminal activity. Notably, one study found that “substantially more than one half of Washington State’s racial disproportionality cannot be explained by higher levels of criminal involvement” (Farrakhan, 2010, n. 5).
These reports led the trial court to enter findings that racial discrimination exists in Washington’s criminal justice system and that this discrimination “hinders the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic” (Farrakhan, 2010, 995). Nevertheless, the lower court held that plaintiffs failed to establish a Voting Rights Act violation because it was discrimination in the justice system, and not the disenfranchisement statute itself, that caused the loss of voting rights. Following an initial appeal, remand to the trial court, and second appeal, Ninth Circuit Judge Tashima, writing for himself and Judge Reinhardt (with Judge McKeown dissenting), held that Section 2 of the Voting Rights Act “demands that...racial discrimination not spread to the ballot box.” Thus, based on the “uncontroverted record” of discrimination in the justice system, Washington’s disenfranchisement law violates federal civil rights law (Farrakhan, 2010, 1015). (See “Further Background: Scope of Analysis,” page 1.)
Felon Disenfranchisement in Alaska
Disenfranchisement of felons in Alaska is rooted in the Alaska Constitution, which provides “No person may vote who has been convicted of a felony involving moral turpitude unless his civil rights have been restored” (Alaska Const. art V, § 2). The right to vote remains suspended from the date of conviction through the date of release from all conviction-related disability, including probation and parole (AS 15.05.030; AS 15.60.010(39)). According to the Alaska Department of Corrections Offender Profile, in 2009 more than 10,000 Alaskans were ineligible to vote pursuant to this provision.
There is no question that in Alaska, as elsewhere, racial minorities are disproportionately represented in the criminal justice system. For example, Department of Corrections figures show that in 2009 Alaska Natives comprised over 35 percent of total offenders in institutions, yet Alaska Department of Labor 2008 population figures estimated that Alaska Natives comprised about 16 percent of the total population in Alaska. African-Americans, estimated to have comprised just over 4 percent of Alaska’s population, represented over 10 percent of offenders in Alaska correctional institutions. (See “Alaska Offender Profile 2009” in this issue.) Despite this well-known disparity, Alaska lacks an extensive body of empirical data establishing conclusively that the overrepresentation of minority groups in Alaska’s criminal justice system is attributable solely to systemic racial discrimination. This is the critical distinction between Alaska and Washington. As noted above, the Farrakhan opinion rests on a finding of fact by the trial judge that “there is discrimination in Washington’s criminal justice system on account of race”; in reaching this finding the court relied on “extensive,” unrefuted studies showing that over half of Washington’s racial disproportionality could not be explained by legitimate factors (Farrakhan, 2010, 994–995). It is unlikely a trial judge would find the existing data in Alaska a sufficient evidentiary foundation to support a similar finding of fact here. This does not imply that racial bias is absent from Alaska’s criminal justice system, merely that widespread empirical studies have not unequivocally ruled out all other explanations for disparity in the system. (See “Further Background: Ethnic Disparity in Alaska,” page 1.)
Although Alaska’s disenfranchisement statute does not appear vulnerable to an immediate Farrakhan challenge, the essential holding of the case suggests that state policymakers may wish to consider limiting the reach of the current statute, or proposing a Constitutional amendment to eliminate the voting prohibition entirely. (Senate Bill 68, currently pending in the Alaska Legislature, would limit disenfranchisement to those incarcerated, and restore voting rights upon release.) Academic literature makes clear that for generations disenfranchisement laws throughout the country have excluded minority citizens from the vote in overwhelmingly greater percentages than Caucasian, and that the rates of minority exclusion are growing. Moreover, there is evidence that dilution of minority voting attributable to disenfranchisement statutes has affected the outcome of elections in a number of jurisdictions. In this state, the disproportionate number of Alaska Natives excluded from the political process under the disenfranchisement statute is particularly troubling given Alaska’s history of discrimination in voting practices. (See “Further Background: Preclearance under the Voting Rights Act,” page 1.)
At an even more basic level, however, the right to vote is the hallmark of participatory democracy. It affirms our membership in the social compact. Exclusion of criminal offenders from this process, and from one of the most fundamental rituals of community involvement, does nothing to promote public safety and can only serve to impede social reintegration of these citizens.
In his February 2010 State of the Judiciary address, Chief Justice Carpeneti observed, “Probably no problem is of greater concern to us at this time than the alarmingly high rates of recidivism in our state.” The recently established Alaska Prisoner Re-Entry Task Force was created to examine how the state might better assist offenders to make a successful transition from incarceration back into their communities. Voting is an integral part of this process; studies suggest that civic reintegration facilitates successful reentry and reduces the risk of recidivism.
For all of these reasons, there is growing recognition that felon disenfranchisement statutes rest on outdated retributory practices antithetical to contemporary standards of equal representation in the political process, standards explicitly stated in the Voting Rights Act. Farrakhan, though out of step with the weight of authority in its statutory interpretation, gives effect to the spirit of inclusion that lies at the core of the Voting Rights Act.
Deb Periman, J.D., is a member of the Justice Center faculty.