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Inmate voting: The 9th’s chance for redemption

Post by Patrick O'Callahan on Aug. 23, 2010 at 7:35 pm |
August 24, 2010 5:09 pm

This editorial will appear in tomorrow’s print edition.

The 9th U.S. Court of Appeals, known for dubious and oft-overturned decisions, didn’t enhance its reputation in January when it ordered Washington to give the vote to imprisoned felons.

It’s got a shot at a do-over next month, when 11 of its judges will review the January decision, which was made by a three-judge panel.

If the full court repeats the panel’s blunder, the U.S. Supreme Court is likely to step in and reverse the 9th yet again – especially since three other federal appeals courts have reached the opposite conclusion in similar cases.

The case before the 9th was brought by several felons who claimed Washington’s ban on inmate voting violates the federal Voting Rights Act by imprisoning racial minorities at disproportionately high rates.

The logic has some surface appeal. The Voting Rights Act was enacted in 1995 to tear down discriminatory barriers to voting – literacy tests, for example, designed to keep Southern blacks out of polling places. If Washington convicts African Americans at higher rates than the actual crime rate among blacks – which does appear to be the case – that pattern would seem to disenfranchise them unfairly.

Would that things were so simple. One of many problems with the panel’s ruling is that the Voting Rights Act wasn’t written to address discrimination in a state’s criminal justice system, which is the real issue here. You fix unfairness in the justice system by fixing unfairness in the justice system, not by throwing out state voting laws that have nothing to do with whether a given felon was wrongfully arrested or convicted.

The panel’s strange decision threatened some strange results – giving the vote to white felons, for example, who have no claim to racial victimhood.

Another problem with the ruling is its flawed procedural foundation. A case involving so many contested facts logically should be handled in a trial. Instead, the district court judge ruled in favor of the state without a trial and the panel ruled against the state without sending the case back for trial.

So some of the disputed facts were never adequately challenged. The dissenting judge on the panel, for example, raised the possibility that blacks may be convicted disproportionately simply because the police get more calls about visible drug-trafficking on the streets – and white criminals tend to do their trafficking more furtively. In any case, it’s unlikely that the goal is to keep African Americans from voting.

The panel’s ruling cannot stand. The 9th should do the reversing itself, not leave it up to the Supreme Court.

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