[News] struggle to break free of felon voting bans

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Wed Oct 13 08:59:55 EDT 2004


http://www.villagevoice.com/issues/0441/lee.php



Minorities struggle to break free of felon voting bans
Political Prisoners
by Chisun Lee
October 12th, 2004 10:40 AM

12b8b9.jpg

Voters at the voting booths, ca. 1945
(photo: Copyprint. NAACP Collection, Prints and Photographs Division. 
(9-17) Courtesy of the NAACP)



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<http://www.villagevoice.com/print/issues/0441//issues/0441/lee.php>Political 
Prisoners Minorities struggle to break free of felon voting bans
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early 5 million citizens­a hugely disproportionate share of them racial 
minorities­will not be allowed to vote in next month's presidential 
election. Laws in 48 states automatically stripped them of that right when 
they were convicted of a felony. Now, in a number of high-stakes lawsuits 
across the country, minorities are struggling to end the state felon 
disenfranchisement laws they say are slicing down the black and Latino 
vote. But first the courts will have to agree that this is a civil rights 
crisis worthy of federal attention, not just a jailhouse gripe.

Maddeningly, from the point of view of the plaintiffs, the key legal 
dispute is not whether the numbers of disenfranchised racial minorities are 
as vast as they claim they are. They are. Nor is the dispute whether voting 
is a legally recognized fundamental right, guaranteeing every citizen a say 
in government and thereby legitimating the very existence of democracy. It 
is. And certainly there is no dispute that U.S. history is replete with 
local voting procedures that, sometimes crudely and sometimes subtly, 
blocked minorities from accessing the ballot.

This is the sticking point, as summed up by one federal judge in Florida, 
where over 10 percent of black adults are disenfranchised for life: "It is 
not racial discrimination that deprives felons, black or white, of their 
right to vote but their own decision to commit an act for which they assume 
the risks of detection and punishment." State officials from Florida 
governor Jeb Bush to New York governor George Pataki insist that the voting 
bans are a criminal justice matter for the states to manage, not a minority 
political access problem warranting the most robust federal protections 
under civil rights laws.

If the states are right, then there is virtually no avenue for these 
disenfranchised plaintiffs to bring proof of racial inequities into federal 
courts, much less demand that the courts invalidate these laws. But, 
counters civil rights attorney Jessie Allen of the NYU Brennan Center for 
Justice, "The federal Voting Rights Act was created exactly in recognition 
that states would come up with a whole host of seemingly neutral but 
actually discriminatory measures."

With federal courts around the country differing on whether to hear out the 
disenfranchised, the U.S. Supreme Court is expected to announce in the 
coming weeks if it will take up the question this term and make the final 
call. At stake: not only millions of potential votes, but also longstanding 
questions about racial bias in criminal law enforcement and about the 
fullness of the nation's commitment to minority political participation.

The battle over felon disenfranchisement is shaping up to be the greatest 
contest over race and democracy since the end of the Jim Crow era.


Even putting race aside, the sheer scale of casualties to felon 
disenfranchisement suggests a democratic crisis. Some 4.7 million adult 
Americans­one in 43­have been politically erased by laws in 48 states that 
automatically strip the right to vote from people convicted of a felony. 
(Procedures for regaining the right exist, but the steps vary by state and 
are often little-known or extremely difficult to accomplish.) Equivalent to 
the population of Alabama, this group is the largest deliberately 
disenfranchised class in the nation.

About 3 million of them are not even behind bars, but mingle with society 
on parole or probation­safe to live next door but not to vote. Yet in some 
states the voting ban sticks not just beyond the cell, but for life, no 
matter how mild or long ago a person's crime.

Many social scientists doubt the value of felon disenfranchisement to begin 
with, arguing that it serves none of the legitimate purposes of criminal 
law­not incapacitation or deterrence, and certainly not rehabilitation. 
But, civil rights advocates insist, even if disenfranchisement made sense 
in theory, its proven effect of amputating the minority vote makes it an 
unacceptable racial constraint in practice.

And the especially heavy impact of felon disenfranchisement on racial 
minorities is undeniable. Blacks make up 40 percent of the nation's 
disenfranchised, even though they are only 12 percent of the general 
population. At least 1.4 million black men­13 percent of all black 
men­cannot vote because of state felon disenfranchisement laws. These laws 
do not, of course, target particular races by name, but they nevertheless 
have a provably drastic effect on black and Latino voter eligibility.

The racial impact is extreme in some states, by latest estimates, with 
Alabama and Florida barring nearly a third of all black men from the polls 
for their entire lives. A quarter or more of all black men face lifetime 
voting bans in Iowa, Mississippi, Virginia, New Mexico, and Wyoming.

It is no wonder that racial minorities are most severely affected, since 
they represent an astonishing majority of those Americans sentenced to jail 
or prison. More than two-thirds­68 percent­of the nation's incarcerated are 
people of color. Black men in the U.S. face a 30 percent likelihood of 
being locked up at some point in their lives and Hispanic men 17 percent, 
while white men's chances are around 4 percent, according to the U.S. 
Department of Justice.

Some analysts attribute the race imbalances in felony convictions largely 
to politics. Drug enforcement­a major source of convictions­descended on 
minority communities beginning in the 1980s, when the infamous 
crack-versus-powder cocaine sentencing difference was born. The stiffer 
penalties for drugs associated with low-income, minority areas, along with 
police strategies prioritizing urban street sweeps over suburban 
investigations, have sent floods of blacks and Latinos to prison.

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.

If that analysis prevails on the national level, then the only recourse for 
the felon plaintiffs will be to lobby Congress to pass new legislation or 
to mobilize, state by state, for local law change. But not only are felons 
a far from popular bunch, they are not­since they cannot vote­a political 
constituency.


At its core, the contest over felon disenfranchisement is a debate about 
whether and how to reinforce minority voices in American democracy.

The problem is obvious just in the way that felon disenfranchisement 
actually works. Voters elected the legislators who enacted the felon voting 
bans that have robbed the very groups most affected by the bans of the 
opportunity to vote them down one day. It is a vicious cycle of shrinking 
political participation, with minority groups pushed to the outside.

If that shrinking circle of decision making makes felon voting bans seem 
less than legitimate, it is natural to wonder about the legitimacy of other 
policies­education, social services, policing­that heavily affect these 
disenfranchised minority groups and their run-ins with the criminal justice 
system.

Supporters of felon disenfranchisement cast convicts as calculating, 
immoral individuals whose race is beside the point. But the disenfranchised 
and their advocates are struggling to show that criminal matters are a 
creature of the political system, and that the minority status of the 
disenfranchised therefore matters a lot in the context of group politics. 
(An entire movement has even cropped up against the policy of counting 
felon bodies­for allocation of services and elected government seats­in the 
rural, white districts where prisons are typically located, instead of in 
the convicts' urban hometowns. Critics claim that the approach adds insult 
to injury. Not only are minority communities robbed of voting power by 
felon disenfranchisement, but they are further robbed of their share in 
government attention by this counting method.)

This debate over minority political power is timely, since key provisions 
of the Voting Rights Act are set to expire in 2007 unless Congress 
reauthorizes them. Many disappointed voices say that the civil rights 
movement's crowning document has failed to achieve the racial equality 
imagined back in 1965. The act has become just words on a page, they say, 
while the cultural commitment to breaking racial restrictions has dissipated.

Whether federal voting rights law can be resurrected to vindicate racial 
minorities is the key question in the felon disenfranchisement cases up for 
possible review by the Supreme Court. The outcome will depend on whether 
the court looks through the lens of minority political access or merely 
views the issue as a raceless criminal matter.

The court may avoid jumping into this democracy debate altogether this 
term. But everyone knows that it is not a question of if, but when.

One source for data and analysis about felon disenfranchisement is the 
Sentencing Project 
(<http://www.sentencingproject.org>sentencingproject.org), a nonpartisan 
criminal justice think tank. Information on legal activity and organizing 
can be found at Right to Vote (<http://www.righttovote.org>righttovote.org).


Research assistance: Ben Shestakofsky


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