By Peter Tormey
SPOKANE, Wash. – A ruling this week by the 9th U.S. Circuit Court of Appeals that will allow prisoners in the state of Washington to vote, unless it is overturned by the U.S. Supreme Court, proves racial discrimination is alive and well in Washington state’s criminal justice system and is a major victory for minority rights in this state, Gonzaga University School of Law Professor Larry Weiser said today.
“The most important finding here is that the 9th U.S. Circuit Court of Appeals affirmed what we had proved in the (U.S.) District Court case, that there is discrimination in the criminal justice system in the state of Washington and it disparately impacts minorities and their rights to vote. Some people believe those who commit crimes should not be allowed to vote, but a lot of people think otherwise,” Weiser said.
Two of three judges on the panel thought otherwise Tuesday, declaring the state’s ban on felons voting violates the 1965 U.S. Voting Rights Act. The Court agreed with arguments and evidence produced by Weiser and developed with help from two dozen Gonzaga law students over the past decade and a half. Incarcerated state felons will vote unless the U.S. Supreme Court overturns the ruling. The nation’s highest court may take up to a year to decide whether to hear the case, he said.
“If they take this one, we will have another battle on our hands,” Weiser said, “Whether voting rights apply to disenfranchisement laws is a legal issue that’s been going on for many years.” Complicating this case is the fact that both the U.S. Constitution and the Washington State Constitution allow for felon disenfranchisement.
“We wanted to prove with our experts and social scientists racial bias exists in the criminal justice system in the state of Washington and that it had impacted the voting rights of the minority,” Weiser said. “The bottom line was what the social scientists said: You cannot disregard bias in the system.”
While the 9th Circuit Court ruled for felons in this case, three other jurisdictions have ruled against them on the issue. “Because there is a split in the Circuit, the Supreme Court might take it up,” said Weiser, who will assign another Gonzaga law student to the case soon.
The NAACP Legal Defense Fund acted as co-counsel in the case. The Court overturned a 2000 decision by the U.S. District Court, which ruled the felon voting ban did not violate federal voting law. The lower court had dismissed a 1996 lawsuit by inmate Muhammad Shabazz Farrakhan, formerly of Bellevue, who was serving a three-year prison term when he sued the state.
Weiser became involved in the case through Gonzaga University Legal Assistance, a clinic that provide hands-on legal experience to students, supervised by law professors. The clinic helps those who otherwise could not afford access to the wheels of justice.
Weiser never imagined this case would last so long nor did he envision its potential for systemic change.
Currently, only Vermont and Maine allow inmates to vote. The Washington Legislature revised state law to allow ex-felons to vote as of last summer.
Weiser recalls when Spokane attorney Dennis Cronin, who at the time was working with former civil rights attorney Carl Maxey, was asked by Judge Robert Whaley to help in this case.
“We worked on it and after a while we just took it on,” Weiser said. “Five years ago, we started working with the NAACP Legal Defense Fund. We wouldn’t have been able to do it without them.” The American Civil Liberties Union also filed a friend of the court brief in support of this outcome.
The NAACP LDF was instrumental in the 1954 Brown v. Board of Education case that dismantled the legal basis for racial segregation in schools and other public facilities, a milestone in U.S. civil rights.
“As I worked on this case, I came to understand that the right to vote is a part of citizenship. At the time, one in four African-American males lost the right to vote in this state. Those numbers were so compelling,” he said. “I had no doubt this was a good case for Gonzaga and the clinic, and an excellent learning opportunity for students.”
Virtually all the Gonzaga law students who worked the case agreed, philosophically, that the law should be overturned. “Maybe there was a student not sure about it in the beginning, but I think everyone was for it in the end. I’ve had students of all political backgrounds work this case, too,” Weiser said.
“The U.S. Supreme Court part will be very exciting for a student,” Weiser said. “I think the case is such a great educational piece for students because there are so many layers to it regarding the Voting Rights Act, bias in the criminal justice system, and the sociological and political aspects. It’s a whole learning course.”
While impacts and implications of the ruling await, Weiser believes it will result in major improvement of the state’s criminal justice system now that discrimination has been proved. The ruling will allow more than 18,000 felons in state custody to vote unless the U.S. Supreme Court overturns it. Approximately 37.1 percent of state felons are persons of color; blacks comprise the largest percentage of minorities.
The ruling, if it stands, will allow for challenges to felon disenfranchisement laws at least throughout the 9th Circuit, which includes the states of Oregon, Idaho, Montana, California, Nevada, Arizona, Alaska, Hawaii, Guam and the Northern Marianas.
The Sentencing Project, a national organization working for a fair and effective criminal justice system, said 5.3 million Americans are denied the right to vote because of laws prohibiting voting by felons.
“This fundamental obstacle to participation in democratic life is exacerbated by racial disparities in the criminal justice system, resulting in an estimated 13 percent of black men unable to vote,” the organization notes on its Web site.
“The clinic welcomes opportunities to use the law as a vehicle for providing equal justice to racial minorities. This case is an example of that,” Critchlow said. “It is about committed law students using the federal civil rights law to insure that racial minorities are not deprived of voting rights as a result of discrimination in the criminal justice system. Cases of this type are not easy, not always successful, and not always popular. But they are the kinds of cases that help our nation come closer to achieving the goal of justice for all.”
Gonzaga law students who have participated in the case include the following: George Vourvoulias, ’98; Angel Rains, ’98; Andrew Wyman, ’98; Dan Davis, ’99; John Wootress, ’99; Kimberly Concannon, ’99; Carter Williams, ’00; Kathleen Gregg, ’00; Michelle Points, ’00; Jennifer Reyes, ’00; Joshua Gilstrap, ’00; Ryan Witt, ’01; Jason Vail, ’01; Charles Shane, ’02; Stephanie Henderson, ’02; Mark Hodgson, ’03; Genevieve Mann, ’03; Ana Bissell, ’06; Kristine Olmstead, ’06; Jacob White, ’06; Angie Gianoli, ’07; Kelly Smith, ’07; Tammy Vernon-Granadas, ’07; and Ian Whitney, ’08.