Anyone following Washington state’s disputed 2004 gubernatorial election knows convicted felons in the state aren’t supposed to vote. But that may change as the result of work by
As counsel to six felons who filed suit against the state in Muhammad Shabazz Farrakhan et. al. v. Gary Locke, et. al. nearly a decade ago, Weiser and his students are invoking the federal Voting Rights Act of 1965 to challenge Washington state’s felon disenfranchisement laws. They contend that those laws violate the act because the state’s criminal justice system discriminates against minorities. Minorities are disproportionately convicted and imprisoned, they reason, so a disproportionate number of minorities have lost their right to vote.
The Voting Rights Act was passed to ensure that no American would be denied the right to vote based on race or color. It trumped discriminatory “Jim Crow” state laws that required poll taxes, literacy tests, and other measures designed to keep African Americans from casting ballots.
Forty-seven other states also bar felons from voting, and Farrakhan is one of three felon disenfranchisement cases—the other two are in Florida and New York—currently in federal courts. In February 2004, the judges of the 9th U.S. Circuit Court of Appeals declined 18-7 the State of Washington’s request that they review Weiser’s case en banc. They sent the case back to the district court that denied Weiser’s earlier request for summary judgment, and a trial has been set for next spring. If Weiser and his students are successful, a ruling in their favor will strike down Washington’s felon disenfranchisement laws and likely unravel similar laws nationwide.
The case is just one of many being handled by students at the Gonzaga Center for Law and Justice, nicknamed “the clinic.” The clinic is the School of Law’s on-campus public service law firm, created with the mission of supporting social justice. The nonprofit center offers free legal services to low-income residents of Spokane County. Each year, about 40 students working at the center have the opportunity to practice family law, elder law, civil rights law, disability rights law, and criminal defense. Students are eligible to work at the clinic beginning in their second year; they practice under the supervision of Weiser and five other attorneys, all School of Law faculty members.
Weiser, along with a rotating cast of students, has worked on Farrakhan since the late 1990s. He is confident as to the case’s merits.
“We’re going to cite incarceration rates, arrest rates, and studies showing disproportionate prosecution,” he says. “When we were originally in federal district court, the judge made the finding that the evidence for discrimination in the criminal justice system is very convincing.”
He notes that the National Association for the Advancement of Colored People’s Legal Defense Fund is serving as co-counsel in the suit. The Brennan Center for Justice at the New York University School of Law and the American Civil Liberties Union of Washington have both filed amicus briefs.
In Washington state, Weiser points out, African Americans make up 22 percent of the prison population but just three percent of the state’s total population. Consequently, one in four African-American men in the state is not allowed to vote.
Weiser asserts felon disenfranchisement is also wrong because voting is an entitlement of citizenship and should never be taken away.
“If you’re convicted for having crack, they don’t deport you,” he says. “For the same reason, you shouldn’t lose your right to vote. It’s a human rights issue.” He notes that the United States is the only industrialized nation with felon disenfranchisement laws.
Washington has had felon disenfranchisement laws on the books since the 1800s. They affect more than 110,000 convicted felons. In this state, felons who serve their prison sentences can regain the right to vote if they complete community supervision and pay any fines they owe. (Although under a prior law, those convicted before 1984 cannot regain their voting rights.) Weiser argues that because most felons are low-income, requiring them to pay fines effectively bars them from voting for life.
“One of my clients owes $20,000,” Weiser says. “He’s never going to be able to pay it off, even though he’s been out of jail five or six years, working and paying taxes. So he can’t vote.”
The 11th U.S. Circuit Court of Appeals ruled in favor of the plaintiffs in a similar case in Florida, citing Farrakhan. But the court, at the State of Florida’s request, subsequently reviewed the decision en banc and reversed it. That case is now headed to the U.S. Supreme Court, and a decision could be rendered on it, or the New York case, before Weiser and his students have the chance to argue their case in district court.
The trial of their case is set to begin March 6, 2006.