The Ninth Circuit is slated to hear arguments next week in the unfortunately named Farrakhan v. Gregoire case, in which civil-rights groups are arguing that felony-disenfranchisement laws in Washington violate Section 2 of the Voting Rights Act because of their disparate impact on minorities. The case is similar to a Massachusetts case, Simmons v. Galvin, that makes the same argument. A few months ago, Linda Greenhouse wrote about the Simmons case and put the impact of felony-disenfranchisement laws in perspective:
In every state, the impact on the black community is disproportionate, hardly surprising given that one in nine black men aged 20 to 34 is in prison. Even so, the numbers are startling, with disturbing implications for civic life in a democracy. According to an analysis by the Sentencing Project, a research and advocacy organization in Washington, felony convictions have deprived 20 percent of African-Americans in Virginia of the right to vote, compared with a 6.8 percent disenfranchisement rate for Virginia residents as a whole. In Texas, a similar ratio applies: 9.3 percent for blacks compared with 3.3 percent for Texans as a whole. In New York, 80 percent of those who have lost the right to vote are black or Hispanic. Nationally, an estimated one in seven black men has lost the right to vote.
The argument that Section 2, which prohibits any "voting qualification" that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color” applies here seems pretty straightforward.
That said, if either of these cases ever make it to the high court, there's a lot of reason to think they wouldn't get a favorable ruling. Since the Supreme Court has been pretty hostile to the Voting Rights Act, implying that its protections (such as Section 5) aren't so necessary anymore, it's hard to know how they'd react to these cases. But the language of Section 2 means that there's a different legal standard for proving discrimination than there would be otherwise.
"You don't have to show the law was intended, or had a purpose of discriminating," explains the Brennan Center's Erika Wood. "It's a different standard than what would be used under the 14th Amendment," in which a violation of the equal protection clause would require proof of intent to discriminate.
That's exactly why the high court might be hostile to it -- the Roberts court has been skeptical of "disparate impact" in general and the Voting Rights Act in particular; it's certainly possible that if either of these cases reaches them, they could take this opportunity to simply declare Section 2 unconstitutional.
I've previously endorsed the idea of allowing felons to vote in prison, as they do in Vermont and Maine, because I don't see the social benefit to doing anything else. No one ever decided not to commit a murder or rob a convenience store because they might lose their right to vote -- this merely denies a political voice to those least likely to make use of one. And in a larger sense, this isn't just about race -- 5.3 million Americans are disenfranchised because of felony convictions, whether they work and pay taxes and contribute to the community or not. The civic benefit of this kind of disenfranchisement is minimal, about the only thing it does is save the money it would cost to facilitate voting from prison, and that hardly seems worth it. Except of course, if you think it might keep a lot of people from voting for the other party.
