Last week, the United States First Circuit Court of Appeals in Boston upheld a ban against voting rights for ex-felons. The New York Times editorial board weighed in yesterday:

A group of prisoners sued, arguing that their disenfranchisement violated the Voting Rights Act. The felons whose right to vote was taken away in Massachusetts are disproportionately black and Hispanic, the prisoners said, partly because of a bias in the justice system.

The appeals court, voting 2 to 1, threw out the suit at an early stage. When it passed the Voting Rights Act, the majority said, Congress did not intend to prohibit states from disenfranchising incarcerated felons.

So, once again we're into an argument about disparate impact. Felon disenfranchisement laws are theoretically color-blind, but in practice they look like Jim Crow -- around 13 percent of black men are denied the right to vote because of felony disenfranchisement laws, about 1.4 million people. Depending on the region, the effect is more acute -- in Florida and Alabama, nearly a third of black men are ineligible to vote because of these laws.

There's also a basic issue of fairness here. People who have left prison have paid their debt to society, yet felony disenfranchisement punishes them after the fact. It's worse than that -- it denies them full citizenship: These laws say these people aren't worthy to participate in the democracy they live and work, and in practice, these laws disproportionately affect nonwhites. It's not just a matter of people who go to prison either -- The Sentencing Project estimates that 1 million of the disenfranchised were merely sentenced to probation.

I'd also argue that disenfranchisement's effect as a deterrent to crime is also nonexistent. I have yet to hear about someone who stopped themselves from slanging, robbing a convenience store, or murdering someone because they thought,"Hey, I might lose my right to vote!" So what we basically have is a modern-day grandfather clause executed under the pretense of color blindness. I'm not a lawyer, but this looks like as clear a violation of the equal protection clause as any.

Earlier this year, Rep. John Conyers introduced the Democracy Restoration Act of 2009, which would restore voting rights to ex-felons. Congress should pass it, instead of relying on the courts to see what's plain.

-- A. Serwer

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