Ninth Circuit lays an egg with felon voting ruling

January 7, 2010 

By the Herald editorial staff

We have more respect for the Ninth U.S. Circuit Court of Appeals than some judges and lawyers do, but the court laid a buzzard's egg with this one.

The court has decided in a 2-1 vote that 18,000 convicts currently behind bars in Washington state have the right to vote in elections.

This strikes us as the result of a nuisance suit filed by some convicts just to keep the system hopping and their own lives more interesting.

It's a tactic that works. It works especially well with the Ninth Circuit Court of Appeals.

The dissenting judge was perhaps surprised.

In her dissent, 9th Circuit Judge Margaret McKeown wrote that the majority "has charted territory that none of our sister circuits has dared to explore."

The right to vote is one of the basic values of citizenship that historically has been denied convicted felons while they are in prison.

Only two states, Maine and Vermont, allow felons to cast votes while behind bars, according to The Associated Press.

Until this ruling is appealed, all the states and jurisdictions in the Ninth Circuit are under threat of having their felons voting.

The court covers Washington, Oregon, Idaho, Montana, California, Nevada, Arizona, Alaska, Hawaii, Guam and the Northern Marianas.

State Attorney General Rob McKenna and Washington Secretary of State Sam Reed are seeking to have this latest ruling overturned by the U.S. Supreme Court.

The basis upon which the original case was filed and the appellate decision rests is that the percentage of minorities in prison far outweighs their numbers in society at large.

Thus, according to an argument by the plaintiffs, the U.S. Voting Rights Act of 1965 requires that all felons have the right to vote even while incarcerated. (Ordinarily, felons have their civil rights restored, upon application, after they have served their sentences and met any monetary claims against them rising out of the crime itself.)

The issues the lawsuit raises about racial bias in the justice system are not unique to Washington state, Marc Mauer, executive director of The Sentencing Project, a Washington, D.C., group promoting sentencing reform, told the AP.

"They are issues that permeate the justice system and are relevant in every state," he said, adding that an estimated 5.3 million people nationwide are ineligible to vote because of felony convictions.

That is a lot of votes. If that number of felons voted as a bloc they could have swung the 1976 vote to Gerald Ford from Jimmy Carter; the 1992 vote to George H.W. Bush instead of Bill Clinton; the 2000 vote to Al Gore instead of George W. Bush and the 2004 vote to John Kerry.

Hypotheses aside, prison is supposed to be punishment (and rehabilitation, if possible) for those who have broken society's rules in serious ways.

It seems absurd that politicians might find it advantageous, if this ruling is upheld, to go into prison yards throughout their districts and pitch for votes.

Although, come to think about it, that might cut back a bit on the candidates who try to outdo each other in being hard on crime.

The Supreme Court needs to toss out this buzzard's egg or mark it "return to sender" with a note to think it through again.

It doesn't seem to have gotten much thought the first time.

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