Incarcerated felons shouldn't be allowed to vote, argue the Washington State Secretary of State and Washington State Attorney General. A three-judge panel of the 9th Circuit Court of Appeals said the ban was unconstitutional earlier this year, citing the racial disparity of the inmate population. But today a nine-member bench overturned that decision (.pdf):

[W]e hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2. Because plaintiffs presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained, we conclude that they didn’t meet their burden of showing a violation of the VRA. Accordingly, the district court didn’t err when it granted summary judgment against them.

Concurring opinions here and here.

UPDATE: A statement from state AG Rob McKenna after the jump.

State Attorney General Rob McKenna won his first case before the Ninth Circuit Court of Appeals in a unanimous ruling upholding the state’s felon voting laws and rejecting an earlier ruling that applied the federal Voting Rights Act to Washington’s felon disenfranchisement law.

“This ruling affirms the rights of states to withhold the right to vote from those who’ve committed the most serious crimes against society,” McKenna said. “I’m pleased by how quickly the court issued its unanimous decision. This ruling brings the Ninth Circuit into line with the three other federal circuit courts of appeals who concluded that felon disenfranchisement laws are generally exempt from challenges under the federal Voting Rights Act. It affirms the rights of the 47 other states with similar laws.”

Secretary of State Sam Reed said he was delighted with the speedy and decisive victory in the 9th Circuit.

“We absolutely believe in civil rights and will continue to work toward equality in the criminal justice system, but at the same time, we firmly believe that it is appropriate and reasonable for society to deny voting rights to people who commit serious crimes,” Reed said. “This has been the law in our state since 1866 and nearly every state in America has this sensible policy. There is clearly no discriminatory intent. It is about a reasonable sanction we impose based on the person’s decision to commit a crime.

“The people of Washington will be very pleased with this ruling,” he said. “We will inform county election officials across the state that they will continue to deny registration and voting of felons who are behind bars or still on community supervision. We thank Attorney General McKenna for his vigorous, personal handling of this case. We are very pleased to have apparently final resolution of a case that has dragged through the courts for 14 years now. Since this circuit now agrees with other circuits around the country, there would seem to be no reason for the U.S. Supreme Court to accept review. We trust that this case is over.”


In 1996, Muhammad Shabazz Farrakhan and five other minority race felons challenged the constitutionality of Washington's felon disenfranchisement act, alleging minorities are disproportionately prosecuted and sentenced to prison, and that their automatic disenfranchisement violates the federal Voting Rights Act.

In January 2010, the 9th Circuit Court of Appeals applied the federal Voting Rights Act to Washington’s felon disenfranchisement law and overturned Washington law barring felons in prison and under community supervision from voting. The Ninth Circuit had been the only court in the country to reach this conclusion.

Appellate courts in New York, Massachusetts and Florida had reached the opposite result, concluding that the Voting Rights Act does not address voting by felons. The Ninth Circuit chose to rehear the case en banc (before an 11-judge panel) on Sept. 22.