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February 1, 2010 -- Truthout (US)

Landmark Case Could Restore Felon Voting Rights

By Matthew Cardinale, Inter Press Service

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Atlanta -- A historic ruling earlier this month on behalf of felons who lost the right to vote could call into question the disenfranchisement of felons and ex-felons in the State of Washington and indeed across the United States.

Federal Ninth District Circuit Court Judges A. Wallace Tashima and Stephen Reinhardt ruled on behalf of several disenfranchised voters, in a 2-1 ruling. Washington's Secretary of State Sam Reed and Attorney General Rob McKenna will appeal to the Supreme Court.

If plaintiffs are successful, the case could result in the restoration of voting rights to 47,000 U.S. citizens who are either incarcerated or under state supervision in the State of Washington, said Reed's director of communications, David Ammons.

In addition, the case could have an impact on the status of felon voting rights in other states, by opening up the path for similar lawsuits.

According to the Sentencing Project, an estimated 5.3 million U.S. citizens cannot vote because they have a criminal conviction and live in one of 48 states which disenfranchise felons and ex-felons. An estimated four million of these are already out of prison and are living and working in their communities.

"It absolutely is a victory," Kara Gotsch, advocacy director for the Sentencing Project, told IPS. "The racial disparity that exists in the criminal justice system and discrimination is something we've been concerned about as an organisation for a long time."

"To have the court acknowledge that racial discrimination is an issue is in itself a significant finding, but the fact that this could also impact the felon voting laws is also important," Gotsch said.

As for the potential broader impact of the ruling, "One might assume that other plaintiffs might be able to prove similar claims in other states. Washington state -- why is their criminal justice system more discriminatory than Alabama? Plaintiffs could bring similar lawsuits and be successful along similar lines," Gotsch said.

Not everybody saw the ruling as a victory, though. "The U.S. Constitution, the Washington Constitution, and the laws of 47 other states all agree that felons may lose this important civil right when they violate the rights of others by committing egregious violations of the law," Reed said.

"I'm pleased the attorney general will be taking this case to the U.S. Supreme Court and expect a positive outcome," Reed said.

While there have been numerous legal efforts to restore felon voting rights over the last several years, this case is unique because it focuses on the racial impact of felon voting disenfranchisement as it relates to the historic Voting Rights Act (VRA).

The U.S. Congress passed the VRA in 1965 under its enforcement power of the 15th Amendment of the U.S. Constitution.

"The ruling was based on the [argument that the] state was violating the VRA. The country has a history of racial discrimination in its voting rights laws -- poll taxes and literacy tax," Gotsch said. "The concerns of racial discrimination against minorities has always been a concern in voting law because of this history. They were able to make a case that race was influencing who could vote because... there was racial discrimination in the criminal justice system."

"Minorities are disproportionately prosecuted and sentenced, resulting in their disproportionate representation among the persons disenfranchised under the Washington Constitution," plaintiffs argued, according to the ninth district court of appeals ruling.

As a result, Washington's felon disenfranchisement law "causes vote denial and vote dilution on the basis of race, in violation of the VRA," they argued.

Plaintiffs in the case are Muhammad Shabazz Farrakhan, Al-Kareem Shadeed, Marcus Price, and Timothy Schaaf, who are African American, as well as Ramon Barrientes, who is Hispanic, and Clifton Briceno, who is Native American. The case was first filed in 1996.

The district court had previously ruled on behalf of the State of Washington. However, the federal appeals court overruled and remanded the case back to the lower court. The lower court then ruled on behalf of the state a second time. On appeal, the federal circuit court of appeals overturned the lower ruling again, finding in favour of the plaintiffs.

"We explained that a [VRA] Section 2 'totality of the circumstances' inquiry requires courts to consider how a challenged voting practice interacts with external factors such as 'social and historical conditions' to result in denial of the right to vote on account of race or color," the appeals court ruling said.

Because other federal circuit courts in other U.S. districts have ruled differently in similar felon voting VRA cases, Gotsch believes it is even more likely the U.S. Supreme Court will take up the case.

Those decisions include the First Circuit in a Massachusetts case, the Second Circuit in a New York case, and the Eleventh Circuit in a Florida case, according to the Judicial Watch blog.

Felon voters in Washington and 47 other states are still unable to vote in the meantime.

Advocates and some legislators at state and federal levels are continuing to pursue other strategies to restore voting rights to felons and ex-felons.

The Democracy Restoration Act was introduced both in the U.S. House and Senate in 2009 to restore voting rights to felons and ex-felons in federal elections.

Technically, the bill would not restore voting rights in state elections, which states have discretion over. However, in practice, it may result in re-enfranchisement for state elections as well, because it may be too complicated and confusing to allow ex-felons to vote in federal but not state elections.

Due to the efforts of such organisations as the Sentencing Project, the National Association for the Advancement of Coloured People, and others, the general trend over the last decade has been for state legislatures and governors to change their laws to allow at least some ex-felons to vote.

Since 1997, over 19 states have expanded or eased access to voting for felons or ex-felons, Gotsch noted.

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