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November 03, 2010

I’m sending you this special edition of McKenna’s Must Read to share the news of our final victory in the 14-year Farrakhan (felon voter) litigation.   On October 7, the Ninth Circuit Court of Appeals issued a unanimous ruling upholding our state’s felon voting laws and rejecting its own earlier rulings that applied the federal Voting Rights Act to Washington’s felon disenfranchisement law.

A long history
This case began in 1996, when Muhammad Shabazz Farrakhan and five other minority felons challenged the constitutionality of Washington's felon disenfranchisement act, alleging that minorities are disproportionately prosecuted and sentenced to prison, and that their automatic disenfranchisement violates the federal Voting Rights Act.

At that time, Washington law provided that convicted felons lost the right to vote upon conviction, and could not have it restored until they completed all terms of their criminal sentence, including any time in custody, period of supervision, community service, and payment of legal/financial obligations such as court costs and victim restitution.

Changes to voting laws
In 2009, the Legislature amended the felon disenfranchisement law to restore the right to vote provisionally to any convicted felon who is no longer in prison and no longer under active supervision by the Department of Corrections.  The convicted felons whose voting rights were restored under this legislation comprised a significant majority of all disenfranchised felons.  

Addressing racial disparities in the criminal justice system
Moreover, both the Legislature and state Supreme Court have made a number of changes to criminal sentencing statutes and guidelines over the past 30 years, aimed at reducing racial disproportionality in our criminal justice system.  As a result of these and other factors, disproportionate incarceration of African-Americans has fallen 60 percent since 1980, and by 2009 other groups such as Hispanics and Asian-Pacific Islanders were actually incarcerated at rates lower than their percentage of the state’s population.  State policymakers and jurists continue to scrutinize our criminal justice system to root out any unfairness that might contribute to the continuing disproportionate representation of African-Americans in the state correctional system.

9th circuit overturns state disenfranchisement law, conflicts with 3 other circuits
Despite these improvements, and the fact that three other federal circuit courts had ruled that the Voting Rights Act does not apply to convicted felons, the Ninth Circuit Court of Appeals in January 2010 applied the federal Voting Rights Act to Washington’s felon disenfranchisement law and overturned it, citing its own ruling from an earlier phase of the case.

An opportunity to reargue the case
On September 22, I traveled to San Francisco on invitation of the Ninth Circuit Court of Appeals to reargue the case en banc before an 11-member panel of the court.   Much to my surprise, just three weeks after that hearing, the Ninth Circuit issued its unanimous ruling along with a concurring opinion.

An important victory all around
This ruling affirms the rights of states to withhold the right to vote from those who’ve committed the most serious crimes against society.  It also 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.  And it affirms the rights of the 47 other states with similar laws.

Although Farrakhan will probably petition the U.S. Supreme Court for review, it is unlikely to be granted, because now all the circuit courts that have considered this issue are in agreement.

I hope this news finds you well.  I’ll be in touch again in the coming weeks with more of the latest news from the Attorney General’s Office.  

Rob McKenna
Attorney General

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