Can’t Vote From Jail = Discrimination?

Once again the Ninth Circuit Court of Appeals — the same collection of activist judges in San Francisco who ruled that the Pledge of Allegiance is illegal and tried to overturn California’s “three strikes and you’re out” law — has handed down a decision that leaves the rest of us collectively shaking our heads.

In Farrakhan v. Washington, the court found that a “statistical disproportionality” in the racial composition of prison populations constitutes a form of discrimination in violation of the 1982 Voting Rights Act. In other words, the fact that minorities are disproportionately represented in prison populations amounts to an institutional disenfranchisement of their right to vote. The only remedy for this discrimination, the court pronounced, is to allow incarcerated felons the opportunity to cast their ballots on election day — never mind that nearly all states disallow felon voting.

Congress enacted the original Voting Rights Act in 1965 to stop the practice of shutting African-Americans out of the voting booth. Under its provisions, political processes in a state or political subdivision violate federal law if, based on “the totality of the circumstances,” they are not equally open to every voter. The Ninth Circuit Court has found that statistical evidence of minority overrepresentation in the state of Washington’s prison population amounts to proof that Washington’s criminal disenfranchisement laws are in violation of the Voting Rights Act.

Set aside for a moment the “straight face” test, which this decision obviously fails. Stripping felons of their voting rights is explicitly endorsed in the Fourteenth Amendment to the Constitution, which states that those convicted of “participation in a rebellion, or other crime” are removed from the population that selects congressional representatives. Furthermore, the legislative histories of both the original 1965 Voting Rights Act as well as the 1982 Act reveal that Congress never intended for either to affect disenfranchisement laws. Quite the contrary, in fact: Since 1982, Congress has passed two laws facilitating state felon disenfranchisement for federal crimes.

The Farrakhan decision is also a direct contradiction to the Ninth Circuit’s own established precedent. In an opinion just seven years ago in Smith v. Salt River Project Agricultural Improvement and Power District, the court stated that “a bare statistical showing of disproportionate impact on a racial minority does not [prove illegal discrimination] because causation cannot be inferred from impact alone.” The plaintiffs in the Farrakhan case presented nothing more than the simple statistics of minority overrepresentation in the prison population, conviction rates, and sentencing. There was not a shred of evidence of intentional discrimination in Washington’s criminal justice system.

Thus does the Farrakhan decision lay bare the underlying agenda of a group of extremely liberal judges, as well as their willingness to do just about anything to achieve it, including disregarding their own previous inconvenient positions. There’s a reason this is the most frequently overturned federal court in the United States. Based on the logic of the Ninth Circuit opinion, unless and until the percentage of minorities in state prisons directly reflects the percentage of minorities living in the state, the felon disenfranchisement laws in effect in 48 of 50 states stand in violation of the Voting Rights Act. Fortunately, Congress can fix this problem by amending the Voting Rights Act to specifically exempt felon disenfranchisement laws; but we shouldn’t have to spend our time constantly fixing Ninth Circuit Court mistakes.

Senator Jon Kyl, a Republican, represents Arizona in the U.S. Senate. He serves on the Senate Judiciary Committee, the Finance Committee, and the Energy and Natural Resources Committee.