9th Circuit to Rehear Felon Voting Rights Case

In April, we wrote about the case Farrakhan v. Gregoire, an important voting rights case originating in Washington. In Farrakhan, the Ninth Circuit Court of Appeals overturned Washington state's felon disenfranchisement law, ruling that it was a violation of the Voting Rights Act—potentially paving the way for that state's estimated 167,000 disenfranchised voters to head to the polls. And, possibly, setting the stage for similar challenges to prevail countrywide. It was a win for inclusive democracy.

But celebration over the court's decision was soon dampened. Only months after their ruling, the court agreed to rehear the case en banc, creating the possibility that the Ninth Circuit could reverse itself.

For months the case was in a sort of limbo, but now the court has chosen a date to rehear it, September 21. At which time the major point of debate will be whether the Voting Rights Act was intended to apply to prisoners.

It's a major issue, with potentially far reaching implication—there are an estimated 5.3 million people prohibited from voting as a result of criminal convictions—and it has only gotten more complicated since we last wrote about it.

Since then, the Supreme Court invited the Solicitor General (Then, Elena Kagan, soon to be...?) to submit the United States' opinion on whether felon disenfranchisement laws are a violation of the Voting Rights Act. That order came in a case out of Massachusetts, where the First Circuit ruled that Massachusetts' disenfranchisement law could not be challenged using the Voting Rights Act.

All of which means that the pressure is on the Ninth Circuit, who will be hearing their case soon. And that, whatever they decide, the case (or, cases)  are virtually guaranteed to wind up on the Supreme Court docket—thereby drawing out the suspense and forestalling a final decision on the issue.

To end on a high note: The court's second-newest member, Sonya Sotomayor, is on the record as being on the right side of this issue. Four years ago, while serving as a member of the Second Circuit Court of Appeals, she wrote an unambiguous dissenting opinion (the decision in the case was in favor of allowing felon disenfranchisement).

As the NYT's Linda Greenhouse relays it:

The issue was not complicated, she wrote: “It is plain to anyone reading the Voting Rights Act that it applies to all ‘voting qualifications.’ ” And it was “equally plain” that the New York law “disqualifies a group of people from voting.”

Consequently, she continued: “These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.”

Here, here.

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