Every state in the country except two - Maine and Vermont - prohibits at least some felons from voting. In January, a panel of the U.S. 9th Circuit Court of Appeals held that the state of Washington is violating the federal Voting Rights Act by disenfranchising felons. Now the full 9th Circuit has decided to hear the case, Farrakhan v. Gregoire. The case has implications for all nine states within the 9th Circuit's jurisdiction, including California. Every other federal court of appeals so far has ruled against using the Voting Rights Act to give felons the right to vote.
The 9th Circuit should join them.
The 15th Amendment to the Constitution says: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race," and further provides that "Congress shall have power to enforce this article by appropriate legislation."
If a state were to use its felon disenfranchisement laws deliberately to keep blacks from voting, as was sometimes done in the Jim Crow era, then it is clear it would be in violation of the Constitution, and the Supreme Court has so ruled. But what if there is no such discriminatory intent: Is it enough to show that a disproportionate number of, say, African-Americans are in prison?
The answer is clearly no when it comes to the Constitution. The claim in Farrakhan, however, is that such disproportionate "results" are enough to prove a violation of the federal voting rights law. The intent and history of the law refutes this claim.
When the Voting Rights Act was passed in 1965, it was clearly aimed at the evil of systematic and deliberate exclusion of African-Americans from the voting booth, and the record is replete with legislative statements that the new statute would not affect the nearly universal practice in the United States of denying convicted criminals the right to vote. Subsequent legislation has made this even clearer. For example, both the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 contain provisions aimed at facilitating felon disenfranchisement.
What's more, the Constitution explicitly assumes that felons may be barred from voting. The 14th Amendment - which, like the 15th, was passed during Reconstruction to ensure equal treatment of African-Americans - acknowledges that states can disenfranchise people for "participation in rebellion, or other crime." So an interpretation of the Voting Rights Act to bar felon disenfranchisement would not only be inconsistent with the intent of that statute, it would exceed Congress' constitutional authority.
Or look at it this way: When someone is kept from voting because he has been convicted of a felony, this does not "result in a denial or abridgement of the right ... to vote on account of race or color" (to quote the law); it results in the denial of the right to vote because that person has chosen to commit a serious crime against a fellow citizen.
Finally, even when civil rights laws are used to challenge practices that are not racially discriminatory in their terms, application or intent but simply because they have disproportionate racial effects, the defendant always has an opportunity to show that the practice is still justified. So, for example, requiring English fluency for a particular job may be permissible, even if it disproportionately excludes members of a racial or ethnic group.
Likewise, a state may have strong and legitimate reasons for limiting the right to vote, even though it may have a disproportionate effect. Allowing only citizens to vote may have a disproportionate effect on groups that include many recent immigrants, but that is surely permissible. And the state also has good reasons for denying the vote to those who have committed serious crimes.
We don't let everyone vote - not children, not noncitizens, not the mentally incompetent. There are certain minimum and objective standards of trustworthiness, loyalty and responsibility, and those who have committed serious crimes against their fellow citizens don't meet those standards. If you aren't willing to follow the law, you can't demand a role in making the law.
Today's laws may have a disproportionate impact on some racial groups, because at any point in time there are always going be some groups that commit more crimes than others, but that doesn't make the laws racist - just as the fact that more crimes are committed by men doesn't make criminal laws sexist.
And the people whose voting rights will be diluted the most if felons are allowed to vote are the law-abiding people in high-crime areas, who are themselves disproportionately black and Latino.
Sharon Browne is a principal attorney with the Pacific Legal Foundation, and Roger Clegg is president and general counsel of the Center for Equal Opportunity. The groups have filed an amicus brief in the Farrakhan case. They wrote this for the Los Angeles Times.