Racial discrimination should not trump voting rights

By Dorsey E. Nunn

The U.S. Court of Appeals for the Ninth Circuit in San Francisco will hear argument today (Tuesday, Sept. 21, 2010) in a lawsuit challenging the State of Washington’s denial of the right to vote from people with felony convictions.

The legal issue in the case is whether the Voting Rights Act, which was designed to eradicate all traces of racial discrimination from the political process, is applicable to laws that strip the right to vote from people convicted of felonies.

Laws like these are part of a long history of stealing, suppressing and diluting votes from the Black Community. Many of these laws were enacted in the Nineteenth Century alongside other voting restrictions such as property taxes and literacy tests in response to Emancipation, with the specific purpose of reducing the number of African Americans eligible to vote.

In fact, many states tailored their criminal disfranchisement laws to apply only to those crimes thought to be committed most frequently by African Americans. For instance, in Mississippi, a person would be disfranchised for the theft of a chicken, but not for more serious crimes such as robbery or murder. The premise underlying the law was that African Americans – who were newly freed and impoverished – were more likely than Whites to commit property crimes. The twisted logic of the law was that one could lose the right to vote for stealing a chicken but not for murdering the chicken’s owner.

Laws like these amounted to the theft of the vote, and ultimately made discrimination in voting so commonplace that it became invisible.

Today, this racial discrimination has become institutionalized.  Current day legislators do not express discriminatory intentions in support of criminal disfranchisement laws, but because of racial discrimination within the criminal justice system, these laws often have a discriminatory effect.

In Washington State, for instance, racial minorities are treated worse than Whites at every point in the state’s criminal justice system – from stops, to arrest, to charging, to prosecution – a fact that even the State itself has acknowledged. The result is that an astonishing 24% of all Black men, and 15% of all Black adults in Washington, are denied the right to vote. Nationally, almost 40% of the 5.3 million disfranchised Americans are Black.

The effects of mass disfranchisement are not limited to the people convicted of crimes themselves. Excluding a large slice of a community from the political process has a cascading effect, reducing voter turnout and civic participation for the community as a whole. Communities of color are often disproportionately impacted by poverty, high unemployment rates, and poor access to educational opportunities. The disfranchisement of persons with criminal convictions dilutes the political power of these communities, making it difficult to effect positive change through the democratic process.

Confusion amongst state election officials has resulted in wildly inconsistent enforcement and application of felony disfranchisement laws – and once again, the disproportionate victims are minority communities. Most notoriously, during the 2000 election in Florida, thousands of African-American voters were incorrectly purged from the poll books after they were misidentified as felons. More than half of those who appealed were later restored to the voter rolls – but only after the election. And we all know how that turned out.

California is no Electoral Utopia either. This hearing is being held in a state that has seen its share of legal challenges over its disfranchisement practices. The way our state government handles the voting rights of people with conviction histories is at best a matter of ineptitude and at worst a matter of malice.  In California, the majority of guilty findings are entered into through a plea bargain process. But before a plea is accepted, defendants are not advised of the collateral consequence of the plea on their voting rights. Furthermore, after a conviction, a person would be hard pressed to find consistent information from the office of California Secretary of State, which does a poor job of informing people as to their voting rights. Even more appalling, surveys indicate that information varies greatly from one County Registrar office to the next.

Too often this important issue is framed as whether disfranchisement is an appropriate punishment for an individual’s transgression. Leaving aside the fact that taking away a person’s voting rights does nothing to prevent or deter crime, and in fact hinders the rehabilitation and reintegration of people into society, the point is that these laws affect more than just individuals. Disfranchisement laws punish entire communities through the theft of votes, and the disfigurement of our democracy. The Court of Appeals should find that the Voting Rights Act does not tolerate laws that import discrimination from the criminal justice system into the political process.
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Nunn is executive director of Legal Services for Prisoners with Children, a San Franciso-based non-profit organization that advocates for the human rights and empowerment of incarcerated parents, children, family members and people at risk for incarceration.