As early as the 1980s, the Washington State Legislature was aware that Washington led the nation in racially disproportionate incarceration rates, having commissioned its own study on these issues. The state of Washington did not contest any of these facts before the trial court.
The federal Voting Rights Act provides that a state may not deny its citizens the right to vote on the basis of race. Washington, however, strips the right to vote from people upon conviction of a felony, despite knowing that the process that leads to those convictions is tainted by racial discrimination.
The plaintiffs in this lawsuit have never objected to the right of states to disfranchise individuals for certain criminal offenses. Nor have they argued that racially disproportionate outcomes are, by themselves, enough to demonstrate a violation of federal law.
But what the evidence shows is that the racial disparities in Washington’s criminal justice system do not reflect actual rates of participation in criminal activity, but rather are attributable to racial bias. As a panel of the Federal Court of Appeals concluded earlier this year, the Voting Rights Act “demands that such racial discrimination not spread to the ballot box.” The 9th Circuit should affirm this basic principle: that racial discrimination should play no role in determining who may exercise the most precious right that a citizen has in our democracy.
John Payton is director-counsel of the NAACP Legal Defense and Educational Fund (LDF). LDF and University Legal Assistance at Gonzaga School of Law represent the plaintiffs in Farrakhan v. Gregoire.