On November 2, liberals watched in helpless dismay as President George W. Bush and the Republicans made inroads among voting blocs not long ago considered reliably and monolithically Democratic. Though most blacks, Hispanics, and Jews cast their ballots for John Kerry, the president increased his share of the vote among all three groups, particularly among the young, perhaps foreshadowing many long and sleepless nights ahead for Terry McAuliffe, James Carville, and all their forlorn followers. Having been waylaid by this nascent demographic shift, Democrats now go in search of a constituency they hope will be more dependable in turning out and voting the straight ticket. Where to find such a constituency?
In the penitentiaries, of course.
According to The Sentencing Project, a Washington, D.C.-based nonprofit group that advocates alternatives to incarceration, there are about 4.7 million people currently ineligible to vote in the United States because of a felony conviction. Given that President Bush’s margin of victory in the popular vote on November 2 was about 3.5 million, this untapped pool of felons must indeed present a juicy target to Democrats, who evidently feel confident that most of those 4.7 million ne’er-do-wells will vote their way.
There remains only the small but persistent obstacle of the laws in 48 states that prohibit these people from voting (Maine and Vermont are the exceptions). But what does the law matter when you have judges on your side? Surely there is no law so enshrined, so well accepted, so deeply rooted that it cannot be deconstructed, disemboweled, or simply disregarded by a properly composed panel of our robed masters. Weave together a sufficient number of “penumbras” and “emanations” and the law can mean just about anything you want it to, up to and including the exact opposite of its plainly written text. Enter our old friends, the honorable justices of the United States Court of Appeal for the Ninth Circuit.
In 1996, in the case of Farrakhan v. Locke, six current and former inmates in the state of Washington (including one Muhammad Shabazz Farrakhan, a.k.a. Ernest S. Walker) filed suit against Washington governor Gary Locke and two other state officials on the grounds that the state law barring them from the polls violated the Voting Rights Act. The law, the plaintiffs claim, is racially discriminatory because there is a disproportionately high number of minorities represented in Washington’s penal system. The District Court dismissed the suit, but an appeal to the Ninth Circuit brought the plaintiffs before more sympathetic ears. While not fully endorsing the plaintiffs’ claims, a three-judge panel ruled that the case should be allowed to proceed to trial. A petition to rehear the case before an en banc panel of the Ninth Circuit fell short of the necessary votes, bringing an unusually colorful and heated dissent from Judge Alex Kozinski, with whom five colleagues joined. Kozinski dispensed with the conciliatory pleasantries often found in dissenting opinions, going right at the majority with undisguised contempt from his opening paragraph:
This is a dark day for the Voting Rights Act. In adopting a constitutionally questionable interpretation of the Act, the panel lays the groundwork for the dismantling of the most important piece of civil rights legislation since Reconstruction. The panel also misinterprets the evidence, flouts our voting rights precedent and tramples settled circuit law pertaining to summary judgment, all in an effort to give felons the right to vote. The court should have taken this case en banc and brought order back into our case law. I dissent from the court’s failure to do so.
Kozinski does not let up from there, either. After offering page upon page of the relevant citations, he concludes his opinion as follows:
Every state in our circuit bars felons from the voting booth. The panel’s decision will change all that. It contradicts our case law and the law of at least four other circuits, making us an outlier in voting rights jurisprudence. It does so without so much as acknowledging congressional approval of felon disenfranchisement and without any consideration of the grave constitutional consequences of its actions. I am troubled not only by my colleagues’ insistence on an indefensible interpretation of the Voting Rights Act, but also by their utter disregard for our precedent. I dissent.
In the genteel, mahogany-paneled world of the higher courts, such language is tantamount to an invitation to settle it like men out in the parking lot. But, as entertaining as that might be, the dispute will for now remain confined to the nation’s courtrooms. Indeed, in a recent case, the Second Circuit Court of Appeals issued a ruling directly in conflict with that reached by the Ninth Circuit in Farrakhan.
In Muntaqim v. Coombe, Jalil Abdul Muntaqim (a.k.a. Anthony Bottom), currently serving a life sentence for murder in the state of New York, sued the state on grounds similar to those put forth in Farrakhan. (The cases differ, however, in that New York bars only those currently in prison and on parole from voting; Washington law permanently bars all convicted felons from the polls.) The Federal District Court in Syracuse dismissed Muntaqim’s suit, and a three-judge panel of the Second Circuit declined to reinstate it. Such a conflict among the appellate courts ordinarily sets the stage for action by the Supreme Court, but last week the Court declined to hear either case.
But with 4.7 million potential votes at stake the issue remains very much alive. A challenge to a Florida law that permanently bars all convicted felons from voting awaits a rehearing before an en banc panel of the Eleventh Circuit Court of Appeals, this after a three-judge panel of the same court ruled that the case should proceed to trial. It seems likely that the Supreme Court acted as it did in order to allow the Florida case to advance. About 600,000 Florida residents are affected by the law. (How long can it be before a similar case is filed in Ohio?)
Those who wish to grant felons the right to vote point to the Florida law’s post-Civil War origins as a basis for the claim that such laws are racially discriminatory. They claim that the Florida law, enacted in 1868, was part of an effort to keep newly freed slaves from voting. But, as Roger Clegg pointed out on NRO last month, more than 70 percent of the states had such laws before the Civil War, in some cases long before, when relatively few blacks were allowed to vote in any case.
These cases illustrate the far-reaching impact made by selections to the federal courts. Those on the left turn to the courts with increasing frequency and success when their appeals to the voters are rejected. Imagine what might ensue if a court decision were to restore the franchise to those 4.7 million people from whom the democratic process removed it, people whose criminal behavior is an affront to the very system these plaintiffs now seek to rejoin.
Some federal judges serve longer than most popes. We can be thankful that the authority to nominate them continues to rest where it does.
–Jack Dunphy is an officer in the Los Angeles Police Department. “Jack Dunphy” is the author’s nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.