Bench Memos

Bad Ninth Circuit Decision Yesterday on Felon Voting

The Ninth Circuit ruled yesterday that it is a violation of the Voting Rights Act for the State of Washington to disenfranchise felons, due to racial discrimination in the state’s criminal justice system.

Oh, where to begin? First, the evidence of systemic discrimination is dubious. Second, even if there were such discrimination, the record is overwhelming that Congress did not intend the Voting Rights Act to apply to felon disenfranchisement. Third, even if the Voting Rights Act did apply, the state’s legitimate and strong reasons for not wanting criminals to vote would rebut any prima facie case. Those who won’t follow the law themselves can fairly be told that they will not be allowed to make the law for everyone else. We don’t let everyone vote — not children, not noncitizens, not the mentally incompetent, and not criminals — since there are certain minimum, objective standards of responsibility, loyalty, and trustworthiness that we require of those who would participate in the serious enterprise of self-government. The Center for Equal Opportunity has devoted part of its website to this important issue.

Well, here’s hoping the Ninth Circuit will rehear the case en banc. If not, the Supreme Court will likely grant review, since yesterday’s decision is in conflict with those of other federal courts of appeals.