The deepening controversy over denial of voting rights to those convicted of serious crimes — an issue that has split the Circuit Courts in recent years — is back at the Supreme Court, in an appeal challenging a Florida law. The petition for certiorari in Johnson v. Bush, Governor of Florida (docket 05-212) was filed a week ago by attorneys with the Brennan Center for Justice in New York.
The Supreme Court twice passed up review of that issue last Term, refusing in November to hear cases from Washington State and New York State. But there were good reasons for the Court not to get involved in either of those cases at that point: the Washington case had been sent back by the Ninth Circuit to a District Court for further fact-finding, and the New York case came to the Court amid clear indications that the Second Circuit was going to grant review of that case en banc if the Supreme Court refused to review a panel decision.
The Washington case (Farrakhan, et al, v. Locke, et al.) returned to U.S. District Court and is now scheduled to go to a non-jury trial in Spokane beginning next March 6. (In the District Court, it is docket 96-76). The en banc Second Circuit held a hearing on the New York case (Muntaqim v. Coombe, Circuit docket 01-7260) on June 22, and a decision is pending.
The Brennan Center for Justice had urged the Supreme Court not to hear the issue last Term, suggesting that the Justices instead await an en banc ruling by the Eleventh Circuit in the Johnson case (Circuit docket 02-14469).
That Court issued its ruling in that case on April 12. It decided that it does not violate the Fourteenth Amendment’s guarantee of equality for a state to deny those convicted of felons the right to vote, and to withhold that right even after they have completed their sentences. That part of the 12-judge decision produced only one dissent. The Court said that, even if an original 1868 ban on felon voting was motivated by racial bias, that was cured when Florida adopted a new and “markedly different” version of the ban in 1968.
Over two dissents, the Eleventh Circuit ruled that Congress did not intend the Voting Rights Act, and its protection in Section 2 of minorities’ voting rights, to apply to felon disenfranchisement laws. That part of the ruling conflicts with an earlier decision by the Ninth Circuit in the Washington case.
The Johnson appeal presents these two questions:
“1. Is a permanent felony disenfranchisement provision — like all other voting qualifications — subject to challenge under Section 2 of the Voting Rights Act on the ground that it results in a denial of the right to vote on account of race?”
“2. When a provision was enacted by a state for the purpose of disqualifying otherwise eligible black voters, and it has disenfranchised blacks at twice the rate of others for more than one hundred years, does the state bear the evidentiary burdens of production and persuasion in proving that it reenacted the provision for an independent, nondiscriminatory reason sufficient to purge its unconstitutional taint?
The Supreme Court has twice confronted felon disenfranchisement controversies in the past, but the last time was in 1986, in Hunter v. Underwood. A prior decision came in 1974 in Richardson v. Ramirez.
The dispute has intensified in recent years, as liberal advocacy groups have stepped up a litigation, lobbying and public relations campaign attempting to link the denial of voting rights to the race of individuals caught up in the criminal justice system, and thus facing the loss of voting rights if convicted. It is estimated that more than a third of all disenfranchised felons are black and that, if a current trend continues, the rate of disenfranchisement of black men could reach 40 percent in the states that have such laws.
Only two states, Maine and Vermont, allow convicted felons to vote.
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