A legal battle is under way over whether prison inmates have the right to vote.
In April a three-judge panel for the 9th Circuit Court of Appeals ruled in Farrakhan vs. Gregoire that the Washington State law denying incarcerated felons the right to vote violated the 1965 Voting Rights Act by disenfranchising minority citizens.
“We believe that the 9th Circuit was correct and the right to vote should not be denied to incarcerated felons,” said Rebekah Evenson and Donald Specter of the Prison Law Office at San Quentin. “But the fact is the Farrakhan ruling never applied to California’s incarcerated felons because the legal challenge was brought in Washington State only.”
Recently the same issues arose in the Massachusetts case Simmons v. Galvin in the 1st Circuit Court of Appeals. That court ruled the Voting Rights Act does not apply to nor does it protect felons.
Moreover, the 9th Circuit agreed to rehear the Farrakhan case with an expanded panel, “Which means the prior ruling in Farrakhan has been de-published — it’s not binding anymore,” said Evenson. “California needs to put in a similar challenge…the Massachusetts three-judge panel does not have the power to overrule another three-judge panel.”
“When the 9th Circuit hears it again, they could do so by a randomly selected 11-judge panel,” Specter commented.
In a memorandum the California secretary of state’s elections office says “There has been no court finding or ruling that a similar situation applies in California and the law has not been altered, either by statute or by court order, to allow any California residents who are in prison or on parole for conviction of a felony to register to vote,”
The inmates in Farrakhan asked for a Certificate of Appealability and for Solicitor General Elena Kagan to write a brief on whether the felon disenfranchisement claim is valid. Evenson said the solicitor general’s view often is very persuasive for the U.S. Supreme Court in deciding whether to consider an appeal.
“There is no deadline to submit this brief,” Evenson said. “The solicitor general could submit it earlier, but I doubt it will be on the Supreme Court’s docket until 2011.”
President Obama has since nominated Kagan for a seat on the U.S. Supreme Court.
