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Washington court to consider felon voting rights
Tuesday, November 9, 2004

A Native American man who has been denied the right to vote because he is a convicted felon will get his case heard due to an action by the U.S. Supreme Court on Monday.

Clifton Briceno is a Cherokee man who was imprisoned in Washington. Under the state constitution, he can never vote again because he was convicted of an "infamous crime."

Washington state felons can have their voting rights restored if they obtain a pardon or clemency from the governor or if a review board reinstates them. But regardless of the process, Briceno and five other minority inmates say the practice violates the federal Voting Rights Act because it has a disproportionate effect on Native Americans, Hispanics and African-Americans.

The nation's high court expressed no view on the subject. But in refusing to hear the case, it sent the dispute back to a federal court in Washington where Briceno and the other inmates can present their arguments again.

The issue is significant because it could set precedent for the 9th Circuit Court of Appeals, which is home to a large number of American Indians and Alaska Natives. Every state in the circuit imposes limits on the rights of felons to vote.

Arizona, Nevada and Washington, for example, do not allow ex-felons to vote. Alaska and California extends that to paroled felons, with Alaska not allowing those who are on probation to vote either.

After hearing the case, a federal judge back in 2000 agreed that Washington law "disenfranchises a disproportionate number" of Native Americans and other minorities. In Washington, Native Americans are 3 percent of the prison population but only 1 percent of the general population. The Native incarceration rate in the state is 537 per 100,000, a rate three times higher than that of Whites.

But U.S. District Judge Robert H. Whaley concluded that the denial of voting rights did not violate federal law because the minority plaintiffs failed to show a connection to racial discrimination. For example, they didn't prove that Natives or other minorities were unfairly targeted for prosecution, the judge said.

On appeal, the 9th Circuit disagreed. Three judges reinstated the case in July 2003, saying that the lower court was wrong to focus on racial discrimination in the justice system.

Instead, the unanimous panel said the courts have to look at the "totality of circumstances." Tee judges directed the lower court to reconsider the evidence based on this test.

"We recognize that this is a difficult issue and that it requires a searching inquiry into all factors that bear on plaintiffs’ claim," wrote Judge Richard A. Paez for the majority.

The state then asked the 9th Circuit to rehear the case by an en banc panel of 15 judges. In February of this year, the request was denied but seven of the judges dissented, calling it a "dark day for the Voting Rights Act" because Paez's opinion was upheld.

"Though the panel hints otherwise, plaintiffs never produced a shred of evidence of intentional discrimination in Washington’s criminal justice system," the dissenting judges wrote.

Despite keeping the Washington case alive, the Supreme Court yesterday refused to hear a case from the 2nd Circuit Court of Appeals that went in the opposite direction. An African-American man said New York's ban on imprisoned and paroled felons violated the Voting Right Act but the appeals court said Congress did not mention the subject.

American Indians and Alaska Natives in Washington state have become more politically involved in recent years, citing the 2000 defeat of former Republican senator Slade Gorton, seen as a foe of sovereignty, as a sign of their power. The state is home to 29 federally recognized tribes and has a Native population of nearly 160,000.

Court Decision:
Farrakhan v. Locke (July 2003) | Farrakhan v. Locke (February 2004)

From the Indianz.Com Archive:
Behind Bars: Native incarceration rates increase (July 13, 2001)

Relevant Links:
Native Vote 2004 - http://www.nativevote.org

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Jodi Rave Lee: Protecting rights of Native voters (11/04)
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Idaho tribes report increase in voter registration (10/28)
Making every vote count in Indian Country (10/25)
Navajo council makes second endorsement in same race (10/21)
State bars second absentee vote on reservation (10/21)
Chairman: Thune 'not very productive' on Indians (10/21)
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