Serious questions about the racial discrimination in our criminal justice system, laws that deny the vote to those who have been convicted in this system, and the reach of the Constitution’s guarantee of the right to vote free from racial discrimination may soon be heading for the Supreme Court.

Yesterday, an en banc panel of 11 judges on the 9th Circuit Court of Appeals heard argument in Farrakhan v. Gregoire, a challenge under the Voting Rights Act to Washington State’s law denying those who have been convicted of felonies the right to vote. (The Voting Rights Act establishes a nationwide prohibition on voting qualifications that have the result of discriminatorily denying or abridging the right to vote on account of race.)  A 3-judge panel of the Court of Appeals, splitting 2-1, ruled in January that Washington’s law violated the Voting Rights Act in light of “compelling” evidence of racial discrimination in the State’s criminal justice system.  As the panel decision explained, in Washington State, “minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted,” and, because “some people becom[e] felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the [Voting Rights Act], disqualify felons from voting.”  Unfortunately, the full appeals court subsequently vacated the panel’s opinion and ordered the case reheard by an expanded “en banc” panel of 11 judges.

Every other federal court of appeals to consider the matter—the 9th Circuit in Farrakhan will be the third circuit to consider the issue en banc—has held that plaintiffs may not challenge a felon disenfranchisement statute under the Voting Right Act.  In one of these cases, Simmons v. Galvin, the Supreme Court invited the Solicitor General to express the views of the United States on whether the Court should agree to hear the case in order to resolve the question.  The Acting Solicitor General suggested that the Court should not take Simmons, for several reasons—one of which was because the Supreme Court would have the chance to take up the issue of whether laws disenfranchising incarcerated felons can violate the Voting Rights Act in Farrakhan, which the SG apparently thinks is a better case for review because of its “more developed record.”  Veteran court-watcher Linda Greenhouse agrees, suggesting that, rather than take Simmons, “[t]he justices may prefer to wait to see what the Ninth Circuit does with [Farrakhan].”

We will have to wait for the en banc panel’s ruling to know for certain what the 9th Circuit will do with Farrakhan.  The judges certainly did not tip their hands yesterday (and the ideological make-up of the judges on the panel would suggest that there is no obvious majority one way or the other).  But yesterday’s wide-ranging and interesting argument did yield some clues as to what is on the judges’ minds.

First, given one judge’s comment at the hearing yesterday, the en banc panel is clearly aware that the Supreme Court could be “waiting” for the 9th Circuit to rule before acting on the Simmons case.

Second—and perhaps because the judges feel the eyes of the Justices upon them—the 9th Circuit is clearly interested in the major constitutional question in this case: whether the Constitution gives Congress broad power to proscribe racial discrimination in voting, including felon disenfranchisement laws that operate in tandem with racial discrimination in the criminal justice system to deny the vote to African Americans.  Seizing on the fact that Section 2 of the 14th Amendment recognizes the authority of states to bar criminals from voting, both the 2nd Circuit and the 11th Circuit have rejected Voting Rights Act challenges to felon disenfranchisement laws, emphasizing constitutional doubts about Congress’s power under the 15th Amendment to apply the Act to such statutes.  In an earlier stage of the Farrakhan litigation, Chief Judge Kozinski, speaking for 7 judges of the 9th Circuit, raised similar arguments in a dissent from the court’s earlier refusal to hear the case en banc.  Several questions were asked yesterday about the relationship between the 14th Amendment, which allows for states to disenfranchise certain voters, and the 15th Amendment, which guarantees the right to vote free from racial discrimination.  CAC filed a brief in the case, available here, answering this central constitutional question, and our arguments were echoed at the hearing in some of the judges’ questions and the responses given by counsel for the plaintiffs.

As explained in our brief, Section 2 of the 14th Amendment was not about state felon disenfranchisement laws at all, but rather how to apportion representatives for Congress in light of the fact that the newly freed slaves were now citizens but were still denied the right to vote by southern states.  Section 2 provided that apportionment of members of Congress would be determined by the numbers of persons residing in the state, but that any state that disenfranchised male citizens over the age of 21 would lose a proportionate percentage of its congressional representation; in other words, if states did not give freedmen the right to vote, the states’ representation in Congress would be reduced.  However, this “reduction” penalty did not apply to states that disenfranchised those who participated in rebellion, or other crimes.  This language appears to support the idea that the 14th Amendment, by its text, condones felon disenfranchisement, even if it discriminates against citizens based on race.

But Section 2, to the extent it allowed racial discrimination in voting so long as states were willing to pay the penalty of reduced representation, was superseded when the American people ratified the 15th Amendment.  The 15th Amendment plainly prohibited racial discrimination in voting, and gave Congress broad authority to enforce this new constitutional command.  Far from affirming that racially discriminatory felon disenfranchisement laws could survive after the 15th Amendment, the Amendment’s framers specifically declined to carve out an exception for criminal disenfranchisement laws similar to that found in Section 2 of the 14th Amendment.  Accordingly, it is entirely within Congress’s 15th Amendment power to enact a statute such as the Voting Rights Act that seeks to root out disenfranchisement laws that transfer racial discrimination from the criminal justice system into the context of voting.

Finally, the hearing yesterday demonstrated the depth of the problem of discriminatory felon disenfranchisement laws.  As Ryan Haygood, arguing for the plaintiffs, noted at the conclusion of the argument, African Americans make up 23% of Washington State’s prison inmates (but just 3.4 percent of the State’s population), with prosecutors asking for 50% tougher sentences for black defendants than they do for white defendants.  This means that nearly one-quarter of African American men in Washington State do not have the right to vote because of a criminal justice system that Washington conceded is racially discriminatory.

The problem is not limited to Washington State.  According to an analysis by the Sentencing Project, felon disenfranchisement laws have taken the right to vote away from 20% of African Americans in Virginia, compared with a 6.8% disenfranchisement rate for all Virginia residents. In Texas, the disenfranchisement rate of African Americans is 9.3% compared with 3.3% for all Texans. In New York, 80% of the disenfranchised are black or Hispanic.  Across the nation, an estimated 1 in 7 black men has lost the right to vote.  This is a problem of enormous magnitude for our democracy and our communities.

Fortunately, the Constitution and the Voting Rights Act give Americans some legal tools to address this crisis.  Let’s hope that the 9th Circuit gets it right in Farrakhan v. Gregoire.  And if it does, let’s hope that the U.S. Supreme Court is waiting for Farrakhan in order to uphold the text and history of the Constitution and the promise of the Voting Rights Act, and not so it can set our country back in our struggle for a free, equal, participatory republic.