arrowSection 1.2 - Felon Disenfranchisement

This topic is monitored by Moritz Law Professor Douglas A. Berman

Print Page

Felon Disenfranchisement Reaches the Supreme Court


Felon disenfranchisement is a hot topic this election year. The e-Book on Election Law has provided basic information on the topic. Just this week, two reports were released documenting the extent to which felon disenfranchisement prevents African American men from voting. 1  And here in Ohio, litigation concerning the need to notify ex-inmates of their eligibility to vote flared up again, when a previous settlement apparently unraveled.2 

In the midst of all this, the U.S. Supreme Court has before it a case raising the question whether a state's felon disenfranchisement law violates the federal Voting Rights Act (VRA). The case, Locke v. Farrakhan (No. 03-1597), specifically concerns the felon disenfranchisement statute from the State of Washington, but the question of its validity under the VRA would affect all such laws. In its conference on September 27, the Supreme Court will consider whether to review the appeals court's decision in the case, which ruled that Washington's law is subject to invalidation under the Voting Rights Act if it can be shown that the state's criminal laws, under which a disproportionate number of African Americans are convicted of felonies, are themselves racially biased. Although the issue is important, it is unlikely that the Court will agree to consider it at this time, opting instead to wait for further developments both in this case and other similar ones pending in lower courts elsewhere in the country.

The Applicability of the Voting Rights Act to Felon Disenfranchisement

For a long time, it was generally thought that felon disenfranchisement laws would not be actionable under VRA unless these laws were motivated by intentional discrimination. This understanding stemmed from a general requirement adopted by the Supreme Court that plaintiffs prove intentional discrimination in order to prevail in a VRA case. This understanding also dovetailed with the U.S. Constitution's explicit recognition, in section 2 of the Fourteenth Amendment, that states are permitted to disenfranchise felons if they wish.

Congress, however, has overruled the Supreme Court's determination that proof of intentional discrimination is necessary to prevail in a VRA. Instead, Congress adopted a "results" standard, in which plaintiffs can prevail if they prove that a voting procedure or qualification "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race." Given the fact African Americans are disproportionately precluded from voting by the operation of felon disenfranchisement laws, the question inevitably arises whether these laws are a voting qualification that "results" in the denial of the right to vote on account of race.

In Farrakhan, the case now before the Supreme Court, the Ninth Circuit appeals court ruled that the mere fact that a greater percentage of African Americans than whites were precluded from voting under Washington's felon disenfranchisement law was not enough to win a case under the VRA. Instead, according to the Ninth Circuit, it was necessary to show also that laws under which felons were convicted were themselves racially biased. The Ninth Circuit sent the case back to the trial court to determine whether the plaintiffs in the case could make that showing.

Rather than fighting this point in the trial court, the State of Washington now seeks immediate review of the Ninth Circuit's decision in the U.S. Supreme Court. The State essentially argues that felon disenfranchisement laws should be immune from consideration under the VRA even if the felony convictions that cause the disenfranchisement were themselves the product of racially discriminatory laws. The State bases this contention on the unique constitutional status of felon disenfranchisement, arguing in effect that the Fourteenth Amendment's recognition of the right of states to disenfranchise felons requires that these laws be exempt from the "results" inquiry that otherwise would apply under the VRA. The State finds support for this position, not just from the judges on the Ninth Circuit who dissented from the appeals court's decision in Farrakhan (there was a dissent from seven such judges, who wanted the entire Ninth Circuit to review the appellate panel's decision), but from a separate decision by the Second Circuit appeals court. 3 

The Likelihood of Supreme Court Review in Locke v. Farrakhan

In some respects, Locke v. Farrakhan fits the description of just the kind of case the Supreme Court is most likely to consider. (It is necessary to note here that the Supreme Court has the authority to decide which of the many cases presented to it each year that it will consider "on the merits" after full deliberation. Only about 70 of the approximately 7000 cases submitted to the Court, or roughly 1%, are granted this status.) The legal question raised in the case is an important one, and there is a disagreement among the federal appeals courts concerning its proper resolution – as evidenced by the divergence between the Ninth Circuit's decision and the Second Circuit's.

Nonetheless, it remains unlikely that the Court will grant review in Farrakhan, primarily because the Ninth Circuit sent the case back to the trial court for further proceedings. The Supreme Court is loath to consider cases in this kind of "incomplete" posture, because it is possible that the important issue in the case will resolve itself, or otherwise disappear, in those further proceedings. For example, if the trial court finds that Washington's criminal laws are not racially biased, then there will be no VRA violation in the case, even on the Ninth Circuit's theory. In that situation, it would be unnecessary for the Supreme Court to intervene to protect the State of Washington from an improper finding of liability under the VRA.

Moreover, the same question as in Farrakhan is pending before at least one other federal appeals court, the Eleventh Circuit. In fact, the full Eleventh Circuit, not just a three-judge appellate panel, is scheduled to consider this argument later this fall. The Supreme Court is likely to want to wait to consider what the Eleventh Circuit has to say on the subject, before it resolves the issue definitively.

Indeed, the Court often takes this approach: waiting for important issues to "percolate" or "ripen" among the federal appeals courts, so that the highest court in the land has the benefit of a variety of views before deciding the question itself. There is no pressing reason why the Court should not take this standard approach here, especially in light of further proceedings in Farrakhan itself.

Thus, we can expect a ruling from the Court that says, in effect, not now. But the issue isn't going away, and the Court likely will need to resolve it in the not too distant future.


1. See Fox Butterfield, 2 Studies Find Laws on Felons Forbid Many Black Men to Vote, NY Times (Sept. 23, 2004), p. A22.

2. See AP/ONN, Advocates: Ohio backing away from vow to tell released felons of voting rights (September 24, 2004), available at

3. Muntaqim v. Coombe, 366 F.3d 102 (2d Cir. 2004).