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Originally published Wednesday, September 1, 2010 at 3:41 PM

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Guest columnist

Washington's discriminatory system should not deny convicted felons right to vote

The 9th U.S. Circuit Court of Appeals will consider a challenge to Washington's law prohibiting convicted felons in prison or under community supervision from voting. Guest columnists John Payton and Ryan Haygood argue why the law needs to be overturned.

Special to The Times

FOLLOWING the release in 1980 of a groundbreaking study titled, "Legal Implications of Racially Disproportionate Incarceration Rates," Washington state officials asked themselves a hard question about why the state led the nation in the disproportionate incarceration of African Americans. Shortly afterward, the Legislature commissioned its own study of the effect of race in its criminal-justice system.

The answers were inconclusive, but the disparities were glaring. For the past three decades, citizens in Washington have continued to wrestle with the racial disparities in the state's criminal-justice system.

Next month, 11 judges of the 9th U.S. Circuit Court of Appeals will hear arguments in a case that challenges Washington's disproportionate denial of voting rights to racial minorities with felony convictions under the federal Voting Rights Act of 1965. The case sheds new light on the 1980 study and an opportunity to answer the question it raises.

The legal argument is this: the state of Washington cannot condition the most fundamental right that a citizen has in our democracy — the right to vote — on the basis of results from a criminal-justice system that the state itself has conceded is tainted by racial bias.

The trial judge in this case found there is "uncontested," "compelling" and "persuasive" evidence of racial discrimination throughout Washington's criminal-justice system.

Specifically, the court found that African Americans, Latinos and Native Americans are treated differently than are similarly situated whites at every stage of the criminal-justice system, and that the difference "clearly hinders the ability of minorities to participate effectively in the political process."

To be sure, this is an uncommon case because Washington has never contested these facts. Worse, it has never adequately addressed its consequences.

The plaintiffs' argument in this case is limited. It is not that Washington can never disfranchise people convicted of certain offenses. Nor is their argument that racially disproportionate outcomes are, by themselves, enough to demonstrate a violation of federal law.

What the evidence showed — and what the state itself conceded — is that the racial disparities evident in Washington's criminal-justice system do not reflect actual rates of participation in criminal activity, but rather are attributable to racial bias.

As the federal appellate panel found earlier this year, the Voting Rights Act "demands that such racial discrimination not spread to the ballot box."

Of course, Washington's recently amended felon disfranchisement law, which provisionally restores the vote to people after they've served their entire sentences, is a step in the right direction. The state, however, continues to deny voting rights to people for a period of time after they have been released from prison, during which they are subject to "community custody."

Under Washington's current disfranchisement law, there are more people living outside of prison who are denied the right to vote — approximately 27,000 — than there are held inside of prison — approximately 16,000.

Anyone who cares about the health of our democracy should be concerned by these figures. Study after study has found that the impact of disfranchisement is not limited to offenders themselves. Rather, eliminating the ability of such a large proportion of a community to participate in the political process creates a cascading effect that reduces voter turnout and civic participation for the community as a whole and through the generations.

While there has been and will continue to be robust debate about the wisdom of felon disfranchisement, this case is about a much narrower issue: that an admittedly racially discriminatory process must not be used to deny the most precious right that a citizen has.

We should all be able to agree on that basic principle.

John Payton, left, is the director-counsel and Ryan Haygood is the co-director of the Political Participation Group of the NAACP Legal Defense Fund (LDF). LDF and the University Legal Assistance at Gonzaga Law School represent the plaintiffs in Farrakhan v. Gregoire.

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