The Ninth Circuit found that the practices of the State of Washington with respect to policing, investigation, prosecution and sentencing resulted in racial disparities among the incarcerated that cannot be explained in race-neutral ways. For example, African Americans were "over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrests for violent offenses was only 3.72:1…Native Americans were more than twice as likely to be searched as Whites…" (In the Second Circuit case, the plaintiffs alleged that African Americans and Latino Americans constituted 86% of the New York prison population but only 31% of the state's overall population.) Please note that intentional discrimination is not necessary to prove that the government violated the Voting Rights Act. Furthermore, the Ninth Circuit assumes that the convictions of incarcerated felons were lawful; that is, they were not innocent of the crime for which they were convicted. It is the criminal justice system that was found to be systemically racist, causing the plaintiffs to be investigated and prosecuted much more frequently, and to be given longer sentences, than Caucasians.The Ninth Circuit's ruling mandated that Washington's felons be enfranchised. However, there is a Second Circuit ruling on the same issue that found differently.
The Second Circuit provided a litany of reasons why this law's plain text should not apply to incarcerated felons, including: (1) the Fourteenth Amendment allows the disenfranchisement of felons; (2) there is a long history "and continuing prevalence" of such disenfranchisement; (3) statements made in House and Senate committee reports and on the Senate floor as part of the legislative process leading to the enactment of the Voting Rights Act declare that the Act does not affect felon disenfranchisement; (4) the introduction after 1965 of bills by supporters of the Voting Rights Act to allow explicitly disenfranchisement; (5) the enactment by Congress of felon disenfranchisement in the District of Columbia soon after the Voting Rights Act was enacted; and (6) the enactment of laws to facilitate removal of felons from the voting rolls. All of these circumstances persuaded the Second Circuit that Congress did not intend its language to have literal effect. To apply the statute literally, the Court wrote, would be "demonstrably at odds with the intentions" of Congress. It would be an "unthinkable disposition."Thunder goes on to discuss some of the manifold problems with the Ninth Circuit's ruling.
This would seem to be an ideal case for the Supreme Court if Washington decides to appeal. There is a difference between appellate rulings on an important constitutional provision. A second possibility would be for Congress to amend the Voting Rights Act to allow states to ban felons from voting. However, I can't see the Democrats supporting such a change. So look for this case to work its way up to the Supreme Court and be a blockbuster case in a future session.