editorial comment the land of the free.....

The Supreme Court on Monday declined to hear cases from New York and Washington State on whether states violate the federal Voting Rights Act when they strip felons of the right to vote. But with 48 states, all except Maine and Vermont, disenfranchising millions of people who have been convicted of crimes, the issue remains very much alive in the lower courts, and the justices' action did not foreclose accepting a future case.

The Voting Rights Act prohibits states from applying any "voting qualification or prerequisite" in a manner that has a racially discriminatory effect. Inmates and their advocates who are bringing the lawsuits point out that the impact of the felon-disenfranchisement laws falls disproportionately on members of minority groups, particularly on black men. The number of people barred from voting under the state laws is estimated to be 3.9 million, with more than one-third of them black men.

The statistics are not disputed. But whether Congress intended the Voting Rights Act to apply to this situation is very much in dispute. Congress passed the original Voting Rights Act in 1965 and amended it in 1982 to make clear that it barred voting policies that had not only the intent but also the effect of discriminating by race.

Two federal appeals courts differed on the question in the cases that the justices considered and turned down on Monday. In the case from Washington State, the United States Court of Appeals for the Ninth Circuit permitted a lawsuit by six felons to go forward. In a similar case brought by a New York inmate serving a life sentence for murder, the United States Court of Appeals for the Second Circuit dismissed the lawsuit on the ground that the Voting Rights Act did not apply.

The Washington case, Locke v. Farrakhan, No. 03-1597, was filed by four black men, one Hispanic man, and one American Indian. All were in prison on felony convictions or had recently been released. Washington has stripped felons of their right to vote since before it became a state, and the prohibition against voting by "all persons convicted of an infamous crime" is part of its constitution. The prohibition is lifelong unless lifted by a pardon, clemency or by a sentencing review board.

The Federal District Court in Seattle dismissed the lawsuit, but the Ninth Circuit, which sits in San Francisco, reinstated it, sending the case back to the District Court for further examination of racial bias in Washington's criminal justice system. The state appealed to the Supreme Court.

In the New York case, Muntaqim v. Coombe, No. 04-175, a black man, Jalil Abdul Muntaqim, serving a life sentence for murder, filed his own lawsuit in challenging New York's law, which is less extensive than Washington's and applies only to those who are in prison or on parole. The Federal District Court in Syracuse dismissed the case. The United States Court of Appeals for the Second Circuit, in Manhattan, also ruled against him, finding that in the absence of a "clear statement" from Congress, the Voting Rights Act should not be interpreted to apply to the disenfranchisement of felons.

The inmate, now represented by a team of lawyers, appealed to the Supreme Court. Now that the justices have denied review, it is likely that the appeals court will revisit the issue. A majority of the circuit's judges have indicated that they would grant a request to rehear the case, which was decided by a three-judge panel, if the Supreme Court turned down the appeal.

Last month, the 11 judges of the full United States Court of Appeals for the 11th Circuit, which sits in Atlanta, heard arguments in a case challenging Florida's life-long felon disenfranchisement law, which bans an estimated 600,000 state residents from voting. The plaintiffs presented evidence that Florida's law, which dates to 1868, was enacted with the intention of keeping the newly enfranchised blacks from voting.

A three-judge panel of the 11th Circuit had ruled that the lawsuit could go to trial, but the full court vacated that decision and granted Florida's request for re-argument. Lawyers for the plaintiffs in the Florida case filed a brief with the Supreme Court in the Washington case to make sure the justices were aware of the Florida lawsuit.

Many lawyers following the issue believe that the Florida case, which is being handled by lawyers from the University of North Carolina School of Law and the Brennan Center for Justice at New York University, is the strongest of the lawsuits because the facts have been extensively developed and the state's history of discrimination is clear. The brief urged the justices not to grant the Washington case but to wait for the Florida case.

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