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Jewish World ReviewJune 8, 2000 / 5 Sivan, 5760

Evan Gahr

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Consumer Reports

For voting rights purposes, should criminal offenders be judged not by the content of their character but the color of their skin? -- HE'S NOT EXACTLY Martin Luther King. But in Spokane, Washington, convicted felon Muhammad Shabazz Farrakhan could emerge a genuine civil rights pioneer.

Along with an incarcerated murderer and other criminals he recruited from jail, Farrakhan (who says he has no Nation of Islam ties) claims Washington's criminal disenfranchisement law discriminates against minorities because so many are imprisoned. His federal lawsuit echoes arguments made against similar laws nationwide. Once again, the civil rights cause has been perverted to render individual behavior all but irrelevant.

After all, if you think criminal disenfranchisement harms "persons of color" there are two obvious solutions: Change the law or change behavior (i.e., endeavor to keep folks out of jail--a relatively straightforward process in which abstaining from murder, rape or armed robbery is usually a good first-step.) The civil rights lobby has opted for changing the law.

Like the District of Columbia, and 46 other states, Washington denies the vote to imprisoned felons. It also ranks among the 32 states that don't let parolees vote. In 14 states even ex-felons can be disenfranchised for life. Across the country, a total of 4 million Americans-including 13 percent of black men-can't vote this November because of their criminal records.

In a nationwide campaign against criminal disenfranchisement, civil rights groups and other liberal advocacy groups have focused on state legislatures and Congress--with mixed results. Virginia earlier this year agreed to streamline the process under which certain non-violent offenders can regain voting rights. But in Pennsylvania, the state House of Representatives last month rejected legislation that that would have allowed anyone out of prison to vote. Currently, ex-felons in Pennsylvania must wait five years after release from jail to register to vote.

The reform movement has shrewdly focused on ex-cons-like former Pennsylvania state Attorney General Ernie Preate, Jr., who are said to "have paid their debt to society." But don't let the smoke screen fool you. First, how can it be argued that someone on PAROLE-who could vote if the reform movement in Pennsylvania and elsewhere succeeds--has paid his entire debt to society?Moreover, the movement's ultimate goal here is to let prisoners vote. This would "hardly pose an undue burden on prison operations," argues Marc Mauer, associate director of the left-liberal Sentencing Project. But it's not politically feasible. Interviewed by The American Spectator, both Mauer and Rep. Maxine Waters (D-CA) were candid enough to concede that ex-cons are simply the obvious starting point.

And even this has been a tough sell. If elected officials continue to impede reform, however, the courts offer a tempting alternative. After all, using courts to circumvent popular sentiment is hardly an unknown strategy for left-wing proponents of "racial justice."(Remember court-ordered busing? ) In December 1999, the NAACP filed an amicus brief to support a lawsuit in state court that challenges the Pennsylvania statute. Preate tells this writer that the NAACP plans to file a separate challenge under federal civil rights law and the equal protection clause of the United States Constitution this week in federal district court in Philadelphia. (Earl Trent, a lawyer for the Philadelphia NAACP, did not return a phone call.)

But pay close attention to the courts: with intent no longer required to legally establish discrimination almost anything is possible (except, perhaps, common sense).

First, businesses and municipalities were told that otherwise legitimate employment requirements run afoul of civil rights law if they have a disparate impact on minorities or women. (In one notorious ruling, a federal judge in New York some years back declared that upper-body strength was irrelevant to a firefighter's job.) Now, criminal disenfranchisement, which the 14th Amendment expressly allows and pre-dates the country's founding, is suddenly racially odious.

Previously, challenges to criminal disenfranchisement could only succeed if plaintiffs proved the laws were aimed at minorities. The Supreme Court did strike down one such Alabama law. Scholars say some Southern laws enacted after the Civil War were aimed at blacks. But there is no evidence that the vast majority of laws---many passed before blacks could vote, of course--are akin to the notoriously racist poll taxes and literacy tests. But now the question of intent is somewhat irrelevant.

In 1982, Congress, with strong GOP support, amended the Voting Rights Act to expressly say that even laws without "discriminatory purpose" could violate the act if they diluted overall minority voting strength. GOP bigwigs Bob Dole and Henry Hyde accepted the left's argument that intent is often hard to prove.

The law was changed in response to a Supreme Court decision unrelated to criminal disenfranchisement. Little did Dole, Hyde and even the most "progressive" of Democrats realize that the new language would soon proved alegal Godsend for civic-minded convicts.

Sure enough, in 1993, a bunch of maximum security inmates in New York state were determined to help re-elect then NYC Mayor David Dinkins. They were aghast to discover that their incarceration for murder, robbery, drug dealing and other such faux pas rendered them ineligible to vote under New York state law. With the help of Yale Law students, they charged the law violated the Voting Rights Act because it decreased overall minority voting power in the Empire State. (Never mind that the plaintiffs marshaled no hard evidence the law was specifically aimed at blacks.)

In 1995, a federal appeals court panel upheld their claim. It ultimately failed in 1996 when the entire appeals court re-heard the case. In a highly technical ruling, the judges split 5-5; this meant an earlier lower court ruling against the prisoners stood. If only one judge had thought differently, he could have paved the way for a jailhouse bloc.

No wonder that out in Spokane, Washington, Farrakhan's case is modeled after the New York lawsuit, according to his lawyer, D.C. Cronin. New motions for summary judgment are due June 7 before United States District Court Judge Robert Whaley in Spokane. Cronin says Judge Whaley has already rejected a previous motion for summary judgment and may very well rule this month that the case should go to trial.

Farrakhan, who filed his case while still in jail for felony theft, was released in 1997. He still owes his victims about $24,000. Still, he's a regular choir boy compared to his co-plaintiffs (all minorities) who were guilty of murder, armed robbery and other such offenses. No matter. Civil rights leaders have a dream. For voting rights purposes, criminal offenders should be judged not by the content of their character but the color of their skin.

JWR contributor Evan Gahr writes for the American Spectator, from which this is adapted. Send your comments by clicking here.


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© 2000, Evan Gahr This piece is adapted from one that appeared on The American Spectator Online.