Debt to society? The Washington State Legislature's efforts to restore voting rights to persons with felony convictions.

• Author: Martinez, Nicolas L.

INTRODUCTION

Nearly a half-century has passed since President Lyndon Johnson declared, "[t]his right to vote is the basic right without which all others are meaningless." (1) However, only two states allow this "basic right" to extend unequivocally to citizens regardless of whether or not they are incarcerated. (2) Washington, like forty-seven other states in the Union, revokes a citizen's right to vote while imprisoned on a felony conviction. Although many states have tempered their felony voting laws over the past decade, (3) state legislatures on balance remain committed to the disenfranchisement of those who are in prison or on probation. (4)

Fewer states disenfranchise persons no longer serving a criminal sentence. In fact, prior to May 2009, Washington was one of only ten states to require payment of all legal financial obligations, such as restitution and court fees, before persons with felony convictions could vote again. (5) With the enactment of H.B. 1517, the Voting Rights Restoration Act, Washington now automatically restores voting rights to persons with felony convictions as soon as they complete their criminal sentences. (6) Previously, the state denied voting rights to persons with felony convictions who had completed their mandated terms of prison, probation, or parole, but who still owed fees and costs associated with their sentence, including interest. (7) But thanks to the legislative compromise embodied in H.B. 1517, Washington now has a simpler and more compassionate system for determining voter eligibility for formerly incarcerated persons.

Even with H.B. 1517 now part of state law, restoring the voting rights of tens of thousands of Washington citizens, questions still loom as to whether this law has gone far enough: Has the burden on former felons really been eliminated? What obstacles remain to the permanent restoration of voting rights for persons with felony convictions in Washington? In order to answer these questions, this Note will sketch the backdrop against which H.B. 1517 was introduced, recount the bill's legislative history, examine the positive and negative effects of the new law, and briefly discuss the potential for future reforms in light of national trends to reduce the severity of felony disenfranchisement laws.

1. WASHINGTON'S PRIOR FELONY DISENFRANCHISEMENT SCHEME AND FAILED COURT CHALLENGES TO THAT SCHEME

   In a region of the country known for its progressive views toward felony voting rights, (8) Washington's felony disenfranchisement rate is remarkably one-and-a-half times the national average and seven times as high as neighboring Oregon. (9) Nearly one in five of the state's African Americans cannot vote because of a felony conviction, more than twice the frequency of California. (10) Much of this statistical disparity stems from the relatively draconian felony disenfranchisement scheme that existed in Washington prior to the enactment of H.B. 1517.

   Washington's felony disenfranchisement scheme derives its authority from the state constitution, which proscribes persons convicted of an "infamous crime" from voting in any election unless their civil rights have been restored. (11) Moreover, all felonies fit Washington's constitutional definition of an infamous crime because they are "punishable by... imprisonment in a state correctional facility." (12) At the time H.B. 1517 was introduced, the state restored voting rights to persons with felony convictions only after they fully completed the requirements of their sentence, including payment of all legal financial obligations (LFOs). (13) These LFOs may include victim restitution, crime victims' compensation fees, costs of defense, court-appointed attorneys' fees, and fines. (14) Under the prior law, the county clerk would notify the sentencing court when all of the LFOs had been paid, and the court would then issue a certificate of discharge restoring the offender's right to vote. (15)

   While the previous law arguably served the retributive function of compelling persons with felony convictions to literally "repay" their debt to society before regaining their voting rights, it also disenfranchised tens of thousands of indigent Washingtonians who were unable to satisfy their LFOs. (16) As a result, the Washington state and federal courts, as well as the Ninth Circuit, have witnessed a protracted battle over the statutory and constitutional validity of the state's felony disenfranchisement law on behalf of plaintiffs whose voting rights remained revoked even after their release from prison. (17) For example, Beverly DuBois, a disabled former park ranger who served a nine-month prison sentence for growing and selling marijuana, made headlines when she was denied the right to vote in the 2004 presidential election because of outstanding court fees. (18) Despite her apparent good-faith effort to make monthly payments, Ms. DuBois's LFOs had ballooned to nearly $1,900 due to the twelve percent interest assessed annually on her legal debt. (19) Nonetheless, the Washington Supreme Court in Madison v. State concluded that individuals with felony convictions, including Ms. DuBois, do not have a constitutionally protected right to vote and upheld the state's repayment requirement under the state constitution's Privileges and Immunities Clause and the federal Constitution's Equal Protection Clause. (20)

   The federal courts have also heard challenges to the validity of Washington's felony disenfranchisement scheme. The minority plaintiffs in Farrakhan v. Gregoire have argued since 1996 that, due to racial discrimination inherent in the criminal justice system, the state's law automatically revoking the voting rights of persons convicted of a felony effectively denies citizens of Washington the right to vote on account of race, a violation of section 2 of the Voting Rights Act (VRA). (21) The Ninth Circuit sitting en banc, however, recently upheld the validity of Washington's felony disenfranchisement scheme under the VRA. (22) With the state and federal courts unwilling to strike down Washington's requirement that people with felony convictions pay off their LFOs prior to recouping their right to vote, reform would have to come from the state legislature instead.

   While the courts wrestled with the legality of the state's felony disenfranchisement scheme, the public debate over felony voting reached a fever pitch following the 2004 gubernatorial election. Due to widespread confusion over implementation of the old disenfranchisement law, an estimated 1678 illegal ballots (23)--1392 of them from people with felony convictions who had unpaid court debts (24)--were cast in a race that saw Democrat Christine Gregoire prevail by a record-close margin of 133 votes. (25) This controversial election was a critical turning point for Washington's felony reenfranchisement movement because it revealed the many deficiencies of the state's complicated old law. Above all, the Secretary of State's committed public stance in favor of automatically restoring voting rights to persons no longer serving criminal sentences for a felony conviction gave the movement a credible, high-profile supporter for the ensuing push in the state legislature. (26)

2. THE LEGISLATIVE BATTLE OVER H.B. 1517

   Against this background of political and judicial controversy, Representative Jeannie Darneille, a Democrat from Tacoma, introduced H.B. 1517 on January 22, 2009. (27) The original bill would have restored voting rights to persons convicted of a felony in Washington state court so long as they were not under the authority of the state Department of Corrections (DOC). (28) Furthermore, the original bill would have reinstated the voting rights of persons convicted of a felony in federal court or any state court other than Washington provided that they were not incarcerated. (29) No longer would the state deny persons with felony convictions the right to vote simply for not paying their LFOs in full, although they would have to re-register to vote with either the Secretary of State or a county auditor after completing their criminal sentence in order to vote again. (30) Supporters of the original bill included the American Civil Liberties Union (ACLU), the National Association for the...