- The Washington Times - Monday, June 26, 2000

He has 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 denies any 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 (including a 1995 Pennsylvania law signed by prospective Bush running mate Gov. Tom Ridge and challenged last week in federal court by the National Association for the Advancement of Colored People.)

Sadly, the civil rights cause has once again 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 (strive 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, however, 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 are disenfranchised for life.

Across the country, a total of 4 million Americans including 13 percent of black men cannot 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 streamlined the process that allows non-violent offenders to regain voting rights upon completion of their sentence. Under Gov. George W. Bush's reign, Texas in 1997 eliminated its requirement that ex-felons wait two years before they can vote.

But the Pennsylvania House of Representatives last month rejected a proposal to allow felons to register to vote immediately upon their release from jail. Currently, they must wait five years.

So far, the reform movement has shrewdly focused on ex-cons 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, whose voting rights in many states and even federal elections would be restored if the reform movement succeeds, has paid his entire debt to society?

Often, they still owe their victims money. 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 is not politically feasible. Interviewed by the American Spectator, both Mr. Mauer and Rep. Maxine Waters, California Democrat, were candid enough to concede ex-cons are simply the obvious starting point. And even this has been a tough sell.

If elected officials continue impeding 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 in support of a state court challenge to Pennsylvania's criminal disenfranchisement law. Last week, the NAACP filed a separate challenge in U.S. district court under federal civil rights law and the equal protection clause of the U.S. Constitution.

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 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 predates 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 test, which the 1965 Voting Rights Act outlawed.

But now the question of intent is somewhat irrelevant. In 1982, Congress, with strong GOP support, amended the Voting Rights Act to expressly say 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 Mr. Dole, Mr. Hyde and even the most "progressive" Democrats realize the new language would soon proved a legal 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 New York City 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 reheard 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 in Spokane, Wash., Farrakhan's case, which already survived the state's 1997 motion for summary judgment, is modeled after the New York lawsuit, according to his lawyer, D.C. Cronin. New motions for summary judgment were due last month and Mr. Cronin says the federal district judge assigned to the case may very well rule this month that it should go to trial.

The lead plaintiff, Farrakhan, a Republican who detests the NAACP but loves affirmative action (go figure), filed his case while still in jail for felony theft. He 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.

Evan Gahr, an adjunct fellow at the Hudson Institute starting this summer, writes for the American Spectator, where an earlier article appeared from which this commentary was adapted.

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