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ACLU-WA Challenges Washington Ex-Felon Disenfranchisement Law

On October 21, 2004, the American Civil Liberties Union (ACLU) of Washington brought suit in state court, challenging a law which prohibits Washington ex-felons from voting solely because they owe legal financial obligations" (LFOs) such as court filing fees and costs, restitution and incarceration costs.

Article VI, § three of the Washington Constitution prohibits all persons convicted of infamous crimes' from voting until they have their civil rights restored." Under R.C.W. 29A.04.079 all felonies are considered infamous crimes.'

A person convicted of a felony under the Washington Sentencing Reform Act of 1981 may restore their civil rights, including the right to vote, only after completing all the requirements of the sentence, including any and all legal financial obligations.' RCW 9.94A.637.

Washington has a long and ever-growing list of LFO's, including but not limited to: $500 victim penalty assessment fee; domestic violence penalties; restitution orders (which cannot be reduced or waived due to indigency); County and interlocal drug fund penalties; trial costs, including fees for court-appointed counsel, defense costs and jury fees; incarceration costs; community supervision costs; and costs of adding defendants' DNA to a law enforcement database.

One or more of these and many other, LFO's are levied against every Washington felony offender without consideration of the offender's ability to pay. Additionally, interest accrues on all unpaid LFO's at 12 percent per year, beginning upon entry of judgment. Sentencing courts are restricted in their ability to waive interest, in addition, many counties charge late fees of up to $100 per year on unpaid LFO's.

According to ACLU attorney Nancy Talner, for the majority of Washington felons, LFO's are an insurmountable barrier to having their civil rights restored, creating a modern form of the poll tax" for a large percentage of Washington voters. Washington's own statistics establish that more than 90 percent of its felony offenders are indigent.

The state should not hold hostage the right to vote in order to collect legal system debts," says ACLU-WA Executive Director Kathleen Taylor. Yet, that is exactly what it does. According to estimates of the Washington Department of Corrections, (DOC), as of December, 2001, 46,500 convicted felons remained a disenfranchised solely because of pending legal financial obligations. Many of these are permanently disenfranchised due to their inability to pay." The Sentencing Project, a national criminal justice research group based in Washington, D.C., places the number at approximately 159,000 disenfranchised Washington state ex-felons. This translates into approximately 3.5 percent of the state's voting population - almost double the national average - who are disenfranchised.

Minorities are hit especially hard. Due to racial disparity in Washington's incarceration rate, the State disenfranchised is almost 25% of all adult African-American males." Representative Eric Pettigrew, D- Seattle, whose district includes traditionally black neighborhoods agrees that [t]he impact is huge. It means that the voice of the poorest, most struggling part of the black community is not heard.

According to Washington DOC data, between 1988 and 2004, 70,000 ex-felons had their civil rights restored while 200,000 did not, because of outstanding LFO's and other reasons. D'Adre Cunningham, a staff attorney with the Racial Disparity Project of the Defender Association in Seattle, believes an ex-felon's ability to have voting rights restored is based solely upon financial means. A wealthy sex offender or rapist can get their rights back, but a poor drug offender can't," she noted.

The ACLU of Washington and others hope to bring this inequity to an end. Representative Pettigrew has co-sponsored legislation supported by the ACLU, which would eliminate the requirement that outstanding LFO's paid in full before civil rights may be restored. Unfortunately, however, many lawmakers see the proposal as soft-on-crime, and it has died in committee during the past two legislative sessions.

This spurred the ACLU-WA to file its action, seeking to invalidate the law. The plaintiffs to the ACLU action are Lawrence Bolden, Beverly DuBois, Danielle Garner, Daniel Madison, and Sebrina Moore, who are Washington ex-felons who are disenfranchised from voting solely because they owe outstanding LFO's ranging from slightly more than $300 to more than $6 million.

The suit names the State, Governor and Secretary of State as defendants and alleges violations of the Equal Protection Clauses of the United States in Washington Constitution's and Article I, § 19 of the Washington Constitution which mandates that [a]ll elections shall be free and equal[.]

The suit does not seek to eliminate outstanding LFOs or change criminal sentences in any way. Rather, it asks only that the right to vote now contingent upon one's financial ability be changed Having the rights and responsibilities of citizenship as an important part of successfully re-entering society," said Taylor. Yet our current laws keep former felons from exercising the most basic right of citizenship." Cunningham agrees, noting that it is yet another door that is not open to them.

Hopefully that will change soon. Plaintiffs are represented by Peter Danelo, Molly Terwilliger, Darwin Roberts and Darin Sands of the firm Heller Ehrman White and McAuliffe, ACLU-Wa staff attorney Aaron Caplan and Neil Bradley of the ACLU Voting Rights Project. PLN will report on any significant developments in the case. See: Madison v. State of Washington, King County Superior Court, Case No. 04-2-33414-4SeA (Oct. 21, 2004).

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Related legal case

Madison v. State of Washington