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The Supreme Court on Monday sent conflicting signals on the question of voting rights for convicted felons, but advocates say the high court may yet decide the issue in a future case. Without comment, the Supreme Court declined to review Locke v. Farrakhan, letting stand a ruling by the U.S. Court of Appeals for the 9th Circuit that allowed felons to challenge Washington state’s felon disenfranchisement law as a violation of the Voting Rights Act. At the same time, however, the Court also let stand a 2nd Circuit ruling in Muntaqim v. Coombe, which held that the Voting Rights Act did not apply to New York’s law. For the second straight week, Chief Justice William Rehnquist, who is battling thyroid cancer, was absent from the Court on Monday. But one sign that work is proceeding as normal was an announcement that, the Court will issue its first decisions of the current term on Tuesday. The Court’s action on felon disenfranchisement comes after a national election in which the felon issue could have been a factor. Between four million and five million otherwise eligible voters nationwide are estimated to have lost their voting privileges because of felony convictions. As many as 40 percent of that number are African-American, critics claim, and the current litigation challenges felon disenfranchisement as disfavoring minorities. All states except Maine and Vermont bar felons from voting, though some allow felons to regain their right to vote in some circumstances. “When you have that many people who don’t get to choose their government, that is a serious problem for democracy,” says Jessie Allen, lawyer for the Brennan Center for Justice in New York, who represents a class of 600,000 Florida ex-felons whose challenge to disenfranchisement is pending before the 11th Circuit. The Florida case could get to the Supreme Court next year. States have valid arguments against allowing felons to vote, counters Roger Clegg of the conservative Center for Equal Opportunity. “They say that people who aren’t willing to follow the law shouldn’t have a voice in making law,” he says. Denial of review by the high court in the Washington state and New York cases is not the end of the road for either one, however. The Washington state case now proceeds to trial. And in the New York dispute, a majority of judges in the 2nd Circuit voted on their own motion to rehear the case if the high court denied review. “I haven’t yet given up on the case. We have another bite at the apple,” said Jonathan Rauchway of Davis Graham & Stubbs in Denver, the lawyer for the New York felons who lost the 2nd Circuit case. Allowing conflicting rulings on the same issue to stand could be a signal that the justices want to await further development in the lower courts. “The court may simply not want to take the issue up, but it also may want to see if the circuit split continues,” says Allen, the Brennan Center lawyer. Her case, Johnson v. Bush, was argued last month before the full 11th Circuit. In Florida, disenfranchisement for ex-felons is permanent unless the governor approves restoration of voting rights. The Supreme Court in the 1974 case Richardson v. Ramirez said felony disenfranchisement could not be challenged under the 14th Amendment’s equal protection clause, so recent suits have been brought under the Voting Rights Act, which bars imposition of any burden that results in the denial of voting rights “on account of race or color.” In Farrakhan, the 9th Circuit said the Voting Rights Act requires an examination of how the state’s disenfranchisement law “interacts with racial bias” in the state criminal justice system. Washington Attorney General Christine Gregoire made a federalism argument to the high court, asserting that the federal voting rights law “is not a vehicle to review a state’s criminal justice system.” In New York, the issue was the state law that disenfranchises only felons who are in prison or on parole. As a result, New York Solicitor General Caitlin Halligan claimed the law serves as a valid “penological tool.”

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