The 9th Circuit Federal Court of Appeals court has reversed course and upheld Washington state’s ban on voting by prison inmates.  The ruling came last week in a case that challenged the ban under the Voting Rights Act, claiming it disproportionately disenfranchised minority voters.

In January, a three-judge panel of the 9th U.S. Circuit Court of Appeals caused a stir by ruling that Washington’s inmates should be able to vote. But an 11-judge panel reconsidered the case at a hearing in San Francisco last month and came to a different conclusion.

The judges said that to challenge a ban on felons from voting, plaintiffs must at least show that “the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.”

It remains to be seen what the plaintiffs will do.  The lead attorneys are NAACP Legal Defense Fund which, incidentally, has also looked into the issue of prison-based gerrymandering (which I have written extensively about).  Although the federal district court in this case looked at statistical evidence and stated, yes, “there is discrimination in Washington’s prison system on account of race,” will folks belabor to prove the results are intentional?

I suggest the LDF recruit scholars of the Reconstruction era.  The intent of a given law or amendment is sometimes clear in the official “Notes” on the record, but would be much more concise given the letters and diaries of the lawmakers.  One might argue that any overt racial discrimination then has little bearing on the facts of now.  But I counter by asking, when was the last time we had a structural overhaul about prisons and what they are doing to America?  What was the intent of those who brought (or allowed) major supplies of opiates and cocaine into this country?  What was the intent of centralizing low-income housing and the intent of policing those areas like concentration camps?

There is a unique opportunity in the 9th Circuit, under the umbrella of voting rights, to truly analyze the intent and results of our prison systems.  There would be scholarly analysis on both sides overseen by the hopefully unbiased wisdom of our judiciary.