Felons appeal prohibition against voting

OLYMPIA – If you want to vote, you must pay up.

That’s Washington’s policy now for convicted felons. They’re stripped of their voting rights until they’re out of prison, off probation, and have paid fines and fees.

For people like indigent former park ranger Beverly DuBois, however, those fees can add up to a lifetime ban on voting.

Sentenced in 2002 to nine months in jail for growing marijuana, she was released owing $1,610. Despite monthly $10 payments, DuBois is steadily losing ground to the state’s 12 percent interest rate. Her debt is now about $1,900.

“At that rate, I’ll never get to vote,” said DuBois, who lives in a trailer park near Chattaroy on $660 a month in food stamps, Social Security and state disability payments.

On Tuesday, her complaint landed in Washington’s highest court. Aided by the American Civil Liberties Union, DuBois and two other felons – Daniel Madison and Dannielle Garner – are suing the state. Its pay-to-play law, their attorneys told the state Supreme Court, is an unconstitutional way to determine which felons have their voting rights restored.

“You can’t tie voting to money. That is the clear pronouncement of the United States Supreme Court,” said Peter Danelo, arguing for DuBois and her co-plaintiffs.

Attorney General Rob McKenna, on behalf of the state, said the state has every right to regulate voting by felons. And those fees, the state says, are part of the sentence.

“Felons have no fundamental right to vote,” McKenna told the high court.

The justices’ questions Tuesday suggested some divisions on the court. Justice Jim Johnson blasted the plaintiffs, suggesting that they weren’t keeping up with their payments. Chief Justice Gerry Alexander, on the other hand, seemed sympathetic to DuBois.

“She owes $300 more, just about, than when she started,” he said. “This seems – I don’t know what other word to say – unfair.”

King County Superior Court Judge Michael Spearman sided with DuBois and the others in March, ruling that there’s “no rational relationship between the ability to pay and the exercise of constitutional rights.” The three felons could vote, he said, even if they still owed money. The state appealed.

Critics of Washington’s law compare it to the notorious “poll taxes” levied in the South to discourage voting by blacks. In a 1966 case, Harper v. Virginia State Board of Elections, the U.S. Supreme Court threw out a $1.50 poll tax as unconstitutional.

The state argues that American law, since colonial times, has typically denied felons the right to vote. Courts have repeatedly upheld that. And it is “entirely rational,” the state says, to deny voting rights until all debts to society are paid. McKenna said most of Madison’s costs, for example, were for the medical costs of the woman whom Madison assaulted.

But there are other, better ways of making people pay up, Danelo told the justices. The state can garnish wages. It can file liens against property.

“You just can’t seriously argue that the state has some interest in getting blood out of a turnip,” he said.

Washington bars more than 167,000 felons from voting, according to the Brennan Center for Justice at the New York University School of Law. That’s nearly 4 percent of the state’s voting-age population. That’s twice as high as in Idaho, and seven times as high as in Oregon.

It’s unclear how many of those Washingtonians are shut out solely by court debts. In a 2002 report to state lawmakers, the Department of Corrections estimated the figure at about 46,500.

Nationwide, the center says, 5.3 million Americans cannot vote because of criminal convictions. About a quarter of those are incarcerated, and another third are on probation or parole.

“Like criminal punishment itself, criminal disenfranchisement is grossly racially skewed,” says the Brennan Center’s legal brief. Washington’s felon-voting rules, the group says, bar more than 17 percent of the state’s adult African American population and 10 percent of adult Latino citizens from casting a ballot.

“Washington’s law is exceptionally harsh, even within the domestic spectrum,” the group says, “and the United States enforces some of the most restrictive felony disenfranchisement laws in the world.”

In most European nations, at least some prisoners can vote, according to the center. Even in former Soviet-bloc countries, prisoners are generally allowed to vote after release from prison.

But unlike race, the state argues, committing a crime “is at root an individual choice.

“A person who makes the conscious decision to break the law can fairly be regarded as having abandoned the right to further participate in making the law or in electing officials who do so,” the state’s brief reads.

Over the past 20 years, according to court papers filed by the ACLU, Washington has gradually been adding to the fees and costs for felons. There are crime victim compensation fees, court costs, county drug funds, and fees even for court-appointed attorneys, defense costs and fines. Some prison inmates are also billed for the cost of incarceration, probation and adding a DNA sample to a state database.

At the same time, many of those fees are getting larger. In 1977, the ACLU said, criminals were required to pay $25 into the state’s victims compensation fund. Today, it’s $500.

In DuBois’ case, she was charged $110 in court costs, $1,000 for the Stevens County Drug Enforcement Fund and a $500 victim assessment.

“I’m wondering who the victim is,” she said.

She lives in a mobile home that her parents in Boise bought for her. She drives an old Jeep her son gave her. Each month, she goes to a local grocery store, buys a money order, and mails the $10 to the Stevens County clerk. She joined the case after she saw an ACLU notice posted at a local food bank.

“It made me mad that I couldn’t vote,” DuBois said. “It’s based on money. That’s not right. I served my time.”

Of the three felons who filed suit, DuBois owes the most. Madison, convicted in 1996 of third-degree assault, was charged $783. The bill for Garner, a mentally ill woman convicted of forgery in 2003, was $610. Like DuBois, both Madison and Garner are living mainly on Social Security payments.