Wednesday, February 1, 2023
Feb. 1, 2023

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In Our View: Behind Bars? No Votes

McKenna will defend Washington state's law before 9th Circuit Court this week

The Columbian

Rob McKenna steps back into the batter’s box tomorrow, and there are plenty of indications that the Washington state attorney general is about to smack another ball out of the park. Appearing before the 9th U.S. Circuit Court of Appeals in San Francisco on Tuesday, McKenna will argue that an 11-member panel of the court should reverse what we see as an absurd ruling by a three-member panel back in January.

That ruling overturned Washington state’s ban on felons voting while they are incarcerated or under community supervision. Here are several reasons we believe McKenna is about to blast another home run:

He’s batting 2-2 in earlier plate appearances in the judicial major leagues. In 2008, McKenna told the U.S. Supreme Court that our state’s top two primary is a great system for winnowing down the field of political candidates. By an impressive 7-2 vote, they agreed, and the most recent manifestation of that top two primary — on Aug. 17 — was played out to the delight of voters and to the anguish only of party officials. They would prefer to use the primary as their own little playground, as the parties’ ultra-restrictive nominating process in which voters are forced to pick a party. Thankfully, that system is now obsolete.

Then earlier this year McKenna told the U.S. Supreme Court that the names of people who sign referendum and initiative petitions should be made public. Why? Because anyone who seeks to change law should not be allowed to do so secretly. We would never allow that kind of clandestine behavior among elected officials. By another impressive vote — this time 8-1 — the high court agreed and the public’s right to open government was protected.

This week McKenna is batting in the relative minor leagues, and we suspect that the state attorney general will convince the 9th Circuit Court of Appeals to deviate from its legacy of frequent bizarre rulings and support our state law.

The 9th’s January ruling was wrong, but just barely, by a 2-1 vote. A. Wallace Tashima and Stephen Reinhardt were the ones who got it wrong. Margaret McKeown got it right.

McKeown made perfect sense when she wrote in dissent that Tashima and Reinhardt had “charted territory that none of our sister circuits has dared to explore.” She knew, in fact, that appellate courts in Massachusetts, New York and Florida had upheld felon voter disenfranchisement laws. She also knew that only two states (Maine and Vermont) allow people behind bars to vote.

The 9th’s 11 members likely will be swayed by this logical argument from McKenna: “When felons choose to commit their crimes, they choose to forfeit certain valuable rights upon conviction, among them the right to vote. Our nation has a long history of denying the right to vote to those who choose to commit felonies … Our state constitution mandates felon disenfranchisement and the U.S. Constitution sanctions it in section two of the 14th Amendment.” We wonder how two judges could’ve earlier ignored that kind of logic back in January.

We also trust that the larger panel of judges will recognize that reclaiming the right to vote is an excellent incentive for incarcerated felons to get their lives straight and return to society. As Washington Secretary of State Sam Reed said last week, “Once inmates satisfy their prison sentence and community supervision, our Legislature has recently provided that they may apply to have their voting rights restored as part of reintegrating back into the community.” More ultra-logical thinking, we say.

Get ready for the crack of the bat. We’re predicting it will resonate convincingly in San Francisco. Then again, when the 9th Circuit of Appeals is pitching, don’t take anything for granted.