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Tracking of felon voting flawed
Lack of central database highlights troubled system


THE OLYMPIAN    06 February 2005

Washington's system for taking away the voting rights of convicted felons and later giving them back is so confusing that some felons are able to register and vote illegally.
And some ex-felons who should be able to vote again cannot.

The system has come under scrutiny after allegations that many felons voted in the 2004 governor's race.

Felons in Washington automatically lose their rights when they are convicted, though many find it less than clear what rights they have lost or for how long. Some felons also have their rights restored after they have served their prison or jail sentences and paid any fines or restitution owed.

But for those who have lost rights and for election officials trying to keep their voter rolls free of felons who aren't allowed to vote there is no central database that keeps track of the status of a felon's rights.

Rights are lost and restored on a conviction-by-conviction basis, according to Betty Gould, clerk of the Thurston County Superior Court, so a person can have his rights removed and restored more than once.

"I think it's a really complicated system. I don't think it serves our interests well," said Julia Hampton, legal program director for the American Civil Liberties Union of Washington, which has taken a lead role in monitoring and trying to change the system. "I think it's clear to persons convicted of felonies that they have lost their right to vote. What's unclear is for how long."

The difficulty in determining who is legally eligible to vote means that some felons are voting when they shouldn't be, while others who have served their time aren't voting when they could be.

The issue of felon voting rights came to the forefront in this state during the past two months as Republicans challenged the election of Gov. Christine Gregoire by 129 votes, the closest such governor's race in state history.

Republican gubernatorial candidate Dino Rossi and the state GOP contend that the extremely close results were tainted by so many errors and illegal votes by felons and others that the courts should throw out the results and order a new election.

However, a judge ruled Friday that even if Republicans win their court challenge of Gregoire's election, he cannot legally order a revote.

No lifetime voting ban

In Washington, a virtual lifetime prohibition on voting for many felons ended in 1984, when the state Sentencing Reform Act was passed and a standard was established for newly offending felons. This gave new offenders their voting rights back once their fines were paid and time was served, said Marc Maurer, assistant director of The Sentencing Project, a Washington, D.C.-based public policy group that favors rescinding laws that keep many felons from voting.

For those convicted since 1984, voting rights are restored upon issuance of their certificate of discharge, which is supposed to contain a rights statement.

But even today, those convicted before 1984 in Washington still fall under the state's Indeterminate Sentence Review Board and need that board's approval before having rights restored.

Thurston County Auditor Kim Wyman has said her office gets notice of convictions for people who reside in Thurston County. Her election staff then removes the names of registered voters who show up on the conviction lists, but no database of convictions is kept by her office or the state.

When people come in to register to vote, they are asked to sign an oath that their criminal records haven't disqualified them from voting. Wyman said her office has no authority "to go out and do basically background checks on our voters."

So the way voting registration works is that the county election staffers take the word of the would-be voter that he or she does not have a felony conviction that would prevent voting.

Once residents register to vote and check a box saying they have no felony convictions preventing them from voting Wyman's staff adds their names to the voting rolls. The system, in effect, assumes the registrant is telling the truth, according to Wyman.

The Thurston County approach trusting the voter is widespread in Washington.

"My personal philosophy and my office's philosophy is we want every eligible voter possible to vote," said Pam Floyd, assistant state election director in the Office of the Secretary of State who oversees voter registration issues. "When they sign an oath, we take their word for it."

Washington's confusing system is not unusual.

"Every state is unique in its law," Maurer said. "I'd say in most states the process for regaining your rights is poorly understood by offenders and by the election officials as well. ... In many states, the election officials can't access any of the conviction data."

Despite concerns raised in the recent governor's election about the number of felons able to vote illegally, Washington's laws are among the more stringent in the nation, according to Maurer.

Two states Maine and Vermont don't take away a felon's voting rights upon conviction, and it's possible for a felon to vote behind bars using an absentee ballot in those states, Maurer said.

Some states such as Florida still have a lifetime ban on voting by felons, and other states require felons to get a virtual pardon from the governor to win back voting rights.

That adds even more confusion to the system of determining who can vote and who can't, according to the ACLU. That's because some felons have lost their voting rights for life in other states where they committed crimes, but felons from other states still have their rights.

The voter registration oath requires voters to know what their rights are and which rules apply to them.

All agree: System is flawed

State election officials agree it is a confusing system and one made worse because there is no statewide database showing which felons have their rights restored.

What does happen is that the Superior Court clerk in a county passes along a judgment and sentence for each felon to the Secretary of State's Office, which then notifies the election officials in the county where the offender lives, said Floyd of the state election office.

And then, when a felon completes his term and pays his fines, the state Department of Corrections issues a certificate of discharge that is sent to the county clerk for inclusion in the court file. It also is supposed to go to county election officials, who typically don't have a convenient way to store the data.

In some courts, the ex-felon gets his copy of discharge papers automatically, but the paperwork spelling out the restoration of rights is not automatically sent along, Floyd said.

"It is very confusing," Floyd said, adding that ongoing work by her office to set up a statewide database of registered voters should help simplify one aspect of the problem: keeping unqualified felons from the voting rolls. That's because notices of felony convictions can be checked more easily against the unified database to see where a person is registered to vote. So far, it does not appear that anyone in the Legislature is tackling the other problem the lack of a central database for those with rights restored, which Floyd said is needed.

Changing the system

Most legislative debate about felon voters this year has focused on ways to keep them from voting. Sen. Pam Roach, R-King County, has proposed a bill that would wipe all voter registration rolls clean and require everyone to re-register to vote.

But the ACLU also has a proposal in the works to limit the disenfranchisement of felons to only those in custody or serving time but not those who only owe fines. The ACLU regards the requirement to pay fines as a kind of modern "poll tax," once used to keep poorer citizens especially minorities from voting.

Hampton, the ACLU legal program director, said voting is one of the ways that felons can be reintegrated into society upon their return from jail or prison.

"I think voting is a fundamental right. If you want all sectors of society to feel ownership and responsibility, then you have to give them the tools for participating. Voting is one of those tools," Hampton said.

The ACLU has sued in King County to change Washington's system and let felons have the right to vote as soon as they finish their prison or jail time.

In work it has done for its case, the rights group has found glaring holes in Washington's system. Hampton said a random survey of King County Superior Court files showed that many certificates of discharge issued by the Department of Corrections never showed up in court files.

In cases where the certificates were in the files, the information wasn't clear. The certificate might say a person's rights were restored but it doesn't necessarily specify voting as one of the restored rights, according to Hampton's legal team.

Overall, 3.7 percent of otherwise eligible Washington voters are disqualified because of their felony records. The ACLU says on its Web site that this disenfranchisement rate is roughly twice the national average, and it disproportionately hits black males, disqualifying them at a rate of 25 percent.

The number of ex-felons who could be eligible to vote but haven't voted because of confusion or other factors can't be known, Hampton said. But the Sentencing Project has estimated there are 150,000 Washington residents who no longer can vote because of felony convictions. About 46,500 of those former felons were unable to vote only because they had not paid all financial obligations related to their crimes, according to one ACLU report.

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