The problem with denying felons the right to vote

SEARCHING for evidence of illegal voters, supporters of Dino Rossi have discovered something more serious, a pervasive and insolvable problem with Washington's voter registration laws.

State law forbids many convicted felons from voting. This seemingly simple rule has proven impossible to administer in Florida, and can work no better here. The information available to election officials, regarding convictions and civil-rights restorations, is itself unworkably flawed.

There are an estimated 150,000 adults in Washington who are ineligible to vote under current law. The prohibition applies to Washington residents who were convicted in Washington, in any of the other 49 states or a foreign country, or by the federal government.

But there is no centralized, reliable list of all those so convicted. Computerized criminal histories often include individuals arrested for felonies but eventually convicted only of misdemeanors, or even acquitted. Many of these records have insufficient information to indicate whether the person arrested is the same individual as a voter with the same, or a similar, name.

Convicted felons can vote in Washington if they have had their civil rights restored. But determining whose rights have been restored is equally problematic. Records of which felons have had their rights restored in Washington are scattered among 39 counties, two state boards and the governor's office. The status of individuals convicted in other states varies with state laws, many of which have changed in recent decades, and the relevant records, where they even exist, are lodged at scores of different state and local agencies all across the country.

Republicans have called for greater implementation of state law by using a state criminal-history data base. Before we head down that road, we should look at the experience of the state that has made a concerted effort to utilize just such data to purge illegal voters: Florida.

In 2000, Florida compared computerized records of voters and criminal histories to purge tens of thousands of registered voters; many of the purged voters turned out not to be the felon in question, or were persons whose rights had been restored.

In 2004, Florida tried again, this time spending millions of taxpayer dollars on a sophisticated computer analysis using state data. The 49,000 people on the resulting proposed purge list again included many legitimate voters. This second purge effort was abandoned when it was revealed that the list had omitted felons who were Hispanic, a group that in Florida happened to vote Republican.

In Washington, as in Florida, local election officials have properly objected to a system that requires them to conduct investigations of thousands of individual voters, a process for which election officials have neither the resources nor the expertise. County election officials would need an army of investigators to check out the many thousands of possibly illegal voters who would be identified if the voter rolls were compared with the state, out-of-state and federal criminal-history records.

An election official in King County would have to figure out whether the John Doe registered in Ballard was the same John Doe convicted of auto theft in Spokane (or Miami) in 1990 or the John Doe who had his civil rights restored by a state board in Olympia (or Tallahassee) in 2000. Investigations of voters with possible out-of-state convictions would be particularly impracticable.

A serious effort to implement the ban on voting by convicted felons would at the least lead to the appearance of partisan abuse. As in Florida, some county officials would decide to trust computer-generated lists and purge voters on it, while others would not. Some counties would insist on carefully double-checking apparent convictions and whether civil rights had been restored; others would make voters do the paper work. Party officials likely would charge — and voters would fear — that those differences were the result of the political preferences of the election officials.

More aggressive enforcement will simply highlight the discriminatory nature of the entire system. Washington defendants can get back the right to vote by paying certain outstanding legal obligations. Rich defendants can buy back the right to vote, but poor defendants often cannot.

So long as 150,000 Washingtonians are prohibited from voting, the unsolvable problem of determining who is and is not eligible will confound local election officials, and call into question the result of every close election.

Secretary of State Sam Reed has properly called for a repeal of this unworkable prohibition. The Legislature should fix this system before Washington becomes the Florida of the Northwest.

Eric Schnapper, a professor at the University of Washington Law School, previously served as an attorney for the NAACP Legal Defense Fund.