Split Ninth Circuit panel finds Washington's disenfranchisement of felons violates the VRA

In a ruling that surely will not be the last word on the topic, a split Ninth Circuit panel today in Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010) (available here), has decided that Washington's felon disenfranchisement law violates the federal Voting Rights Act. Here is how the majority opinion starts:

Plaintiffs, minority citizens of Washington state who have lost their right to vote pursuant to the state’s felon disenfranchisement provision, filed this action in 1996 challenging that provision on the ground that, due to racial discrimination in the state’s criminal justice system, the automatic disenfranchisement of felons results in the denial of the right to voteon account of race, in violation of § 2 of the Voting Rights Act (“VRA”), 42 U.S.C. § 1973.  We earlier reversed the district court’s grant of summary judgment to Defendants.  See Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert. denied, 543 U.S. 984 (2004) (“Farrakhan I”).  On remand, the district court again granted summary judgment to Defendants.  Plaintiffs timely appeal. We reverse and grant summary judgment to Plaintiffs.

Here is how the dissenting opinion in Farrakhan gets going:

In granting summary judgment to plaintiffs, the majority has charted territory that none of our sister circuits has dared to explore. The First, Second, and Eleventh Circuits have determined that vote denial challenges to felon disenfranchisement laws are not cognizable under the Voting Rights Act. See Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009); Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) (en banc); Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc).  That preliminary question was settled by our circuit in Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003) (“Farrakhan I”).  While I believe that the felon disenfranchisement challenge is not a comfortable fit within the Voting Rights Act, I do not dispute the continuing validity of Farrakhan I.  The wisdom of Farrakhan I is not within the purview of the panel to reconsider here.  See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (holding that prior circuit authority is binding on three-judge panels unless “clearly irreconcilable with the reasoning or theory of intervening higher authority”). However, in part because the holding of Farrakhan I places us in a crowd of one amongst the circuits, I believe we should be particularly mindful before reversing the district court and invalidating felon disenfranchisement in the State of Washington.  The majority has failed to act with appropriate caution. I respectfully dissent.

I feel confident predicting that this notable and important ruling will be subject to en banc review by the Ninth Circuit and/or to Supreme Court review (assuming the state of Washington seeks review).  Among interesting story lines to watch as this case goes forward is whether and how the Solicitor General of the United States might get involved.