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January 5, 2010

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.

January 5, 2010 at 05:05 PM | Permalink


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Tracked on Jan 6, 2010 7:16:31 PM


SS wrote a dissent in the Hayden v Pataki en banc.


Posted by: . | Jan 5, 2010 5:26:15 PM

Thanks for the link. Her dissent in on page 100. Frankly, Scalia could have written that dissent.

Posted by: Daniel | Jan 5, 2010 7:11:38 PM

If I were counsel for the felons on this case I would consider a voting right grounded on the Ninth Amendment. The right to vote was unenumerated. This is parallel to an argument on the right to bear arms. If one takes the position that the Second Amendt is confined to a discussion of the militia, the right to bear arms was unenumerated. Grant recognized the right when he signed the truce with Lee on April 9 1865 at Apppomatix. He pardoned the rebel soldiers and expressly released the officers to go home with their sidearms. Note the word "pardon" for these rebels. They were not convicted felons but they were not choirboys either. The right of ex- confederates to vote was proscribed to some but generally re-instated by the late 1870s. A book on this: Kenneth Stampp, The Era of Reconstruction: 1665-1877 is a good source on this subject and on the subject of the right of black suffrage.

The Voting Rights Act is authorized by the 15th Amendment. Congress was specifically authorized in Section 2 to "enforce, by appropriate legislation, the provsions of this article." I would also srgue that voting should not be proscribed-- on the strength of the 15th Amendment standing alone. Section 1 says: The right of citizens to vote shall not be abridged by the United States or by any state on account of race, color or previous condition of servitude."
The Framers did not limit the Amendment (the Framers refer to it as an "article") to previous condition of servitude in the form of slavery alone. Or limit it to enslaved blacks--it could encompass enslaved whites. Previous condition of servitude encompasses being locked up on the chain gang. The amendment does not just "enumerate" race or color.

The 14th Amendment also provides protection: Sec 1, second sentence: "No state shall make or enforce any law which shall abridge the privileges or immunities of any citizen of the United States;" and the final phrase of Sec 1: "nor deny to any person within its jurisdiction the equal protection of the laws."
The 14th Amendment argument would grant all felons the right to vote.

The Ninth Circuit always shows guts and vision. In the Supreme Court, I do not think that this case gets the vote of Roberts, Alito, Scalia or Thomas. I may be wrong about Scalia.
This case could be a test as to whether the new Justice is a "pull the ladder up minority". I am betting that she is.

Posted by: mpb | Jan 6, 2010 4:53:00 AM

mpb, I suspect you're actually serious.

The 5-justice majority found the individual right to bear arms in the text of the Second Amendment. The Heller dissenters don't think there's an individual right to bear arms. So, if you were counsel for the felons, you'd be taking a position endorsed by zero of the Justices who decided Heller. Also, as far as I know the state of the caselaw is that the Ninth Amendment is toothless, so you'd be relying on a Goldberg dissent and an argument that you're essentially pulling out of your hindquarters. With Reinhardt on the panel, none of this is necessarily a problem, but still worth pointing out. Not sure what the Grant anecdote has to do with anything--he wasn't recognizing a right grounded in the Second Amendment; he was granting a concession as part of a peace treaty.

"Previous condition of servitude" = previous status as a prisoner is an interesting argument, but even if you're right it doesn't get you anywhere. Disenfranchisement laws put people on notice that loss of voting rights is among the consequences for FUTURE crimes. People who lose their voting rights don't do so because they passed through a prison or did work there; rather, it's because they've committed crimes.

I'm not even sure what you're trying to say with the 14th Amendment. If you mean to say that disenfranchisement restricts a "privilege[] or immunit[y]," you're right in a literal sense, but locking someone up in prison also restricts their privileges and immunities, and I don't think you're saying that prisons are unconstitutional under the 14th Amendment. The same is true of Equal Protection. The significance of "equal" isn't always clear. Prisoners and non-prisoners are treated unequally by the law in that the former are confined to prisons while the latter are not.

Finally, I'm not sure what you mean by the insinuation that Sotomayor is a "pull the ladder up minority" if she doesn't think that felon disenfranchisement violates the VRA. As far as I know, she doesn't owe her success to the past ability of felons to vote, nor do other minority-race individuals need the votes of felons to succeed... Perhaps you mean to say that Supreme Court Justices should decide cases by looking at their skin and then asking themselves what result would be most pleasing to contemporary activists of the same skin color. I hope not.

"If I were counsel for the plaintiffs"... I'd give the legal strategy a bit more thought than you seem to have given your comment.

Posted by: Draco | Jan 6, 2010 1:57:06 PM

"Previous condition of servitude" = previous status as a prisoner is an interesting argument

Indeed, because if that is true, then we may need to have a serious conversation about the *13th* Amendment...

Posted by: Anon | Jan 6, 2010 4:30:51 PM

Voting has been deemed a fundamental right for which heightened review must be shown when a limit is in place; it is thus a special "liberty" that is particularly protected in case law, and not just in respect to race. But, the 9A has not been the normal basis, so there is no reason for a good attorney here to use that novel (if defensible in theory, surely) ground.

The Supreme Court has already held that the 14A, Sec. 2. exception "or other crime" implied (though I think the dissent had a good case) the state could bar the right to vote to prisoners and those convicted of crimes. Prisoners also are not "slaves," any more than drafted soldiers are, though "involuntary servitude" is allowed in both cases. The barrier is not because of the work on the chain gang, anyway, but the conviction. The SC has also determined the right to vote is not a "privilege or immunity" of citizenship, in part since many citizens (such as women, before the 21A) were barred from that very right. Likewise, various classifications (such as age) are allowed under the equal protection clause.

History does show that the penal system was used in a discriminatory way in part to disenfranchise blacks and other disfavored groups such as poor whites of various types. However, as with racial discrimination in death penalty cases, this has been a hard sell on the Supreme Court level as applied across the board. The Supreme Court struck down one state provision in this area but only given historical evidence that made it pretty clear what was behind the measure.

I would suggest the prisoners not get counsel from m. here.

Posted by: Joe | Jan 6, 2010 6:33:20 PM

i take it none of you have been to florida lately where a conviction for a bumb check will take your RIGHT TO VOTE away for life. UNLESS you want to spend years jumping through hoops and then kissing the governor's ass for a pardon.

Posted by: rodsmith3510 | Jan 7, 2010 12:07:02 PM

The significance of "equal" isn't always clear. Prisoners and non-prisoners are treated unequally by the law in that the former are confined to prisons while the latter are not.

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Posted by: cheap jordans | Oct 28, 2010 4:28:21 AM

I think the dissent had a good case

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