Big Case on Voting Disenfranchisement with Criminal Convictions

From Ninth Circuit Blog:

Tuesday, January 05, 2010
Farrakhan v. Gregoire, No. 06-35669 (1-5-10). This is a big civil rights/disenfranchisement case. Originally filed in 1996, plaintiffs contended that due to racial discrimination in the State of Washington's criminal justice system, the automatic disenfranchisement of felons resulted in the denial of the right to vote on account of race. This violated Sec. 2 of the Voting Rights Act. The 9th (Tashima joined by Reinhardt) reversed the district court’s denial of summary judgment for plaintiffs in a 1983 action brought by minority citizens of Washington state who had lost their right to vote pursuant to the state’s felon disenfranchisement provision. In a prior appeal, Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert denied, 543 U.S. 984 (2004) ("Farrakhan I"), this court reversed the district court’s summary judgment and held that vote denial claims challenging felon disenfranchisement laws were cognizable under § 2 of the VRA.

The 9th first found that Farrakhan I remained binding precedent despite contrary decisions from the 1st, 2nd, and 11th circuits. The 9th recognized the circuit split with its decision in Farrakhan I, but did not recognized Farrakhan I as clearly erroneous or that it needed to be reconsidered. The 9th found that the plaintiffs had standing, and that the plaintiffs had demonstrated that the discriminatory impact of Washington’s felon disenfranchisement was attributable to racial discrimination in Washington’s criminal justice system. The panel thus held that Washington’s felon disenfranchisement law violated § 2 of the VRA. The 9th remanded with instructions to grant summary judgment to plaintiffs given the evidence already before the court. Dissenting, Judge McKeown argued that the majority erred in granting summary judgment for the plaintiffs and that the proper approach would have been to remand the case to the district court for consideration of the plaintiffs’ motion for summary judgment. On remand, the court would weigh the evidence as to racial discrimination, and to assess other factors to determine if the VRA had been violated.

Given the state constitutional issues, the statutory VRA issues, and a circuit split, plus the shadow of McCleskey, this could well be headed to the Supremes, if there is not an en banc first.