The Winter 2010 edition of the Forum highlighted the opinion of the United States Court of Appeals for the Ninth Circuit in Farrakhan v. Gregoire, a case involving challenges to Washington state's felon disenfranchisement statute. (See "Felon Disenfranchisement and the Voting Rights Act - Farrakhan V. Gregoire: â€˜A Crowd of One'" in the Winter 2010 issue of the Alaska Justice Forum.) The plaintiffs were minority citizens who had lost their voting rights as a consequence of felony convictions. Farrakhan was noteworthy for its holding that the plaintiffs established a violation of Section 2 of the Voting Rights Act of 1965 by demonstrating that the discriminatory impact of the disenfranchisement statute was "attributable to racial discrimination in Washington's criminal justice system." Farrakhan, 590 F.3d 989, 1016 (9th Cir. January, 2010).
The opinion by Judge Tashima, for himself and Judge Reinhardt with Judge McKeown dissenting, was unique among the federal circuits in finding a Section 2 violation based on operation of a felon disenfranchisement statute. It placed the Ninth Circuit, as Judge McKeown pointed out, "in a crowd of one," charting "territory that none of [the other] circuits has dared to explore." Id. To probably no one's surprise, therefore, a majority of the nonrecused, active judges in the circuit voted to rehear the case en banc. The order for rehearing expressly vacated the opinion of the three-judge panel.
An en banc hearing is traditionally, and in all other federal circuits, a hearing by all of the judges of the court rather than by the three-judge panel that is standard in the federal circuit courts. As the largest circuit in the country, the Ninth Circuit uses a modified form of en banc court, consisting of the Chief Judge and 10 additional judges drawn by lot as noted in Ninth Circuit Rule 35-3. An en banc hearing is unusual; under federal appellate rule 35 such a hearing is appropriate only when necessary to achieve uniformity in the circuit or "the proceeding involves a question of exceptional importance."
In October, the en banc court issued its decision. Unlike the three-judge panel, all of the judges of the en banc panel agreed that the plaintiffs had failed to establish a Section 2 violation. But, the opinions of the court-an unsigned majority, a concurrence, and a concurrence in the judgment-reveal a fundamental division among the judges of the Ninth Circuit over the relationship between the Voting Rights Act and felon disenfranchisement statutes.
The majority opinion, cataloging the extensive history and current prevalence of felon disenfranchisement in the United States, expressed skepticism that such laws can ever be challenged under Section 2. (It noted that the loss of rights occurs only after criminal conviction, a determination "made by the criminal justice system, which has its own unique safeguards and remedies against arbitrary, invidious or mistaken conviction.") The court declined, however, to decide this larger issue. Instead, it merely narrowed the availability of Section 2 challenges in the Ninth Circuit, holding that such challenges may only be considered where plaintiffs show that the criminal justice system at issue "is infected by intentional discrimination" or that the state's disenfranchisement statute was enacted with discriminatory intent. http://www.ca9.uscourts.gov/datastore/opinions/ 2010/10/14/06-35669.pdf at 17073. Because the Farrakhan plaintiffs demonstrated only systemic discrimination, and not discriminatory intent, the majority concluded they failed to meet their burden of proof.
In marked contrast, four of the eleven judges understood the remedial purpose of the Voting Rights Act to dictate a flexible analysis that would encompass any measure that denies the vote to a class of citizens as a result of their race. Judge Thomas, concurring, wrote:
Congress enacted the Voting Rights Act of 1965 for the broad remedial purpose of eliminating racial discrimination in voting. In enacting Â§ 2, Congress noted that it was impossible to predict the variety of means that would be used to infringe on the right to vote and that the voting rights landscape was marked by innovation and discrimination.
â€¦ Section 2 provides, without limitation, that any voting qualification that denies citizens the right to vote in a discriminatory manner violates the Voting Rights Act.
Id. at 17076. Citing legislative history, he further observed that Congress amended Section 2 in 1982 specifically "to make clear that proof of discriminatory intent is not required to establish a Section 2 violation." Id. at 17078. The U.S. Supreme Court, too, has made clear "states cannot use felon disenfranchisement as a tool to discriminate on the basis of race, even if the laws are facially race-neutral." Id.
On this basis, the concurring judges concluded that a categorical exclusion of felon disenfranchisement laws from Section 2 is wholly unsupported "either as a matter of judicial construct or statutory interpretation." Id. And they declined to join that part of the majority opinion which bars claims under Section 2 based on felon disenfranchisement absent proof of discriminatory intent. (Judge Graber concurred in no part of the majority opinion, concluding that the District Court's findings on remand were sufficient to support the judgment.)
Where does this leave potential plaintiffs in Alaska and the other states of the Ninth Circuit? As a practical matter, unless the U.S. Supreme Court agrees to review the case (which it declined to do in 2004 after the first time the Ninth Circuit looked at this case) and reverses, Section 2 claims based on felon disenfranchisement will be virtually impossible to establish. Although the en banc majority stopped short of categorically excluding such claims from the reach of the Voting Rights Act, the requirement that plaintiffs show discriminatory intent is likely to prove an insurmountable barrier. (In Ruiz v. City of Santa Maria, 160 F.3d 543, 557 (9th Cir. 1998), the court declared that an intent test "places an inordinately difficult burden of proof on plaintiffs." Thomas, concurring.)
Perhaps, however, the conversation that began with the publicity surrounding the three-judge panel's initial holding will continue. There is little dispute that in Alaska and across the country felon disenfranchisement statutes keep minority voters from the polls in disproportionate numbers. Increased public recognition of this problem, and of the social and economic consequences of the various barriers to offender reentry generally, may at some point lead legislators to effect the remedy the Farrakhan plaintiffs have thus far sought unsuccessfully in the Ninth Circuit.
Deb Periman, J.D., is a member of the Justice Center faculty.