Metropolitan News-Enterprise


Friday, October 8, 2010


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Ninth Circuit Upholds Ban on Felon Voting in En Banc Ruling


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday upheld a Washington law banning imprisoned felons from voting.

The 11 judges who heard the case en banc agreed that the plaintiffs failed to prove a right to relief under Sec. 2 of the Voting Rights Act, barring states from adopting racially discriminatory restrictions on voting, but were divided in their reasoning.

A split three-judge panel ruled in January that incarcerated felons in Washington should be allowed to vote to ensure that racial minorities are protected under the Voting Rights Act.

The case has moved back and forth between the U.S. District Court for the Eastern District of Washington and the Ninth Circuit since 1996.

Senior District Judge Robert H. Whaley dismissed the action in 2000, holding that the state’s law did not violate the act, and dismissed a lawsuit by disenfranchised ex-inmates. A Ninth Circuit panel reversed in 2003, sending the case back to the district judge for a full hearing on whether racial bias in Washington’s criminal justice system impacted voting rights.

‘Totality of Circumstances’

On remand, Whaley found that the plaintiff’s statistical proof of racial bias in Washington’s criminal justice system was adequate, but that they failed to prove a Voting Rights Act violation under the “totality of circumstances” balancing test that the Supreme Court applies in voting rights cases.

The plaintiffs appealed again, and while the appeal was pending, the state amended the law to allow convicted felons to vote again once they finish parole or probation. Previously, felons who were no longer in state custody were barred from voting if they still owed fines and restitution.

In January, however, the Ninth Circuit reversed again, this time concluding that the plaintiffs had shown a Voting Rights Act violation. Senior Judge A. Wallace Tashima, joined by Judge Stephen Reinhardt, said disparities in the state’s justice system “cannot be explained by non-racial reasons.”

Judge M. Margaret McKeown dissented, arguing for another remand.

The full court, however, voted last April to grant the state’s petition for en banc review. And yesterday, the en banc court affirmed the district judge, saying the long history of felon disenfranchisement laws in this country, including in all states of the U.S., proves that Congress did not intend to interfere with the operation of such laws when it passed the Voting Rights Act in 1965.

The majority noted that three circuits have held, contrary to the original panel opinion, that felon disenfranchisement laws are categorically exempt from challenges under the act.

In view of the history, and the availability of remedies for unjust prosecution and conviction afforded by the criminal justice system, “we hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.”

Chief Judge Alex Kozinski and Judges Diarmuid F. O’Scannlain, Pamela Rymer, Ronald Gould, and Richard Clifton and Senior Judge Andrew Kleinfeld joined in a per curiam opinion.

Concurring Opinions

Judge Sidney Thomas, joined by Judges Mary M. Schroeder and Kim Wardlaw, and by McKeown, the only member of the January panel drawn for the en banc rehearing, said the plaintiffs’ claim for injunctive relief is moot because the law has changed. “On this record, we need go not further,” he wrote.

As to the plaintiffs’ claim for money damages and declaratory relief, Thomas concluded that the district judge correctly balanced the circumstances.

He said the majority was correct to the extent it left the door open to other Sec. 2 challenges to felon disenfranchisement statutes, but erred “to the extent that it suggests that proof of discriminatory intent is required to establish a § 2 violation.”

Judge Susan Graber argued that the court should simply affirm the district judge’s application of the balancing test. “[T]here is no need to reach the question whether felon disenfranchisement laws may be challenged under Section 2 of the VRA,” she wrote.

The case is Farrakhan v. Gregoire, 06-35669.


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