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The unending battle over felon disenfranchisement in Washington state has taken an interesting turn, as a three-judge 9th Circuit panel ruled 2-1 that Washington’s denial of voting rights to incarcerated felons is a violation of Section 2 of the Voting Rights Act.

This decision is directly counter to one issued just six months ago by a panel of 1st Circuit judges reviewing a case out of Massachusetts, Simmons v. Galvin, where that panel held 2-1 that Section 2 simply doesn’t apply to felon disenfranchisement. The glaring circuit split on this question makes this case a very strong candidate for en banc review at the 9th, and possibly ripe for a Supreme Court grant of certiorari thereafter (which would likely also address the very issue of whether the VRA applies to felon disenfranchisement at all, a question still very much unsettled).

The Washington case, originally filed in the mid-90s and now known as Farrakhan v. Gregoire, was brought by a convicted felon sentenced to a five-year term who objected to being denied the opportunity to vote in elections during his incarceration. The plaintiffs’ argument is based on the idea that the criminal justice system in Washington is itself racially biased in that “minorities are disproportionately prosecuted and sentenced,” and as such a deprivation of voting rights based on that allegedly biased system would violate the VRA. In 2003, during an earlier round of appeals, another three-judge panel held unanimously that the racial biases of a criminal justice system could be considered in a “totality of the circumstances” analysis of voting conditions. (Farrakhan v. Washington, 338 F.3d 1009, 1016, 9th Cir. 2003). On remand, the district judge did not consider the evidence to be sufficient to demonstrate a denial of the right to vote based on race, and Farrakhan appealed again.

Based largely on two reports by sociology professors submitted by the plaintiffs, two of the three judges found there to be enough evidence to determine that the “totality of the circumstances” compelled a finding of race-based deprivation of voting rights. Interestingly, while the district judge at trial also agreed that the reports (un-rebutted by the state) established racial disparities in the criminal justice system, the judge declared that it was insufficient to survive the “totality of the circumstances” analysis, and as such did not warrant a finding of a VRA violation. The 9th Circuit panel, in other words, valued the two sociologists’ reports more highly than did the district judge, to the point where they found it necessary to overturn the lower court.

Importantly, the state of Washington never submitted evidence to counter the plaintiffs’ expert testimony. This decision may be due to the interesting procedural path of this appeal: first, the state asked the district court for summary judgment against the plaintiffs after reviewing these reports, then the plaintiffs countered with their own summary judgment motion (obviously, the district court granted the state’s motion and denied the plaintiffs’ one). Since the state’s motion was based on the assumption that the plaintiffs’ reports were insufficient to meet their burden, they might not have considered it necessary to file contrary evidence at this stage of the process. But once the plaintiffs moved for summary judgment themselves, the state’s failure to contradict the plaintiffs’ expert reports became much more significant. The panel found that this was, for all practical purposes, the same as the state conceding the point to the plaintiffs. Because the state declined to offer contrary evidence, the panel majority’s decision to consider only what evidence was entered on the record in determining the weight to be granted to the plaintiffs’ experts may well have been dispositive (it’s possible that an en banc 9th Circuit might decide to clarify the Circuit rules concerning situations like this, and hold that the panel was insufficiently deferential to the state, as it was the non-moving party on the plaintiffs’ cross-motion).

Finally, it’s interesting that the majority acknowledged that the text of the 14th Amendment appears to support felon disenfranchisement laws, yet still held this one to be a statutory violation. As the dissent noted, three other circuits have found that constitutional language sufficient to prohibit felon disenfranchisement challenges under the VRA. Whether or not subsequent courts will accept the majority’s conclusion that the VRA can keep a state from doing something the Constitution seems to specifically allow remains to be seen (and may well be the basis for a grant of certiorari by the Supreme Court, which could permanently foreclose the potential for future felon disenfranchisement challenges under the VRA).

We should expect this case to continue working its way up the ladder in the months ahead. While I don’t envision this panel’s holding to be a lasting one (and I highly recommend reading Judge McKeown’s panel dissent), for the moment we may wish to simply appreciate the judicial recognition of the effects of racial bias in the criminal justice system.

One last point for election law aficionados: It’s not uncommon for election lawyers to note the blistering pace that many key cases are handled under, given the exigencies of pending elections. But this appeal was argued before these three judges in April…of 2008. This action has been going on for more than a decade, and the named defendant has long since been out of prison. While some election law cases are decided almost as soon as they are filed, this one seems to show that, even in this specialized field, the wheels of justice are still perfectly capable of grinding at a snail’s pace.

Jerald Lentini is a student at Georgetown University Law Center

Link: http://electls.blogs.wm.edu/2010/04/05/9th-circuit-panel-strikes-down-washington-disenfranchisement-law

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