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Felon Disenfranchisement Statute Does Not Violate Voting Rights Act

The good news for Washington state prisoners wanting to restore their voting rights? The state’s felon disenfranchisement statute violates the Voting Rights Act (VRA), a panel of the U.S. Court of Appeals for the Ninth Circuit held on January 5, 2010. The bad news? Washington state’s felon disenfranchisement statute does not violate the VRA, the Ninth Circuit found upon rehearing the case en banc in October 2010.

The appellate court’s decisions resulted from a long-standing lawsuit filed by a group of African-American, Hispanic and Native American prisoners. The suit alleged that disproportionate numbers of minorities were prosecuted and imprisoned in Washington state, which resulted in “vote denial ... in violation of the VRA.” In 2000, the district court granted summary judgment to the state but the Ninth Circuit reversed, holding that the prisoners’ VRA vote denial claim could go forward.

Additional discovery was conducted on remand. Following the completion of discovery, the parties filed cross-motions for summary judgment. In opposing the plaintiffs’ summary judgment motion, the state did not dispute the plaintiffs’ expert reports which found widespread bias and racial discrimination in Washington’s criminal justice system. Accordingly, the district court held that it was “compelled to find that there [was] discrimination in Washington’s criminal justice system on account of race,” and that such discrimination “clearly hinder[s] the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic.”

Nonetheless, the court again granted summary judgment to the state, holding that “the totality of the circumstances [did] not support a finding that Washington’s felon disenfranchisement law results in discrimination ... on account of race.” The plaintiffs again appealed.

In a 2-1 opinion, the Ninth Circuit panel reversed and remanded with instructions to enter summary judgment for the plaintiffs. Central to the appellate court’s decision to grant summary judgment to the prisoners was the state’s failure to oppose the plaintiffs’ evidence of bias and discrimination in Washington’s criminal justice system.

“It has always been perilous for the opposing party neither to proffer any countering evidentiary material nor file a [Rule] 56(f) affidavit,” the Court of Appeals wrote, citing Adickes v. Kress & Co., 398 U.S. 144 (1970). But that was the litigation strategy the state took, so the only question the court was charged with deciding was whether the undisputed facts in the case supported the district court’s award of summary judgment to the state. The appellate court held they did not.

The district court erred, the Ninth Circuit explained, by requiring the plaintiffs to do more than show widespread discrimination and bias in Washington’s criminal justice system to support their VRA claim. While there are other factors that can be considered when assessing a VRA vote denial claim, those factors were not really “relevant” or “necessary” to the plaintiffs’ case, the appellate court wrote.

Because the plaintiffs had produced uncontroverted evidence that Washington’s criminal justice system was “infected” with racial bias, the Ninth Circuit held that that alone was sufficient to warrant summary judgment for the plaintiffs on their VRA claim.

Following the panel’s ruling the state requested an en banc review by the entire Ninth Circuit Court of Appeals, which granted the request. In an October 7, 2010 opinion the en banc appellate court reversed the panel’s decision, finding that Washington’s disenfranchisement statute can not be challenged under section 2 of the VRA unless it could be shown that the state’s “criminal justice system is infected by intentional
discrimination or that the felon disenfranchisement law was enacted with such intent.”

As the plaintiffs had failed to present evidence of intentional discrimination, as opposed to a non-intentional discriminatory result in Washington’s criminal justice system, the district’s court grant of summary judgment to the defendants was affirmed by the en banc Court of Appeals. See: Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010).

Note: PLN has reported on this case for over a dozen years while it has wound its way through the federal court system. [See: PLN, Sept. 2007, p.28; Nov. 2004, p.34; Sept. 1998, p.22; Oct. 1997, p.11]. The case was among several initially filed by pro se prisoner litigants who read the cover story of the May 1994 issue of PLN, Giving Cons and Ex-Cons the Vote, by Andrew Shapiro. Seventeen years and dozens of court rulings later the courts have universally upheld the disenfranchisement of prisoners under the VRA.

The good news is that after PLN put the issue on the political map a number of foundations stepped in to fund legislative efforts around the country, which have been far more successful at giving ex-prisoners the ability to vote.

Additional source: Seattle Times

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Related legal case

Farrakhan v. Gregoire