In Farrakhan v. Gregoire, federal Court of Appeals for the Ninth Circuit on October 7, 2010 issued a decision that upheld the State of Washington’s ban on voting by prison inmates. The Court ruled that a challenge under Section 2 of the Voting Rights Act (VRA) requires proof of intentional discrimination. Evidence of racial disparities in the criminal justice system was not, in the Court's view, sufficient to establish a violation.
The Farrakhan decision is a flawed interpretation of the VRA. It will hamper efforts to reform felon disenfranchisement laws that disproportionately affect the voting rights of African American and other minority communities.
Washington’s state constitution denies the right to vote to “[a]ll persons convicted of infamous crime unless restored to their civil rights.” An “infamous crime” is one that is “punishable by death . . . or imprisonment in a state correctional facility.” This law was challenged under Section 2 of the VRA.
A violation of Section 2 of the VRA occurs when, “based on the totality of circumstances . . . the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [racial or language minority].” To prevail on a claim under Section 2, a plaintiff only has to prove that minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
In 2003 the Ninth Circuit held in Farrakhan v. Gregoire (Farrakhan I) that Washington’s felon disenfranchisement laws could be challenged under the VRA using statistical evidence. When Frarrakhan I was sent back to the trial court, the plaintiffs argued that Washington's disenfranchisement law interacted with racial bias in Washington’s criminal justice system in a manner that denied racial minorities an equal opportunity to participate in the state's political process.
The plaintiffs' evidence showed significant racial disparities in the criminal justice system including searches, charging and bail, length of confinement and incarceration. These practices combined with the disenfranchisement law operated to exclude a significant percentage of African Americans from the voting population and diluted that community's voting strength in the state's elections.
The trial court ruled that while there was evidence of discrimination in the state's criminal justice system, this was only one of the factors in Section 2’s “totality of circumstances” test. The court concluded that the plaintiffs' did not present enough evidence of the other factors to establish a violation of Section 2.*
The trial court's decision was appealed and on January 5, 2010, a three-judge panel of the Ninth Circuit reversed. In a 2-1 decision, the panel ruled that the plaintiffs' evidence of statistical disparities among racial groups in Washington's criminal justice system was adequate proof of discrimination. The disparate impact on minorities was sufficient to show that the African American community's voting strength was being diluted by felon disenfranchisement.
The case was reheard en banc (by the full court). This time the Ninth Circuit observed that the First, Second, Sixth, and Eleventh Circuits had disagreed with its ruling in Farrakhan I and upheld state laws that prohibited felons from voting. Those Courts ruled that such laws are categorically exempt from challenges under Section 2. The Ninth Circuit concluded, in light of these developments, that "the rule announced in Farrakhan I sweeps too broadly."
The Court went on to hold that a Section 2 challenge requires proof of intentional discrimination or proof that the legislature enacted the law with an intent to disenfranchise racial minorities. Since the plaintiffs did not present any evidence of intentional discrimination they did not establish a violation of the VRA.
The Ninth Circuit's opinion in Farrakhan is reductive and analytically flawed. The Court's imposition of a discriminatory intent requirement is at odds with the 1982 amendments to the VRA. In Mobile v. Bolden, 446 U.S. 55 (1980), the Supreme Court held a plaintiff had to prove that a voting practice was enacted or maintained with discriminatory purpose.
In 1982, Congress overruled Mobile v. Bolden and amended Section 2 to allow a plaintiff to establish a violation if the evidence established that the procedure being challenged results in the denial of denial of a minority community's opportunity to participate equally in the political process. Congress rejected Mobile's discriminatory intent requirement in 1982 and it should not have been imposed in this case.
The Farrakhan decision did not address the crux of the plaintiffs' vote dilution claim. The question was whether the exclusion of felons from the electoral process adversely affected the ability of minority communities to participate equally in Washington's elections. That there was no evidence of an intent to exclude minorities does not preclude liability. The VRA allows courts to consider the discriminatory effects of a state's laws and practices. The disenfranchisement law's adverse impact on the voting strength of minority communities coupled with the racial disparities in Washington's criminal justice system provided enough evidence to prevail on a Section 2 claim.
The Farrakhan decision not only departs from Section 2 precedent, it is a significant setback to efforts to challenge felon disenfranchisement laws that disproportionately affect African American communities.
*The Senate Judiciary Committee's1982 report on the amendments to the VRA suggested several factors for courts to consider in a Section 2 challenge. These factors include: the history of official voting-related discrimination; the extent to which voting in elections is racially polarized; the extent to which the jurisdiction has used voting practices that tend to enhance the opportunity for discrimination against the minority group; the exclusion of members of a minority group from candidate slating processes; the extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.
A recent report by the Southern Regional Council on Trends in Voting Policy includes a survey of felon disenfranchisement laws in six southern states. To view a complete copy of the SRC report, click here or on the image of the report (which appears to the right).
About the Author
Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.