By Elizabeth Wydra, Chief Counsel

Just a few weeks ago, the full (or “en banc”) Ninth Circuit heard oral argument in Farrakhan v. Gregoire. This case raised serious questions about racial discrimination in our criminal laws that deny the vote to those who have been convicted in this system, and the reach of the Constitution’s guarantee of the right to vote free from racial discrimination.  The Farrakhan plaintiffs challenged Washington State’s felon disenfranchisement law under Section 2 of the Voting Rights Act (VRA), which provides that any voting qualification that denies citizens the right to vote in a discriminatory manner violates the Voting Rights Act.  They argued that the state’s criminal justice system is infected with racism—statistical evidence shows significant racial disparities in searches, arrests, prosecutions and sentences—which in turn taints the felon disenfranchisement law and denies the right to vote based on racial discrimination.

In a disappointing decision yesterday, the 11-judge en banc panel issued a per curiam (unsigned) ruling in Farrakhan, concluding that:

[P]laintiffs 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. . . . Because plaintiffs presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained, we conclude that they didn’t meet their burden of showing a violation of the VRA (Emphasis added).

The per curiam Ninth Circuit opinion does not categorically prohibit a Section 2 challenge to a felon disenfranchisement statute (a point which Judge Sidney Thomas takes pains to make clear in his concurrence, joined by four other judges).  In this respect, it departs from the conclusions of the other circuits that have also considered this question.  (Then-Judge Sonia Sotomayor made the excellent point that excluding felon disenfranchisement laws from the scope of Section 2 ran afoul of the plain text of the statute in her dissent from the en banc Second Circuit’s decision in Hayden v. Pataki, discussed here.) But the Ninth Circuit’s per curiam opinion goes to great lengths to make that a distinction without much of a difference by suggesting that proof of discriminatory intent is required to establish a Section 2 violation.

Section 2 of the Voting Rights Act prohibits a voting qualification that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” (Emphasis added.)  As Judge Thomas pointed out in his concurrence, this language was included in the VRA to make clear that proof of discriminatory intent is not required to establish a Section 2 violation.  Nonetheless, the Ninth Circuit’s opinion requires plaintiffs to show proof of discriminatory intent to prevail on a Section 2 challenge to a felon disenfranchisement law.  This turns Section 2 on its head, and runs so contrary to the text and purpose of that section of the VRA that it is hard to see how such a claim is still even a Section 2 “results” claim.  Indeed, if a plaintiff can show that a felon disenfranchisement law was passed with discriminatory intent, then the law can be struck down directly under the Constitution’s Equal Protection Clause, which is exactly what the Supreme Court did in Hunter v. Underwood; there is no need to turn to the “results” test of Section 2 of the VRA.

So what is the point of saving Section 2 felon disenfranchisement claims while at the same time narrowing them to the point of virtual irrelevance?  The answer may come from Chief Judge Alex Kozinski, who was on the 11-judge en banc panel (as is the practice for the Chief Judge of the Ninth Circuit).  The first time the Ninth Circuit considered—and ultimately denied—hearing Farrakhan en banc, Kozinski authored a dissent to the denial of rehearing en banc that raised the concern that there is a “fundamental problem with extending the VRA to reach felon disenfranchisement laws” because “[d]oing so seriously jeopardizes its constitutionality.”  Farrakhan v. Washington, 359 F.3d 1116, 1121 (9th Cir. 2004) (Kozinski, J., dissenting from denial of reh’g en banc).  Kozinski’s dissent argued that, because the Fourteenth Amendment’s section on apportionment of congressional representation in the wake of the Civil War expressly allowed for states to exclude voters based on criminal convictions, “subject[ing] felon disenfranchisement provisions to the ‘results’ methodology of the VRA would pose a serious constitutional question concerning the scope of Congress’s power to enforce the Fourteenth and Fifteenth Amendments.” Id. So, this time around, with Kozinski in the majority, the Ninth Circuit “extend[ed] the VRA to reach felon disenfranchisement laws” so long as such a VRA Section 2 claim provides proof of discriminatory intent, and avoided applying VRA Section 2’s “’results’ methodology”—which does not require proof of discriminatory intent.  This outcome might satisfy Chief Judge Kozinski and those who want to “save” felon disenfranchisement claims under VRA Section 2, even if in name only—but for anyone who cares about applying the plain text of a statute, according to its clearly stated purpose, it is deeply unsatisfying.

Perhaps even more important, the Farrakhan per curiam opinion is deeply unsatisfying for anyone who cares about the text and history of the Constitution.  As CAC explained in our brief filed in Farrakhan, the text and history of the Fifteenth Amendment give Congress broad power to proscribe racial discrimination in voting, including felon disenfranchisement laws that operate in tandem with racial discrimination in the criminal justice system to discriminatorily deny the vote to African Americans.  It is true that, as then-Judge Kozinski pointed out in his dissent from rehearing en banc in Farrakhan the first time and as yesterday’s per curiam opinion also notes, Section 2 of the Fourteenth Amendment permitted states to disenfranchise African Americans based on race subject to reduced representation in Congress.  However, the Fifteenth Amendment flatly prohibited racial discrimination in voting, and superseded Section 2 of the Fourteenth Amendment concerning racial discrimination in voting.  Indeed, the framers of the Fifteenth Amendment specifically declined to carve out an exception for criminal disenfranchisement laws similar to that found in Section 2 of the Fourteenth Amendment.

Nowhere in the Ninth Circuit’s per curiam opinion is this powerful text and history addressed.  Rather, it is simply asserted that “felon disenfranchisement has an affirmative sanction in the Fourteenth Amendment.”  True, but so does the guarantee of the right to vote free from racial discrimination, in the plain text of the Fifteenth Amendment.  And I’m pretty sure that constitutional provision was what Congress had in mind when it enacted the clear, broad language of the Voting Rights Act, invalidating any voting qualification—no exceptions—that results in an infringement of the right of any citizen of the United States to vote on account of race or color.  It is extremely disheartening that the Ninth Circuit so completely disregarded constitutional and statutory text and history, particularly in a case involving a right at the very heart of our democratic system of government.