New York Law School

Federal Appeals Court Rules Washington Voting Law Violates Federal Voting Rights Act

On January 5, 2010, the 9th Circuit Court of Appeals granted summary judgment to a minority group of Washington citizens who had been convicted of felonies and alleged that the state’s felon disenfranchisement provision violates §2 of the Voting Rights Act due to racial discrimination within Washington’s criminal justice system. The case is entitled Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010).

The law as set forth in Washington’s constitution reads as follows: Article VI, § 3 provides: “All persons convicted of infamous crime unless restored to their civil rights . . . are excluded from the elective franchise.” An “infamous crime” is defined as one that is “punishable by death in the state penitentiary or imprisonment in a state correctional facility.” Wash. Rev. Code § 29A.04.079.

As a result of Washington’s law, 24% of Black men and 15% of the entire Black population in Washington have lost their voting rights because of a felony conviction. African Americans, Latinos and Native Americans represent only 12% of Washington’s population, but comprise 36% of the State’s incarcerated population.

Alleging that minorities are disproportionately prosecuted and sentenced, Plaintiffs argued that the law causes vote denial and vote dilution on the basis of race. “Vote denial” refers to practices that prevent people from voting or having their votes counted. Examples are literacy tests, poll taxes, all-white primaries, and English-only ballots. “Vote dilution,” on the other hand, refers to practices that diminish minorities’ political influence in places where they are allowed to vote. Examples include at-large elections and redistricting plans that keep minorities’ voting strength weak. Farrakhan, 590 F.3d, at 998, fn. 13.

The Court found “compelling” evidence that “in the total population of potential ‘felons’…minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted. If those decision points are infected with racial bias, resulting in some people becoming felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the VRA, disqualify felons from voting.” Farrakhan, 590 F.3d, at 1014.

Defendants argued that previous case law in the 9th Circuit was clearly erroneous, that plaintiffs had no standing because they had not proven that their particular felony convictions were the result of racial discrimination and that the State’s amended felon disfranchisement law altered the governing analysis. All arguments were summarily dismissed by the court. Farrakhan, 590 F.3d, at 1000-1001.

The court also found that the State failed to challenge the plaintiffs’ statement of undisputed facts, which included two expert reports on the pervasive racial discrimination in Washington, and that the State failed to offer any evidence demonstrating a genuine issue for trial. Farrakhan, 590 F.3d, at 1002-1003. As the court stated, “In any case, even viewing the evidence in the light most favorable to Defendants, Plaintiffs have demonstrated that racial minorities are overrepresented in the felon population based upon factors that cannot be explained by non- racial reasons. Given that uncontroverted showing, in the words of the district court, there can be ‘no doubt that members of racial minorities have experienced discrimination in Washington’s criminal justice system.’” Farrakhan, 590 F.3d, at 1015.

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