Farrakhan v. Washington

• Citation: 338 F.3d 1009
• Decision Date: 25 July 2003
• Docket Number: No. 01-35032.,01-35032.
• Parties: Muhammad Shabazz FARRAKHAN, individually aka Ernest S. Walker; Marcus X. Price, individually; Ramon Barrientes, individually; Timothy Schaaf, individually; Clifton Briceno, individually; Al-Kareem Shadeed, individually, Plaintiffs-Appellants, v. State of WASHINGTON; Gary Locke, in his official capacity as Governor of the State of Washington; Sam Reed, in his official capacity of Secretary of State and Chief Election Officer for the State of Washington; Joseph Lehman, in his official capacity as Secretary of the Department of Corrections of the State of Washington, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

338 F.3d 1009

Muhammad Shabazz FARRAKHAN, individually aka Ernest S. Walker; Marcus X. Price, individually; Ramon Barrientes, individually; Timothy Schaaf, individually; Clifton Briceno, individually; Al-Kareem Shadeed, individually, Plaintiffs-Appellants, v. State of WASHINGTON; Gary Locke, in his official capacity as Governor of the State of Washington; Sam Reed, in his official capacity of Secretary of State and Chief Election Officer for the State of Washington; Joseph Lehman, in his official capacity as Secretary of the Department of Corrections of the State of Washington, Defendants-Appellees.

No. 01-35032.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2002 — Seattle, Washington.

Filed July 25, 2003.

Lawrence A. Weiser, University Legal Assistance, Gonzaga Law School, Spokane,

Washington, argued the case for the plaintiffs-appellants. D.C. Cronin and Jason T. Vail, Spokane, Washington, assisted on the briefs.

Nancy L. Talner for the American Civil Liberties Union of Washington, Seattle, Washington, amicus in support of Plaintiffs-Appellants.

Nancy Northup, Jessie Allen, Gillian E. Metzger, and Glenn J. Moramarco, for the Brennan Center for Justice, New York, New York, and Anita Hodgkiss and Lori Outzs Borgen, for the Lawyers' Committee for Civil Rights Under Law, Washington, D.C., amici in support of Plaintiffs-Appellants.

Jeffrey Even, Assistant Attorney General, Olympia, Washington, argued the case for the defendants-appellees. Christine O. Gregoire, Attorney General, and Daniel Judge, Assistant Attorney General, Olympia, Washington, assisted on the briefs.

Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, District Judge, Presiding. D.C. No. CV-96-00076-RHW.

Before: Harlington WOOD,^* Dorothy W. NELSON and Richard A. PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

Plaintiffs appeal the district court's grant of summary judgment dismissing their claim that Washington state's felon disenfranchisement scheme constitutes improper race-based vote denial in violation of Section 2 of the Voting Rights Act ("Section 2"), 42 U.S.C. § 1973. Upon conviction of an infamous crime in the state of Washington, each plaintiff was disenfranchised, and none has had his voting rights restored.

The district court determined that although Washington's felon disenfranchisement scheme disenfranchises a disproportionate number of African-American, Hispanic-American, and Native-American minorities, the cause of this disparate impact on their right to vote was external to the felon disenfranchisement provision itself and therefore could not provide the requisite causal link between the voting qualification and the prohibited discriminatory result.

Notably, the district court attributed the cause of this discriminatory effect on minority voting power to "discriminatory activity" in Washington's criminal justice system. Although it determined that "Plaintiffs' evidence of discrimination in the criminal justice system, and the resulting disproportionate impact on minority voting power, is compelling," the district court held that evidence of discrimination in the criminal justice system was not significant for purposes of the "totality of the circumstances" analysis used in determining whether a challenged voting practice results in a denial of minority voting rights under Section 2. Instead, focusing on the disenfranchisement scheme itself, the court concluded that there was no evidence that the enactment of Washington's disenfranchisement provision "was motivated by racial animus, or that its operation by itself has a discriminatory effect," and therefore determined that Plaintiffs had failed to establish a Section 2 violation.

We disagree with the district court's analysis, because it conflicts with our well-established understanding of Section 2. As recognized by both the Supreme Court and our circuit, a Section 2 "totality of the circumstances" inquiry requires courts to consider how a challenged voting practice interacts with external factors such as "social and historical conditions" to result in denial of the right to vote on account of race or color. Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); see also Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595-96 (9th Cir.1997). Because a Section 2 analysis clearly requires that we consider factors external to the challenged voting mechanism itself, we hold that evidence of discrimination within the criminal justice system can be relevant to a Section 2 analysis. In light of the district court's having improperly disregarded this evidence, combined with its assessment that Plaintiffs' evidence of discrimination in Washington's criminal justice system was "compelling," we reverse and remand for further proceedings.

BACKGROUND

Felon disenfranchisement is a voting restriction that denies citizens who are convicted of felonies the right to vote. Article VI, Section 3 of the Washington State Constitution provides that "[a]ll persons convicted of an infamous crime ... are excluded from the elective franchise."¹ Disenfranchised felons in Washington remain ineligible to vote until they have completed all the requirements of their sentences and have obtained certificates of discharge under Section 9.94A.637 of the Revised Code of Washington ("RCW"). A discharge under Section 9.94A.637 has "the effect of restoring all civil rights lost by operation of law upon conviction." RCW § 9.94A.637(4).

Plaintiffs Muhammad Shabazz Farrakhan, Marcus Price, Ramon Barrientes, Tim Schaaf, Clifton Briceno, and Al-Kareem Shadeed² are citizens who were convicted of felonies in Washington state and consequently disenfranchised under Article VI, Section 3 of the Washington State Constitution. None of the plaintiffs has had his civil rights restored under RCW § 9.94A.637.

When Plaintiffs initially filed their complaint, they challenged Washington's disenfranchisement scheme on federal constitutional grounds and as violative of the Voting Rights Act ("VRA").³ They sought both declaratory and injunctive relief to enjoin Defendants⁴ from applying the voting restriction and related statutory provisions against all felons. In allowing Plaintiffs to proceed on their vote denial claim under Section 2, the district court rejected the State's argument that the VRA could not apply to felon disenfranchisement laws. Farrakhan v. Locke, 987 F.Supp. 1304, 1311 (E.D.Wa.1997). However, the court dismissed Plaintiffs' constitutional and vote dilution claims and denied Plaintiff Farrakhan's request for leave to file a due process challenge to Washington's statutory scheme governing the restoration of felons' civil rights. Id. at 1315.

In their Fourth Amended Complaint, Plaintiffs alleged that Article VI, Section 3 of the Washington Constitution, along with the process set forth for restoration of disenfranchised felons' civil rights, result in the denial of their right to vote on account of race in violation of Section 2. This was the operative complaint upon which the parties relied when they filed cross-motions for summary judgment.

In support of its motion, the State filed a statement of material facts as required by Rule 56.1(a) of the Local Rules for the Eastern District of Washington. In this statement, the State set forth facts that it contended were not disputed regarding (1) Plaintiffs' criminal histories and the fact that none had completed all the requirements of his sentence, (2) the background and history of Washington's felon disenfranchisement law and statistics regarding citizens who had been affected by it, (3) the statutory procedure for restoration of civil rights and reinstatement of the right to vote, (4) the history of Washington's African-American population, (5) the racial and ethnic make-up of Washington's population, (6) the composition of Washington's felony population, (7) the background and work of the Washington State Minority and Justice Commission, ("WSMJC") and (8) the history of and changes to Washington's voting laws and practices. With the exception of three issues relating to the operation of Washington's disenfranchisement scheme and its history of discrimination against Native Americans, Plaintiffs did not dispute the State's statement of material facts.

To substantiate their vote denial claim, however, Plaintiffs presented statistical evidence of the disparities in arrest, bail and pre-trial release rates, charging decisions, and sentencing outcomes in certain aspects of Washington's criminal justice system.⁵ They also submitted expert declarations and relied on the same reports and studies that the State had submitted to show the extent to which these disparities could be attributed to racial bias and discrimination.⁶ In addition to this evidence regarding racial bias in Washington's criminal justice system, Plaintiffs offered evidence of the tenuous policy justifications for Washington's felon disenfranchisement law, and presented evidence of the discriminatory intent that guided the enactment of these laws in several states, discussing the similarities between other states' statutes and the one enacted in Washington.

As noted, the district court ultimately granted the State's motion for summary judgment. Despite the fact that there was little dispute over the State's separate statement of material facts,⁷ the district court nonetheless characterized Plaintiffs' evidence of discrimination in Washington's criminal justice system and the resulting disproportionate impact on minority voting power as "compelling."⁸ However, the district court ultimately concluded that such evidence was insignificant to its inquiry regarding a possible causal connection between the disenfranchisement provision and the disproportionate impact on the number of minorities ineligible to vote.⁹ As we explain, the district court's analysis and...