Farrakhan v. Washington

Decision Date24 February 2004
Docket NumberNo. 01-35032.,01-35032.
PartiesMuhammad Shabazz FARRAKHAN, individually aka Ernest S. Walker; Marcus X. Price, individually; Ramon Barrientes, individually; Timothy Schaaf, individually; Clifton Briceno, individually; Al-Kareem Shaheed, 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.
CourtU.S. Court of Appeals — Ninth Circuit

Lawrence A. Weiser, University Legal Assistance, Spokane, WA, Jason T. Vail, Northwest Justice Project, Seattle, WA, Dennis C. Cronin, Law Office of D.C. Cronin, Spokane, WA, for Plaintiffs-Appellants.

Jeffrey T. Even, Office of the Attorney General, Daniel J. Judge, AGWA-Office of the Washington Attorney General, Olympia, WA, for Defendants-Appellees.

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

Order: Dissent by Judge KOZINSKI.

ORDER

The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is denied.

KOZINSKI, Circuit Judge, with whom Judges O'SCANNLAIN, KLEINFELD, TALLMAN, BYBEE, CALLAHAN and BEA, join, dissenting from denial of rehearing en banc:

This is a dark day for the Voting Rights Act. In adopting a constitutionally questionable interpretation of the Act, the panel lays the groundwork for the dismantling of the most important piece of civil rights legislation since Reconstruction. The panel also misinterprets the evidence, flouts our voting rights precedent and tramples settled circuit law pertaining to summary judgment, all in an effort to give felons the right to vote. The court should have taken this case en banc and brought order back into our caselaw. I dissent from the court's failure to do so.

1. Plaintiffs' case is based entirely on statistical disparities: They claim that disparities in the felony conviction rates of certain minority groups in relation to their presence in the general population lead to a disparity in the rate of disenfranchisement under Washington's felon disenfranchisement law. They argue that these disparities alone prove that under the "totality of the circumstances" they have less of an opportunity to participate in the electoral process, because these disparities interact with the felon disenfranchisement provision and result in denial of the right to vote on account of race.

Though the panel hints otherwise, plaintiffs never produced a shred of evidence of intentional discrimination in Washington's criminal justice system. The studies and expert testimony plaintiffs rely upon establish only disparities. For example, the Washington State Minority and Justice Commission study of bail and pre-trial detention practices admits that "it would be inappropriate to conclude that racial and ethnic differences in pre-trial release necessarily reflect overt racial bias or discrimination in the decisions of Superior Court judges or staff." S.E.R. at 221. The same is true of charging and sentencing of felony drug offenders; the report plaintiffs rely upon attributes any disparities there to concerns about resources, not race: "charges are routinely changed between initial filing and conviction" but "these changes are, for the most part, not related to race." S.E.R. at 243.

Studies based on statistical disparities are notoriously unreliable. See McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Plaintiffs' own expert, Dr. Bridges, concedes that "[d]isparities have complex causes and among them are important qualitative differences among defendants in the types of crimes they have committed." S.E.R. at 221. The bottom line is plaintiffs have produced no evidence that Washington's criminal justice system is infected with racial bias.

This is significant because the record is settled. The panel admits that "[p]laintiffs did not dispute the State's statement of material facts." Slip op. at 10134. No triable issues of fact remain. The legal question presented is therefore quite simple: Can plaintiffs survive a summary judgment motion in a section 2 vote denial case if they have produced only evidence of statistical disparities in an area external to voting, which then result in statistical disparities in voting? Under Smith v. Salt River Project Agricultural Improvement and Power District, 109 F.3d 586 (9th Cir.1997), the answer is clearly "no." Yet the panel reverses the district court's grant of summary judgment. In so doing, it effectively holds that such disparities could be enough to establish vote denial on account of race, in violation of section 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973. This holding plainly contradicts the law of our circuit and four others. See Salt River, 109 F.3d at 595; Ortiz v. City of Philadelphia Office of the City Comm'rs, 28 F.3d 306, 314-15 (3d Cir.1994); Salas v. Southwest Texas Junior Coll. Dist., 964 F.2d 1542, 1556 (5th Cir.1992); Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1358-59 (4th Cir.1989); Wesley v. Collins, 791 F.2d 1255, 1262 (6th Cir.1986).

In Salt River, we held that statistical disparities were not enough to establish vote denial under section 2. We explained that "a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 `results' inquiry" because causation cannot be inferred from impact alone. Id. at 595. We upheld a land-owner voting system against a section 2 challenge because it did not result in discrimination "on account of race or color," id. at 596, even though whites were more likely to have a vote under that system because their rate of home ownership was much higher than that of blacks, id. at 590. Evidence of racial disparities in the rate of land ownership, which were then mapped directly onto the voter registration rolls, could not support a violation of the VRA. Salt River therefore stands for the principle that plaintiffs cannot prove a section 2 violation without substantial evidence other than a statistical disparity in some area unrelated to voting. There is nothing in the record here beyond statistical disparities, and the facts are settled. Summary judgment for Washington is therefore the only possible outcome.

The Sixth Circuit rejected a section 2 challenge of Tennessee's felon disenfranchisement law that was based primarily on statistical differences between minority and white convictions. Wesley, 791 F.2d at 1262. The court upheld Tennessee's statute under the "totality of the circumstances" test, even as it recognized "the presence in Tennessee of certain factors enumerated in the legislative history of Section 2, such as a history of racial discrimination, the effects of which continue to the present day." Id. at 1261. The court held that "the disproportionate impact suffered by black Tennesseans does not `result' from the state's qualification of the right to vote on account of race or color." Id. at 1262. It concluded that section 2 was not violated because the denial of the right to vote was not on account of race but rather on account of the felon's decision to commit a crime. Id.

The Third Circuit has also made it clear that statistical disparities aren't enough to support a section 2 vote denial claim. Ortiz upheld a Pennsylvania statute that purged voters' names from the rolls if they failed to vote for two years, disparately impacting minority voters. 28 F.3d at 307. The court held that statistical disparities weren't enough; plaintiffs in section 2 vote denial cases must demonstrate a "causal connection between the challenged electoral practice and the alleged discrimination that results in a denial or abridgment of the right to vote." Id. at 310.

Section 2 vote denial claims based only on disparities are also dead on arrival in the Fourth Circuit. Irby upheld Virginia's system of appointing members of its school boards. 889 F.2d at 1358-59. Despite the existence of a "significant disparity" between the percentage of blacks in the population and the percentage of blacks on the school board, id. at 1358, the court held that "[t]he evidence cast considerable doubt on the existence of a causal link between the appointive system and black underrepresentation in Buckingham and Halifax counties," id. at 1359. Rather, the disparity existed because, "although blacks comprise a large portion of the population, they are not seeking school board seats in numbers consistent with their percentage of the population." Id. at 1358 (internal quotation marks and citations omitted).

Salas also rejected a section 2 vote denial challenge because it was based entirely on statistical disparities. Plaintiffs challenged an at-large voting system based on the disparities in turnout rates of white and minority voters. 964 F.2d at 1556. The evidence revealed that minority voter turnout was about seven percentage points below white voter turnout, but the court held that "a protected class is not entitled to § 2 relief merely because it turns out in a lower percentage than whites to vote." Id. at 1556. Plaintiffs' section 2 claim failed because the cause of the disparity in turnout rates wasn't intentional race discrimination.

2. Under section 2, courts must evaluate the "totality of the circumstances" in which the challenged voting law operates to determine whether plaintiffs have been denied the right to vote based on their race. 42 U.S.C. § 1973(b); Salt...

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  • Simmons v. Galvin
    • United States
    • U.S. District Court — District of Massachusetts
    • 30 Agosto 2007
    ...that were not enacted with an intent to discriminate based on race, it may be unconstitutional under Boerne. See Farrakhan v. Washington, 359 F.3d 1116, 1122-25 (9th Cir. 2004). In his, dissent, Judge Kozinski stated that Congress must identify the evil targeted by its legislation more spec......
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    ...and joined by six other judges, the Ninth Circuit denied the defendant's petition for rehearing en banc. See Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir.2004).7 In light of lengthy discussions of these cases (except the Johnson en banc) in the panel opinion, see Muntaqim, 366 F.3d......
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    ...by seven judges, the Ninth Circuit denied the state's petition for rehearing en banc in that case, Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir.2004) (Kozinski, J., dissenting). On remand, judgment was entered for the state. Farrakhan v. Gregoire, No. CV-96-076-RHW, 2006 WL 1889273......
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1 books & journal articles
  • Felon disenfranchisement: law, history, policy, and politics.
    • United States
    • Fordham Urban Law Journal Vol. 32 No. 5, September 2005
    • 1 Septiembre 2005
    ...For a discussion of Richardson v. Ramirez, see notes 83-108 and accompanying text. (225.) Id. at 1011-12. (226.) Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004), denying reh'g to 338 F.3d 1009 (9th Cir. (227.) Id. at 1117 (Kozinski, J., dissenting). (228.) Id. at 1118; see Smith v. S......

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