Farrakhan v. Gregoire

• Decision Date: 05 January 2010
• Docket Number: No. 06-35669.,06-35669.
• Citation: 590 F.3d 989
• Parties: Muhammad Shabazz FARRAKHAN, aka Ernest S. Walker; Al-Kareem Shadeed; Marcus X. Price; Ramon Barrientes; Timothy Schaaf; Clifton Briceno, Plaintiffs-Appellants, v. Christine O. GREGOIRE; Sam Reed; Harold W. Clarke; State of Washington, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

590 F.3d 989

Muhammad Shabazz FARRAKHAN, aka Ernest S. Walker; Al-Kareem Shadeed; Marcus X. Price; Ramon Barrientes; Timothy Schaaf; Clifton Briceno, Plaintiffs-Appellants, v. Christine O. GREGOIRE; Sam Reed; Harold W. Clarke; State of Washington, Defendants-Appellees.

No. 06-35669.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2008.

Filed January 5, 2010.

Ryan P. Haygood, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Lawrence A. Weiser, University Legal Assistance at Gonzaga Law School, Spokane, WA, for the plaintiffs-appellants.

Carol Murphy, Deputy Solicitor General, Olympia, WA, for the defendants-appellees.

Peter A. Danelo, Heller Ehrman, Seattle, WA, for the amici curiae American Civil Liberties Union and ACLU of Washington.

Juan Cartagena, New York, NY, for the amicus curiae Community Service Society.

Sam Hirsch, Jenner & Block, Washington, DC, for the amici curiae National Black Police Association, National Latino Officers Association of America, and Zachary W. Carter, et al., eight prominent former state and federal law-enforcement officials.

Derek S. Tarson, Debevoise & Plimpton, New York, NY, for the amici curiae Alfred Blumstein, et al., 23 leading criminologists.

Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, District Judge, Presiding. D.C. No. CV-96-0076-RHW.

Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and M. MARGARET McKEOWN, Circuit Judges.

TASHIMA, Circuit Judge:

Plaintiffs, minority citizens of Washington state who have lost their right to vote pursuant to the state's felon disenfranchisement provision, filed this action in 1996 challenging that provision on the ground that, due to racial discrimination in the state's criminal justice system, the automatic disenfranchisement of felons results in the denial of the right to vote on account of race, in violation of § 2 of the Voting Rights Act ("VRA"), 42 U.S.C. § 1973. We earlier reversed the district court's grant of summary judgment to Defendants. See Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003), cert. denied, 543 U.S. 984, 125 S.Ct. 477, 160 L.Ed.2d 365 (2004) ("Farrakhan I"). On remand, the district court again granted summary judgment to Defendants. Plaintiffs timely appeal. We reverse and grant summary judgment to Plaintiffs.

I. BACKGROUND

Plaintiffs Muhammad Shabazz Farrakhan, Al-Kareem Shadeed, Marcus Price, Ramon Barrientes, Timothy Schaaf, and Clifton Briceno (collectively, "Plaintiffs") are minority citizens¹ who were convicted of felonies in Washington. Id. at 1012. As a result of their felony convictions, Plaintiffs lost their right to vote pursuant to Washington's felon disenfranchisement law as set forth in Article VI, § 3 of the Washington Constitution.²

Plaintiffs alleged that "minorities are disproportionately prosecuted and sentenced, resulting in their disproportionate representation among the persons disenfranchised under the Washington Constitution"; consequently, that the Washington felon disenfranchisement law "causes vote denial and vote dilution on the basis of race, in violation of the VRA...." Farrakhan v. Locke, 987 F.Supp. 1304, 1307 (E.D.Wash.1997). The district court granted Defendants'³ motion to dismiss as to Plaintiffs' vote dilution claim, but permitted Plaintiffs' vote denial claim to proceed.⁴ Id. at 1315.

On subsequent cross-motions for summary judgment, the district court granted Defendants' motion and denied Plaintiffs' motion. Farrakhan v. Locke, No. CS-96-76-RHW, 2000 U.S. Dist. LEXIS 22212 (E.D.Wash. Dec. 1, 2000). The court found that "Plaintiffs' evidence of discrimination in the criminal justice system, and the resulting disproportionate impact on minority voting power, is compelling." Id. at *14. Nevertheless, it concluded that such evidence was "legally insufficient to establish causation under the VRA," id. at *17, because "it is discrimination in the criminal justice system, not the disenfranchisement provision itself, that causes any vote denial," id. at *15.

On appeal, we reversed the district court's 2000 order and remanded for further proceedings. Farrakhan I, 338 F.3d at 1012, 1023. We first held that Plaintiffs' challenge to Washington's disenfranchisement law "is cognizable under Section 2 of the VRA." Id. at 1016. We then held that the district court "erred in failing to consider evidence of racial bias in Washington's criminal justice system" and that it "misconstrued the causation requirement of a Section 2 analysis." Id. We explained that "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." Id. at 1012 (quoting Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986)). Consequently, "evidence of discrimination can be relevant to a Section 2 analysis." Id.

Following remand, the parties conducted additional discovery and ultimately filed new cross-motions for summary judgment. In their motion, Plaintiffs relied heavily on the reports of two expert witnesses: Dr. Robert Crutchfield, a Professor of Sociology at the University of Washington, who has "conducted extensive research on racial disparity in the Washington State criminal justice system," Crutchfield Report at 9, and Dr. Katherine Beckett, an Associate Professor of Sociology at the University of Washington, who "conducted a 2004 study entitled Race and Drug Law Enforcement in Seattle," Beckett Report at 16.

Dr. Crutchfield's expert report consisted of an extensive literature review of the empirical research that has been conducted on racial disparities in the various levels of Washington's criminal justice system (policing and investigation, prosecution, and sentencing). He described studies showing, inter alia, that the racial disparities in the state's criminal justice system cannot be explained by "legitimate" factors, such as racial minorities' higher level of involvement in criminal activity,⁵ Crutchfield Report at 4-9; evidence of "unwarranted" racial disparities in the rates of vehicle searches, id. at 18, 21; and "observable racial differences" in the processing of criminal cases (e.g., charging and bail recommendations, lengths of confinement, and alternative sentencing), id. at 26-30.

Dr. Beckett's report described the findings of her study "analyzing the extent and causes of racial disparity in Seattle drug [possession and] delivery arrests." Beckett Report at 1. Her research found that "blacks and Latinos are over-represented, and whites under-represented, among Seattle's drug arrestees," and that "the organizational practices that produce these disparities" — specifically, the police's focus on crack cocaine, on outdoor drug activity, and on the downtown area — "are not explicable in race neutral terms." Id. at 3.

The district court again granted the State's motion for summary judgment and denied Plaintiffs' motion. Farrakhan v. Gregoire, No. CV-96-076-RHW, 2006 WL 1889273, at *1 (E.D.Wash. July 7, 2006). Reviewing the reports of Plaintiffs' expert witnesses, the district court found that Plaintiffs had presented "compelling evidence of racial discrimination and bias in Washington's criminal justice system." Id. at *6. Moreover, "[c]ontrary to Defendants' assertion that these reports are based solely on statistics and are thus insufficient evidence for a VRA claim," the district court found that "these experts' conclusions, drawn from the available statistical data, are admissible, relevant, and persuasive." Id. The district court also found it significant that Defendants had not "present[ed] any evidence to refute Plaintiffs' experts' conclusions." Id. Thus, the district court concluded that it was "compelled to find that there is discrimination in Washington's criminal justice system on account of race," id., and that such discrimination "clearly hinder[s] the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic," id. (quoting Farrakhan I, 338 F.3d at 1220) (internal quotation marks omitted) (alteration in original).

Nevertheless, the district court went on to hold that "the totality of the circumstances does not support a finding that Washington's felon disenfranchisement law results in discrimination ... on account of race." Id. at *9. Explaining that discrimination in the criminal justice system is simply one factor to consider in the totality of the circumstances analysis (falling within the scope of Senate Factor 5), the district court concluded that the remaining Senate Factors⁶ weigh in Defendants' favor. Id. First, the district court determined that "the first Senate factor strongly favors" Defendants' position because Plaintiffs had not shown any history of official discrimination in Washington. Id. at *7. Next, the district court concluded that Plaintiffs "failed to present any substantial evidence regarding" Senate Factors 2, 3, 4, 6, 7, and 8. Id. at *8. The court acknowledged that "several of these factors are not relevant in a VRA vote denial claim," but found that Factors 7 and 8 — "the extent to which minority group members have been elected to political office in Washington" and the "level of responsiveness elected officials have to the particularized needs of" minorities — are "certainly relevant to Plaintiffs' VRA claim." Id. Finally, the court concluded that Senate Factor 9 — whether the state's policy justifications are "tenuous" — "also favors Defendants' position." Id. Although Defendants did "not explain why disenfranchisement of felons is `necessary' to vindicate any identified state interest," id., the district court concluded that, in light of the Constitution's explicit recognition of the states' power to disenfranchise felons,⁷ its "ability to examine the...