FILED
OCT 07 2010
MOLLY C. DWYER, CLERK
Farrakhan v. Gregoire, No. 06-35669 U .S. C O U R T OF APPE ALS
THOMAS, Circuit Judge, with whom SCHROEDER, MCKEOWN, and
WARDLAW, Circuit Judges, join, concurring:
I agree that the judgment of the district court should be affirmed, but on
different grounds. I would hold that the claims for prospective injunctive relief are
moot, and that the district court should be affirmed on the remainder of the claims
for the reasons provided by the district court. On this record, we need go no
further.
I
“As a general rule, if a challenged law is repealed or expires, the case
becomes moot.” Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th
Cir. 1994); see also Bunker Ltd. Partnership v. United States, 820 F.2d 308, 312
(9th Cir. 1987) (holding that new legislation superseding prior law rendered
challenge to prior statute moot).
In this case, after the district court issued its decision on remand,
Washington repealed its felon disenfranchisement statute and enacted a new
provision. Among other changes, Washington law now provides that the voting
rights of felons will be “provisionally restored,” at such time as those convicted
under Washington state law are no longer under the authority of the Washington
Department of Corrections. An Act Relating to the Restoration of the Right to Vote
for People Who Were Convicted of Felonies, ch. 325, 2009 Wash. Sess. Laws
1649 (codified at Wash. Rev. Code §§ 9.92.066, 9.94A.637, 9.94A.885, 9.96.050,
10.64.140, 29A.08.520).
The plaintiffs posit that the new law actually increases disenfranchisement;
the State disputes this contention. Regardless, the legal landscape has materially
changed. Plaintiffs sought to enjoin operation of the prior statute. That
prospective relief is no longer available. Plaintiffs now request that we enjoin
operation of the new statute. However, the district court has not had the
opportunity to address that issue in the first instance, and the empirical analysis
that formed the basis of the claim has changed. Therefore, I would either dismiss
the portion of the appeal that relates to prospective injunctive relief as moot or, as
Judge McKeown suggested in her dissent to the panel opinion, remand the case to
the district court for re-examination in light of the new legislation. Farrakhan v.
Gregoire, 590 F.3d 989, 1016-18 (9th Cir. 2010) (McKeown, J., dissenting).
II
As to the claims that are not moot,1 I would affirm the judgment of the
1
Plaintiffs’ challenge to Wash. Const. art. VI, § 3, and plaintiffs’ damage
claims were not rendered moot by passage of the new statute. Additionally,
plaintiffs’ claims for declaratory relief are arguably not moot to the extent that the
provisions of the new and the old statutes are coextensive and the plaintiffs are
subject to the same harm. Jacobus v. State of Alaska, 338 F.3d 1095, 1102-05 (9th
Cir. 2003).
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district court as entered on remand. Farrakhan v. Gregoire, No.
CV-96-076-RHW, 2006 WL 1889273 (E.D. Wash. July 7, 2006). The district
court thoroughly considered and weighed the traditional § 2(b) factors, often
referred to as “the Senate Factors.” S. Rep. No. 97-417, at 28-29 (1982), reprinted
in 1982 U.S.C.C.A.N. 177; Thornburg v. Gingles, 478 U.S. 30, 47 (1986). The
district court properly concluded that, considering the totality of the circumstances,
Washington's felon disenfranchisement law does not violate the Voting Rights Act.
Therefore, I agree that the judgment should be affirmed.
As I understand the majority opinion, it does not disturb the holding in
Farrakhan v. Washington, 338 F.3d 1009, 1019 (9th Cir. 2003) that a § 2 analysis
requires consideration of factors external to the challenged voting mechanism
itself. Nor does the majority opinion categorically prohibit a § 2 challenge to a
felon disenfranchisement statute. With that understanding, I concur in the majority
opinion.
Congress enacted the Voting Rights Act of 1965 for the broad remedial
purpose of eliminating racial discrimination in voting. South Carolina v.
Katzenbach, 383 U.S. 301, 315 (1966). In enacting § 2, Congress noted that it was
impossible to predict the variety of means that would be used to infringe on the
right to vote and that the voting rights landscape was marked by innovation and
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discrimination.2 Congress’s express objective in amending § 2 was to “broaden the
protection afforded by the Voting Rights Act.” Chisom v. Roemer, 501 U.S. 380,
404 (1991). Thus, examination of factors external to the challenged voting
mechanism is a required part of a § 2 analysis.
Section 2 provides, without limitation, that any voting qualification that
denies citizens the right to vote in a discriminatory manner violates the Voting
Rights Act. 42 U.S.C. § 1973; see also Allen v. State Bd. of Elections, 393 US.
544, 566-67 (1969) (noting that Congress intentionally chose the expansive
language “voting qualifications or prerequisite to voting, or standard, practice, or
procedure” for § 2 so as to be “all-inclusive of any kind of practice” that might be
used by states to deny citizens the right to vote (internal quotation marks omitted)).
There is no categorical exclusion for felon disenfranchisement laws in the text of
the statute. If Congress had intended categorically to exclude certain laws from the
reach of § 2, it could have easily done so explicitly. It may still do so, if it chooses.
That being said, in my view, establishing that a particular felon
2
S. Rep. No. 89-162, at 5 (1965), reprinted in 1965 U.S.C.C.A.N. 2508,
2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick,
Tydings, Dirksen, Hruska, Fong, Scott, and Javits); H.R. Rep. No. 89-439, at 10
(1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2441 (describing how “even after
apparent defeat resisters s[ought] new ways and means of discriminating,” and, as
a result, rejecting the case by case approach that “too often ha[d] caused no change
in result, only in methods.”)
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disenfrancement law violates § 2 because it discriminates on the basis of race will
be very difficult. As we know, felon disenfranchisement provisions are
presumptively constitutional. Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974).
A state’s criminal justice system is a complex organization, with many factors
contributing to the ultimate incarceration of a particular person. Of course,
individual decisions can, in the aggregate, result in a prison population that is
racially disproportionate. That is the thrust of the plaintiffs’ argument in this case:
that a multitude of small discriminatory decisions (whether intentional or not) have
led to incarceration of minorities in percentages that cannot be explained by non-
racial factors. However, that result alone does not, in my judgment, compel the
conclusion that the felon disenfranchisement law violates § 2. If it did, then
enforceability of felon disenfranchisement laws simply would depend on whether
prison populations mirrored general population demographics. Using that logic, if
the prison population deviated from the norm in a statistically significant way, then
felon disenfranchisement would be enjoined; if the prison population returned to
normal distributions, the injunction would be lifted. That is not the foundation of a
§ 2 violation. Indeed, Congress rejected this reasoning when it provided elsewhere
in the statute that “nothing in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in the population.” 42
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U.S.C. § 1973(b) (emphasis added). We have also noted that “a bare statistical
showing of disproportionate impact on a racial minority does not satisfy the § 2
‘results’ inquiry.” Smith v. Salt River Project Agric. Improvement & Power Dist.,
109 F.3d 586, 595 (9th Cir. 1997) (emphasis in original). Thus, in my view, the
district court properly analyzed the data presented by the plaintiffs in the context of
the totality of the circumstances and in consideration of the Senate Factors.
On the other hand, one can conceive of circumstances in which felon
disenfranchisement laws could operate to violate § 2, whether by the structure or
intent of the law itself, or by other means. Indeed, the Supreme Court has made it
clear that states cannot use felon disenfranchisement as a tool to discriminate on
the basis of race, even if the laws are facially race-neutral. Hunter v. Underwood,
471 U.S. 222, 233 (1985). Thus, in my view, a categorical exclusion of felon
disenfranchisement laws from the reach of § 2 is inappropriate, either as a matter
of judicial construct or statutory interpretation.
III
I respectfully part company with the majority to the extent that it suggests
that proof of discriminatory intent is required to establish a § 2 violation. Congress
amended § 2 in 1982 “to make clear that proof of discriminatory intent is not
required to establish a violation of Section 2.” S. Rep. No. 97-417, at 2 (1982),
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reprinted in 1982 U.S.C.C.A.N. 177, 179; see also Ruiz v. City of Santa Maria,
160 F.3d 543, 557 (9th Cir. 1998) (noting Congress's statement that the “intent
test” was “unnecessarily divisive [in that] it involve[d] charges of racism on the
part of individual officials or entire communities,” it “placed an inordinately
difficult burden of proof on plaintiffs,” and it “asked the wrong question” (internal
quotation marks omitted, alterations in the original)). This is a question we need
not decide on this record or in this case.
With these observations, I concur.
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