Farrakhan v. Gregoire

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MUHAMMAD SHABAZZ FARRAKHAN, 
aka Ernest S. Walker; AL-KAREEM
SHADEED; MARCUS X. PRICE;
RAMON BARRIENTES; TIMOTHY
No. 06-35669
SCHAAF; CLIFTON BRICENO,
Plaintiffs-Appellants,
 D.C. No.
CV-96-00076-RHW
v.
OPINION
CHRISTINE O. GREGOIRE; SAM REED;
HAROLD W. CLARKE; STATE OF
WASHINGTON,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding

Argued and Submitted
September 21, 2010—San Francisco, California

Filed October 7, 2010

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Diarmuid F. O’Scannlain, Pamela Ann Rymer,
Andrew J. Kleinfeld, Sidney R. Thomas, Susan P. Graber,
M. Margaret McKeown, Kim McLane Wardlaw,
Ronald M. Gould and Richard R. Clifton, Circuit Judges.

Per Curiam Opinion;
Concurrence by Judge Thomas;
Concurrence by Judge Graber

17067
 FARRAKHAN v. GREGOIRE 17069

COUNSEL

Ryan P. Haygood (argued), John Payton, Theodore Shaw,
Norman J. Chachkin, Debo P. Adegbile, Kristen Clarke and
Dale E. Ho, NAACP Legal Defense & Educational Fund,
Inc., New York, New York, Danielle C. Gray, New York,
17070 FARRAKHAN v. GREGOIRE
New York, and Lawrence A. Weiser, University Legal Assis-
tance at Gonzaga Law School, Spokane, Washington, for the
plaintiffs-appellants.

Robert M. McKenna (argued), Attorney General, Daniel J.
Judge, Senior Counsel, and Jeffrey T. Even, Carol Murphy
and William B. Collins, Deputy Solicitors General, Olympia,
Washington, for the defendants-appellees.

Derek S. Tarson and Marianne Koh, Of Counsel, Debevoise
& Plimpton LLP, New York, New York, for amici curiae
Twenty-Three Leading Criminologists.

Sharon L. Browne and Ralph W. Kasarda, Pacific Legal
Foundation, Sacramento, California, for amici curiae Pacific
Legal Foundation and Center for Equal Opportunity.

Thomas C. Goldstein, Akin Gump Strauss Hauer & Feld LLP,
Washington, D.C., and Pamela S. Karlan and Jeffrey L.
Fisher, Stanford Law School Supreme Court Litigation Clinic,
Stanford, California, for amici curiae Thirteen Law Profes-
sors.

Daniel F. Kolb and Edmund Polubinski III, Davis Polk &
Wardwell LLP, New York, New York, for amicus curiae
Brennan Center for Justice at New York University School of
Law.

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

Elizabeth B. Wydra, Douglas T. Kendall and David H. Gans,
Constitutional Accountability Center, Washington, D.C., for
amicus curiae Constitutional Accountability Center.

Whitty Somvichian, Kyle C. Wong, Kelly Cooke and Tyler
Onitsuka, Cooley LLP, San Francisco, California, for amici
curiae Lawyers’ Committee for Civil Rights, Equal Justice
 FARRAKHAN v. GREGOIRE 17071
Society, Legal Services for Prisoners with Children and
American Parole and Probation Association.

Sarah A. Dunne and Nancy Talner, American Civil Liberties
Union of Washington Foundation, Seattle, Washington, Peter
A. Danelo, Seattle, Washington, Leonard J. Feldman, P.K.
Runkles-Pearson and Daniel A. Swedlow, Stoel Rives LLP,
Seattle, Washington, and Laughlin McDonald and Nancy G.
Abudu, ACLU Voting Rights Project, Atlanta, Georgia, for
amici curiae American Civil Liberties Union of Washington
and American Civil Liberties Union.

Lawrence S. Lustberg and Jennifer B. Condon, Gibbons P.C.,
Newark, New Jersey, for amici curiae National Black Police
Association, National Latino Officers Association, American
Probation and Parole Association and Six Former Law
Enforcement Officials.

OPINION

PER CURIAM:

Washington’s constitution denies the right to vote to “[a]ll
persons convicted of infamous crime unless restored to their
civil rights.” Wash. Const. art. VI, § 3. An “infamous crime”
is one that’s “punishable by death . . . or imprisonment in a
state correctional facility.” Wash. Rev. Code § 29A.04.079.
Washington has disenfranchised felons since 1866, four years
before the Fifteenth Amendment was ratified. Territorial Law
of 1866, Rem. & Bal. Code § 4755.

Plaintiffs claim that the state’s felon disenfranchisement
law violates section 2 of the Voting Rights Act (“VRA”)
because the law “results in a denial or abridgement of the
right . . . to vote on account of race.” 42 U.S.C. § 1973(a).
Plaintiffs don’t claim that the law was enacted for the purpose
17072 FARRAKHAN v. GREGOIRE
of denying minorities the right to vote. See Hunter v. Under-
wood, 471 U.S. 222, 233 (1985). Nor do they present evi-
dence that their convictions and resulting disenfranchisement
resulted from intentional racial discrimination in the operation
of the state’s criminal justice system. See McCleskey v. Kemp,
481 U.S. 279, 297-98 (1987). Instead, they present statistical
evidence that there are racial disparities in Washington’s
criminal justice system.

When this case was last before our court, we held that felon
disenfranchisement laws can be challenged under section 2 by
introducing such evidence. Farrakhan v. Washington, 338
F.3d 1009, 1016, 1020 (9th Cir. 2003) (“Farrakhan I”). Based
on the statistical evidence presented by plaintiffs, the district
court on remand found that “there is discrimination in Wash-
ington’s criminal justice system on account of race.” But the
court reasoned that this was only one relevant factor in section
2’s “totality of circumstances” balancing test. See 42 U.S.C.
§ 1973(b); S. Rep. No. 97-417, at 28-29 (1982), reprinted in
1982 U.S.C.C.A.N. 177, 206-07; see also Thornburg v.
Gingles, 478 U.S. 30, 46 (1986). It concluded that other fac-
tors counterbalanced plaintiffs’ evidence of racial disparities,
and therefore granted summary judgment to defendants.

[1] Three circuits—two sitting en banc—have disagreed
with Farrakhan I and concluded that felon disenfranchise-
ment laws are categorically exempt from challenges brought
under section 2 of the VRA. See Johnson v. Governor of Fla.,
405 F.3d 1214, 1234 (11th Cir. 2005) (en banc); Hayden v.
Pataki, 449 F.3d 305, 323 (2d Cir. 2006) (en banc); Simmons
v. Galvin, 575 F.3d 24, 41 (1st Cir. 2009), petition for cert.
filed, 78 U.S.L.W. 3461 (U.S. Feb. 1, 2010) (No. 09-920). In
light of those opinions, we conclude that the rule announced
in Farrakhan I sweeps too broadly. Felon disenfranchisement
laws have a long history in the United States. See Green v.
Bd. of Elections of N.Y.C., 380 F.2d 445, 450 & n.4 (2d Cir.
1967). These laws predate the Jim Crow era and, with a few
notable exceptions, see, e.g., Hunter, 471 U.S. at 229 (con-
 FARRAKHAN v. GREGOIRE 17073
cluding that an Alabama constitutional provision “was
enacted with the intent of disenfranchising blacks”), have not
been adopted based on racial considerations. Many such laws
were in effect when the Fourteenth and Fifteenth Amend-
ments were ratified, see Hayden, 449 F.3d at 317 n.12 (listing
twenty-nine state constitutional provisions); indeed, felon dis-
enfranchisement has an affirmative sanction in the Fourteenth
Amendment, Richardson v. Ramirez, 418 U.S. 24, 54 (1974).
Congress was no doubt aware of these laws when it enacted
the VRA in 1965 and amended it in 1982, yet gave no indica-
tion that felon disenfranchisement was in any way suspect.
Today, an overwhelming number of states—including all
states in our circuit—disenfranchise felons. See The Sentenc-
ing Project, Felony Disenfranchisement Laws in the United
States 3 (Mar. 2010), available at http://sentencing
project.org/doc/publications/fd_bs_fdlawsinusMarch2010.
pdf.

[2] There is an additional reason to be skeptical that felon
disenfranchisement laws can be challenged under section 2 of
the VRA. By definition, felon disenfranchisement takes effect
only after an individual has been found guilty of a crime. This
determination is made by the criminal justice system, which
has its own unique safeguards and remedies against arbitrary,
invidious or mistaken conviction. See, e.g., 28 U.S.C. § 2254;
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

[3] In light of these considerations, we hold that plaintiffs
bringing a section 2 VRA challenge to a felon disenfranchise-
ment law based on the operation of a state’s criminal justice
system must at least show that the criminal justice system is
infected by intentional discrimination or that the felon disen-
franchisement law was enacted with such intent. Our ruling is
limited to this narrow issue, and we express no view as to any
of the other issues raised by the parties and amici. We also
leave for another day the question of whether a plaintiff who
has made the required showing would necessarily establish
that a felon disenfranchisement law violates section 2.
17074 FARRAKHAN v. GREGOIRE
[4] Because plaintiffs presented no evidence of intentional
discrimination in the operation of Washington’s criminal jus-
tice system and argue no other theory under which a section
2 challenge might be sustained, we conclude that they didn’t
meet their burden of showing a violation of the VRA. Accord-
ingly, the district court didn’t err when it granted summary
judgment against them.

AFFIRMED.

THOMAS, Circuit Judge, with whom SCHROEDER,
McKEOWN, and WARDLAW, Circuit Judges, join, concur-
ring:

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 Bun-
ker 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 con-
victed under Washington state law are no longer under the
 FARRAKHAN v. GREGOIRE 17075
authority of the Washington Department of Corrections. An
Act Relating to the Restoration of the Right to Vote for Peo-
ple 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 dis-
enfranchisement; the State disputes this contention. Regard-
less, the legal landscape has materially changed. Plaintiffs
sought to enjoin operation of the prior statute. That prospec-
tive 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 judg-
ment of the 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,
1
Plaintiffs’ challenge to Wash. Const. art. VI, § 3, and plaintiffs’ dam-
age claims were not rendered moot by passage of the new statute. Addi-
tionally, plaintiffs’ claims for declaratory relief are arguably not moot to
the extent that the provisions of the new and the old statutes are coexten-
sive and the plaintiffs are subject to the same harm. Jacobus v. State of
Alaska, 338 F.3d 1095, 1102-05 (9th Cir. 2003).
17076 FARRAKHAN v. GREGOIRE
478 U.S. 30, 47 (1986). The district court properly concluded
that, considering the totality of the circumstances, Washing-
ton’s felon disenfranchisement law does not violate the Vot-
ing 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 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 qual-
ification that denies citizens the right to vote in a discrimina-
tory manner violates the Voting Rights Act. 42 U.S.C. § 1973;
see also Allen v. State Bd. of Elections, 393 US. 544, 566-67
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 dis-
criminating,” and, as a result, rejecting the case by case approach that “too
often ha[d] caused no change in result, only in methods.”)
 FARRAKHAN v. GREGOIRE 17077
(1969) (noting that Congress intentionally chose the expan-
sive 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 disen-
franchisement 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 disenfrancement law violates § 2 because it discrimi-
nates on the basis of race will be very difficult. As we know,
felon disenfranchisement provisions are presumptively consti-
tutional. 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 dispro-
portionate. 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 disenfran-
chisement 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 devi-
ated 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 estab-
lishes a right to have members of a protected class elected in
numbers equal to their proportion in the population.” 42
17078 FARRAKHAN v. GREGOIRE
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 origi-
nal). Thus, in my view, the district court properly analyzed
the data presented by the plaintiffs in the context of the total-
ity 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 dis-
criminate 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 disenfran-
chisement 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), 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 “un-
necessarily 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 plain-
tiffs,” 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.
 FARRAKHAN v. GREGOIRE 17079
With these observations, I concur.

GRABER, Circuit Judge, concurring in the judgment:

I concur in the judgment. Because I would resolve the case
on the ground that we specifically remanded to the district
court, I would not reach the issue addressed by the majority.
I therefore do not concur in the majority opinion.

In Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir.
2003), we held that Plaintiffs’ felon disenfranchisement claim
is cognizable under Section 2 of the Voting Rights Act
(“VRA”). We held that the district court had applied an erro-
neous standard instead of the correct “totality of the circum-
stances” standard. Id. at 1016-19. Rather than apply the test
ourselves, we remanded to the district court for it to “make
any requisite factual findings following an appropriate evi-
dentiary hearing, if necessary, and assess the totality of the
circumstances.” Id. at 1020.

We denied Defendants’ petition for rehearing en banc. Far-
rakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir. 2004)
(order). Seven judges dissented from denial of rehearing en
banc. Id. at 1116-27 (Kozinski, J., dissenting from denial of
rehearing en banc). The dissenting judges would have
reversed the judgment of the three-judge panel because of
their view that Section 2 of the VRA does not reach felon dis-
enfranchisement laws. Id. The Supreme Court denied certiorari.1
Locke v. Farrakhan, 543 U.S. 984 (2004).

On remand, the parties conducted additional discovery and
1
I note that we voted to deny rehearing en banc and that the Supreme
Court denied certiorari only as important procedural history. I do not
intend to imply that either we or the Court actually voted on the merits of
the legal issue.
17080 FARRAKHAN v. GREGOIRE
filed new affidavits and other submissions, including expert
reports. The district court dutifully applied the “totality of the
circumstances” test and concluded that, “[t]aking all of the
relevant factors into account,” Washington’s felon disenfran-
chisement law does not violate the VRA. Farrakhan v. Gre-
goire, No. CV-96-076, 2006 WL 1889273, at *9 (E.D. Wash.
July 7, 2006) (unpublished). I agree with the district court’s
thorough analysis and its conclusion that, although one of the
many relevant factors supports a finding of discrimination,
none of the other factors does. Id. at *6-9. I would affirm the
district court on that ground.

Accordingly, there is no need to reach the question whether
felon disenfranchisement laws may be challenged under Sec-
tion 2 of the VRA. Reaching that question is unnecessary
because we can affirm on the ground described above—the
ground that we mandated the district court to determine.

Perhaps more importantly, judicial prudence strongly sug-
gests that we decline to reach that question. We already
decided that question in this case more than seven years ago.
We declined to rehear the case en banc, over a vigorous dis-
sent, and the Supreme Court denied certiorari. In the many
years that have followed, the parties have conducted addi-
tional discovery, filed voluminous submissions, and written
dozens of pages of briefs. The district court followed our
mandate in detail and resolved the case on the ground that we
had specified. On appeal to this court, the parties filed addi-
tional briefs, and the three-judge panel, too, resolved the
appeal on the ground that it previously had specified.

Once we have resolved a preliminary and important point
of law and the full court and the Supreme Court have declined
to intervene, judicial prudence strongly suggests that we
should not later disturb that ruling—and thereby undo years
of effort by the parties and the courts—in the very same case
when doing so is entirely unnecessary. The animating princi-
ples of the “law of the case” doctrine apply here: “when a
 FARRAKHAN v. GREGOIRE 17081
court decides upon a rule of law, that decision should con-
tinue to govern the same issues in subsequent stages in the
same case.” Arizona v. California, 460 U.S. 605, 618 (1983).
I do not question the authority or legitimacy of the majority’s
opinion; I merely disagree with its discretionary decision to
resolve this case on its chosen ground.2 Were the result of this
case to hinge on that ground, or were there some compelling
reason to reach the issue,3 I might well come to a different
conclusion.

2
The decision to revisit a precedent in a later, different case presents a
different issue than whether to revisit an issue decided in an earlier stage
of the same case.
3
That the Supreme Court may soon vote to decide the issue is, in my
view, a reason to defer submission of this case, not a reason to decide this
case with haste.