On February 2, 1996, a group of African-Americans, Hispanic-Americans, and Native-Americans having felony convictions filed a pro se action in the U.S. District Court for the Eastern District of Washington, claiming that the state of Washington's felon disenfranchisement scheme violated the Voting Rights Act ("VRA"), 42 U.S.C. § 1971 et seq., and the First, Fourth, Fifth, Sixth, Ninth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution. The state constitution made persons convicted of an "infamous crime" (generally, a felony) ineligible to vote. Because, according to the plaintiffs' allegations, minorities were disproportionately prosecuted and sentenced, they were disproportionately represented among the persons disenfranchised under the Washington constitution. The plaintiffs alleged that the resultant race-based vote denial and vote dilution violated the VRA and the federal constitution.
District Judge Robert H. Whaley granted the plaintiffs' motion for appointment of counsel, resulting in the plaintiffs being represented by private attorneys and counsel from University Legal Assistance. Subsequently, counsel amended the complaint, adding a plaintiff, retaining the VRA violation claim, and modifying the list of federal constitutional amendments allegedly violated to include the First, Second, Fifth, Sixth, Seventh, Eighth, Fourteenth, and Fifteenth Amendments. The defendants filed a motion to dismiss. Judge Whaley denied the motion in part, saying that the VRA could be proven to be violated by a vote disenfranchisement scheme that results in vote denial based upon race, as the plaintiffs had alleged. The claims of vote dilution in violation of the VRA and of constitutional violations were too conclusory or unsupported, in the judge's view, leading him to dismiss those components of the complaint for failure to state a claim upon which relief could be granted. Farrakhan v. Locke, 987 F. Supp. 1304 (E.D. Wash. 1997).
On October 26, 1999, plaintiffs filed another amended complaint, making the same claims of racial discrimination against their voting rights but adding causes of action based upon alleged denial of the right to vote due to nonpayment of legal financial obligations, which the plaintiffs said constituted a denial due to a previous condition of servitude, and upon a claimed denial of due process stemming from the allegedly vague and unduly burdensome statutory process in Washington for an offender to gain restoration of voting rights. The complaint sought declaratory and injunctive relief, damages, and attorneys' fees and costs.
Judge Whaley granted the defendants' motion for summary judgment and denied the plaintiffs' motion for summary judgment in an unpublished order on December 1, 2000. Although the judge found that the disenfranchisement provision had a clear disproportionate impact on racial minorities, he said the plaintiffs could not show a causal relationship between the disenfranchisement and the result prohibited by the VRA. Neither was there any evidence that the disenfranchisement provision was motivated by racial animus or that its operation, by itself, had a discriminatory effect. In the judge's view, discrimination in the criminal justice system may show a flaw in that system, but that is different than proving a flaw with the disenfranchisement system. The totality of the circumstances failed to establish a causal link between Washington's felon disenfranchisement provision and reduced minority access to the state's political process. The court also rejected the challenge to the state's restoration of civil rights process, saying that the plaintiffs allegations failed to establish their standing to make such claims (i.e., they did not show that they were eligible to or had sought restoration) and, even had they shown standing, they had produced no evidence that something in the restoration process made restoration difficult or impossible because of race.
The plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit. (Amicus curiae briefs supporting the plaintiffs were filed by attorneys with the ACLU of Washington, the Brennan Center for Justice, and the Lawyers' Committee for Civil Rights Under Law.) A panel of the that court agreed with Judge Whaley that a claim of vote denial due to felon disenfranchisement is cognizable under Section 2 of the VRA, that the state disenfranchisement law did not violate the VRA, and that the plaintiffs lacked standing to challenge the state's restoration of rights process; however, the appellate court reversed the district judge on his analysis of whether the totality of the circumstances established unlawful racial discrimination and denial of minority voting rights as the effect of the disenfranchisement provision. Specifically, Circuit Judge Richard A. Paez wrote, the district court should not have excluded from its' analysis evidence of racial bias in the criminal justice system, because precedent requires examination of how a challenged voting system interacts with external factors such as social and historical conditions to result (or not) in the denial of the right to vote on account of race or color. The court remanded the case for the district court to make factual findings assessing the totality of the circumstances, including plaintiffs' evidence of racial bias in the state's criminal justice system. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003). Before the remand, however, the appellate court considered whether to hear the matter en banc. A majority of the active judges did not vote for en banc review, so none occurred, but judges favoring rehearing filed a lengthy dissent calling the panel opinion a questionable interpretation of the VRA, potentially destructive of the VRA, and wrongly based upon plaintiffs' evidence of statistical disparities in the criminal process when studies based on such disparities are "notoriously unreliable." Farrakhan v. Washington, 339 F.3d 1116 (9th Cir. 2004) (Circuit Judge Alex Kozinski, dissenting from the denial of rehearing en banc). The state failed in its' effort to have the U.S. Supreme Court grant a writ of certiorari to review the case. Locke v. Farrakhan, 543 U.S. 984 (2004).
When the case finally returned to the district court, the parties filed a joint status report advising that several months of discovery proceeding were anticipated, that a fifth amended complaint was contemplated, as was a motion for class certification, and that cross-motions for summary judgment would be forthcoming. Accordingly, the parties asked that the trial setting be for no earlier than March 2006.
Cross-motions for summary judgment were eventually filed and, in an unpublished order on July 7, 2006, Judge Whaley granted the state's while denying the plaintiffs'. While he continued to find plaintiffs' statistical evidence of racial bias in Washington's criminal justice system "compelling" and a factor which interacts with the state's disenfranchisement law in a meaningful way, the judge concluded that the multiple other factors relevant to analysis under a totality of the circumstances test counterbalanced the discriminatory effects resulting from the functioning of the state's criminal justice system.
The plaintiffs appealed for the second time to the Ninth Circuit in December 2006. After oral argument, Washington law was changed to provide 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, and, as to those convicted under federal law or in any other state, they are not in custody. See Wash. Laws of 2009, ch. 325, HB 1517. The Circuit Court determined the new law had no effect on the case but to moot the claims of one plaintiff who was no longer in custody. The Court reversed the lower court decision, holding that Plaintiffs have demonstrated that the discriminatory impact of Washington's felon disenfranchisement is attributable to racial discrimination in Washington's criminal justice system and remanded with instructions to grant summary judgment to plaintiffs.
On October 7, 2010, the en banc Ninth Circuit overturned the panel decision, holding that a state can prohibit felons from voting even if the ban disproportionately harms minorities. The court found that plaintiffs had not shown "that their convictions and resulting disenfranchisement resulted from intentional racial discrimination in the operation of the state's criminal justice system.
As of March 24, 2012 there has been no additional action in this case.Mike Fagan - 06/05/2008