Federal appeals court panel sends sparks flying with dramatic ruling on racial discrimination, justice, and voting rights.
A federal Ninth Circuit court of appeals panel ruled Tuesday that “compelling” evidence of racial discrimination in Washington’s criminal justice system should void the state’s law denying convicted felons the right to vote. The stinging rebuke to the state drew a swift and sharp response from state Attorney General Rob McKenna who faulted the panel for misapplying the federal Voting Rights Act.
The 2 to 1 opinion authored by Circuit Court Judge A. Wallace Tashima came in the case of Muhammad Shabazz Farrakhan et al. v. (Governor) Christine O. Gregoire, et. al, a case that was originally filed in Federal District Court in Spokane in 1996. At the time, Farrakhan was serving a three year sentence at the Washington State Penitentiary in Walla Walla for felony theft convictions that, under the state’s felon disenfranchisement law, deprived him of his right to vote. Farrakhan was eventually joined in the action by two other African American convicts, a Latino, and a Native American.
In her dissent, Judge M. Margaret McKeown chided the majority for charting “territory that none of our sister [federal] circuits has dared to explore” by finding that the discriminatory effects of felon disenfranchisement laws can be construed as violations of the Voting Rights Act.
In bringing the case, Farrakhan and his co-plaintiffs argued that because minorities in Washington are disproportionately prosecuted and sentenced, the effect of this pattern “causes vote denial and vote dilution on the basis of race” in violation of the Federal Voting Rights Act of 1965.
“The Ninth Circuit Court of Appeals has essentially ruled that Washington’s criminal justice system is illegitimately infected with racism. For the over ten years that this case has been active, the appeals court found that the State of Washington had not offered sufficient evidence to the contrary.” –CFJ lawyer and Chief Catalyst Breean Beggs.
In rulings in 1997 and 2000, Federal District Court Judge Robert H. Whaley agreed with Farrakhan and the other plaintiffs that there is “compelling” evidence both of racial discrimination in Washington’s criminal justice system and its “impact on minority voting power.”
But, as a matter of law, Judge Whaley also ruled that the evident racial discrimination was, by itself, “insufficient” to cause a violation of the Voting Rights Act because it was the discrimination itself, and not the state’s disenfranchisement law, “that causes any vote denial.”
The appeals court then reversed Whaley’s decision, finding that the district court judge had misconstrued Section 2 of the Voting Rights Act that mandates a “totality of circumstances inquiry” requiring “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.”
The case was then remanded back to the Eastern Washington district court where additional discovery was conducted prior to new cross motions for summary judgment. It was at this phase that expert witness testimony further solidified what is obviously the most damning set of facts about the case–the undisputed evidence of racial bias in the state’s criminal justice system.
The first expert, University of Washington Sociology Professor Dr. Robert Crutchfield, provided research on the pattern of racial disparity in the state’s criminal justice system. The second expert, UW Associate Professor Dr. Katherine Beckett, testified to her 2004 study looking at race and drug law enforcement in Seattle.
According to the Seattle Times, the expert testimony was that blacks in Washington are nine times more likely to be incarcerated than whites. In Judge Tashima’s summary of the evidence he noted that while national studies show a 20% racial disparity between the rate of criminal involvement and incarceration, Crutchfield’s research shows that “substantially more than one half of Washington State’s racial disproportionality cannot be explained by higher levels of criminal involvement.”
Whaley concluded that the new expert testimony was “admissible, relevant, and persuasive,” and that the state had not presented any evidence to refute it. But he nevertheless concluded that “the totality of the circumstances does not support a finding that Washington’s felon disenfranchisement law results in discrimination…on account of race.”
Although the state advanced other arguments in the case as it headed back to the appeals court, the main dispute was still over how the reach of the Voting Rights Act should be construed.
Congress made an important amendment to the Voting Rights Act in 1982 that eliminated the burden from plaintiffs to show discriminatory intent in order to prove a Voting Rights Act violation. Instead, under the revised law, plaintiffs needed only to show that “based on the totality of circumstances” states or other political subdivisions were depriving a class of citizens of an equal opportunity to participate in the electoral process.
“Plaintiffs do not contend that Washington’s felon disenfranchisement law was enacted with a discriminatory purpose,” the appeals court majority opinion says, in clarifying the issue before it. “(T)heir claim, rather, is that the provision interacts with a racially discriminatory criminal justice system and, as a result, racial minorities are disproportionately denied the right to vote.”
At the time the 1982 changes to the Voting Rights Act were enacted, the U.S. Senate adopted report language listing nine “typical factors” that courts might consider in making the “totality of circumstances” determinations. Farrakhan and the other plaintiffs, the appeals court concluded, provided a strong factual demonstration for the fifth of the nine factors–that they were part of minority groups who were discriminated against in a way that hindered “their ability to participate effectively in the political process.”
“The district court erred in requiring them [Farrakhan and the other plaintiffs] to prove Factors that had little if any relevance to their particular vote denial claim,” the appeals court majority ruled. “Although the district court was required to consider the ‘totality of the circumstances,’ not all of the Senate Factors were equally relevant, or even necessary, to that analysis in this case.”
While the appeals court devotes several pages to explaining its disagreements with how Judge Whaley applied the U.S. Senate’s legislative guidance on the Voting Rights Act, it ultimately insists that the basic dispute was decided by the Ninth Circuit panel, years ago, in its first ruling on the case, known as Farrakhan 1. Then the panel found that proper challenges to the felon disenfranchisement law–based on its documented effects–”are cognizable” under the amended federal Voting Rights Act.
While not disputing that Farrakhan 1 was the controlling decision in the case, the state argued that the decision should be abandoned because the court’s earlier conclusion “was clearly erroneous and works a manifest injustice.” The argument for error relied upon decisions from other federal circuits that differ from Farrakhan 1 on the reach of the Voting Rights Act.
In response, Judge Tashima’s opinion noted that all three decisions from other circuits were “rendered over vigorous dissents.” (Here, it’s perhaps noteworthy that one of the vigorous dissents Tashima referenced was authored by then-appeals court Judge Sonia Sotomayor, the newest member of the U.S. Supreme Court.)
Moreover, Tashima noted, the majority of the 9th Circuit’s active judges declined a motion to hear an appeal of Farrakhan 1 en banc [with all the judges participating.]
The new decision also squarely rejected the state’s argument that Farrakhan and the other plaintiff’s lacked standing.
“The Ninth Circuit Court of Appeals has essentially ruled that Washington’s criminal justice system is illegitimately infected with racism,” says the Center for Justice’s Chief Catalyst, Breean Beggs. “For the over ten years that this case has been active, the appeals court found that the State of Washington had not offered sufficient evidence to the contrary. This decision only controls the voting rights of people convicted of crimes but its fallout will ultimately require substantial changes in public policy and law enforcement in order to eradicate the racism documented in this case.”
“No matter how well the amended law functions to restore at an earlier time the voting rights of felons who have emerged from incarceration, it does not protect minorities from being denied the right to vote upon conviction by a criminal justice system that Plaintiffs have demonstrated is materially tainted by discrimination and bias.”–Judge A. Wallace Tashima.
Certainly, one of the more eye-opening aspects of the appeal is that while challenging the interpretation and weight of the plaintiff’s expert testimony about the prevalence of racial discrimination in the state’s criminal justice system, the state didn’t try to rebut or refute it.
In his opinion, Judge Tashima noted that the state elected this “perilous” strategy by its own choice “and we are charged with deciding this case in the procedural posture and on the record evidence as it is brought before us.”
Judge Tashima also bluntly criticized the state for taking a legal position that is squarely at odds with the expressed purposes of the 1982 amendments to the Voting Rights Act the provided the section under which Farrakhan and his co-plaintiffs brought their case.
“Defendants [the state] argue that even if Plaintiffs have demonstrated that Washington’s criminal justice system is infected with racial bias, Defendants are still entitled to summary judgment because Plaintiffs have failed to show a discriminatory intent or discriminatory motive,” Judge Tashima wrote. But “(t)his they plainly do not have to show under §2 as amended.”
The appeals court also addressed the issue of the recent change in Washington state law, that allows convicted felons to “provisionally” recover their voting rights once they are no longer in correctional facilities.
“We hope that defendants are correct about the positive effects of [the recent change]: it appears that under the old law almost a quarter of otherwise qualified African-American men in Washington were disenfranchised,” the majority opinion noted. “However, no matter how well the amended law functions to restore at an earlier time the voting rights of felons who have emerged from incarceration, it does not protect minorities from being denied the right to vote upon conviction by a criminal justice system that Plaintiffs have demonstrated is materially tainted by discrimination and bias.”
In an article appearing in today’s newspaper, the Seattle Times reports that state Attorney General McKenna quickly decided he would appeal the decision either to the Suipreme Court or to the full 9th Circuit.
“What the 9th Circuit did here is misapply the Voting Rights Act,” he told the Times. “They just got it wrong.”
McKenna also warned that if the ruling stood it would logically apply to all 48 states that currently ban voting by felons under state custody or supervision.
–CFJ