En Banc Ninth Circuit Upholds Felon Voting Ban in Washington State, Reversing Three-Judge Panel
Thanks to a reader who alerted me that the en banc Ninth Circuit has issued its ruling in Farrakhan v. Gregoire, the Washington inmate voting rights case in which it heard oral arguments just a few weeks ago. The SF Chronicle reports:
A state can prohibit felons from voting even if the ban disproportionately harms minorities, a federal appeals court ruled Thursday in a Washington state case that bolsters a similar law in California.
The Ninth U.S. Circuit Court of Appeals in San Francisco overturned a 2-1 decision by one of its panels in January that struck down the Washington law on the grounds that the state’s criminal justice system was racially biased.
That ruling, the first of its kind in the nation, would have allowed prisoners as well as parolees to vote in Washington. It also could have invalidated laws in the eight other states in the circuit, including California, if courts found that a state’s system of arresting and prosecuting suspects was racially skewed.
Two quick thoughts upon my initial scan of the full ruling (PDF link here):
- As the ruling notes (p. 3), three other circuits have concluded that felon disenfranchisement laws are “categorically exempt” from Section 2 of the Voting Rights Act. This ruling does not go that far (the Ninth Circuit having previously opened the door to these challenges in an earlier stage of the Farrakhan litigation), but it comes pretty close: it requires plaintiffs to make a threshold showing “that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent,” which was not alleged in Farrakhan. And it reserves judgment on whether plaintiffs would actually prevail even if they could make such a showing. As noted in the opinion (p. 4), there are states where felon disenfranchisement laws were enacted with the specific intent of disenfranchising black voters — see Hunter v. Underwood, which the court cites, and my earlier post on this topic here. Those states don’t tend to be in the Ninth Circuit, though, as far as I know, so I wonder if this language will effectively foreclose West Coast challenges of this type. (Given all the usual difficulties with proving intent, particularly in a systematic way, the other possible route, proving that intentional discrimination “infect[s]” the criminal justice system, seems even less plausible.)
- The opinion offers several rationales for why felon disenfranchisement laws are unlikely to be covered by Section 2, including the long history of such laws predating both the Voting Rights Act and the Fourteenth and Fifteenth Amendments. I wanted, though, to highlight this final rationale (PDF pp. 4-5):
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.
What do you think, readers?