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Farrakhan v. Gregoire

The Ninth Circuit held that Washington’s felony disenfranchisement law does not violate the Voting Rights Act because there was no evidence of intentional discrimination in the state’s criminal justice system.

Last Updated: October 8, 2019
Published: January 5, 2010

This case was previ­ously captioned Farrakhan v. Locke.

Farrakhan v. Gregoire
Voting After Crim­inal Convic­tion

Farrakhan v. Gregoire involved a chal­lenge to Wash­ing­ton State’s felony disen­fran­chise­ment law that prohib­ited indi­vidu­als in prison or on parole or proba­tion from voting. Plaintiffs asser­ted that the law denied the right to vote on account of race in viol­a­tion of the Voting Rights Act (“VRA”).

On Decem­ber 1, 2000, the East­ern District of Wash­ing­ton recog­nized that chal­lenges to felony disen­fran­chise­ment laws were cogniz­able under section 2 of the VRA but determ­ined that plaintiffs did not estab­lish that Wash­ing­ton’s law “was motiv­ated by racial animus, or that its oper­a­tion by itself has a discrim­in­at­ory effect” in viol­a­tion of section 2 of the VRA.

On April 26, 2001, the Bren­nan Center filed its first amicus curiae brief to the Ninth Circuit Court of Appeals, focus­ing on the district court’s flawed analysis of the causal connec­tion between felony disen­fran­chise­ment and racial bias neces­sary in order to prevail under the VRA. Under the district court’s extremely narrow stand­ard, Wash­ing­ton’s felony disen­fran­chise­ment policy would not viol­ate the VRA because its dispar­ate racial impact results from discrim­in­a­tion in the crim­inal justice system, not the chal­lenged voting qual­i­fic­a­tion itself. Such a test effect­ively reads a require­ment of discrim­in­at­ory intent back into the VRA, some­thing Congress has expli­citly rejec­ted.

On July 25, 2003, the Ninth Circuit over­turned the district court’s decision (referred to by some as “Farrakhan I”), adopt­ing much of the analysis in the Center’s amicus brief. The court held that racial bias in the crim­inal justice system was a relev­ant social and histor­ical factor to a section 2 analysis that courts may consider in determ­in­ing whether felony disen­fran­chise­ment laws discrim­in­ate on account of race.

On Febru­ary 24, 2004, the Ninth Circuit denied en banc review, over a seven-judge dissent.

On May 24, 2004, the state peti­tioned the U.S. Supreme Court for review.

On August 19, 2004, the Center filed its second amicus brief arguing that the Court should deny review. The Center explained that any decision on the applic­ab­il­ity of the VRA in Farrakhan would not decide the ques­tion of the VRA’s applic­ab­il­ity to claims like those of our clients in John­son v. Bush, who were chal­len­ging a perman­ent disen­fran­chise­ment regime in Flor­ida that was origin­ally adop­ted as part of a multi­fa­ceted scheme to deplete African Amer­ic­an’s polit­ical power.

On Novem­ber 8, 2004, the Supreme Court denied review. The case proceeded to trial in the East­ern District of Wash­ing­ton in March 2006 (referred to by some as “Farrakhan II”).

On July 7, 2006, the East­ern District of Wash­ing­ton found Wash­ing­ton’s felony disen­fran­chise­ment provi­sion did not viol­ate the VRA. Although the court concluded that it “has no doubt that members of racial minor­it­ies have exper­i­enced discrim­in­a­tion in Wash­ing­ton’s crim­inal justice system,” it held that “Wash­ing­ton’s history, or lack thereof, of racial bias in its elect­oral process and in its decision to enact the felon disen­fran­chise­ment provi­sions, coun­ter­bal­ance the contem­por­ary discrim­in­at­ory effects that result from the day-to-day func­tion­ing of Wash­ing­ton’s crim­inal justice system.”

On Decem­ber 11, 2006, the Center filed its third amicus brief in the case. In this brief, we repres­en­ted the National Black Police Asso­ci­ation and the National Latino Officers Asso­ci­ation of Amer­ica, as well as several prom­in­ent indi­vidual former law-enforce­ment offi­cials, who shared an interest in the inval­id­a­tion of felon disen­fran­chise­ment laws. We argued (1) that the VRA permits and indeed requires review­ing courts to give seri­ous consid­er­a­tion to whether the policy justi­fic­a­tions for a voting prac­tice are tenu­ous, and (2) that the state of Wash­ing­ton serves no legit­im­ate penal interest by disen­fran­chising other­wise qual­i­fied citizens who have been convicted of a felony, includ­ing tens of thou­sands of African Amer­ican, Latino, and Native Amer­ican citizens.

On Janu­ary 5, 2010, the Ninth Circuit held that Wash­ing­ton’s felony disen­fran­chise­ment law does in fact viol­ate section 2 of the VRA. The decision was the first in the coun­try to find that, due to racial discrim­in­a­tion in a state’s crim­inal justice system, the felony disen­fran­chise­ment law resul­ted in the denial of the right to vote on account of race.

On April 28, 2010, the Ninth Circuit ordered the case to be reheard en banc.

On June 11, 2010, the Center filed its fourth amicus brief in the case. Amicus briefs were also filed by re-entry groupslaw enforce­ment offi­cialslaw profess­orsthe Amer­ican Civil Liber­ties Unionthe Community Service Soci­ety, and the Consti­tu­tional Account­ab­il­ity Center.

On Septem­ber 21, 2010, the en banc panel in the Ninth Circuit heard oral argu­ment on the case. To listen to the testi­mony, click here.

On Octo­ber 7, 2010, the Ninth Circuit, sitting en banc, held that Wash­ing­ton’s felony disen­fran­chise­ment law does not viol­ate the VRA because there was no evid­ence of inten­tional discrim­in­a­tion in the state’s crim­inal justice system (referred to by some as “Farrakhan III”). In its reas­on­ing, the panel noted that three circuits had found that “felon disen­fran­chise­ment laws are categor­ic­ally exempt from chal­lenges brought under section 2 of the VRA”; that such laws “pred­ate the Jim Crow era and, with a few notable excep­tions … have not been adop­ted based on racial consid­er­a­tions”; and that “Congress was no doubt aware of these laws when it enacted the VRA in 1965 and amended it in 1982, yet gave no indic­a­tion that felon disen­fran­chise­ment was in any way suspect.” The panel also narrowed the scope of when chal­lenges to felony disen­fran­chise­ment laws are cogniz­able under section 2 of the VRA—where a state’s crim­inal justice system is “infec­ted by inten­tional discrim­in­a­tion” or the law “was enacted with such intent.” The panel, however, expressed no view as to “whether a plaintiff who has made the required show­ing would neces­sar­ily estab­lish that a felon disen­fran­chise­ment law viol­ates section 2.”

For more inform­a­tion, visit NAACP LDF’s Farrakhan v. Gregoire webpage.



Amicus Briefs