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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