Farrakhan v. Gregoire: Is the Ninth Circuit having second thoughts about felon voting rights?


Author: Ralph W. Kasarda

On January 5, 2010, the Ninth Circuit reversed a district court decision and held, in Farrakhan v. Gregoire, that the State of Washington's felon disenfranchisement law violates the federal Voting Rights Act.  In a 2-1 decision, the court concluded that the felons' showing of statistical disparities among races in Washington's criminal justice system was proof of discrimination.  According to two judges, this showing of disparate impact was sufficient to prove that felons were being denied the right to vote based upon their race.  By its decision, the court placed in jeopardy similar laws throughout the Western United States – all of the remaining eight states within the court's jurisdiction.

However, the court may be having second thoughts.  On January 28, 2010, the court granted Washington's motion to stay the issuance of the court's mandate to allow Washington to appeal the decision to the Supreme Court.  Then, on February 12, 2010, the court issued an order directing the parties to the Farrakhan case to file briefs setting forth their respective positions on whether the case should be reheard en banc

Five other federal circuits have considered similar arguments made by the felons in Farrakhan, and in each case those arguments were rejected.  Why?  Because the authority of states to enact felon disenfranchisement laws is specifically set forth in Section 2 of the Fourteenth Amendment

In Simmons v. Galvin, the First Circuit held that prisoners could not challenge Massachusetts' felon disenfranchisement law after considering the text, context, and legislative history of the Voting Rights Act.  In Hayden v. Pataki, the Second Circuit rejected a class action by paroled and incarcerated felons challenging New York's felon disenfranchisement law.  The court examined judicial interpretations and the legislative intent of the Voting Rights Act, and the constitutional authority for state felon disenfranchisement laws.  In Johnson v. Gov. of Fla., the Eleventh Circuit rejected the claims of a class action by felons challenging Florida's disenfranchisement law.  The court considered the history of Florida's law, and the scope and legislative intent of the Voting Rights Act.  

In Howard v. Gilmore, an unpublished decision by the Fourth Circuit, the court rejected a challenge to Virginia's felon disenfranchisement law.  The court noted that Virginia's disenfranchisement of felons pre-dates the enfranchisement of African Americans, and that the plaintiff failed to plead a nexus between the disenfranchisement of felons and race.  In Wesley v. Collins, the Sixth Circuit noted that felon disenfranchisement laws are constitutional under the Fourteenth Amendment.  The court concluded that evidence of past discrimination "cannot, in the manner of original sin, condemn action that is not itself unlawful."

Only the Ninth Circuit holds that convicted felons may challenge state disenfranchisement laws under the Voting Rights Act.  The court's decision in Farrakhan is thus a marked departure from the decisions of five other circuits.  The First, Second, Sixth, and Eleventh Circuits upheld state laws prohibiting felons from voting after carefully examining the text and history of the Fourteenth Amendment and the Voting Rights Act – something the Ninth Circuit has yet to do.  Should the Ninth Circuit order a rehearing en banc in Farrakhan, it will have the opportunity to fully address those issues. 

Felons who are victims of race discrimination may seek redress against various agencies within a state's criminal justice system by bringing constitutional challenges under the Equal Protection Clause.  However felons may not evade the burden of proving discrimination in such cases by resorting to a disparate impact theory under the Voting Rights Act.