Ninth Circuit saves Washington's felon disenfranchisement law in Farrakhan v. Gregoire


Author: Ralph W. Kasarda

Yesterday the Ninth Circuit Court of Appeals issued an important decision in a case called Farrakhan v. Gregoire.  In Farrakhan, felons claimed that the state of Washington's felon disenfranchisement law violates section 2 of the Voting Rights Act, because the law results in a denial or abridgement of the right to vote on account of race.  The felons did not claim that their own arrests and convictions were the result of intentional race discrimination.  Instead, they presented statistical evidence of racial disparities in Washington's criminal justice system to argue that discrimination existed.  See here, here, and here for our previous posts about this case.  

The court affirmed the district court, which had denied the felons' claim.  The court held that plaintiffs bringing a section 2 vote denial claim against a felon disenfranchisement law must "at least" show that the state's criminal justice system is "infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent."

The decision means that felons within the jurisdiction of the Ninth Circuit cannot challenge a state's felon disenfranchisement law using just statistical disparities in a state's criminal justice system.  The police can continue to arrest people who break the law, and not in accordance with some racial quota.

While the Ninth Circuit did not hold that the Voting Rights Act cannot be used to challenge laws prohibiting felons from voting, as other circuits have held, its insistence on a showing of "intentional" discrimination, rather than just statistical disparities, is positive.  A portion of PLF's amicus brief focused on that specific issue.