Farrakhan v. State of Washington, 338 F.3d 1009 (9th Cir. 2003) Farraknan v. Gregiore & State of Washington, 590 F.3d 989 (9th Cir. 2010) Rehearing en banc granted: Farrakhan v. Gregiore, 590 F.3d 1989 (9th Cir. 2010) Farrakhan, an incarcerated prisoner in the state of Washington filed a lawsuit in 1996 alleging the disproportionate ratio of black prisoners in custody deprived them of race based voting rights under the federal Voting Rights Act, 42 U.S.C.1973. The district court summarily denied this absurd request but the prisoner appealed, requesting the Ninth Circuit to invalidate the statute. Despite the ludicrous allegation, the Ninth Circuit agreed (sort of) and sent the case back to the trial court to take additional findings of fact. From an excerpt of one of the dissenting judges in Farrakhan: This is a dark day for the Voting Rights Act. In adopting a constitutionally questionable interpretation of the Act, the [majority] panel lays the groundwork for the dismantling of the most important piece of civil rights legislation since Reconstruction. The panel also misinterprets the evidence, flouts our voting rights precedent and tramples settled circuit law . . . all in an effort to give felons the right to vote. The court should have taken this case en banc (full court) and brought order back into our case law. I dissent from the court’s failure to do so. The dissenting judges are referencing the state of Washington statute disenfranchising felons from voting. As noted by the dissenting judge, every state in the union forecloses convicted felons from voting, and Washington had enacted the statute in 1866 prior to enactment of the Fourteenth Amendment. Nothing in the Voter Rights Act remotely adverts to felony disenfranchisement and Congress has never considered enacting such legislation.* The dissenting judges were not finished with their criticism: They (Farrakhan )[have] no evidence of a history of official discrimination in voting, no evidence of racially polarized voting, no evidence of voting practices or procedures often used to discriminate against minorities, no evidence of discrimination in candidate slating, no evidence of discrimination in health, education or employment, no evidence of racial appeals in campaigns, no evidence that minorities have a harder time winning elections, no evidence that representatives are unresponsive to minority communities and no evidence that felon disenfranchisement is an unjustified policy. Plaintiffs have utterly failed to meet their burden of producing evidence showing vote denial on account of their race. Every state in [the Ninth Circuit] bars felons from the voting booth. The panel’s decision will change all that. It contradicts our case law and the law of at least four other circuits, making us an outlier in voting rights jurisprudence. It does so without so much as acknowledging congressional approval of felon disenfranchisement and without any consideration of the grave constitutional consequences of its actions. I am troubled not only by my colleagues’ insistence on an indefensible interpretation of the Voting Rights Act, but also by their utter disregard for our precedent. I dissent.** * The Second Circuit had considerable trouble with the voting rights issue and its judicial history is suspect. That court finally concluded the prisoner-who alleged the same conduct as in Farakhan- was not a resident of New York and did not have standing to sue; Muntquim v. Coombe, 449 F.3d 371 (2d Cir. 2006). A very curious decision. The Ninth Circuit panel sent the case back to the district court for additional findings. After holding hearings on the case, the district court again ruled in favor of the defendants (Gregoire and the State of Washington.) The plaintiffs appealed the decision and again the Ninth Circuit panel (2-1) reversed and found in favor of plaintiffs; Farrakhan v. Gregoire, State of Washington, 590 F.3d 989 (9th Cir.2010). Incomprehensible as it is, the Ninth Circuit found that discrimination exists in the Washington State criminal justice system and that evidence constituted a violation of the Voting Rights Act disenfranchising minority voters. In support of its allegations, the plaintiffs introduced two statistical reports from experts concluding minorities accounted for a disproportionate number of prisoners attributable to discriminatory police and prosecution practices. As the court points out, the State offered no contradictory evidence and argued the plaintiffs evidence legally insufficient. Without knowing the legal strategy, criticizing counsel for the State of Washington is difficult. But the Ninth Circuit panel repeatedly offered the absence of this evidence as a failure to contradict plaintiffs case. The routine complaint that minorities are stopped, searched and charged disproportionately is evidenced only by statistics. Every arrest is different and no one denies the crime rate in minority communities is higher than elsewhere. Reactions of car drivers or pedestrians stopped by police vary and statistics do not account for their demeanor, conduct, attitude and a variety of other factors. That alleged discrimination in minority communities supported by two experts paid by plaintiffs to render their opinions is tenuous at best. Even assuming the accuracy of the reports, that the criminal justice system is infected with discrimination is irrelevant on whether someone can vote under the Voting Rights Act. That statute was never intended for use in this case. This decision is at odds with every other Circuit Court of Appeals and its decision is best expressed by the dissent in he original case . And once again evidences federal court interference in state issues.
On rehearing, reversed by the en banc court; 623 F.3d 990 (9th Cir. 2010)