Case 2:96-cv-00076-RHW Document 108 Page 1 of 13 Filed 10/26/1999

1 MAXEY LAW OFFICES, P.S.

D. C. Cronin, Attorney for Plaintiffs

2 1835 West Broadway

Spokane, WA 99201

3 4

~509) 326-0338
800) 326-0338 ax: (509) 325-9919

FILED IN THE US DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
OCT 2 6 1999

JAMES

R .

LARSEN,

CLDEERPKUTY

- SPOKANE. WASHINGTON

5 UNIVERSITY LEGAL ASSISTANCE Larry A Weiser, Alan Lynn McNeil,
6 & Mark Wilson, Attorneys for Plaintiffs Carter Williams, Legal Iiitern for Plaintiffs
7 1220 North Dakota Street- P.O. Box 3528 Spokane, WA 99220-3528
8 (509) 324-5791

9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

10

11 In re:

NO. CS-96-76-RHW

12 MUHAMMAD SHABBAZ FARRAKHAN,
et al.,
13

14

Plaintiffs,

PLAINTIFFS' FOURTH AMENDED COMPLAINT ADDING NEW CAUSES OF ACTION

15
GARY LOCKE, et al.,
16
Defendants.
17

18

Plaintiffs, Muhammad Shabazz Farrakhan, Al-Kareem Shaheed, Marcus X.

19 Price, Ramon Barrientes, Timothy Schaaf, Clifton Briceno, by and through their

20 attorneys, D. C. Cronin of Maxey Law Offices, P.S., and Larry A Weiser of

21 University Legal Assistance, for their complaint, allege and reallege the prior pro se

22 complaint as amended and filed herein and further allege and reallege as follows:

23
I. JURISDICTION

24

1. Jurisdiction: This Court has jurisdiction over this action under 42

25 U.S.C. 1971 and 1973. Plaintiffs' request for declaratory relief is authorized by 28

26 u.s.c. 2201.

27

28
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2

3

II. VENUE

4

2. Venue is proper under 28 U.S.C. 1391(b) because a substantial part of

5 the events giving rise to the claims occurred in this district.

6

III. PARTIES

7

Plaintiffs:

8

3. Plaintiff Muhammad Shabazz Farrakhan: At all times herein

9 mentioned, Plaintiff, Muhammad Shabazz Farrakhan, was a citizen of the United

10 States of America, residing in the State of Washington. PlaintiffFarrakhan is also

II a convicted felon. Plaintiff is also an African-American. At all times material,

12 Plaintiff has wished to vote and has requested registration as a voter in the State of

13 Washington. Plaintiff has been denied the right to vote and participate in the

14 electoral process due to his status as a convicted felon, herein after referred to as

15 "offender". Plaintiff is over the age of eighteen. Plaintiff, Muhammad Shabazz

16 Farrakhan, was in prison at the commencement of this litigation and has since

17 been released. PlaintiffFarrakhan has fulfilled all conditions of his sentence

18 except for his financial legal obligation.

19

4. Plaintiff Al-Kareem Shaheed: At all times mentioned, Plaintiff, Al-

20 Kareem Shaheed, was and is a citizen of the United States of America, residing at

21 the Washington State Penitentiary in Walla Walla, Washington. Plaintiff is a

22 convicted felon. Plaintiff is also an African-American. At all times material,

23 Plaintiff has wished to vote and has requested registration as a voter in the State of

24 Washington. Plaintiff has been denied the right to vote and participate in the

25 electoral process due to his status as a convicted felon. Plaintiff is over the age of

26 eighteen. Plaintiff, Al-Kareem Shaheed was in prison at the commencement of

27 this litigation.

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2

5. Plaintiff Marcus X. Price: At all times mentioned, Plaintiff Marcus

3 X. Price, was and is a citizen of the United States of America, residing at the

4 Washington State Penitentiary in Walla Walla, Washington. Plaintiff is a

5 convicted felon. Plaintiff is also an African-American. At all times material,

6 Plaintiff has wished to vote and has requested registration as a voter in the State of

7 Washington. Plaintiff has been denied the right to vote and participate in the

8 electoral process due to his status as a convicted felon. Plaintiff is over the age of

9 eighteen. Plaintiff Marcus X. Price was in prison at the commencement of this

I0 litigation.

II

6. Plaintiff Ramon Barrientes: At all times mentioned, Plaintiff Ramon

I2 Barrientes, was and is a citizen of the United States of America, residing at

I3 Washington State Penitentiary in Walla Walla, Washington. Plaintiff is a

I4 convicted felon. Plaintiff is also a Hispanic American. At all times material,

I5 Plaintiff has wished to vote and has requested registration as a voter in the State of

I6 Washington. Plaintiff has been denied the right to vote and participate in the

I7 electoral process due to his status as a convicted felon. Plaintiff is over the age of

I8 eighteen. Plaintiff Ramon Barrientes was in prison at the commencement of this

I9 litigation.

20

7. Plaintiff Timothy Schaaf: At all times mentioned, Plaintiff Timothy

2I Schaaf was and is a citizen of the United States of America, residing at the

22 Washington State Reformatory in Monroe, Washington. Plaintiff is a convicted

23 felon. Plaintiff is also an American Indian. At all times material, Plaintiff has

24 wished to vote and has requested registration as a voter in the State of

25 Washington. Plaintiff has been denied the right to vote and participate in the

26 electoral process due to his status as a convicted felon. Plaintiff is over the age of

27

28
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2 eighteen. Plaintiff Timothy Schaaf was in prison at the commencement of this

3 action.

4

8. Plaintiff Clifton Briceno: At all times mentioned, Plaintiff Clifton

5 Briceno was and is a citizen of the United States of America, residing at the

6 Washington State Reformatory in Monroe, Washington. Plaintiff is a convicted

7 felon. Plaintiff is also an American Indian. At all times material, Plaintiff has

8 wished to vote and has requested registration as a voter in the State of

9 Washington. Plaintiff has been denied the right to vote and participate in the

I 0 electoral process due to his status as a convicted felon. Plaintiff is over the age of

II eighteen. Plaintiff Clifton Briceno was in prison at the commencement of this

12 action.

13

Defendants:

14

9. State of Washington: At all times herein mentioned, Defendant, State

15 of Washington, was/is a governmental entity and member of the Republic known

16 as the United States of America. Defendant, State of Washington, is a party

17 defendant to this litigation pursuant to Chapter 20 of 42 U.S.C. subsecs. 1971 et

18 seq. Defendant, State of Washington, is also a party defendant because Defendant,

19 State of Washington, lacks immunity from suit in Federal Court by a resident of

20 the State of Washington pursuant to federal and state law.

21

10. Defendant Gary Locke: At all times material, Defendant, Gary

22 Locke, was/is a citizen of the United States of America and a resident of the State

23 of Washington. Defendant Locke, at all times material, was/is also the Governor

24 of the State of Washington and a person subject to suit in his official capacity

25 within the meaning of 42 U.S.C. sec. 1983, and Monell v. Dept. of Social

26 Services, 435 US 658 (1978), and its progeny. As Governor, Defendant Locke is

27 the chief executive officer of the State of Washington, responsible for, among

28
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2 other duties, supervision of all executive and ministerial offices; issuance and

3 transmission of all electoral proclamations prescribed by law; and vested with the

4 power to pardon convicted felons.

5

11. Defendant Ralph Munro: At all times material, Defendant, Ralph

6 Munro, was and is a citizen of the United States of America and a resident of the

7 State of Washington. Defendant Munro, at all times material, was/is also the

8 Secretary of the State of Washington and a person subject to suit in his official

9 capacity within the meaning of 42 U.S.C. sec. 1983, and Monell v. Dept. of Social

10 Services, 435 US 658 (1978), and its progeny. At all times material, as Secretary

II of State, Defendant Munro is/was responsible, among other things, for certifying

12 the election returns for all officers required by the constitution to be so certified

13 and to certify to the Governor the names of all other persons who have received at

14 any election the highest number of votes for any office the incumbent of which is

15 to be commissioned by the Governor. As Secretary of State, Ralph Munro, was/is

16 also responsible for overview and supervision of election registration, specifying

17 by rule the form of the voter registration records required under RCW 29.07.070

18 and RCW 29.07.260; producing and furnishing the registration forms required

19 under RCW 29.07.070 and RCW 29.07.260; producing and distributing

20 instructional material and other supplies needed to implement RCW 29.07.260

21 through RCW 29.07.300 and RCW 46.20.155. At all times material, as Secretary

22 of State, Ralph Munro is/was through the Election Division, the Chief Election

23 Officer for all federal, state, county, city, town, and district elections with the duty

24 to keep records of such elections held in the State of Washington and to coordinate

25 those state election activities required by federal law.

26

12. Defendant Joseph Lehman: At all times material, Defendant, Joseph

27 Lehman, was and is a citizen of the United States of America and a resident of the

28
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2 State of Washington. Defendant Lehman, at all times material, was/is the director

3 of the Washington State Department of Corrections and subject to suit in his

4 official capacity as a person within the meaning of Monell v. US, 658 (1978), and

5 its progeny.

6

IV. STATEMENT OF FACTS

7

13 . This is an action at law for declaratory and injunctive relief, arising

8 under Title, 42 U.S.C. subsec. 1971; and 42 U.S.C. subsec. 1973, and, the laws of

9 the State of Washington, and common law principles to redress a deprivation

I0 under color of state law, of rights, privileges, and immunities secured to Plaintiffs

II by said statutes.

12

14. The events, acts, and omissions herein complained of concerning

13 Plaintiffs, and each of them, began when Plaintiffs Muhammad Shabazz

14 Farrakhan, AI Kareem Shaheed, Marcus X. Price, Ramon Barrientes, Timothy

15 Schaaf, and Clifton Briceno were denied the right to vote by operation of Article 6

16 sec. 3 ofthe Washington State Constitution and operation ofRCW 29.01.080;

17 RCW 29.07.080; RCW 29.07.260, and other statutes and case law including

18 Femande v. Kiner, 36 Wn.App. 210,673 P.2d 191 (1983), review denied. As

19 stated at Article 6 sec. 3 of the Washington State Constitution, "All persons

20 convicted of infamous crime unless restored to their civil rights and all persons

21 while they are judicially declared mentally incompetent are excluded from the

22 elective franchise." According to RCW 26.01.080, "Infamous Crime" is any crime

23 punishable by death in the state penitentiary or imprisonment in a state

24 correctional facility." As convicted felons, Plaintiffs Farrakhan, Shaheed, Price,

25 Barrientes, Schaaf, and Briceno were denied the elective franchise in Washington

26 State. For, as stated at RCW 29.07.070. the registrant shall sign the following

27 oath: "I declare that the facts on this voter registration form are true. I am a

28
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2 citizen of the United States, I am not presently denied my civil rights as a result of

3 being convicted of a felony, I will have lived in Washington at this address for

4 thirty days immediately before the next election at which I vote and I will be at

5 least eighteen years old when I vote." See also, RCW 29.07.269(3)-(4); RCW

6 29.1 0.097.

7

15. Plaintiffs Farrakhan, Shaheed, Price, Barrientes, Schaaf, and Briceno

8 are eligible to vote but for their "status" as felons in the State of Washington who

9 have not had their civil rights, including voting rights, restored to them. Plaintiffs

10 are denied the right to vote even though 42 U.S.C. 1971(a)(1) states all citizens of

II the United States who are otherwise qualified by law to vote at any election shall

12 be entitled and allowed to vote at all such elections without distinction of race,

13 color, or previous condition of servitude; any constitution, law, custom, or usage

14 or regulation of any state to the contrary notwithstanding. Plaintiffs are further

15 denied the right to vote even though 42 U.S.C. 1973(a) states no voting

16 qualification or prerequisite to voting or standing, practice, or procedure shall be

17 imposed or applied by any state or political subdivision in any manner which

18 results in a denial or abridgement of the right to vote on account of race or color.

19 Plaintiffs allege and thereupon firmly believe Article 6 sec. 3 of the Washington

20 State Constitution and the laws of the State of Washington violate these two

21 federal statutes under any analysis of the total circumstances.

22

16. As indicated above, Plaintiffs Farrakhan and Shaheed, Price, are

23 African Americans. As indicated in the previously filed report from the

24 Washington State Minority and Justice Commission, African Americans sentenced

25 for serious crimes are more likely than Whites sentenced for serious crimes to be

26 given aggravated sentences by the Superior Courts of the State of Washington.

27 Further, as indicated therein, the population of African, Hispanic, and Native

28
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2 Americans (and other minority prisoners) in state and federal correctional facilities

3 are disproportionately large given their number in the general population. As

4 indicated in the report, Washington State is no exception to this general rule. (The

5 contents of the report, previously filed, are incorporated herein by this reference as

6 though fully set forth).

7

17. In addition, as indicated by previously filed statistics gleaned from a

8 case review, it is also clear the chance the Spokane Prosecuting Attorney's office

9 will seek the death penalty against an eligible black person is 100% compared to a

10 21% chance if the eligible individual is white. Similarly, as indicated by the

II previously filed declaration of Judy Ottoson, "historically, the Spokane County list

12 of candidates summoned for jury duty has been overwhelmingly Caucasian and at

13 present is still at least 75% Caucasian." (The statistical report and declarations

14 were previously filed and are incorporated herein by this reference as though fully

15 set forth).

16

18. It is also known the Spokane County Judiciary has no members ofthe

17 African-American community. Although the office of Spokane County

18 Prosecutor and the Spokane county judicial bench are elected positions, there has

19 never been an elected Native-American or African-American for any of the over

20 twenty-five judicial positions on the State Superior and District Courts in and for

21 Spokane County.

22

19. As also indicated in the previously filed report "Racial

23 Disproportionality in the Juvenile Justice System," although persons of color

24 constituted approximately 11% of the State of Washington's total population in

25 1989, they made up approximately 31% of all persons referred to juvenile court,

26 nearly 30% of all persons adjudicated in juvenile court, and approximately 37% of

27 all persons committed to Division of Juvenile Rehabilitation facilities. (The

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2

3 contents of this previously filed report are incorporated herein by this reference as

4 though fully set forth).

5

20. As also indicated in the above-referenced report, African American

6 youth were almost twice as likely to be arrested as whites and approximately five

7 times more likely to be "referred" than whites; and five times more likely to be

8 detained than whites. Indeed, the State of Washington's own memorandum of

9 authorities filed herein on June 6, 1996, states that although 1.7% of the state

10 population counted in the 1990 census is black, 22.8% of the Washington prison

11 population is black. Plaintiffs Farrakhan, Shaheed, and Price contend and believe

12 these racial disparities result in the disenfranchisement of a disproportionately

13 large segment of the minority voting population.

14

21. The racial disparities noted in the preceding paragraphs, are the

15 result, at least in part, of racial discrimination within the criminal justice systems

16 of Washington, the United States, and other states, that cause higher rates of arrest,

17 higher conviction rates, longer sentences, and fewer suspended sentences for

18 African, Hispanic, and Native Americans and other minorities than for other

19 similarly situated individuals.

20

22. Defendants and the State of Washington have failed to take any

21 action to mitigate the racially disparate impact of Article 6 sec. 3 despite reports

22 by local, state, and national agencies and courts documenting the racial

23 discrimination within Washington's criminal justice system.

24

23. Also, in order for an offender to regain his civil rights he must

25 complete the requirements of the sentence. RCW 9.94A.220.

26

24. Requirements of the sentence include payment of any fines due and

27 owing under the sentence.

28
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2

3

25. The Department of Corrections, herein after referred to as DOC,

4 supervises all payments of an offender's legal financial obligations and

5 restitutionary obligations. RCW 9.94A.l20.

6

26. Further, it is understood that the DOC will not notify the sentencing

7 court to issue a certificate of discharge, which allows the restoration of a

8 offender's civil rights, unless all requirements of the sentence are met, including

9 legal financial obligations and restitutionary obligations.

10

27. PlaintiffFarrakhan, a previously incarcerated minority, has attempted

II to have his voting rights restored. He has completed his sentencing requirements

12 except for the payment of his legal financial obligation and is not obligated to do

13 community supervision. When PlaintiffFarrakhan contacted Dale B. Ramerman,

14 Presiding Judge for the King County Superior Court and asked how to get his

15 voting rights restored, Judge Ramerman replied in a letter in pertinent part: "the

16 King County Superior Court judges as a whole have no particular policies,

17 regulation, procedures, customs or practices re: informing criminal defendants on

18 restoration of civil rights ..."

19

28. Upon notification from the secretary of the Department of

20 Corrections to the sentencing court that the offender has completed the

21 requirements of their sentence, the sentencing court shall discharge the offender

22 and provide the offender with a certificate of discharge. RCW 9.94A.220

23

V. FIRST CAUSE OF ACTION

24

usc Denial of the R1ght to Vote
42 11)71

25

29. Plaintiffs repeat and reallege the allegations of paragraphs 1 through

26

28 above as if fully set forth herein.

27

28
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1

2

30. Washington election law and Article 6 sec. 3 of the Washington State

3 Constitution denies Plaintiffs Farrakhan, Shaheed, Price, Barrientes, Schaaf, and

4 Briceno the right to vote on account of their race in violation of 42 USC 1971.

5
VI. SECOND CAUSE OF ACTION

6

Denial of the RI,ht to Vote

42 USC I 73

7
31. Plaintiffs repeat and reallege the allegations of paragraphs 1 through

8
28 above as if fully set herein.

9
32. Washington election law and Article 6 sec. 3 of the Washington State

10
Constitution denies Plaintiffs Farrakhan, Shaheed, Price, Barrientes, Schaaf, and

11
Briceno the right to vote on account of their race in violation of 42 U.S.C. 1973.

12

13

VII. THIRD CAUSE OF ACTION

14

Denia4l 2ofut.hse.cR.i,h9t7t1o Vote

33. Plaintiffs repeat and reallege the allegations of paragraphs 1 through

15
28 above as if fully set forth herein.

16
34. IfPlaintiffFarrakhan was allowed to make a good faith effort and be

17
provided with a payment plan in regard to his legal financial obligations, which in

18
tum would be interpreted by the Defendant as completing the requirements of his

19
sentence, then offender Farrakhan would be eligible for restoration of his civil

20
rights.

21
35. PlaintiffFarrakhan is being denied the right to vote based on his

22
previous condition of servitude pursuant to and in violation of 42 U.S.C. 1971.

23

24

VIII. FOURTH CAUSE OF ACTION

25

Denial42ofut.hse.cR.i,

ht to 971

Vote

36. Plaintiffs repeat and reallege the allegations of paragraphs 1 through

26

28 above as if fully set herein.

27

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2

3

37. The process set forth for restoration of an offender's civil rights in

4 the State of Washington is vague, unclear, and unduly burdensome. As a result, it

5 is in violation of 42 U.S.C. 1971.

6

IX. EQUITABLE RELIEF REQUESTED

7

38. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 28

8 above as if fully set forth herein.

9

39. There is a real and actual controversy between the parties and Plaintiffs

10 have no complete and adequate remedy of law other than this action for declaratory

II and injunctive relief. Plaintiffs are suffering irreparable injury as a result of the

12 violations complained of herein and that injury will continue unless declared to be

13 unlawful and enjoined by this court.

14

X. RE8UEST FOR RELIEF

15

AS TO EACH CASE OF ACTION APPLICABLE

16

1. For the Court to take jurisdiction of this case;

17

2. For the Court to declare that Washington election law and Article 6

18 sec. 3 ofthe Washington State Constitution violate 42 U.S.C. 1971;

19

3. For the Court to declare Washington election law and Article 6 sec. 3

20 ofthe Washington State Constitution, violate 42 U.S.C. 1973;

21

4. For the Court to declare Washington Restoration of Civil Rights law

22 RCW 9.94A.220 violates 42 U.S.C. 1971;

23

5. For the Court to issue a permanent and preliminary injunction

24 preventing defendants and each of them, their officers, agents, employees, and

25 successors in office and all people in active concert or participation with them from

26 enforcing Article 6 sec. 3 of the Washington State Constitution or otherwise

27

28
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1 preventing convicted felons from voting or registering to vote on the basis of their

2 felony convictions;

3

6. For attorneys' fees pursuant to 42 U.S.C. sec. 1988, and/or other

4 applicable statutes;

5

7. Damages in an amount to be determined at trail;

6

8. For costs of suit pursuant to applicable statutes;

7

9. For such other and further relief as the Court may deem proper.

8

DATED this __ day of October, 1999.

9

UNIVERSITYJ...""-1.1"1¥lJlJ

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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 Case 2:96-cv-00076-RHW Document 175 Page 1 of 4 Filed 02/04/2005

Larry Weiser, WSBA #6865 Attorney for Plaintiff

Jim Merson, WSBA #91663

2 Legal Intern for Plaintiff

721 North Cincinnati Street

:~

3 P.O. Box 3528

;
i

Spokane, Washington 99220 4 (509) 323-5791

5 D.C. Cronin, WSBA #16018 Attorn.ey for Plaintiff
6 1708 W. Mission Avenue · Spokane, WA 99201
7 (509) 328-5600

8

9

10

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASillNGTON

11

12
MlJHA.MJ\,1AD SHABAZZ
13
FARRAKHAN, et al.,

Case No.: CV-96-76-RHW JOINT STATUS REPORT

14
Plaintiffs,

15
vs.

16
GARY LOCKE, et al.,

17
Defendants.

18
The parties, by and through their counsel, hereby file this joint status report

19
pursuant to this Court's Order dated January 24,2005.

20
1. Current Procedural Posture of Case

21
This case is on remand from the United States Court of Appeals for the

22
Ninth Circuit based upon the opinion in Farrakhan v. Locke, 338 F.3d 1009 (9th

23
Cir. 2003), on July 25, 2003, which affirmed in part, and reversed in part, a

24
December 1, 2000 Order of this court, which granted Defendants' Motion for

25
Summary Judgment. Defendants filed a petition for certiorari in the United States

JOINT STATUS REPORT

1

Case 2:96-cv-00076-RHW Document 175 Page 2 of 4 Filed 02/04/2005

Supreme Court, which was denied on November 8, 2004. No pleadings have been

2 filed by the Parties since the case has been remanded.

3

2. Current Status of Discovery

4

No discovery has been initiated since the case has been remanded, although

5 the Parties anticipate that discovery will include depositions, interrogatories, and

6 requests for production, and may include non-party discovery.

7

3. Additional Motions

8

Plaintiffs may seek leave to file a fifth amended complaint. Plaintiffs may

9 also file a motion for class certification. The Defendants may ·file a motion to

10 dismiss portions of the case prior to the close of discovery. The Parties may also

.i . ~
~

11 file cross motions for summary judgment after the close of discovery.

12

4. Proposed Scheduling Order

13

Both parties have conferred and anticipate that discovery in this matter may

14 take several months. The parties request that trial be set for a date no earlier than

15 March 2006, after cross-motions for summary judgment will be decided. Counsel

16 for the Parties have no conflicts with a trial setting during the months ofMarch and

17 April2006.

18

19

20

21

FF EVEN, WSBA #203 2 Assistant Attorneys General 24 Attorneys for Defendants
25

v~~
/ / MMERSON, WSBA #91663
(/' Legal Intern for Plaintiffs

JOINT STATUS REPORT

2

Case 2:96-cv-00076-RHW Document 175 Page 3 of 4 Filed 02/04/2005
. ~

i
.J

2 3

l\~,..,.1 (Je~l....,ro.\\h::~ti 4,-z~

4 JASON VAIL, WSBA #32244 Attorney for Plaintiffs
5
6
7

(Approved Telephonically on February 4, 2005) D.C. CRONIN, WSBA #16018 Attorney for Plaintiffs

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

JOINT STATUS REPORT

3

Case 2:96-cv-00076-RHW Document 175 Page 4 of 4 Filed 02/04/2005

1

CERTIFICATE OF SERVICE

2

I certify that on February 4, 2005, I electronically filed the foregoing with

3 the Clerk of the Court using the CM/ECF System which will send notification

4 of such filing to the following:

5 TO:
6 Jeffrey Todd Even at jeffe@atg.wa.gov Alan Lynn McNeil at amcneil@lawschool.gonzaga.edu
7 And I hereby certify that I have mailed by United States Postal Service
8 the document to the following non-CM/ECF participants
9 TO:
10 LARRY A. WEISER
11 UNIVERSITY LEGAL ASSISTANCE GONZAGASCHOOLOFLAW
12 POBOX3528 SPOKANE WA 99220-2021
13 DENNIS C. CRONIN
14 1708 W MISSION AVENUE SUITE B SPOKANE WA 99201-2759
15 JASON VAIL
16 NORTHWEST WSTICE PROJECT 401 2ND AVENUE SOUTH SUITE 407
17 SEATTLE WA 98104-3811

18

I certify under penalty of perjury of the laws of the State of Washington

that the foregoing is true and correct.

19

EXECUTED this f/10-.- day of February, 2005, at Olympia,

20 Washington.

21 KATRINA TOAL
22

JOINT STATUS REPORT NO. CV-96-076-RHW

4

ATTORNEY GENERAL OF WASHINGTON

Criminal Justice Division

POBox40116

Olympia, WA 98504-0116

(360) 586-1445

 
 987 F.Supp. 1304 (1997)
Muhammad Shabbaz FARRAKHAN, et al., Plaintiffs, v.
Gary LOCKE, et al., Defendants.
No. CS-96-076-RHW.
United States District Court, E.D. Washington.
November 13, 1997.
13056 *1305 *1306 Lawrence Arthur Weister, Alan Lynn McNeil, University Legal Assistance, Spokane, WA, Dennis Charles Cronin, Maxey Law Offices, Spokane, WA, for plaintiffs Muhammad Shabazz Farrakhan, Marcus X. Price, Ramon Barrientes, Timothy Schaaf, Clifton Briceno, Al-Kareem Shaheed.
Alan Lynn McNeil, University Legal Assistance, Spokane, WA, Dennis Charles Cronin, Maxey Law Offices, Spokane, WA, for plaintiffs Ernest S. Walker, Al-Kareem Shadeed, Michael D. Adams, David Conyers, George Mitchell, Michael Aivarado, Tracy Huitt, Richard Snell, Carl Maxey.
Marcus X. Price, Spokane, WA, pro se.
Dennis Charles Cronin, Maxey Law Offices, Spokane, WA, for plaintiff Bevin Maxey.
Daniel John Judge, Attorney General of Washington, Criminal Justice Division, Jeffrey Todd Even, Attorney General of Washington, Olympia, WA, for defendants, State of Washington, Mike Lowry, Governor, Chase Riveland, Sec. of Dept. of Corrections, Gary Locke, Governor, Ralph Munro, Sec. of State, Joseph Lehman, Sec. of Dept. of Corrections.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS, AND DENYING IN PART PLAINTIFFS' MOTION TO AMEND
WHALEY, District Judge.
Before the Court are Defendants' Motion for Dismissal for Failure to State a Claim (Ct.Rec.53) and Plaintiffs' Motion for Leave to Amend (Ct.Rec.66). A hearing was held in this matter on October 17, 1997. Dennis Cronin, Larry Weiser, Angel Rains, and George Vourvoulias appeared on behalf of Plaintiffs, Daniel Judge and Jeffrey Even appeared on behalf of Defendants.
As explained below, Defendants' motion to dismiss is granted as to Plaintiffs' claims for vote dilution under the Voting Rights Act ("VRA") and as to Plaintiffs' constitutional claims. Defendants' motion is denied as to Plaintiffs' claims for vote denial under the VRA. Plaintiffs' Motion for Leave to Amend is denied, except to the extent that Plaintiff Bevan Maxey[1] is added as a party.
1307 *1307 FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Farrakhan, Shaheed, Price, Barrientes, Schaaf, and Briceno are African-American, Hispanic-American and Native-American felons. They, along with other Plaintiffs who have since opted out, originally filed the instant action pro se on February 2, 1996, claiming that the State of Washington's felon disenfranchisement scheme violates the VRA as well as the First, Fourth, Fifth, Sixth, Ninth, Fourteenth and Fifteenth Amendments to the United States Constitution. Plaintiffs also lodged a complaint against the National Rifle Association ("NRA"), asserting that the NRA, along with state officials, orchestrated Initiative 593 (Washington's "three-strikes" law) with an intent to oppress racial minorities. Because none of the Plaintiffs asserted that they were incarcerated or disenfranchised under Initiative 593, the Court dismissed this claim sua sponte for lack of standing. The Court subsequently granted Plaintiffs' motion to assign counsel, and permitted Plaintiffs to amend their complaint. The

amended complaint added Carl Maxey, an African-American registered voter, as a plaintiff, and asserted claims for relief under the VRA, and the First, Second, Fifth, Sixth, Seventh, Eighth, Fourteenth, and Fifteenth Amendments to the United States Constitution.
The focus of Plaintiffs' Complaint is Washington's felon disenfranchisement law. Under Washington's constitution, a person convicted of an "infamous crime" is ineligible to vote. Wash. Const. Art. VI, §§ 1 & 3. As defined by statute, an "infamous crime" is one that is "punishable by death in the state penitentiary or imprisonment in a state correctional facility." Wash. Rev.Code § 29.01.080. Although Washington provides for restoration of voting rights for certain felons,[2] the plaintiff felons make no allegations that they have obtained this form of redress. The Complaint alleges that minorities are disproportionately prosecuted and sentenced, resulting in their disproportionate representation among the persons disenfranchised under the Washington Constitution. Consequently, Plaintiffs allege that Washington law causes vote denial and vote dilution on the basis of race, in violation of the VRA, as well as direct violations of the United States Constitution.
ANALYSIS
1. The Legal Standard Governing a Motion to Dismiss
Defendants move for dismissal under Fed. R.Civ.P. 12(b)(6). Thereunder, dismissal is appropriate only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In analyzing a 12(b)(6) motion, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985). The issue is not whether Plaintiffs will ultimately prevail, but whether they are entitled to offer evidence in support of their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Under this liberal standard, motions to dismiss are viewed with disfavor. Intake Water Co. v. Yellowstone River Compact Comm'n., 590 F.Supp. 293 (D.Mont.1983), aff'd, 769 F.2d 568 (9th Cir.1985).
2. The Voting Rights Act Claims
Congress enacted the VRA for the broad remedial purpose of "rid[ding] the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 812, 15 L.Ed.2d 769 (1966). For this reason, the VRA should be interpreted in a manner that provides "the broadest possible scope in combating racial discrimination." Allen v. State Bd. of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 832-33, 22 L.Ed.2d 1 (1969). In 1982, Congress amended the VRA in order to relieve plaintiffs of the burden of proving discriminatory intent, after a plurality of the Supreme Court had concluded that the pre-1982 VRA, like the Fifteenth 1308 Amendment, contained such a requirement. See Mobile v. Bolden, 446 U.S. *1308 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). As amended, § 2 of the VRA now states:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That

nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973. Subsection (b) has come to be known as the "results test" under the VRA. As explained by the Supreme Court, "[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality" in the voting rights of various racial groups. Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 2764, 92 L.Ed.2d 25 (1986).
The VRA has been interpreted to apply to two types of discriminatory practices and procedures: those that result in "vote denial" and those that result in "vote dilution." Plaintiffs' Complaint alleges both.
a. Vote Denial
The Background of Vote Denial Claims and Application to this Case
Originally, enforcement of the Fifteenth Amendment under the VRA involved challenges of state election practices such, as literacy tests, that resulted in the denial of the right to vote to minority citizens. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). The VRA was enacted in response to the increasing sophistication with which states were denying racial minorities the right to vote. After the Civil War and ratification of the Fifteenth Amendment, several southern states enacted facially neutral voting requirements, which had the effect of sustaining the denial of the right to vote on the basis of race. Congress created the VRA to put an end to the states' "unremitting and ingenious defiance of the Constitution." South Carolina v. Katzenbach, 383 U.S. 301, 309, 86 S.Ct. 803, 808, 15 L.Ed.2d 769 (1966).
In considering Plaintiffs' allegations of vote denial under the VRA, the question arises as to whether Washington's felon disenfranchisement law may be a test or device that denies individuals the right to vote on the basis of race. On its face, the VRA applies to Plaintiffs' claims. Plaintiffs are citizens, and felon disenfranchisement is a voting device. Consequently, if Plaintiffs were to prove that Washington's felon disenfranchisement scheme denies them the right to vote in a discriminatory manner, then it would be a voting device that violates the VRA. Defendants argue that the meaning of the VRA cannot simply be derived from its face. Instead, voting devices such as felon disenfranchisement laws can only fall under the VRA if Congress has plainly stated such. Otherwise the VRA would constitute an overstatement of Congress's remedial powers under § 2 of the Fourteenth Amendment.
The Plain Statement Rule Does Not Apply to the VRA
Defendants claim that the VRA cannot be read in isolation in order to determine its application. Their argument is largely based on the Second Circuit case of Baker v. Pataki, 85 F.3d 919 (2d Cir.1996). In Baker, an en banc panel of the Second Circuit split five-to-five on the question of whether disenfranchised felons could state a claim 1309 under *1309 the VRA.[3] Led by Judge Mahoney, the five judges favoring dismissal explained that the VRA falls under the "plain statement" rule of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). Under this rule, if a congressional enactment would have the effect of altering the usual constitutional balance between the federal government and the states, then Congress's intention regarding the application of a statute must be made "unmistakably clear." Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410 (1991) (citations omitted). Given Congress's silence on the issue of felon disenfranchisement at the time of the 1982 amendment to the VRA, Judge Mahoney concluded that no plain statement existed and the VRA could not apply to felon disenfranchisement statutes. Baker, 85 F.3d at 922.
The Court does not agree that the plain statement rule applies to the VRA. The Civil War Amendments to the United States Constitution have already changed the usual constitutional balance between the states and the federal government. The remedial clause of the Fourteenth Amendment was specifically created so that the federal government could police states for violations of the constitutional rights of racial minorities. See Mitchell, 400 U.S. at 127-28, 91 S.Ct. at 266-67. The Supreme Court has consistently recognized that Congress has the power to enforce the Fourteenth and Fifteenth Amendments through the VRA, "despite the burdens those

measures placed on the states." City of Boerne v. P.F. Flores, ___ U.S. ___, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); see also South Carolina v. Katzenbach, supra; Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); Oregon v. Mitchell, supra; City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). Because these amendments, on which the VRA is based, altered the federal-state balance of power as contemplated by the original constitution, the "plain statement" rule is simply inapplicable in the context of the VRA. Baker, 85 F.3d at 938-39. See also Chisom v. Roemer, 501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (Scalia, J., dissenting) (although dissenting from the majority's application of the VRA's "results test" to the election of state judges, Justice Scalia recognized that the "plain statement" rule should not apply).

The VRA Also Does Not Violate Section Two of the Fourteenth Amendment

Implicit in Defendants' briefing is the argument that should the "plain statement" rule not apply, the "results test" under § 2 of the VRA would be an unconstitutional exercise of Congress's remedial powers. As explained by Justice Black in Oregon v. Mitchell,

[a]s broad as the congressional enforcement power is, it is not unlimited. Specifically, there are at least three limitations upon Congress' power to enforce the guarantees of the Civil War Amendments. First, Congress may not by legislation repeal other provisions of the Constitution. Second, the power granted to Congress was not intended to strip the States of their power to govern themselves or to convert our national government of enumerated powers into a central government of unrestrained authority over every inch of the whole Nation. Third, Congress may only "enforce" the provisions of the amendments and may do so only by "appropriate legislation."

400 U.S. at 266-67, 91 S.Ct. at 335-36.

Defendants argue that the VRA cannot apply to felon disenfranchisement, otherwise it would override § 2 of the Fourteenth Amendment. Section 2 of the Fourteenth Amendment provides for the election of federal legislative representatives, and reads as follows:

1310

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the *1310 choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such States, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

In Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), the Supreme Court explained that the "other crime" language in § 2 provides constitutional recognition of the validity of felon disenfranchisement laws. Consequently, Defendants' argument is that Congress does not have the authority to illegalize felon disenfranchisement.

As explained more fully in Section Four of this order, below, the Court agrees with Defendants that given § 2 of the Fourteenth Amendment, felon disenfranchisement laws cannot constitute per se violations of the Constitution. Viewed in isolation, it is constitutionally permissible to strip an individual of the right to vote based upon conviction for a felony. However, in spite of this facial validity, the Supreme Court has made clear that the states cannot use felon disenfranchisement as a tool to discriminate on the basis of race. See Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (where original enactment was motivated by racial bias, facially neutral felon disenfranchisement law violates equal protection). It necessarily follows, then, that Congress also has the power to protect against discriminatory uses of felon disenfranchisement statutes through the VRA.

Defendants also argue that if the "results test" of § 2 of the VRA were to be read so broadly as to encompass felon disenfranchisement statutes, then § 2 would cease to be only an enforcement mechanism. Instead, it would constitute an impermissible expansion of constitutional protections. This argument is based on the recent Supreme Court decision in City of Boerne v. P.F. Flores, ___ U.S. ___, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
In Boerne, the Court held that Congress exceeded its remedial authority under the Fourteenth Amendment in enacting the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq. Under RFRA, a state law of general applicability that substantially burdened the free exercise of religion, violated federal law unless it could be justified by strict scrutiny analysis. The Supreme Court criticized this test as over-inclusive. The Court explained that the utilization of Congress's remedial power must exhibit, "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at ___, 117 S.Ct. at 2164. The Court concluded that by prohibiting state laws and policies that merely placed incidental burdens on the exercise of religion, Congress went beyond its goal of prohibiting discrimination on the basis of religion to create a new substantive right. Id. at ___, 117 S.Ct. at 2170.
The Supreme Court's decision in Boerne provides a recital of the Court's previous decisions approving numerous provisions of the VRA. In this discussion, the Court concluded that the VRA was narrowly tailored in comparison to RFRA. In so doing, the Court noted that the VRA, as previously approved, applied to specific geographic areas and subject matter that Congress found to be tainted by racial discrimination. Id. at ___ _ ___, 117 S.Ct. at 2170-71. Based on this discussion, one might wonder whether the Court's approval of the VRA is limited to areas where Congress has specifically found the presence of discrimination and need for intervention. If approval of the VRA were so limited, then § 2 of the VRA would not be able to reach subject matter, such as felon disenfranchisement laws, that have not been found by Congress to be perpetuated with discriminatory intent. As explained below, the Court rejects this interpretation on the basis that the VRA is sufficiently distinguishable from RFRA, even when not accompanied by specific congressional findings.
1311 *1311 As a preliminary matter, the appropriate means-end balance is different in the context of race than religion. Although this country's history has not been free of invidious treatment of individuals on the basis of religion, discrimination on the basis of race is a far deeper problem that has been recurrent throughout our history. The remedies Congress created to address racial discrimination through the VRA were "unprecedented" and "deemed necessary given the ineffectiveness of the existing voting rights laws." Boerne, ___ U.S. at ___, 117 S.Ct. at 2167.
A further distinction between § 2 of the VRA and RFRA is that the "results test" is tailored to fit the end goal of preventing discriminatory voting practices. Section 2 does not prohibit every voting test or restriction that effects racial minorities more than whites. If it did, then its breadth would be suspect, even given the extent of Congress's power in eliminating racial discrimination in voting. But instead, in order to satisfy the requirements of § 2, a plaintiff "must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result." Smith v. Salt River Proj. Ag. Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir.1997). Read as such, the "results test" is properly limited to capturing racial discrimination when proof of intent is not accessible.
Application of the VRA to Plaintiffs' Complaint
Having determined that the VRA can apply to felon disenfranchisement laws, the question becomes whether Plaintiffs have alleged facts sufficient to state a claim for vote denial under the VRA. Section 2(b) of the VRA explains that the determination of whether a voting practice results in discriminatory treatment is to be "based on the totality of the circumstances." 42 U.S.C. § 1973(b).[4] The Senate Judiciary Committee Report, which accompanied the 1982 Amendments to the VRA, articulated several nonexclusive factors that may be taken into account:
1. the extent of any history of official discrimination in the state or political sub-division that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals; the extent to which members of the minority group have been elected to public office in the jurisdiction;
Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:
[7] whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.
[8] whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
S.Rep. No. 97-417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. (vol.2) 177, 206-07. The 1312 Senate Report factors are mostly limited in relevance to claims for vote dilution, which is discussed below. *1312
See Thornburg, 478 U.S. at 45, 106 S.Ct. at 2763-64.
In determining whether Plaintiffs have alleged circumstances that could prove a causal relationship between Washington's felon disenfranchisement law and the denial of votes to racial minorities, precedent provides little guidance as to which factors should be considered salient. Consequently, the Court's assessment of Plaintiffs' complaint is focused on any circumstances alleged by Plaintiffs that would tend to establish that Washington's felon disenfranchisement law operates with social and historical conditions such that it causes individuals to be denied access to voting privileges on the basis of race.
On review of Plaintiffs' complaint, the Court concludes that Plaintiffs have alleged sufficient facts to state a claim for vote denial under the VRA. Among other things, Plaintiffs allege that African, Hispanic and Native Americans are targeted for prosecution of serious crimes and that they are over-represented in prison populations. If true, Plaintiffs allegations may establish a causal connection between Washington's disenfranchisement scheme and the denial of voting rights to racial minorities.
Plaintiffs' Complaint Should Not Be Dismissed Under Wesley v. Collins
The Court does not agree with Defendants that Plaintiffs are prohibited from stating a claim under the VRA because of policy considerations favoring disenfranchisement or the fact that Plaintiffs' own illegal behavior has played a role in their disenfranchisement. Defendants' argument in this context is based on the Sixth Circuit decision in Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986). Addressing a challenge to Tennessee's felon disenfranchisement law under the VRA, the panel in Wesley held that, while the plaintiffs had asserted various factors relevant to the totality of the circumstances review, the district court nevertheless correctly dismissed the plaintiffs' complaint under Fed.R.Civ.P. 12(b)(6). The judges in Wesley determined that the "chief," and therefore determinative, factor to consider in the case at hand is the important social goal justifying the disenfranchisement

of felons. Id. at 1261. The rationale for felon disenfranchisement is based upon John Locke's social contract theory. According to Locke's theory, as interpreted by the Second Circuit in Green v. Board of Elections, 380 F.2d 445, 451 (2d Cir.1967), those individuals who do not abide by society's rules cannot participate in their promulgation. By disenfranchising felons, states are thought to protect the sanctity of the ballot box, and therefore ensure the continued viability of the democratic process. The Wesley panel also noted that Tennessee's disenfranchisement law does not "deny any citizen, ab initio, the equal opportunity to participate in the political process .... Rather, only the commission of a preascertained, proscribed act warrants the state of Tennessee to foreclose a certain individual from the voting process." Wesley, 791 F.2d at 1262.
The Sixth Circuit's reasoning regarding the importance of the rationale behind felon disenfranchisement laws is not binding authority. Moreover, the decision conflicts with Ninth Circuit precedent. In Dillenburg v. Kramer, 469 F.2d 1222 (1972), the Ninth Circuit addressed the facial constitutionality of Washington's felon disenfranchisement law. Dillenburg did not discuss the racial implications of disenfranchisement statutes, and it predated the Supreme Court's decision in Richardson, which held that felon disenfranchisement laws are not per se unconstitutional. Thus, Dillenburg is not good law to the extent that it suggests that the disenfranchisement of felons, on its face, cannot pass constitutional muster. Dillenburg remains applicable, however, to the extent that the decision discusses the alleged justifications for felon disenfranchisement statutes. The panel in Dillenburg criticized the Locke's "purity of the ballot box" argument as overly academic and empirically unfounded. Id. at 1224-25. The decision also criticized Washington's law in particular, since it denies felons the right to vote based on the possible penalty for their offense, rather than their actual penalty or conduct.[5] On the basis of Dillenburg, 1313 therefore, consideration *1313 of Washington's interest in disenfranchising felons is not conclusive as to whether the totality of the circumstances standard can be met.
The Court also does not agree with the judges in Wesley that Plaintiffs' misconduct prohibits them from claiming that Washington's felon disenfranchisement scheme operates so as to discriminate in the allocation of votes on the basis of race. This was not a bar to the plaintiffs claims in Hunter v. Underwood, and should play no different role in the case at hand. Implicit in Plaintiffs' Complaint is the argument that, had Plaintiffs Farrakhan, Shaheed, Price, Barrientes, Schaaf, and Briceno been white, they would have been substantially less likely to have lost the right to vote. Consequently, their claim is that race plays an impermissible role in the application of Washington's disenfranchisement scheme. The VRA provides Plaintiffs an avenue for relief from this type of discrimination.
b. Vote Dilution
A separate matter from whether Plaintiffs can state a claim for vote denial is whether Plaintiffs have alleged sufficient facts to support a claim for vote dilution. Although the concept of vote dilution postdates that of vote denial, vote dilution cases have, in recent years, become the most common manner in which § 2 claims are raised. Vote dilution occurs when an election practice results in the dilution of minority voting strength. See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). It "may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority." Thornburg v. Gingles, 478 U.S. at 46 n. 11, 106 S.Ct. at 2764 n. 11. Plaintiff Maxey[6] argues that because Washington's felon disenfranchisement law disproportionately removes racial minorities from the voting population, his voting strength, as a member of the African American community, is diluted.
A claim for vote dilution, like a claim for vote denial, cannot be sustained solely upon an allegation of disparate impact. See Smith, 109 F.3d at 595. As explained above, the VRA requires plaintiffs to show a causal relationship between the challenged voting procedure and the discriminatory effect, based upon the totality of the circumstances. The eight Senate factors are especially relevant in the context of vote dilution claims. Three factors, in particular, have been identified by the Supreme Court as necessary in order to succeed on a claim of vote dilution. In Thornburg, Justice Brennan wrote that the following factors must be proven in order to establish vote dilution under the VRA: (1) the minority group in question must be sufficiently large and geographically compact to constitute a majority in a voting district;[7] (2) the group must be politically cohesive; and (3) the white

majority group must vote sufficiently as a bloc so as to enable it to usually defeat the minority group's preferred candidate. 478 U.S. at 50-51, 106 S.Ct. at 2766-67.
Plaintiffs' Complaint and memorandum make conclusory statements about the existence of these factors, but nowhere do they allege any facts of, for instance, voter cohesiveness. Consequently, the Court agrees with Defendants that Plaintiffs have failed to state a claim under the VRA for vote dilution.
3. Claims Under the Fourteenth and Fifteenth Amendments
The Supreme Court's decision in Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) made clear that felon disenfranchisement statutes were contemplated by the Fourteenth Amendment to the United States Constitution and, therefore, do not constitute per se violations of the constitutional right to vote. 1314 Plaintiffs nevertheless claim that Washington's law is *1314 in violation of provisions of the federal Constitution because it was enacted with discriminatory intent. This type of claim is permissible under the reasoning in Hunter v. Underwood, supra.
In order to establish that Washington's felon disenfranchisement scheme violates the Fourteenth or Fifteenth Amendments, Plaintiffs must eventually prove that discrimination was a motivating factor in the enactment of the facially neutral law. See Village of Arlington Heights v. Metropolitan Hous. Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). Although Plaintiffs' Complaint alleges improper motive, neither the Complaint nor the Court's own research reveal any circumstantial or direct evidence that would tend to support this claim. Consequently, Plaintiffs have also failed to adequately state a claim in this regard. See Wesley, 791 F.2d at 1262-63 (upholding lower court's dismissal of equal protection challenge to Tennessee disenfranchisement statute for failure to state a claim in light of the plaintiffs' inability to present evidence that "proved or inferred a discriminatory intent" on the part of the Tennessee legislature and stating that "the further discovery requested by plaintiffs would be in the nature of a fishing expedition for unspecified evidence.")
4. The Remaining Constitutional Claims
Plaintiffs also claim that Washington's felon disenfranchisement law violates free speech, double jeopardy and the prohibition of cruel and unusual punishment under the First, Fifth, and Eighth Amendments to the Constitution. In order to uphold these claims against Defendants' motion to dismiss, the Court would have to conclude that the same Constitution that recognizes felon disenfranchisement under § 2 of the Fourteenth Amendment also prohibits disenfranchisement under other amendments. The Court is not inclined to interpret the Constitution in this internally inconsistent manner or to determine that the Supreme Court's declaration of the facial validity of felon disenfranchisement laws in Richardson v. Ramirez was based only on the fortuity that the plaintiffs therein did not make their arguments under different sections of the Constitution. While discussing the precedent leading up to its decision in Richardson, the Court wrote that "recently we have strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision." Richardson, 418 U.S. at 53, 94 S.Ct. at 2670. This language in Richardson suggests that the facial validity of felon disenfranchisement may be absolute. The Court concurs with this application to the case at hand.
The introduction to Plaintiffs' response memorandum states that "[t]his case is about race." Plaintiffs' Responsive Memorandum of Authorities in Opposition to Defendant's Motion to Dismiss (Ct.Rec.72) (emphasis in original). The Court agrees. Consequently, Plaintiffs can only state a claim for relief based on the invalidity of Washington's felon disenfranchisement scheme to the extent that the law discriminates on the basis of race.
5. Plaintiffs' Motion to Amend
Plaintiffs have moved to amend their Complaint to include Bevan Maxey as a Plaintiff, and to allege a new cause of action to be stated by Plaintiff Farrakhan claiming that Washington's statute governing the restoration of felons' civil rights, Wash. Rev. Code 9.94A.220, fails to comport with the requirements of due process. Defendants object to Plaintiff Farrakhan's new claim based upon lack of standing.

According to Defendants, Plaintiff Farrakhan has yet to complete the terms of his sentence. See Affidavit of Phil Reynolds, attached as Exhibit One to Defendants' Reply Memorandum (Ct.Rec.78). Consequently, he is ineligible to apply for restoration of his civil rights and cannot attack the constitutionality of the restoration process. At oral argument, Plaintiffs contested that material issues of fact exist as to whether Plaintiff Farrakhan has completed his sentence. However, Plaintiffs have not come forward with any evidence that places Defendants' claims into doubt.
1315 Although the Court must view a motion to amend with extreme liberality, amendment is *1315 not proper if it would be futile. See Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir.1994). The Court concludes, from the record at hand, that Plaintiffs' motion to amend, as to the substantive due process claim, cannot be granted on the basis of lack of standing.[8] Because Plaintiff Farrakhan is not yet eligible to seek reinstatement of his voting rights, his alleged injury is too speculative to support a cause of action challenging the constitutionality of the reinstatement provisions. See, e.g., Texas Supporters of Workers World Party Presidential Candidates v. Strake, 511 F.Supp. 149 (S.D.Tex.1981) (plaintiff exfelons did not have standing to assert cause of action based on denial of pardons where they had not formally applied for pardons). Consequently, Plaintiffs' Motion to Amend is denied, except to the extent that Bevan Maxey shall be added as a party of record, albeit to a dismissed claim, for the purposes of appeal.
Based upon the foregoing analysis, IT IS HEREBY ORDERED:
1. Defendants' Motion to Dismiss (Ct. Rec.53) is GRANTED in part and DENIED in part. Defendants' motion is denied as to Plaintiffs' vote denial claim. Plaintiffs' vote dilution claim and all of Plaintiffs' constitutional claims are dismissed. The parties are instructed to note that only Farrakhan, Shaheed, Price, Barrientes, Schaaf, and Briceno remain as plaintiffs in this action.
2. Plaintiffs' Motion for Leave to Amend (Ct.Rec.66) is GRANTED in part and DENIED in part. Plaintiffs' motion to add Bevan Maxey is granted, nunc pro tunc, for the purposes of appeal. Plaintiffs' motion to add a due process claim is denied.
IT IS SO ORDERED. The District Court Executive is directed to enter this order and to provide copies to counsel.
[1] Carl Maxey, one of the original Plaintiffs in this matter, died during the pendency of this case. Subsequent to his death, Plaintiffs have filed a motion to amend their Complaint seeking, among other things, to add Bevan Maxey, Carl Maxey's son, as a named plaintiff. For the purposes of this Order, this aspect of Plaintiffs' Motion to Amend is granted for appeal purposes, even though the claim for which the Maxeys have standing is dismissed, as explained below.
[2] See Wash. Rev.Code §§ 9.94A.220, 9.92.066, 9.95.240 & 9.96.050.
[3] Because the judges were evenly divided, the decision in Baker does not have precedential value. The result was to uphold the decision of the district court, which had dismissed the plaintiffs' claims under Fed.R.Civ.P. 12(b) (6).
[4] Smith makes clear that the totality of the circumstances approach applies to both vote denial and vote dilution claims. Smith, 109 F.3d at 596 n. 8.
[5] Although the Washington statute defining infamous crimes has been amended since Dillenburg, it does not differ in this respect. See Wash. Rev.Code § 29.01.080.
[6] Plaintiffs Farrakhan, Shaheed, Price, Barrientes, Schaaf, and Briceno do not have standing to assert that their votes have been diluted since they are not registered to vote.
[7] This factor may not be necessary where the disputed electoral practice is the product of intentional discrimination. See Garza v. County of Los Angeles, 918 F.2d 763, 770 (9th Cir.1990).

[8] If Plaintiff Farrakhan does hold evidence which puts the status of his sentence into doubt, he may include this information in a motion for reconsideration.
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 Farrakhan v. Gregoire, Not Reported in F.Supp.2d (2006)
2006 WL 1889273 Only the Westlaw citation is currently available.
United States District Court, E.D. Washington.
Muhammad S. FARRAKHAN (a/k/a Ernest S. Walker), et al., Plaintiffs, v.
Christine O. GREGOIRE, et al., Defendants.
No. CV-96-076-RHW. | July 7, 2006.
Attorneys and Law Firms
Lawrence Arthur Weiser, Alan Lynn McNeil, University Legal Assistance, Dennis Charles Cronin, Hearrean & Cronin PS, Spokane, WA, for Plaintiffs.
Marcus Price, Cornelius House Work Release, Spokane, WA, pro se.
Daniel John Judge, Jeffrey Todd Even, Attorney General of Washington, Criminal Justice Division, Olympia, WA for Defendants.
Opinion
ORDER GRANTING DEFENDANTS’ MOTION, DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
ROBERT H. WHALEY, Chief District Judge.
*1 Before the Court are Defendants’ Motion for Summary Judgment (Ct.Rec.215) and Plaintiffs’ Motion for Summary Judgment (Ct.Rec.230). Oral argument was heard in Spokane, Washington, on April 20, 2006. Plaintiffs were represented by Ryan Haygood and Lawrence Weiser, along with student-attorneys Jacob White and Kris Olmstead. Carol Murphy and Daniel Judge appeared on behalf of Defendants. For the reasons stated below, the Court grants Defendants’ Motion for Summary Judgment and denies Plaintiffs’ Motion for Summary Judgment.
BACKGROUND
Plaintiffs initially filed suit on February 2, 1996. Their fourth amended complaint alleges Washington’s felon disenfranchisement and restoration of civil rights schemes result in the denial of the right to vote to racial minorities in violation of the Voting Rights Act (“VRA”), 42 U.S.C. §§ 1971, 1973. Both parties filed for summary judgment in 2000, and oral argument on those motions was presented on November 3, 2000. The Court denied Plaintiffs’ motion and granted that of Defendants by order on December 1, 2000 (Ct.Rec.153).
Plaintiffs appealed that order to the Ninth Circuit. The Circuit affirmed in part, reversed in part, and remanded. The panel affirmed this Court’s ruling that “Plaintiffs lacked standing to challenge the restoration scheme because they presented no evidence of their eligibility, much less even allege that they were eligible for restoration, and had not attempted to have their civil rights restored.” Farrakhan v. Washington, 338 F.3d 1009, 1022 (9th Cir.2003), cert. denied sub nom Farrakhan v. Locke, 543 U.S. 984 (2004) (Farrakhan I ). However, the panel reversed this Court’s determination that
although Washington’s felon disenfranchisement scheme disenfranchises a disproportionate number of African-American, Hispanic-American, and Native-American minorities, the cause of this disparate impact on their right to vote was external to the felon disenfranchisement provision itself and therefore
1

Farrakhan v. Gregoire, Not Reported in F.Supp.2d (2006)
could not provide the requisite causal link between the voting qualification and the prohibited discriminatory result.
Id. at 1011 (emphasis in original). The panel explained that reversal was necessary because § 2 of the VRA requires a “totality of the circumstances” inquiry, meaning courts must “consider how a challenged voting practice interacts with external factors such as ‘social and historical conditions’ to result in denial of the right to vote on account of race or color.” Id. at 1011-12 (emphasis in original) (citations omitted). The panel found that “evidence of discrimination within the criminal justice system can be relevant to a Section 2 analysis[,]” id. at 1012, and it remanded to permit this Court to “make any requisite factual findings following an appropriate evidentiary hearing, if necessary, and [to] assess the totality of circumstances, including Plaintiffs’ evidence of racial bias in Washington’s criminal justice system.” Id. at 1020.
*2 Notably, the panel did not hold that the outcome of this Court’s decision was incorrect; instead, it found (1) the Court’s method of reaching its decision did not take all relevant factors into account, and (2) the Court used an incorrect analysis to determine causation under the VRA. Id. at 1020 (explaining that “had the district court properly interpreted the causation requirement under the totality of the circumstances test instead of applying its novel ‘by itself’ causation standard, the court might have reached a different conclusion” (emphasis added)).
Defendants petitioned for rehearing to the panel and en banc, and both petitions were denied. Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir.2004) (Farrakhan II ). The Farrakhan II dissent raises questions regarding the constitutionality of applying the VRA to felon disenfranchisement laws, and these concerns are echoed and elaborated upon in recent en banc opinions issued by the Second and Eleventh Circuits. Id. at 1121; Hayden v. Pataki, 449 F.3d 305, 2006 WL 1169674 (2d Cir. May 4, 2006); Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir.2005) (en banc), cert. denied sub nom. Johnson v. Bush, 126 S.Ct. 650 (2005). Considering these opinions, this Court continues to have concerns regarding the constitutionality of applying the VRA to Washington’s felon disenfranchisement provisions. However, the Court will conduct its analysis based upon the remand of Farrakhan I, assessing the totality of the circumstances, including Plaintiffs’ evidence of racial bias in Washington’s criminal justice system, to determine whether Washington’s felon disenfranchisement laws violate the VRA. 338 F.3d at 1020.
STANDARD OF REVIEW
Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, a court may neither weigh the evidence nor assess credibility; instead, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS
As was the case in 2000, the facts in this matter are not in dispute. Plaintiffs are convicted felons, and they are also African-American, Hispanic-American, or Native American. Each Plaintiff has been disenfranchised under Washington Constitution Article VI § 3, which denies the right to vote to all persons convicted of an “infamous crime.” None of the Plaintiffs has had his civil rights restored under Washington Revised Code § 9.94A.220. Plaintiffs allege that Washington’s felon disenfranchisement scheme results in the denial of the right to vote to racial minorities in violation of the VRA.1 Both sides move again for summary judgment on all issues.
DISCUSSION
A. Voting Rights Act Standard *3 Assuming § 2 of the VRA does constitutionally apply to Washington’s felon disenfranchisement law, the Court shall
2

Farrakhan v. Gregoire, Not Reported in F.Supp.2d (2006)
conduct “a broad, functionally-focused review of the evidence to determine whether a challenged voting practice interacts with surrounding racial discrimination in a meaningful way or whether the practice’s disparate impact ‘is better explained by other factors independent of race.’ “ Farrakhan I, 338 F.3d at 1018 (citation omitted). If the Court decides Washington’s felon disenfranchisement law interacts with racial discrimination in the criminal justice system in a meaningful way, then it shall conduct a “totality of the circumstances” analysis to determine whether the challenged voting practice results in discrimination on account of race. Id. at 1015. The Court must do this while “maintaining a practical perspective when evaluating the effects or lawfulness of a challenged voting practice[.]” Id. at 1019 (citing Thornburg v. Gingles, 478 U.S. 30, 46 (1986)).
In 1982, Congress amended § 2 of the VRA, inserting the “totality of the circumstances” test to allow a claimant to establish a violation without proving discriminatory intent, “[r]ecognizing the subtle ways that states often denied racial minorities the right to vote.” Johnson, 405 F.3d at 1227. These amendments in essence created a “results test.” Id. Section 2 of the VRA now provides in relevant part:
(a) No voting qualification or prerequisite to voting or standard, practice or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color ... as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that ... members [of protected racial minorities] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
42 U.S.C. § 1973.
Reading subsections (a) and (b) together demonstrates that a claimant must show more than one instance of discriminatory denial or abridgement of the right to vote. For instance, a claimant challenging felon disenfranchisement who may be charged and prosecuted solely and intentionally because he or she is black, Hispanic, or Native American, but who did commit the crime charged, could not prove a violation of § 2 of the VRA from his or her experience alone, no matter how egregious the treatment received. Instead, the claimant must prove, by a preponderance of the evidence, that the totality of the circumstances supports the conclusion that “members” of protected minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice” on account of their race or color. Id.; see also Thornburg, 478 U.S. at 43 (stating that subsection (b) “establishes” that § 2 of the VRA “has been violated” where the totality of the circumstances reveals members of a protected class have less opportunity than other members of the electorate to participate in the political process).2
*4 Notably, § 2 of the VRA “does not prohibit all voting restrictions that may have a racially disproportionate effect.” Johnson, 405 F.3d at 1227 (citing Chisom v. Roemer, 501 U.S. 380, 383 (1991)); see also Muntaqim v. Coombe, 366 F.3d 102, 116 (2d Cir.2004) (stating that “it is apparent that § 1973 does not prohibit all voting restrictions that have a racially disproportional effect” (emphasis in original)) (citing Thornburg, 478 U.S. at 47), rev’d en banc on other grounds. Furthermore, claimants such as Plaintiffs must show more than mere statistics of a disproportionate impact from Washington’s felon disenfranchisement law: “a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 ‘results’ inquiry. Instead, ‘[s]ection 2 plaintiffs must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result.’ “ Smith v. Salt River Project Agricultural Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir.1997) (Salt River )(emphasis and alterations in original) (citation omitted).
The causal connection may be illustrated by showing that the challenged voting practice, here the felon disenfranchisement law, interacts with surrounding racial discrimination, here in the criminal justice system, in “a meaningful way.” See Farrakhan I, 338 F.3d at 1020. Accordingly, if Washington’s felon disenfranchisement law has the “effect of shifting racial inequality from the surrounding social circumstances into the political process,” then it should be a factor the Court considers when conducting its “totality of the circumstances” analysis under the VRA. Id.
B. Discrimination in Washington’s Criminal Justice System The Farrakhan I panel concluded that “racial bias in the criminal justice system may very well interact with voter disqualifications to create the kinds of barriers to political participation on account of race that are prohibited by Section 2[.]” 338 F.3d at 1020. It reasoned that “[t]o the extent that racial bias and discrimination in the criminal justice system contribute to the conviction of minorities for ‘infamous crimes,’ such discrimination would clearly hinder the ability of racial minorities
3

Farrakhan v. Gregoire, Not Reported in F.Supp.2d (2006)
to participate effectively in the political process, as disenfranchisement is automatic.” Id. Therefore, the Court must determine from the evidence presented the extent to which racial bias and discrimination in Washington’s criminal justice system contribute to the conviction of minorities for “infamous crimes.”
Plaintiffs argue that the interaction of Article VI § 3 of the Washington State Constitution with the criminal justice system, which is “infected with racial discrimination,” results in a disproportionate number of racial minorities being disenfranchised following a felony conviction. They present various expert reports examining racial disparities in the criminal justice system that they claim are not explicable in race-neutral terms. Defendants counter that Plaintiffs’ evidence is based solely on statistics and that statistical evidence alone remains insufficient to establish a violation of § 2 of the VRA.
*5 Plaintiffs rely heavily on an expert report from Robert Crutchfield3 that focuses on research that has been conducted in Washington on racial and ethnic disparities in the processing of criminal cases. Significantly, Prof. Crutchfield notes that “[t]he studies of racial and ethnic disparity in Washington State have generally not been designed to uncover the causes of observed differences.” Pls.’ Ex. 2 at 4. In his report, Prof. Crutchfield posits two explanations for the racial disparities reported: (1) discriminatory actions of criminal justice decision makers (either intentional or unconscious); and (2) structural or institutional causes (ways of doing business, such as decision rules that are theoretically race-neutral, but are not race-neutral in practice). Id. Prof. Crutchfield examined studies regarding police practices and practices in prosecutors’ offices, and studies of court and sentencing practices as they relate to race.
Prof. Crutchfield explores many potential causes of the racial and ethnic disparities he observed in the studies reviewed. The causes he considers include some instances of problematic individual behavior, implicit biases, institutional-and societal-level forces such as racial residential segregation, law enforcement’s focus on crack cocaine and outdoor markets for drug arrests, and, in making bail decisions, the fact that minorities are more likely to be economically disadvantaged, have less stable employment, experience more family disruptions, and have more residential mobility. Id. at 51-55.
Plaintiffs also submit a report by Katherine Beckett.4 Her report is more limited in nature in that it analyzes the extent and causes of racial disparities in Seattle drug delivery arrests. The report was initially commissioned by public defenders associated with Seattle’s Racial Disparity Project for submission in a criminal case. Pls.’ Ex. 3, at 1. Since Prof. Beckett prepared the report, she and several co-authors have written two separate analyses based on its data and other data submitted in the criminal case. Her opinions expressed here are based on these analyses. Id.
To the extent the Court can extrapolate Prof. Beckett’s drug-arrest-in-Seattle-specific findings to Washington felony arrests and convictions in general,5 her report presents several conclusions: (1) in Seattle, a majority of drug users are white (with the possible exception of users of crack cocaine); (2) in Seattle, a majority of those who deliver “serious drugs” are white (with the possible exception of crack cocaine); (3) 52.2 percent of those arrested for possession, and 64.2 percent of those arrested for delivery of serious drugs in Seattle from January 1999-April 2001, were black; (4) Latinos are also over-represented among those arrested for drug possession; and (5) this over-representation is primarily the result of three factors: (A) law enforcement’s concentration on the crack cocaine market; (B) law enforcement’s concentration on outdoor drug venues; and (C) the geographic focus on outdoor drug venues in Seattle’s downtown area. Id. Prof. Beckett posits that none of these organizational practices appear to be explicable in race-neutral terms. Id. at 1-2. Accordingly, they point directly to the existence of racial discrimination in law enforcement and, consequently, the criminal justice system in the Seattle area.
*6 The Court finds both of these reports to be compelling evidence of racial discrimination and bias in Washington’s criminal justice system.6 Contrary to Defendants’ assertion that these reports are based solely on statistics and are thus insufficient evidence for a VRA claim, the Court finds these experts’ conclusions, drawn from the available statistical data, are admissible, relevant, and persuasive.7 Significantly, Defendants do not present any evidence to refute Plaintiffs’ experts’ conclusions. Viewing the evidence in a light most favorable to the non-movants, the Court is compelled to find that there is discrimination in Washington’s criminal justice system on account of race. Furthermore, this discrimination “clearly hinder[s] the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic.” Farrakhan I, 338 F.3d at 1220.
C. Totality of the Circumstances Analysis The Court’s conclusion that there is discrimination in Washington’s criminal justice system that interacts with its felon disenfranchisement law in a meaningful way does not end the inquiry. This conclusion merely renders the racial bias in the criminal justice system “simply another relevant social and historical condition to be considered where appropriate.” Farrakhan I, 338 F.3d at 1020.
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Farrakhan v. Gregoire, Not Reported in F.Supp.2d (2006)
As stated above, Congress amended § 2 of the VRA in 1982 “to relieve plaintiffs of the burden of proving discriminatory intent.” Id. at 1014. The Senate Report accompanying these amendments included a non-exclusive list of “typical factors” that may be relevant when analyzing the totality of the circumstances to determine whether § 2 of the VRA has been violated:
(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;
(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
(4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to a participate effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle racial appeals;
(7) the extent to which members of the minority group have been elected to public office in the jurisdiction;
*7 (8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;
(9) whether the policy underlying the state or political subdivision’s use o f such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Id. at 1015 (citing S.Rep. No. 97-417, at 28-29 (1982)). The Court must conduct its “totality of the circumstances” analysis while “maintaining a practical perspective when evaluating the effects or lawfulness of a challenged voting practice[.]” Id. at 1019 (citing Thornburg, 478 U.S. at 46).
Plaintiffs assert only Factors 5 and 9 are applicable and relevant to this matter because the issue presented here is vote denial. Defendants disagree, and submit that the Court must consider all of the Senate factors in its totality of the circumstances analysis. Defendants further profess that the factors ignored by Plaintiffs favor the State. Although the Court is not bound by the list of Senate factors, see id. at 1019 (stating Congress did not intend the listed factors to be exhaustive), it finds relevance in factors other than numbers 5 and 9.
As the panel in Farrakhan I pointed out, evidence of racial bias in the criminal justice system is encompassed within the scope of Factor 5, which directs courts to consider “ ‘the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment, and health.’ “ 338 F.3d at 1020 (quoting Senate Report at 29). The Court considered this factor supra, and finds members of protected groups do experience discrimination within Washington’s criminal justice system, leading to a disproportionate number of minority disenfranchised felons. The remaining factors, however, weigh in favor of Defendants’ position.
As the Court stated in its 2000 Order addressing these parties’ summary judgment claims, the first Senate factor strongly favors a finding that Washington’s felon disenfranchisement law does not violate § 2 of the VRA.
Plaintiffs have not offered any evidence of a “history of official discrimination in the state ... that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process,” Thornburg, 478 U.S. at 36-37, such as to lead the Court to conclude that the circumstances surrounding the disenfranchisement’s provision created an inference of discriminatory intent or a causal connection between the provision and the result. To the contrary, Washington has historically been very liberal in extending elective franchise to racial minorities. See Affidavit of Dr. Quintard Taylor at ¶¶ 17, Ct. Rec. 130 ex. 47 (concluding that Washington’s political process has historically been open to minorities, and that its felon disenfranchisement provision was not intended to disenfranchise racial minorities); Deposition of Dr. Quintard Taylor, p. 38, ll. 3-14, Ct. Rec. 13, ex. 11 (same). Plaintiffs concede that Washington has no
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Farrakhan v. Gregoire, Not Reported in F.Supp.2d (2006)
history of official acts aimed at limiting the voting rights of African-Americans, but cite 2 examples allegedly evidencing a political climate hostile to minorities at the time the Washington Constitution was drafted: (1) a proposed constitutional provision barring persons of Chinese descent from voting; and (2) the exclusion of “Indians not taxed” from voter roles in Washington’s Constitution as originally drafted. Plaintiffs’ first example is not evidence of discrimination; to the contrary, the delegates’ rejection of this proposal evidences an intent to promote or delimit minority voting. This rejection is particularly significant because it occurred at a time when anti-Chinese attitudes were prevalent in the Pacific Northwest. See Affidavit of Quintard Taylor at ¶ 15, Ct. Rec. 130, ex. 47. Similarly, the original exclusion of “Indians not taxed” from Washington’s voter roles has a much more benign explanation than that suggested by Plaintiffs when viewed in historical context. Most Native Americans were not legally regarded as full citizens of the United States until 1924. See, e%.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987). See also Wash. Rev.Code § 75.56.040. Reservation land and Native Americans living on reservations were historically regarded as beyond the State’s taxing power. See McClanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 169 (1973). Accordingly, a voting qualification omitting “Indians not taxed” merely distinguishes between citizens and non-citizens of a state. This interpretation is consistent with Washington case-law. See Anderson v. O’Brien, 84 Wash.2d 64, 85-86 (1974) (Hale, C.J., dissenting).
*8 (Ct. Rec. 153, at 6-8) (internal footnotes omitted). This remarkable absence of any history of official discrimination in Washington factors heavily in the Court’s totality of the circumstances analysis.
It is Plaintiffs’ burden to show the Senate factors weigh in their favor. Plaintiffs have not carried this burden in that they failed to present any substantial evidence regarding many of the other Senate factors, including those considering racial polarization of the vote, various voting mechanisms, candidate slating processes, or the use of racial appeals in political campaigns. Admittedly, several of these factors are not relevant in a VRA vote denial claim. Still, Plaintiffs have not presented any evidence on the extent to which minority group members have been elected to political office in Washington or the level of responsiveness elected officials have to the particularized needs of members of minority groups. These factors are certainly relevant to Plaintiffs’ VRA claim. Plaintiffs’ failure to produce any evidence to the contrary leads the Court to believe these factors favor Defendants’ position.
Plaintiffs have come forward with evidence on what they characterize as “tenuous” policy justifications for Washington’s felon disenfranchisement law. Plaintiffs submit an expert report questioning the policy justifications behind the law, and they cite as support for their position a 1972 Ninth Circuit decision, Dillenburg v. Kramer, 469 F.2d 1222 (9th Cir.1972). In Dillenburg, the court considered an Equal Protection challenge to Washington’s felon disenfranchisement laws. Id. at 1224. The court comments that courts in general “have been hard pressed to define the state interests served by laws disenfranchising persons convicted of crimes,” and remarks that “[w]hen the façade of the classification [of offenses that result in disenfranchisement] has been pierced, the disenfranchising laws have fared ill.” Id. As in Dillenburg, the State here does not explain why disenfranchisement of felons is “necessary” to vindicate any identified state interest. Id. at 1225.
However, the Dillenburg court does recognize that felon disenfranchisement laws have been upheld repeatedly. Id. Unlike other state voting qualifications, the Constitution of the United States recognizes the states’ power to disenfranchise felons. U.S. Const. amend. XIV, § 2; see also Richardson v. Ramirez, 418 U.S. 24, 54 (1974) (explaining that “the exclusion of felons from the vote has an affirmative sanction in section 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated [in other cases]”). Moreover, “[t]oday, all states except two have some form of criminal disenfranchisement provision.” Johnson, 405 F.3d at 1228. In spite of the Ninth Circuit’s holding in Dillenburg, this Court’s ability to examine the tenuousness of Washington’s felon disenfranchisement laws is extremely limited. Accord id. at 1235 (stating that “Federal courts cannot question the wisdom of this policy choice”). Therefore, the Court concludes the ninth Senate factor also favors Defendants’ position.
*9 Although the evidence of racial bias in Washington’s criminal justice system is compelling, it is simply one factor in the totality of the circumstances the Court must consider when evaluating Plaintiffs’ § 2 claim. The Court has no doubt that members of racial minorities have experienced discrimination in Washington’s criminal justice system. If the denial or abridgement of one citizen’s right to vote “on account of race or color” established a violation of § 2 of the VRA, this Court would find for Plaintiffs in this matter. However, the statutory language of subsection (a) of § 2 of the VRA limits its application to those circumstances the totality of which establish the existence of discrimination in voting on a broader scale. Other factors, particularly 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. Taking all of the relevant factors into account, the Court finds that the totality of the circumstances does not support a finding that Washington’s felon disenfranchisement law results in discrimination in its electoral process on account of race.
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Farrakhan v. Gregoire, Not Reported in F.Supp.2d (2006)
Accordingly, IT IS HEREBY ORDERED: 1. Defendants’ Motion for Summary Judgement (Ct.Rec.215) is GRANTED. 2. Plaintiffs’ Motion for Summary Judgment (Ct.Rec.230) is DENIED. 3. The District Court Executive is directed to enter judgment for Defendants on all claims. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel, and close the file .

Footnotes

1

This Court previously granted Defendants’ motion for summary judgment regarding Plaintiffs’ claim based on Washington’s

restoration of civil rights scheme, and this holding was affirmed by the Ninth Circuit. Farrakhan I, 338 F.3d at 1022. Accordingly,

the Court shall not address this claim a second time.

2

The Court could not find case law explicitly supporting the proposition that subsection (b) is the only way to prove a violation of §

2 of the VRA. However, the plain language of subsection (a), which ends “as provided in subsection (b) of this section,” supports

the conclusion that subsection (b) provides the sole method to establish a violation of § 2 of the VRA.

3

Prof. Crutchfield received his Ph.D. from Vanderbilt University in 1980. He is currently a Professor of Sociology and Clarence and

Elissa Schrag Fellow in the Department of Sociology at the University of Washington and Acting Associate Dean of the

University’s Graduate School. His report was compiled on October 25, 2005.

4

Prof. Beckett is an Associate Professor in the Department of Sociology and the Law, Societies & Justice Program at the University

of Washington.

5

Prof. Beckett submits that approximately 30 percent of all state prisoners, 70 percent of all federal prisoners, and an unknown but

likely significant proportion of jail inmates are incarcerated for drug offenses. Pls.’ Ex. 3, at 2. Seattle felony drug arrests constitute

about 63 percent of all King County felony drug arrests, and 13.7 percent of those sentenced to Washington State prison for

“VUCSA” violations are from King County. Prof. Beckett concludes that about 9.3 percent of those in prison in Washington State

for violations of the Uniform Controlled Substances Act were arrested in Seattle by local law enforcement agents.

6

Plaintiffs also submit a report by Professor Morgan Kousser discussing primarily Washington’s re-enfranchisement provision and

the difficulties it poses to minorities in particular, and a draft law review article discussing the concept of implicit bias.

Additionally, Plaintiffs filed a report prepared by the Washington Sentencing Guidelines Commission in 2003 entitled

“Disproportionality and Disparity in Adult Felony Sentencing.” This report includes the type of “bare statistical evidence” Salt

River discourages. However, combined with the conclusions drawn by Profs. Crutchfield and Beckett, these statistics and the other

reports bolster the Court’s conclusion.

7

Although Plaintiffs’ experts cannot pinpoint evidence of discrimination in Washington’s criminal justice system, the Court finds

their opinions and the statistical evidence on which they are based to be sufficient. The Court likens the experts’ conclusions and

how they relate to Plaintiffs’ VRA claim to the standard of proof for disproportionate impact claims in employment discrimination

suits, in which a statistically significant disparity may be sufficiently substantial as to raise an inference of causation. Paige v.

California, 291 F.3d 1141, 1145 (9th Cir.2002). Although the panel in Farrakhan I states that causation cannot be inferred from

impact alone, 338 F.3d at 1019 (citing Salt River, 109 F.3d at 595), the facts in Salt River from which this conclusion arose were

distinguishable from those present here. The plaintiffs in Salt River “effectively stipulated to the nonexistence of virtually every

circumstance practice which might indicate that [the disputed voting practice] results in racial discrimination.” 109 F.3d at 595.

Here, Plaintiffs vigorously assert the statistical disparity and disproportionality evident in Washington’s criminal justice system

arise from and result in discrimination, and they submit expert reports that substantiate this assertion.

7

 
 Farrakhan v. Locke
United States District Court for the Eastern District of Washington December 1, 2000, Decided ; December 1, 2000, Filed NO. CS-96-76-RHW

Reporter: 2000 U.S. Dist. LEXIS 22212 MUHAMMAD SHABAZZ FARRAKHAN, et al., Plaintiffs, v. GARY LOCKE, et al., Defendants.
Subsequent History: Affirmed in part and reversed in part by, Remanded by Farrakhan v. Wash., 2003 U.S. App. LEXIS 14810 (9th Cir. Wash., July 25, 2003)
Prior History: Farrakhan v. Locke, 987 F. Supp. 1304, 1997 U.S. Dist. LEXIS 19719 (E.D. Wash., 1997)
Disposition: [*1] Defendants' motion for summary judgment GRANTED. All of Plaintiffs' claims dismissed. Plaintiffs' motion for summary judgment DENIED.

The facts are not in dispute. Plaintiffs are convicted felons, and are also African-American, Hispanic-American, or Native American. Each Plaintiff has been disenfranchised under Wash. Const. Art. VI § 3, which denies the right to vote to all persons convicted of an "infamous crime." None of the Plaintiffs have had their civil rights restored under Wash. Rev. Code § 9.94A.220. Plaintiffs allege that Washington's felon disenfranchisement and restoration of civil rights schemes result in the denial of the right to vote to racial minorities in violation of the Voting Rights Act, 42 U.S.C. §§ 1971, 1973. Both sides move for summary judgment on all issues.

Counsel: For MUHAMMAD SHABAZZ FARRAKHAN, MARCUS X PRICE, RAMON BARRIENTES, TIMOTHY SCHAAF, CLIFTON BRICENO, AL-KAREEM SHAHEED, plaintiffs: Lawrence Arthur Weiser, Alan Lynn McNeil, University Legal Assistance, Dennis Charles Cronin, Hearrean & Cronin PS, Spokane, WA.
MARCUS X PRICE, plaintiff, Pro se, Spokane, WA.
For STATE OF WASHINGTON, GARY LOCKE, RALPH MUNRO, JOSEPH LEHMAN, defendants: Daniel John Judge, Jeffrey Todd Even, Attorney General of Washington, Olympia, WA.

ANALYSIS
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When considering a motion for summary judgment, a court may neither weigh the evidence nor assess [*3] credibility; instead, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

Judges: ROBERT H. WHALEY, United States District Judge.
Opinion by: ROBERT H. WHALEY
Opinion
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Before the Court are Defendants' motion for summary judgment (Ct. Rec. 127), and Plaintiffs' motion for summary judgment (Ct. Rec. 134). Oral argument was heard on these motions on November 3, 2000. Larry Weiser, Dennis Cronin, and legal intern Jason Vail appeared on behalf of Plaintiffs. Daniel Judge and Jeffrey Even appeared on Defendants' behalf. For the reasons [*2] below, Defendants' motion is granted and Plaintiffs' motion is denied.
RELEVANT FACTS

1. Felon disenfranchisement.
Plaintiffs move for summary judgment on their allegation that Washington's felon disenfranchisement scheme constitutes improper race-based vote denial in violation of the Voting Rights Act ("VRA"). Specifically, Plaintiffs argue that race bias in, or the discriminatory effect of, the criminal justice system results in a disproportionate number of racial minorities being disenfranchised following felony convictions. Defendants also move for summary judgment, arguing that: (1) Plaintiffs' claims are barred by the doctrines of Rooker-Feldman or res judicata because they necessarily imply the invalidity of Plaintiffs' criminal convictions; (2) Plaintiffs cannot bring a VRA suit because they are disenfranchised; and (3) the totality of the circumstances establishes that Plaintiffs were not denied the right to vote on the basis of race.
The Court concludes that Washington's felon disenfranchisement provision [*4] disenfranchises a

2000 U.S. Dist. LEXIS 22212, *4

Page 2 of 6

disproportionate number of minorities; as a result, minorities as literacy tests or poll taxes, see Oregon v. Mitchell, 400 U.S.

are under-represented in Washington's political process. 112, 132-33, 27 L. Ed. 2d 272, 91 S. Ct. 260 (1970), a felon

Analyzing the disenfranchisement provision under the totality disenfranchisement provision is not inherently or inevitably

of the circumstances illustrates that the cause of this reduction discriminatory. To the contrary, felon disenfranchisement is

is not the voting qualification; instead, the cause is bias specifically authorized by the Fourteenth Amendment. See

external to the voting qualification. Although racial minorities U.S. Const. Amend. XIV § 2. Although felon

are clearly being disenfranchised in numbers disproportionate disenfranchisement provisions can be constitutionally infirm

to that of their white fellow citizens, the Court is compelled if enacted with a discriminatory intent, see Hunter v.

by controlling Ninth Circuit authority to conclude that this Underwood, 471 U.S. 222, 85 L. Ed. 2d 222, 105 S. Ct. 1916

disproportionate impact is not sufficient to provide a legal (1985), racially-neutral provisions can permanently

remedy under the Voting Rights Act ("VRA") because disenfranchise felons without running afoul of the

Plaintiffs have failed to establish a causal connection between Constitution. See Richardson v. Ramirez, 418 U.S. 24, 41 L.

the disenfranchisement provision and the prohibited result. Ed. 2d 551, 94 S. Ct. 2655, 72 Ohio Op. 2d 232 (1974). If the

Court ultimately concluded that Washington's provision was As an initial matter, the Court must construe the scope of invalid with respect to racial minorities, then only white Plaintiffs' claims; specifically, the Court must determine felons could [*7] be disenfranchised so long as racial bias

whether Plaintiffs claim that the disenfranchisement provision existed in the criminal justice system. That would obviously

is invalid as applied to their particular cases, or whether the challenge more generally alleges that the provision is facially invalid with respect to all racial minorities. The RookerFeldman doctrine [*5] bars any as-applied challenge because such a challenge would require the Court to scrutinize both

create an Equal Protection problem. Fortunately, this is not a conflict between two constitutional doctrines. Instead, any conflict is between a statutory VRA claim and a constitutional claim. Since Plaintiffs' remedy would create a new constitutional problem, the Court is compelled to read the

the challenged disenfranchisement provision and the State VRA in a manner that does not lead to the conclusion

court's application of that provision to a particular set of facts. Plaintiffs urge. See Rust v. Sullivan, 500 U.S. 173, 191, 114 L.

See Dubinka v. Superior Court, 23 F.3d 218, 222 (9th Cir. 1994). Even if the Rooker-Feldman bar was inapplicable, and the Court construed Plaintiffs' claims as an as-applied challenge 1, there is no evidence in the record that Plaintiffs' individual convictions were born of discrimination in the criminal justice system. The Court construes Plaintiffs' vote denial claims as a facial challenge to the validity of Washington's disenfranchisement provision. 2

Ed. 2d 233, 111 S. Ct. 1759 (1991) ( "'A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.' This doctrine is followed out of respect for Congress, which we assume legislates in light of constitutional limitations."), quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401, 60 L. Ed. 1061, 36 S. Ct. 658 (1916).
3

[*6] However, Plaintiffs' vote denial claims create a constitutional problem when construed as a facial challenge. The voting qualification at issue in this case is somewhat unique; unlike other voter qualifications that have previously been invalidated under the Voting Rights Act, such

[*8] Aside from the constitutional conflict, the Court concludes that the totality of circumstances does not establish the requisite causal link between Washington's felon disenfranchisement provision and reduced minority

1 Such a challenge may well be more appropriate in light of the fact that Plaintiffs' allege vote denial instead of vote dilution. See Burton v. City of Belle Glade, 178 F.3d 1175, 1188 n.8, 21 (11th Cir. 1999). Due to the ambiguity in the law in this area, the Court analyzes Plaintiffs' claims under both rubrics.
2 This construction also avoids any res judicata bar. Res judicata is further inapplicable since Defendants, the parties urging application of the bar, have not brought forth any evidence that Plaintiffs were afforded a full and fair opportunity to litigate the disenfranchisement issue during their criminal prosecutions. At most, Plaintiffs could have challenged the facts underlying their convictions; that is not equivalent to challenging the subsequent disenfranchisement, which, according to Defendants, flows automatically by operation of law upon conviction of a felony.
3 There is no conflict between this conclusion and the Fifteenth Amendment, which provides that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const. Amend. XV § 1. The Fifteenth Amendment, upon which the VRA was patterned, does not affirmatively bestow a right to vote; instead, it merely says that the voting rights of racial minorities shall not be less than those of white citizens. If the Court were to conclude that the disenfranchisement provision was invalid under the VRA as applied to minorities, and that it could only be used to disenfranchise white felons, this would bestow voting protections on minorities beyond those created by the Fifteenth Amendment.

2000 U.S. Dist. LEXIS 22212, *8

Page 3 of 6

access to Washington's political process. To prevail on their challenged voting mechanism. If the Court concluded that

VRA claims, Plaintiffs must establish that the State employs a such evidence was sufficient to establish causation, it would

voting "standard, practice or procedure" that results in the effectively broaden the VRA to provide a remedy for societal

denial or abridgement of the right to vote on account of race. discrimination outside the context of voting.

42 U.S.C. § 1973(a). The VRA envisions a totality of circumstances test, under which the Court is "to determine, based 'upon a searching practical evaluation of the past and present reality' whether the political process is equally open to minority voters.'" Thornburg v. Gingles, 478 U.S. 30, 79, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986) (citation omitted). 4 Although Plaintiffs need not show that discriminatory intent underlies the challenged voting qualification, "a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 'results' inquiry. Instead, 'section 2 plaintiffs must show a causal connection between the challenged voting practice and [*9] [a] prohibited

Plaintiffs have not offered any evidence of a "history of official discrimination in the state … that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process," Thornburg, 478 U.S. at 36-37, such as to lead the Court to conclude that the circumstances surrounding the disenfranchisement's [*11] provision created an inference of discriminatory intent or a causal connection between the provision and the result. To the contrary, Washington has historically been very liberal in extending elective franchise to racial minorities. See Affidavit of Dr. Quintard Taylor at PP

discriminatory result.'" Smith v. Salt River Agricultural 17, Ct. Rec. 130, ex. 47 (concluding that Washington's

Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir. 1997), quoting Ortiz v. City of Philadelphia Office of the City Comm'rs, 28 F.3d 306, 312 (3d Cir. 1994).

political process has historically been open to minorities, and that its felon disenfranchisement provision was not intended to disenfranchise racial minorities); Deposition of Dr. Quintard Taylor, p. 38, ll. 3-14, Ct. Rec. 13, ex. 11 (same).

The most striking thing about this case is that, although the Plaintiffs concede that Washington has no history of official

disenfranchisement provision clearly has a disproportionate acts aimed at limiting the voting rights of African-Americans,

impact on racial minorities, there is no evidence that the but cite 2 examples allegedly evidencing a political climate

provision's enactment was motivated by racial animus, or that hostile to minorities at the time the Washington Constitution

its operation by itself has a discriminatory [*10] effect. was drafted: (1) a proposed constitutional provision barring

Instead, a discriminatory effect arises, if at all, only when the persons of Chinese descent from voting; and (2) the exclusion

provision operates in light of discriminatory activity in the of "Indians not taxed" from voter roles in Washington's

criminal justice system. Stated differently, if there were no Constitution as originally drafted. 5 Plaintiffs' first example is

discriminatory motivation or effect in the criminal justice not evidence of discrimination; to the contrary, the delegates'

system, then there is no evidence that the disenfranchisement rejection of this proposal evidences an intent to promote or

provision would have a discriminatory effect. At most, this delimit [*12] minority voting. 6 This rejection is particularly

establishes a flaw with the criminal justice system, not with significant because it occurred at a time when anti-Chinese

the disenfranchisement provision. Plaintiffs have failed to attitudes were prevalent in the Pacific Northwest. See

establish a claim for vote denial because the causal chain Affidavit of Quintard Taylor at P15, Ct. Rec. 130, ex. 47.

runs, if at all, to a factor outside of the

Similarly, the original exclusion of "Indians not taxed" from

Washington's voter roles has a much more benign

4 The Court in Thornburg identified several non-exclusive factors that trial courts could use in making this determination. See Thornburg, 478 U.S. at 44-45, quoting S.Rep. No. 97-417 at 28-29, reprinted in 1982 U.S.C.C.A.N. at 206-07. The Court considers these factors illustrative of the type of considerations generally relevant in VRA cases, but declines to rigidly structure its analysis along this framework for the present case.
5 Plaintiffs also suggest that the fact that felon disenfranchisement provisions were adopted in other states with the intent to disenfranchise minorities indicates that any such provision is somehow inherently bad. The Court disagrees. The disenfranchisement provision is itself facially neutral, and the Supreme Court has concluded that a State can permanently disenfranchise a felon. See Richardson v. Ramirez, 418 U.S. 24, 56, 41 L. Ed. 2d 551, 94 S. Ct. 2655 (1974). Absent any evidence that Washington's disenfranchisement provision had some discriminatory intent, the fact that other statutes were so intended is of no consequence.
6 A delegate to the Washington Constitutional Convention proposed that Article VI § 3 (voter qualifications) be drafted "to deny the vote to Chinese, idiots, insane, one convicted of an infamous crime, or hereafter of embezzlement of public funds." Journal of the Washington State Constitutional Convention 1889 at 638 (Beverly Paulik Rosenow, ed., 1962). This proposal was read and referred to the Committee on Elections and Elective Rights. 418 U.S. at 61. The Committee deleted all reference to ethnicity, and reintroduced an amended version stating that "all idiots, insane persons and persons convicted of infamous crimes are excluded from the elective franchise." Id. at 290.

2000 U.S. Dist. LEXIS 22212, *12

Page 4 of 6

explanation than that suggested by Plaintiffs when viewed in African-Americans in a particular neighborhood outside the

historical context. Most Native Americans were not legally city limits, and that the city's refusal to annex the

regarded as full citizens of the United States until 1924. See, neighborhood into its boundaries, thereby allowing the

e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18, 94 L. Ed. neighborhood's residents to participate in city elections,

2d 10, 107 S. Ct. 971 (1987). See also Wash. Rev. Code § improperly diluted the voting strength of minority voters

75.56.040. Reservation land and Native Americans living on within the city limits and denied the voting rights of

reservations were historically regarded as beyond the State's minorities living beyond the city limits. The circuit

taxing power. See McClanahan v. State Tax Comm'n of acknowledged [*16] that historical patterns of housing

Arizona, 411 U.S. 164, 169, 36 L. Ed. 2d 129, 93 S. Ct. 1257 discrimination had segregated the African-American

(1973). Accordingly, a voting qualification omitting "Indians community in the neighborhood beyond the city limits, but

not taxed" merely distinguishes between citizens and non- held that this evidence was insufficient to establish a VRA

citizens of a state. 7 This interpretation is consistent with violation because "although Appellants have presented

Washington case-law. See Anderson v. O'Brien, 84 Wash.2d evidence of housing segregation in Belle Glade and in the two

64, 85-86, 524 P.2d 390 (1974) [*13] (Hale, C.J., centers, we can find no evidence of any discrimination with

dissenting). [*14]

respect to voting." Id. at 1198 (emphasis in original). While

not binding upon this Court, the Eleventh Circuit's decision in

Plaintiffs' evidence of discrimination in the criminal justice Burton is helpful in weighing the significance of Plaintiffs'

system, and the resulting disproportionate impact on minority evidence.

voting power, is compelling; however, it is not enough to

establish a causal link under controlling Ninth Circuit The probative value of Plaintiff's evidence of discrimination

authority. As explained above, Salt River requires more than a in the criminal justice system is further limited since it

showing of disproportionate impact, and it is well-established reflects, at most, [*17] discriminatory animus on the part of

that "district courts are bound by the law of their own circuit." the executive and the judicial branches; there is no evidence

Hasbrouck v. Texaco, Inc., 663 F.2d 930, 933 (9th Cir. 1981). that the legislative branch, which controls voter qualifications

Even if Plaintiffs established that the disproportionate 9, continues to cling to the disenfranchisement provision out

representation of minorities in the criminal justice system was of animus, or that it is unaware of or unresponsive to

due to discriminatory animus on the part of prosecutors and disproportionate minority representation in criminal

judicial officials, this would not establish a causal connection prosecutions. Instead, the record indicates that Washington's

between the voting qualification and the [*15] prohibited Legislature has historically enacted protections for minorities

result in this case because it is discrimination in the criminal in areas aside from voting qualifications. See 1890 Act, Ct.

justice system, not the disenfranchisement provision itself, Rec. 130, ex. 68; Taylor affid. at P 14, Ct. Rec. 130, ex. 47.

that causes any vote denial. 8 Accordingly, evidence of Despite these efforts, the evidence presented by Plaintiffs

discrimination in the criminal justice system is only useful for clearly demonstrates that the disenfranchisement provision

establishing a generalized climate of discrimination which continues to disproportionately impact minority voting

hinders minority opportunity to participate in the political strength. Any change prompted by this evidence in this area,

process. The Court concludes that such evidence, by itself, is however, must come from the Washington Legislature; the

not sufficient to establish a causal link between the voting disproportionate impact evidence is legally insufficient to

qualification and the prohibited result. The Eleventh Circuit establish causation under the VRA.

faced an analogous situation in Burton v. City of Belle Glade, 178 F.3d 1175, 1198 (11th Cir. 1999). In that case, the plaintiffs argued that historical discrimination and segregation in housing caused a concentration of

[*18] Finally, there is no evidence from which the Court could conclude that the criminal justice system is so inherently flawed that application of the disenfranchisement provision inevitably results in minority vote denial. Plaintiffs

have presented no evidence

7 Notably, this same distinction is made in the 14th Amendment. See U.S. Cons. Amend. XIV § 2 ("Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.") (emphasis added).
8 By way of analogy, a criminal statute under which a minority defendant is prosecuted might be a vehicle by which a discriminatory result, a conviction, is obtained by a racially-biased prosecutor. However, that does not mean that the criminal statute causes the discriminatory result.
9 Since the felon disenfranchisement provision is part of Washington's Constitution, a constitutional amendment would be required to amend or repeal it. Pursuant to Wash. Const. Art. XXIII § 1, such amendments may be introduced to the Legislature, and must receive two-thirds approval prior to being subjected to a public vote.

2000 U.S. Dist. LEXIS 22212, *18

Page 5 of 6

that their own criminal prosecutions were the result of something in the process makes restoration difficult or

discriminatory animus, or that they were anything but race- impossible because of race. There is no evidence in the record

neutral. The fact that there is no indication that the that the process has such an effect or intent.

disenfranchisement provision functioned in a discriminatory

manner or had a discriminatory effect in these particular CONCLUSION

Plaintiffs' cases demonstrates that the cause of discriminatory

effect is not inherent in the provision.

IT IS HEREBY ORDERED:

Based upon the foregoing, the Court concludes that the totality of circumstances does not establish the requisite causal link between Washington's felon disenfranchisement provision and reduced minority access to Washington's political process. 10

1. Defendants' motion for summary judgment (Ct. Rec. 127) is GRANTED. All of Plaintiffs' claims are dismissed.
2. Plaintiffs' motion for summary judgment (Ct. Rec. 134) is DENIED.

[*19] 2. Restoration of civil rights.
Plaintiffs allege that Washington's scheme for restoration of civil rights violates the VRA because civil rights are not automatically restored upon completion of the terms of a felony sentence; instead, the restoration process is allegedly complex and difficult to complete. Defendants move for summary judgment, arguing that Plaintiffs lack standing, and that the process is not unduly burdensome.

IT IS SO ORDERED. The District Court Executive is directed to enter this order and to provide copies to counsel. DATED this 1ST day of December, 2000. ROBERT H. WHALEY United States District Judge ORDER - Filed DEC 05 2000

Plaintiffs have failed to establish standing to challenge the restoration scheme because none of the Plaintiffs have presented evidence (or even alleged) that they are eligible for restoration and have attempted to have their civil rights restored. Plaintiff Farrakhan previously moved to amend the Complaint to add a substantive due process claim challenging the restoration scheme; the Court denied the motion on standing grounds, concluding that "because Plaintiff Farrakhan is not yet eligible to seek reinstatement of his voting rights, his alleged injury is too speculative to support a cause of action challenging the constitutionality of the reinstatement provisions." Farrakhan v. Locke, 987 F. Supp. 1304, 1315 (E.D.Wash. 1997). This challenge [*20] falls victim to the same inadequacy.

All claims in this matter having been resolved, IT IS HEREBY ORDERED:
1. The District Court Executive shall [*21] enter judgment on all claims in favor of Defendants.
2. The District Court Executive shall close the file.
IT IS SO ORDERED. The District Court Executive is directed to enter this order and to provide copies to counsel and to Plaintiff.
DATED this 4th day of December, 2000.
ROBERT H. WHALEY

Even if Plaintiffs had standing, the Court would still grant summary judgment to Defendants because there is no evidence that the restoration process unduly impacts minorities because of race. Having concluded that the initial disenfranchisement does not constitute improper race-based vote denial, the reinstatement process logically cannot be illegal unless the Court concludes that

United States District Judge
JUDGMENT IN A CIVIL CASE
This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.

10 Defendants also argue that Plaintiffs lack standing to bring a VRA claim because they are disenfranchised. Although not at issue in this case, Plaintiffs' disenfranchisement probably bars them from bringing a vote dilution claim. See Burton City of Belle Glade, 178 F.3d 1175, 1188 n.8 & n.21 (11th Cir. 1999) (distinguishing between VRA vote dilution claims, which may only be brought by enfranchised members of adversely affected minority group, with VRA vote denial claims, which may only be brought by disenfranchised minority group members). Instead, the only avenue for redress under the VRA for disenfranchised minority voters is to bring a vote denial claim. If Defendants' interpretation were adopted, states could disenfranchise all minority voters without running afoul of the VRA. Such an interpretation is clearly illogical, and is contrary to the broad reading of the VRA favored by the Supreme Court. See Chisom v. Roemer, 501 U.S. 380, 403, 115 L. Ed. 2d 348, 111 S. Ct. 2354 (1991).

2000 U.S. Dist. LEXIS 22212, *21

IT IS ORDERED AND ADJUDGED that judgment is entered

on all claims in favor of Defendants.

DATED: December 5, 2000

Page 6 of 6

 
 Docket No. 01-35032

IN THE
Wtntteb ~tates (!Court of ~ppeals
FOR THE NINTH C!RCU!T

MUHAMMAD SHABAZZ FARRAKHAN, et. al., -- against --

Appellant,

GARY LOCKE, et. al.,

Appellee.

Appeal from the United States District Court for the Eastern District of Washington
The Honorable Robert H. Whaley, Judge Presiding

BRIEF OF APPELLANT

LAWRENCE A. WEISER, ATTORNEY AT LAW JASON T. VAIL, LEGAL INTERN Counsels for Appellant
UNIVERSITY LEGAL ASSISTANCE
721 North Cincinnati Street Spokane, WA99220 (509) 323-5791

D. C. CRONIN, ATTORNEY AT LAW Counsel for Appellant
MAXEY LAW OFFICES, P.S. 1835 West Broadway Spokane, WA 99201 (509) 326-0338

QUESTIONS PRESENTED I. WHETHER RACIALLY DISPARATE IMPACT FACTORS EXTRINSIC
TO ELECTORAL PROCESSES ARE PROPERLY CONSIDERED WITHIN THE "TOTALITY OF CIRCUMSTANCES" ANALYSIS OF SECTION TWO OF THE VOTING RIGHTS ACT, WHERE THE FACTORS BEAR A CAUSAL RELATIONSHIP WITH A DISPARITY IN ELECTORAL ACCESS BY MINORITIES. II. WHETHER THE CONSTITUTIONAL MINIMUM REQUIREMENTS FOR STANDING ARE MET WHEN CONVICTED FELONS BRING A VOTE DENIAL CHALLENGE UNDER SECTION TWO OF THE VOTING RIGHTS ACT TO A STATUTE THAT PROHIBITS THEM FROM REGISTERING AND VOTING.

BRIEF OF APPELLANTS

TABLE OF CONTENTS QUESTIONS PRESENTED...................................................................................... i TABLE OF CONTENTS.......................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iv STATEMENT OF JURISDICTION......................................................................... I CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............... I STATEMENT OF THE ISSUES.............................................................................. 2 STANDARD OF REVIEW ...................................................................................... 2 STATEMENT OF THE CASE

I. 2.

BPraocckegdruoruanl dFaFcatcsts................................................................................................................................................................................

3 6

SUMMARY OF THE ARGUMENT ....................................................................... 8

ARGUMENT

I.

RACIALLY DISPARATE IMPACTS WITHIN THE CRIMINAL SYSTEM BEARING A CAUSAL RELATIONSHIP TO RACIAL

JUSTICE

DISPARITIES IN ACCESS TO ELECTORAL PROCESSES IS

RELEVANT EVIDENCE UNDER THE § 2 "TOTALITY OF

CIRCUMSTANCES" ANALYSIS .............................................................. II

A.

The District Court Erred Applied to Appellants'§

in Narrowly Construing the Scope of the VRA as 2 Claim ......................................................................

13

B. PInrvoatelicdtiaotinoPnroofbFleemlon...D...i.s..e..n..f.r.a..n..c..h..i.s..e.m...e..n..t..U...n..d...e.r..§...2....D...o..e..s..N...o..t..C...r.e..a..t.e...a.n...E...q..u.a1l5
11

C. Congress Expressly Intended Evidence of Race Discrimination External to Electoral Processes Considered Within the Results Test of the Amended VRA ·····························································································""··· 17
1. Appellants' vote denial claim and evidence of discrimination in the criminal justice system is properly analyzed under the totality of circumstances test... .. 19 a. The totality review necessary to establish a § 2 violation is flexible and comprehensive and allows consideration of evidence external to electoral processes .................................................................................................. 21 b. Disparate impact evidence within the criminal justice system causally connects Washington's felon disenfranchisement law and the resulting racial disparity in electoral access ........................................................... 26
2. The district court failed to consider other relevant evidence within the totality of circumstances analysis ....................................................................................... 30
D. The Vote Denial Claim in City o(Belle Glade is Not Analogous to Appellants' Vote Denial Claim ............................................................................................. 32
II. APPELLANTS HAVE STANDING TO CHALLENGE WASHINGTON'S RESTORATION OF VOTING RIGHTS STATUTE AS IT RESULTS IN DISCRIMINATION ON ACCOUNT OF RACE IN VIOLATION OF § 2........ 34
A. Appellants Have Met the Elements Necessary to Establish the Constitutional Minimum For Standing...................................................................................... 37
B. Appellants' Due Process Claim Against RCW § 9.94A.220 Should Be Revisited In Light of the Recent Supreme Court Ruling in Bush v. Gore......... 40
APPENDIX A: Washington State Constitution Article VI,§ 3 ................................ I APPENDIX B: Washington Revised Code§ 9.94A.220 ......................................... II APPENDIX C: Section Two of the Voting Rights Act, 42 U.S.C. § 1973 ............ IV
111

TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT
Gray v. Sanders,
372 u.s. 368 (1963) ····················································································· 14
Hamm v. City of Rock Hill,
379 u.s. 306 (1964) ····················································································· 13
Reynolds v. Sims,
377 u.s. 533 (1964) ····················································································· 13
Harman v. Forssenius,
380 u.s. 528 (1965) ............................................................................... 39, 40
Hamer v. Virginia State Board of Elections,
383 u.s. 663 ··························································································· 39, 40
South Carolina v. Katzenbach,
383 u.s. 301 (1966) ····················································································· 14
Jones v. Alfred H. Mayer Co.,
392 u.s. 409 (1968) ····················································································· 13
Allen v. State Board of Elections,
393 u.s. 544 (1969) ..................................................................................... 13
Oregon v. Mitchell,
400 u.s. 112 (1970) ..................................................................................... 14
Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205 (1972) ..................................................................................... 37
White v. Regester,
412 u.s. 755 (1973) ..................................................................................... 21
iv

Richmond v. United States,
422 u.s. 358 (1975) ····················································································· 15
United Jewish Organizations ofWilliamsburgh, Inc. v. Carey, 430U.S. 144(1977) ..................................................................................... 15
Dougherty County Board of Education v. White, 439 U.S. 32 (1978) ....................................................................................... 14
City of Rome v. United States, 446 U.S. 156 (1980) ..................................................................................... 14
Mobile v. Bolden, 446 U.S. 55 (1980) ....................................................................................... 15
McCain v. Lybrand, 465 U.S. 236 (1984) ..................................................................................... 17
Hunter v. Underwood, 471 U.S. 222 (1985) ............................................................................... 13, 17
Thornburg v. Gingles, 478 U.S. 30 (1986) ................................................................................ passim
Chisom v. Roemer, 501 U.S.380(1991) ................................................................... 11, 12, 15,19
Houston Lawyers Association v. Attorney General of Texas, 501 U.S. 419 (1991) ............................................................................... 16, 19
Connecticut National Bank v. Germain, 503 U.S. 249 (1992) ..................................................................................... 19
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................................... 37
Grove v. Emison, 507 U.S. 25 (1993) ................................................................................. 16, 19
v

Voinovich v. Quilter,
507 u.s. 146 (1993) ········································································· 12, 19,22

Holder v. Hall,
512 u.s. 874 (1994) ··································································· 19, 20, 25,35
Johnson v. DeGrandy,
512 u.s. 997 (1994) ········································································· 22, 23, 31
Bush v. Vera, 517 U.S. 952 (1996) ......................................................................... 16, 17, 19

Steel

Co. v. Citizens for a
523 u.s. 83 (1998)

Better Environment, .......................................................................................

37

Bush v. Gore, 121 S.Ct. 525 (2000)............................................................................... 40, 41

FEDERAL CIRCUIT COURT
McMillan v. Escambia County, Florida, 748 F.2d I 037 (5th Cir. 1984) ................................................................ 25, 3 I
United States v. Marengo County Commission, 731 F.2d I546 (II th Cir. 1984) .............................................................. 16, 25
Hall v. Holder, 955 F. 2d I563 (II th Cir. 1992) ..........................·............................. 18, 25, 34
Meek v. Metropolitan Dade County, Florida, 985F.2d 1471 (llthCir.1993) .................................................................... 38
Smith v. Salt River Agricultural Improvement and Power District, I09 F.3d 586 (9th Cir. 1997) .............................................................. 3, 18, 26

VI

Burton v. City of Belle Glade, 178 F.3d 1175 (lith Cir. 1999) .............................................................. 32, 33
Clark v. Putnam County, 168F.3d458(llthCir. 1999) ...................................................................... 38
Dillard v. Baldwin County Commissioners, 225 F.3d 1271 (II th Cir. 2000) .................................................................... 38
FEDERAL DISTRICT COURT
Hamer v. Virginia State Board of Elections, 240F.Supp.270(E.D. Va.1964) ................................................................. 40
Jordan v. City of Greenwood, Mississippi, 599 F.Supp. 397 (N.D. Miss. 1984).............................................................. 24
Johnson v. Halifax County, 594 F.Supp. 161 (N.D. N.C. 1984) ............................................................... 24
Windy Boy v. County of Big Hom, 647 F.Supp. 1002 (D. Mont. 1986)............................................................... 24
Mississippi State Chapter, Operation PUSH v. Allain, 674 F.Supp. 1245 (N.D. Miss. 1987)................................................ 16, 26, 27
Mississippi State Chapter, Operation PUSH, Inc. v. Mabus, 717 F.Supp. 1189 (N.D. Miss. 1989)............................................................ 28
STATE COURT
Fernandez v. Kiner, 673 P.2d 191 (Wash. 1983) .......................................................................... 19 FEDERAL CONSTITUTIONAL & STATUTORY PROVISIONS
U.S. Const. Art. 1, § 2 ............................................................................................. 14
vii

42 U.S.C. § 1973 (1994) .................................................................................. passim 42 U.S.C. § 1973aa(1994)...................................................................................... 14 42 U.S.C. § 1973aa-1 (1994) .................................................................................. 14 42 U.S.C. § 1973h (1994) ....................................................................................... 39 42 U.S.C. § 1983 (1994) ....................................................................................... 2, 6
FEDERAL LEGISLATIVE MATERIALS S. Rep. No. 97-417 (l982)reprinted in 1982 U.S.C.C.A.N. 177 .................... passim
STATE CONSTITUTIONAL & STATUTORY PROVISIONS Wash. Const. Art. VI, § 3 ................................................................................ passim Wash. Rev. Code§ 9.94A.220......................................................................... passim
Vlll

STATEMENT OF ruRISDICTION The District Court has subject matter jurisdiction over this action under 42 U.S.C. § 1973 (The Voting Rights Act) and 28 U.S.C. § 1331 (federal question). Appellants' claim for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 ofthe Federal Rules of Civil Procedure, and the general legal and equitable powers of the court. Venue is proper under 28 U.S.C. § 139I(b), as a substantial part of the events giving rise to the claim occurred in this district. Jurisdiction is conferred on this court by 28 U.S.C. § 1291 (final decisions of district courts). The District Court for the Eastern District of Washington entered an order denying appellants' motion for summary judgment on December I, 2000. (Appellants' Excerpts of the Record [hereinafter "E.R."] 3.) This was a final judgment that disposed of all claims with respect to all parties. Appellants filed a timely notice of appeal on December 19, 2000. (E.R. 5.) CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The following constitutional and statutory provisions are relevant to this case and set forth in the Appendices: Washington State Constitution Article VI, § 3; Washington Revised Code§ 9.94A.220; 42 U.S.C. § 1973 (Section Two ofthe Voting Rights Act).

STATEMENT OF THE ISSUES This action arises from appellants' pro se complaint filed in United States District Court for the Eastern District of Washington on February 2, 1996, alleging violation of their civil rights under 42 U.S.C. § 1983. (E.R. 1 at 2.) On December 1, 2000, the district court granted appellees' motion for summary judgment and denied appellants' motion for summary judgment. (E.R. 3.) Appellants filed a timely notice of appeal to the Ninth Circuit Court of Appeals to consider all issues raised by the record in this case. (E.R. 5.) The record raises two issues of law. These issues are: (1) whether racially disparate impact factors extrinsic to electoral processes are properly considered within the totality of circumstances analysis of§ 2 of the Voting Rights Act, where the factors bear a causal relationship to a disparity in electoral access by minorities; and (2) whether the constitutional minimum requirements for standing are met when convicted felons bring a § 2 challenge to a statute that prohibits them from registering and voting.
STANDARD OF REVIEW In determining whether felon disenfranchisement violates § 2 of the Voting Rights Act, the district court engaged in a fact-based and localized examination to "determine, based 'upon a searching practical evaluation of past and present reality,' ... whether the political process is equally open to minority voters." Thornburg v. Gingles, 478 U.S. 30, 79 ( 1986) (citation omitted); see also E.R. 4 at
2

5. In review of the district court's holding Washington State's felon disenfranchisement scheme does not violate § 2, this court has the power "to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law." Id.; see also Smith v. Salt River Agricultural Improvement & Power Dist., 109 F.3d 586, 591 (9th Cir. 1997). Therefore, this court reviews de novo the issues raised in this appeal. See id.
STATEMENT OF THE CASE 1. Background Facts "Felon disenfranchisement" is a form of voting restriction that denies citizens convicted of felonies the right to register and vote. The practice of felon disenfranchisement is state law based; forty-eight states and the District of Columbia have disenfranchisement laws that deprive convicted offenders of the right to vote while in prison. Thirty-two states prohibit offenders from voting while on parole and twenty-nine of these states disenfranchise offenders on probation. Pursuant to Washington State Constitutional Article VI, § 3, Washington permanently disenfranchises offenders convicted prior to July 1, 1984. All offenders convicted after that date are also disenfranchised, and remain ineligible to vote by operation of Washington Revised Code§ 9.94A.220 until they
3

successfully complete all enumerated and non-enumerated requirements of the statute.
The various state felon disenfranchisement provisions share one thing in common: No state deprives an offender of voting rights as a component of the offender's judgment and sentence. Rather, disenfranchisement itself is a collateral consequence of conviction, as an offender is automatically removed from the voter roles following entry ofjudgment and sentence. Thus, felon disenfranchisement acts as a "voting qualification," as it denies voting rights to a group of persons on the basis of a shared characteristic or status: a felony conviction.
Felon disenfranchisement laws have much in common with historical, racially discriminatory voting restrictions. At the close of the nineteenth century, Southern States employed a variety of voting restrictions in order to undermine the protections of the Thirteenth, Fourteenth, and Fifteenth Amendments and thereby bar a large proportion of the Black1 population from voting. Though generally facially neutral with respect to race as a means to avoid direct legal challenge, these "Jim Crow" laws were designed to take advantage of differing social conditions between Blacks and Whites. Such voting qualifications included
1 For ease of reference, this brief will use the terms for racial and ethnic categories used by the U.S. Census Bureau.
4

literacy tests, poll taxes, and residency requirements. These laws led to an overall decline in minority voting strength in Southern states.
One of the most insidious voting restrictions relied on by Southern states to discriminate were felon disenfranchisement laws. These laws, though also facially neutral with respect to race, were tailored to disenfranchise for only certain types of crimes. For example, South Carolina only disenfranchised criminals guilty of thievery, adultery, arson, wife-beating, housebreaking, and attempted rape--crimes Southern lawmakers believed Blacks more likely to commit than Whites. Other crimes like murder and fighting, to which Whites were believed as disposed to as Blacks, were omitted. These racist presumptions were founded on the irrational belief that criminal behavior by Blacks was to be taken for granted as a biological flaw.
Today, felon disenfranchisement policies continue to deprive minorities of equal access to electoral processes in disproportionate numbers. Washington State provides one of the more egregious examples of this effect. An analysis based on Department of Justice statistics estimates the total population of disenfranchised felons in Washington is approximately 151 ,500, or 3.7% of the total state population. (E.R. 2 at 25.) Of this number, it is estimated 69,500 are "ex-felons"; that is, they are no longer under any form of correctional supervision, yet have not had their voting rights restored. (E.R. 2 at 25.) It is further estimated that
5

approximately 16,700 of the total disenfranchised population is comprised of Black men, 24% of the total state Black population. (E.R. 2 at 25.) Additionally, Blacks make up a disproportionate share of the Washington State resident prison population at 22%, where they only represent about three percent of the general population. (E.R. 2 at 26.) The racial imbalance in the criminal justice system population, and consequently in the disenfranchised population, is primarily attributable to the differing treatment of minorities throughout the system. All of these factors combine to result in a substantial impact on minority participation in Washington electoral processes. In short, discrimination within Washington State's criminal justice system bears a direct, causal relationship with the racial effects of felon disenfranchisement. It is against this social and historical backdrop appellants bring this suit.
2. Procedural Facts
On February 2, 1996, appellants filed a prose complaint alleging appellees deprived them oftheir voting rights in violation of 42 U.S.C. § 1983. (E.R. I at 2.) Appellants are Black, Hispanic, and Native American citizens who have been convicted offelonies in Washington State. (E.R. 4 at I.) The operation of Article VI,§ 3 of the Washington State Constitution deprives appellants of their voting rights because of their status as felons. (E.R. 4 at I.) All appellants were convicted after July I, 1984, and are therefore prohibited from registering and voting
6

pursuant to Washington Revised Code section 9.94A.220. (E.R. 4 at 1.) In their complaint, appellants claimed Article VI, § 3 and the laws implementing Article VI deprived them of their voting rights on the basis of race, thereby violating the First, Fourth, Fifth, Eighth, Fourteenth, and Fifteenth Amendments of the United States Constitution. (E.R. 1 at 2.) Appellants also claimed vote dilution and vote denial under Section Two of the Voting Rights Act of 1965 ("VRA") as amended, codified at 42 U.S.C. § 1973. (E.R. I at 2.) Defendants moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing appellants failed to state a claim upon which relief could be granted. (E.R. 1 at 1.) On November 13, 1997, the district court dismissed appellants' claim of vote dilution and all constitutional claims, while preserving appellants' vote denial claim under the VRA. (E.R. 1 at 1.) At that time, the court allowed appellants to proceed with their claim and gave them an opportunity to present evidence in order to determine whether the totality of circumstances would reveal a Section Two violation. (E.R. 1 at 11-12.)
Appellants filed an amended complaint containing only the VRA claim, arguing Article VI, § 3 and the laws implementing Article VI disproportionately deprives minorities in Washington State of the right to vote in violation of§ 2 of the VRA. (E.R. 4 at 1.) Appellants further argued this impact on minority voting rights is caused primarily by race-based disparities within the criminal justice
7

system. (E.R. 4 at 2.) Appellants also claimed the statutory process for restoration of voting rights, RCW § 9.94A.220, violates§ 2 as it prohibits a disproportionately-minority population from registering and voting_ (E.R. 4 at 1112.) Appellants moved for summary judgment on their VRA claim on August 1, 2000, and defendants filed a cross-motion for summary judgment and dismissal. (E.R. 4 at 1.) On December 1, 2000, the district court entered judgment in favor of defendants and dismissed appellants' complaint. (E.R. 3.) The court held that while appellants showed Article VI, § 3 disproportionately denied minorities access to voting in Washington State (E.R. 4 at 2, 6, 10), evidence of race-based disparities in the criminal justice system were not relevant under the totality of circumstances analysis necessary to prove the discriminatory results prohibited by § 2 of the VRA. (E.R. 4 at 2-3, 6, 9-11.) The court further found appellants lacked standing to challenge RCW 9.94A.220 under§ 2, as no plaintiffhad yet successfully completed the statutory requirements for restoration of voting rights. (E.R. 4 at ll12.) Appellants subsequently filed this appeal. (E.R. 5.)
SUMMARY OF THE ARGUMENT The population of citizens within Washington State carrying the status of "convicted felon" is disproportionately minority in composition when compared to the general population. As a consequence, Washington's felon disenfranchisement scheme, though facially neutral with respect to race, deprives a disproportionate
8

number of minorities of the right to register and vote. This effect is analogous to that ofliteracy tests and poll taxes once commonplace in the South, where these facially neutral voting qualifications prohibited those populations with the status of "illiterate" and "poor" from voting; populations that also happened to be disproportionately Black.
Washington State did not enact felon disenfranchisement with the specific intent to discriminate on the basis of race. (E.R. 4 at 7.) But the Voting Rights Act does not prohibit only those voting restrictions purposefully maintained to discriminate; it also prohibits those voting restrictions that result in discrimination. Appellants contend Washington's felon disenfranchisement scheme produces a discriminatory result, as it deprives a population that is disproportionately minority of the right to vote.
Appellants have presented evidence under§ 2 of the VRA demonstrating disparate impact on minorities within the criminal justice system is the primary causal factor for the disproportionate denial of voting rights under felon disenfranchisement. (E.R. 2 at 17-24.) This evidence must be considered in light of the broadest possible reading of the VRA, as was intended by Congress. In doing so, the evidence presented by appellants is properly considered within the totality of circumstances analysis mandated by § 2(b) ofthe VRA. The result is the establishment of a causal relationship between the disparate impact on minorities
9

within the criminal justice system and the resulting disproportionate impact of felon disenfranchisement on minority political participation. Once this relationship is established, felon disenfranchisement is invalid under§ 2 of the VRA.
Further, where appellants have standing to bring a claim against the statute that initially stripped them of their voting rights (Article VI,§ 3 ofthe Washington State Constitution), they also have standing to challenge the statute that currently and prospectively denies them the ability to register and vote, RCW § 9.94A.220. By ensuring appellants will be unable to register and vote beyond their terms of incarceration, and perhaps indefinitely, this statute causes appellants to suffer an injury sufficient to meet the constitutional minimum for standing.
Felon disenfranchisement results in the denial of voting rights on account of race in Washington State. It does so in conjunction with disparate impacts on minorities within the criminal justice system. Therefore, felon disenfranchisement violates§ 2 of the VRA and summary judgment in favor of appellees should be reversed.
10

ARGUMENT
I. RACIALLY DISPARATE IMPACTS WITHIN THE CRIMINAL JUSTICE SYSTEM BEARING A CAUSAL RELATIONSHIP TO RACIAL DISPARITIES IN ACCESS TO ELECTORAL PROCESSES IS RELEVANT EVIDENCE UNDER THE § 2 "TOTALITY OF CIRCUMSTANCES" ANALYSIS.
Appellants base their claim on§ 2 of the Voting Rights Act of 1965,
codified as amended at 42 U.S.C. § 1973. (E.R. 4 at 1-2.) The Act prohibits voting
qualifications and practices that result in the denial of the right to vote, by
providing in pertinent part:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State ... in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or [membership in language minority groups protected by § J973(b)(f)(2)].
(b) A violation ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State ... are not equally open to participation by members of [protected racial and language minority groups] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
42 U.S.C. § 1973 (1994). The structure of§ 2(a) sets forth two elements necessary
to establish a§ 2 violation: (1) a voting qualification, prerequisite to voting, or
standard practice or procedure, (2) that results in a denial or abridgement of the
right to vote on account of race or color. Chisom v. Roemer, 501 U.S. 380, 394
(1991 ). Section 2(b) mandates the use of a "totality of circumstances" inquiry to
II

prove the challenged practice results in discrimination on the basis of race under§ 2(a).
In order for appellants to show Washington's felon disenfranchisement law violates§ 2, they need only show how the qualification results in discriminatory denial of the right to vote on account ofrace;2 discriminatory intent is unnecessary. Chisom, 501 U.S. at 383; see also Voinovich v. Quilter, 507 U.S. 146, 155 (1993) (holding the burden is on plaintiffs to demonstrate a§ 2(a) voting qualification produces discriminatory results). Proving a discriminatory effect through the totality of circumstances analysis involves an inquiry into how the practice of felon disenfranchisement "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
The district court found appellants successfully showed Washington's felon disenfranchisement law results in the denial of voting rights on the basis of race under§ 2(a). (E.R. 4 at 2, 6, l 0.) However, the district court held the VRA could not be read broadly enough to encompass the evidence presented by appellants under the § 2(b) totality of circumstances analysis. (E.R. 4 at 4, 6.) This is an error of law and should be reversed.
2 The term "on account of race or color" was not intended by Congress to connote any required purpose of discrimination. SeeS. Rep. No. 97-417, at 27-28 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206.
12

A. The District Court Erred in Narrowly Construing the Scope of the VRA as Applied to Appellants' § 2 Claim. Congress passed the civil rights legislation of the 1960s to effectuate the
"great purpose" of eradicating the effects of a "distressing chapter" in the history of the United States. Hamm v. City of Rock Hill, 379 U.S. 306, 315 (1964). Congress sought to abolish all "badges and incidents of slavery," pursuant to its powers under the Enabling Clause of the Thirteenth Amendment. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968). "Badges and incidents of slavery" include "restrictions upon 'those fundamental rights which are the essence of civil freedom .... "' Id. at 441. Toward that end, Congress enacted the Voting Rights Act of 1965, as "[t]he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555 (1964).
Congress was particularly concerned with those facially neutral voting practices and procedures used in the South following Reconstruction to disproportionately deny the franchise to Blacks. Id. at 31 0-11. Those voting schemes included the use of felon disenfranchisement laws to deprive Blacks of voting rights. Hunter v. Underwood, 471 U.S. 222 (1985). The Court has interpreted the coverage of the VRA to be as broad as possible, in part by defining "voting" to include "all action necessary to make a vote effective," Allen v. State Board of Elections, 393 U.S. 544, 565-566 (1969), as a means "to banish the blight
13

of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).
Congress expanded the scope of the VRA through subsequent amendments. In 1970, Congress amended the VRA to make literacy tests and durational residency requirements per se illegal, see 42 U.S.C. §§ 1973aa, 1973aa-l, thereby causing these voting devices to be invalid in every state, irrespective of whether any particular state had used these qualifications to discriminate on the basis of race. See Oregon v. Mitchell, 400 U.S. 112, 133 (1970). Despite the states' constitutional authority to define qualifications for its electors, see U.S. Const. art. 1, § 2; Gray v. Sanders, 372 U.S. 368 (1963), this far-reaching approach is within the constitutional powers of Congress. See Mitchell, 400 U.S. at 132. As the Court noted, "Congress has recognized that discrimination on account of color and racial origin is not confined to the South, but exists in various parts of the country ... [and] decided that the way to solve the problems of racial discrimination is to deal with nationwide discrimination with nationwide legislation." Mitchell, 400 U.S. at 133-34.
In the years that followed until the VRA was amended again in 1982, the Court continued to interpret the VRA in the broad manner set out by Allen and Mitchell. See City of Rome v. United States, 446 U.S. 156 (1980); Dougherty
14

County Bd. of Ed. v. White, 439 U.S. 32 (1978); United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 ( 1977); Richmond v. United States, 422 U.S. 358 (1975). The 1982 amendments expanded the Act further by adopting a "results" test, allowing plaintiffs to show a violation of§ 2 even ifplaintiffs are unable to show the challenged voting device was adopted or maintained with discriminatory intent.3 See Thornburg v. Gingles, 478 U.S. 30, 44 (1986).
The district court's narrow, restricted reading of the VRAin the case at bar flouts the purpose and intent of the Act. The history of the VRA demonstrates the statute was enacted to encompass precisely the type of claim appellants present. Washington State's felon disenfranchisement scheme disproportionately denies minorities access to voting, and thereby results in the denial of voting rights on account of race. This result is demonstrably at odds with the VRA and the ends the Act was designed to achieve. Therefore, the district court should have liberally construed the VRA with respect to appellants' § 2 claim. B. Invalidation of Felon Disenfranchisement Under§ 2 Does Not Create an Equal
Protection Problem. A voting device that is enacted either to intentionally discriminate or results
in discrimination on the basis of race is prohibited under § 2. Chisom, 501 U.S. at
3 The amendment was a response to the Court's holding in Mobile v. Bolden, 446 U.S. 55 (1980), which required proof of discriminatory intent in order to establish a§ 2 violation. Gingles, 478 U.S. at 43-44.
15

394. Though members of minority groups typically bring such challenges, a successful § 2 suit will invalidate the voting device at issue with respect to all citizens affected by it, regardless of race. See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Growe v. Emison, 507 U.S. 25 (1993); Houston Lawyers Ass'n v. Attorney General of Texas, 501 U.S. 419 (1991 ). Bringing a § 2 challenge to a voting qualification implicates no constitutional conflict. As other circuits have found,
Section 2 does not conflict with or contract any right protected by the Constitution, and nothing in the Constitution either explicitly or implicitly prohibits a results standard for voting rights violations. Under the test of M'Culloch, section 2 is "consist[ent] with the letter and spirit of the constitution", 17 U.S. (4 Whet.) at 421, and is clearly constitutional. U.S. v. Marengo County Comm'n, 731 F.2d 1546, 1563 (lith Cir. 1984) (citing Accord Jones v. City of Lubbock, 727 F.2d 364, 372-75 (5th Cir. 1984); Major v. Treen, 574 F.Supp. 325, 342-49 (E.D. La. 1983)). The district court held the invalidation of felon disenfranchisement under § 2 with respect to racial minorities would still allow the disenfranchisement of White felons, thus creating an Equal Protection problem. (E.R. 4 at 4.) This misapprehends the mechanics of a § 2 claim. Washington's felon disenfranchisement scheme violates § 2, as it results in the denial of voting rights on the basis of race. Therefore, despite the law's facial neutrality with respect to race, it is still invalid under § 2 and may not be enforced against any felon, regardless of race. Cf. Mississippi State Chapter, Operation PUSH v. Allain, 674
16

F.Supp. 1245 (N.D. Miss. 1987) (invalidating Mississippi voter registration processes as they led to discriminatory results under§ 2(a), even though the processes impacted both poor Blacks and poor Whites); Hunter, 471 U.S. 222 (1985) (invalidating Alabama's felon disenfranchisement provision on equal protection grounds with respect to all felons, regardless of race, even though the statute was designed to discriminate against only Blacks on the basis of race).
Upon a showing felon disenfranchisement violates § 2, the Supremacy Clause obliges appellees to comply with Congress' constitutional exercise of power in enacting§ 2 and discontinue enforcement of Washington's felon disenfranchisement scheme with respect to all felons. See Vera, 517 U.S. at 992 (O'Connor, J., concurring) ("[T]he States have a compelling interest in complying with the results test as this Court has interpreted it.") There is no Equal Protection conflict defeating this necessary result. C. Congress Expressly Intended Evidence of Race Discrimination External to
Electoral Processes Considered Within the Results Test of the Amended VRA. A plaintiff showing a voting device statistically results in discrimination on
the basis of race under§ 2(a) must support this showing through a "totality of circumstances" inquiry.4 See 42 U.S.C. § l973(b); S. Rep. No. 97-417, at 28
4 The development of the totality review was a direct response to the ingenuity demonstrated by state and local governments in restricting minority voting power. See McCain v. Lybrand, 465 U.S. 236, 243-246 (1984).
17

(1982), reprinted in 1982 U.S.C.C.A.N. 177, 205 [hereinafter S. Rep.]. Without this inquiry "courts would often be left to consider statistical and census data in an inappropriate contextual vacuum." Hall v. Holder, 955 F.2d 1563, 1568 n. 8 (11th Cir. 1992). In the totality review "a bare statistical showing of disproportionate impact on a racial minority does not satisfY the§ 2 'results' inquiry. Instead,'[§ 2] plaintiffs must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result.'" Smith v. Salt River Agricultural Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir. 1997) (quoting Ortiz v. City of Philadelphia Office of the City Comm'rs, 28 F.3d 306, 312 (3d Cir. 1994)).
The district court found appellants presented sufficient statistical evidence to support finding felon disenfranchisement results in a disproportionate impact on racial minorities in Washington State, consistent with the§ 2(a) results test. (E.R. 4 at 2, 6, 10.) However, the court did not find appellants' evidence of discrimination in the criminal justice system to be a causal factor of the disparity within the totality of circumstances inquiry, holding such evidence of discrimination occurred outside of electoral processes and is therefore irrelevant under§ 2. (E.R. 4 at 2-3, 6, 9-11.) This erroneously interprets the scope of the totality of circumstances analysis and is an error of law.
18

1. Appellants vote denial claim and evidence of discrimination in the criminal justice system is properly analyzed under the totality of circumstances test. Under the amended § 2, most "results test" cases have been brought by
plaintiffs claiming vote dilution rather than vote denial. See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Holderv. Hall, 512 U.S. 874 (1994); Growe v. Emison, 507 U.S. 25 (1993); Voinovich v. Quilter, 507 U.S. 146 (1993); Houston Lawyers Assn. v. Attorney General of Texas, 501 U.S. 419 (1991); Chisom v. Roemer, 501 U.S. 380 (1991); Thornburg v. Gingles, 478 U.S. 30 (1986). In the case at bar, appellants present a facial challenge to Washington's felon disenfranchisement law, arguing not vote dilution, but vote denial. (E.R. 4 at 3.) Nevertheless, the § 2(a) results test, supported by the§ 2(b) totality review, applies to appellants' claim.
When interpreting the applicability of a statute to a particular claim, the preferred starting point is the statute's plain language. See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992). Section 2(a) of the Act covers "voting qualification[s),""prerequisite[s] to voting," or "standard[s], practice[s], or procedure[s]." Moreover, the right to be free from discrimination in voting under§ 2 extends to "any citizen of the United States." See 42 U.S.C. § 1973.
Washington's felon disenfranchisement law is a voting qualification. See Fernandez v. Kiner, 673 P.2d 191 (Wash. 1983). Thus, it comes within the scope of§ 2(a) as the type of voting device Congress was concerned about, "however it
19

might be denominated, that regulates citizens' access to the ballot--that is, any procedure that might erect a barrier to prevent the potential voter from casting his vote." Holder, 512 U.S. at 917 (Thomas, J., concurring in judgment). Appellants, though convicted felons, are citizens of the United States. Therefore, the results test of§ 2(a) applies to appellants vote denial claims, and the totality of circumstances analysis under§ 2(b) guides the court's determination under the results standard of§ 2(a). See id. at 924 (finding that neither the § 2(a) results test nor the § 2(b) totality of circumstances analysis is "inherently tied to vote dilution c1m.ms").
Under this analysis, two questions must be answered in order to prove a § 2 violation. First, whether the evidence presented in the totality review is causally connected with the discriminatory results demonstrated under§ 2(a). Second, whether that causally related evidence is properly considered within the totality analysis. Appellants primarily presented evidence showing disparate impact on minorities within the criminal justice system causes Washington State's felon disenfranchisement scheme to result in the disproportionate denial of minorities' right to vote. (E.R. 2 at 17-24.) The district court erroneously held the evidence was not causally related to the resultant disparity in electoral participation and such evidence should not be considered within the totality review.
20

a. The totality review necessary to establish a § 2 violation is flexible and comprehensive and allows consideration of evidence external to electoral processes.
Congress intended the § 2(b) totality of circumstances analysis be based
upon the analytical framework of White v. Regester, 412 U.S. 755 (1973), where a
violation of§ 2 is demonstrated by objective factors that show the political process
at issue is not equally open to participation by a particular minority group. See
Gingles, 478 U.S. at 35; White, 412 U.S. at 766. Congress elaborated on the typical
objective factors that may be probative of a § 2 violation in the Senate Judiciary
Committee majority report accompanying the bill that amended § 2 to incorporate
the results test. These factors are:
1. The extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. The extent to which voting in the elections of the state or political subdivision is racially polarized;
3. The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. If there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. Whether political campaigns have been characterized by overt or subtle racial appeals;
7. The extent to which members of the minority group have been elected to public office in the jurisdiction.
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Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are: whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. S. Rep. at 28-29; see also Gingles, 478 U.S. at 36-38. Congress stressed this list was neither comprehensive nor exclusive and other relevant factors should be considered. S. Rep., at 29-30. The Senate Committee did not intend "any particular number of factors be proved, or that a majority of them point one way or the other." Id. at 29. Instead, "the question whether the political processes are 'equally open' depends upon a searching practical evaluation of the past and present reality," id. at 30, and on a "functional" view of the political process. Id. at 30, n. 120; see also Gingles, 478 U.S. at 45. Thus, the totality of circumstances analysis is a "flexible, fact-intensive test," Gingles, 478 U.S. at 46, and "cannot be applied mechanically and without regard to the nature of the claim." Voinovich, 507 U.S. at 158. The analysis is also very broad, as "the ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts." Johnson v. DeGrandy, 512 U.S. 997, 1011 (1994).
22

The enumerated Senate Report factors have limited applicability to appellants' vote denial claim, as they are most relevant to vote dilution claims.5 See Gingles, 478 U.S. at 45. Many of the evidentiary factors set forth in the Senate Report are directly tied to electoral processes, like racial polarization in elections, or denial of access to candidate slating processes. S. Rep. at 37. However, some of the Senate Report factors implicate the presentation of evidence external to electoral processes, though causally related. One factor the Senate Report considered typical is "the extent to which members of the minority group in the state or political subdivision be<lr the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process." S. Rep. at 37. This particular factor, by necessity, calls for the consideration of non-electoral evidence within the totality review.
Accordingly, courts have consistently included factors external to electoral processes within the § 2(b) totality of circumstances analysis when such factors are relevant. Numerous cases illustrate this point. In DeGrandy, 512 U.S. at 1012, the Court weighed the Hispanic proportion of the general population under the totality review when considering a Florida legislative districting plan. Also found proper
5 The district court recognized this and declined to mechanistically apply the enumerated factors. (E.R. 4 at 5 n. 4.)
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under the totality review was "evidence of racial relations outside the immediate confines of voting behavior and ... a history of discrimination against Hispanic voters continuing in society generally to the present day." Id. at I013. The court in Windy Boy v. County of Big Hom, 647 F.Supp. 1002, 1016 (D. Mont. 1986), looked at a variety of disparities between Native Americans and Whites, including per capita income, life expectancy, unemployment, and telephone ownership within the totality review. The court held a causal link between lower socioeconomic and educational status (non-electoral factors) and an inequality of access to political participation could be automatically inferred. Id. The court in Jordan v. City of Greenwood, Miss., 599 F.Supp. 397,401 (N.D. Miss. 1984), made a similar holding. After examining Black socio-economic disadvantages in education, income, poverty status, employment, living conditions, and health under the totality review, the court held these disadvantages contributed to decrease Black political participation and effectiveness in the community. Id. The court relied on the Senate Report in stating '"plaintiffs need not prove any further causal nexus between the disparate socioeconomic status and the depressed level of political participation."' Id. (quoting S. Rep. at 29 n. 114). The totality review in Johnson v. Halifax County, 594 F.Supp. 161, 167 (N.D. N.C. 1984) considered an ongoing failure by the county to desegregate the public school system and disparities in employment and earning potential between Blacks and Whites.
24

Finally, in Marengo County Comm'n, 731 F.2d at 1568, the Eleventh Circuit Court of Appeals held evidence of the county's ongoing resistance to desegregation in the school system and countywide discrimination in jury selection was relevant to the totality analysis.
Courts have also explicitly held evidence of discrimination outside of electoral factors should be considered when relevant. The Eleventh Circuit in Hall v. Holder, 955 F.2d at 1572-73, reversed a lower court that held non-electoral data is outside the scope of the Senate Report factors. The court of appeals held evidence presented by plaintiffs regarding segregation in all aspects of public life in the subject county, disproportionate effects of depressed socio-economic conditions on Blacks, and the presence of racially exclusive organizations, though external to electoral processes, properly fell within the totality review.6 Id. In the Fifth Circuit, the court in McMillan v. Escambia County, Fla., 748 F.2d 1037, 1044 (5th Cir. 1984) announced "discrimination against minorities outside of the electoral system cannot be ignored in assessing that system."
In the case at bar, appellants presented evidence to the district court of a disparate impact on minorities within the Washington State criminal justice system. (E.R. 2 at 17-24.) As the above cases illustrate, non-electoral evidence,
6 The Supreme Court eventually reversed the court of appeals, but did so on other grounds. See Holderv. Hall, 512 U.S. 874 (1994).
25

when probative and causally related to the particular vote denial claim, may be considered under the totality of circumstances analysis. If courts can consider discrimination in employment, income, education, and jury selection, the district court should have considered the racially disparate impacts within the criminal justice system, as it is causally related to appellants' claim. Though there has never been an opportunity for any court to consider the type of evidence advanced by appellants within a§ 2 totality review, this is not a bar to its consideration. So long as the evidence is causally linked to the discriminatory result, the flexibility and broad scope of the totality review allows the evidence to be considered. The district court erred in its contrary holding.
b. Disparate impact evidence within the criminal justice system causally connects Washington's felon disenfranchisement law and the resulting racial disparity in electoral access.
Evidence presented within the totality of circumstances analysis must bear some causal connection with the resulting denial of voting rights. See Salt River, 109 F.3d at 595. An illustration of how this causal connection is established can be found in Mississippi State Chapter, Operation PUSH v. Allain, 674 F.Supp. 1245 (N.D. Miss. 1987), where plaintiffs successfully challenged Mississippi's dual registration requirement and prohibition on satellite and off-site voter registration under§ 2.
26

The Allain plaintiffs argued the state's process for voter registration resulted in Blacks being disproportionately denied the right to vote. In presenting evidence to support the totality of circumstances inquiry, plaintiffs argued that substantial socio-economic disparities between Whites and Blacks in Mississippi contributed to inequality in access to voting registration. Id. at 1252. Specifically, plaintiffs presented evidence that socio-economic disadvantages caused Blacks to have less access to transportation (especially automobiles), making it harder for Blacks to travel to registration sites. ld. at 1253. Further, the unavailability of telephones in 30% of Black households in Mississippi made obtaining information about voting registration more difficult for Blacks than Whites. Id. Also, evidence showed Black workers in Mississippi worked predominately in blue-collar and service industries for an hourly wage, making it less likely Blacks could take time off from work to register to vote during regular office hours. Id. at 1256. The Allain court found "[t]he continued statutory prohibition on satellite registration and ... the dual registration requirement have a disparate impact on the opportunities of black citizens to register to vote because of their socio-economic and occupational status." Id. at 1253 (emphasis added). Upon the court's finding of a§ 2 violation, the Mississippi legislature was forced to reform registration procedures to avoid
27

the prohibited result.7 Where the Allain court considered socio-economic evidence external to the
electoral practice itself within the totality review, the district court in the instant case declined to consider evidence presented by appellants of disparate racial impacts on minorities within the state criminal justice system. (E.R. 4 at 2-3, 6, 911.) Though the district court found appellants' evidence compelling, it held such evidence is not properly considered within the totality review. (E.R. 4 at 8.) This is error, as appellants' evidence is directly, causally linked to the racially discriminatory effects of felon disenfranchisement, much like the socio-economic disparities in Allain were directly, causally linked to the disparate effect of Mississippi's voter registration scheme.
Appellants' presented a wide-ranging inquiry into the disparate impact on minorities within Washington State's criminal justice system. (E.R. 2 at 17-24.) Of the total number of convictions by county superior courts for drug offenses statewide, almost 40% were for non-White offenders. While the Black population statewide is only about 3%, Blacks comprise 25% of all drug arrests. This disparity is most pronounced in King County, where Blacks represent 47% of all drug crime convictions in the county. A study of the King County Prosecutor's Office found
7 Mississippi's remedial legislation was later found to have cured the § 2 violation. See Mississippi State Chapter, Operation PUSH, Inc. v. Mabus, 717 F.Supp. 1189 (N.D. Miss. 1989), affd 932 F.2d 400 (5th Cir. 1991 ).
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Whites were least likely of all racial groups to be charged with a felony, even when adjusting for the possible effects of other offender characteristics and legally relevant factors. Statewide, non-White offenders receive, on average, longer sentences than Whites, and Blacks are most likely of all groups to be sent to prison. Blacks are also less likely than Whites to receive first-time offender waivers or alternative sentencing. Overall, it has been found the racial disparity in imprisonment is high (9:1) compared to the disparity in arrest (5: 1). This suggests minorities are incarcerated, and therefore disenfranchised, at a far greater rate than similarly situated Whites. A 1994 study looking at incarceration rates in Washington found 1,392 per 100,000 Blacks were incarcerated compared to just 161 per 100,000 Whites. These numbers mean an individual Black man in Washington State is 8.65 times more likely to be incarcerated than an individual White man. These disparities are observed in the composition of Washington's prison population. During fiscal year 2000, the Black prison population in state prisons was 22.4%, a proportion nearly eight times greater than the general Black population in Washington State. The district court found this evidence "compelling," (E.R. 4 at 8) but erred in not considering it within the totality rev1ew.
Much like the socio-economic disadvantages facing Blacks in Allain, the disadvantages facing minorities in Washington State's criminal justice system in
29

the form of disparate impacts creates the causal link between the challenged qualification and the discriminatory effect. The disparate impact evidence produced by appellants establishes "but-for" causation; "but for" disparate impact within the criminal justice system, minority felons would not be disproportionately disenfranchised in Washington State. The district court recognized this, noting in the absence of disparate treatment within the criminal justice system, felon disenfranchisement would not likely result in disproportionate denial of voting rights of minorities. (E.R. 4 at 6.) When considering appellants' evidence in the totality analysis, they meet the requirement of Salt River: Appellants show, beyond mere statistical disparity, there are social and historical factors in the form of disparate impacts on minorities within the criminal justice system that result, through felon disenfranchisement, in a disproportionate number of minorities unable to register and vote in Washington. 2. The district court failed to consider other relevant evidence within the totality of
circumstances analysis. The Senate Report factors allow for consideration within the totality review
"whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous." S. Rep. at 29. Though not as important a factor under the totality review, a tenuous explanation for an electoral policy may be circumstantial evidence the
30

system is either motivated by discriminatory purposes or produces a disparate result. See McMillan, 748 F.2d at 1045.
In the appellees' F.R.C.P. l2(b)(6) motion to dismiss, the motion was supported by argument that felon disenfranchisement meets important public policy objectives in Washington State. (E.R. 1 at 12.) The district court rejected these arguments in sustaining appellants'§ 2 challenge. (E.R. I at 12-14.) Appellants further argued in their motion for summary judgment that felon disenfranchisement lacks any compelling public policy rationale. (E.R. 2 at 27-31.) The district court failed to weigh this argument in ruling on appellants' claim.
Though this factor does not weigh as heavily in the totality review as evidence of racially disparate impacts within the criminal justice system, consideration of this factor is important to the "comprehensive, not limited, canvassing of relevant facts," DeGrandy, 512 U.S. at I 0 II, under the totality review. Appellants argued felon disenfranchisement lacks any grounding in public policy or public safety considerations, and may cause more harm than good in its enforcement. (E.R. 2 at 27-31.) Appellees did not dispute appellants' argument in the summary judgment motion. Had the district court properly weighed this factor in the totality review, it would have enhanced appellants' claim of a § 2 violation.
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D. The Vote Denial Claim in City ofBelle Glade is Not Analogous to Appellants' Vote Denial Claim. The district court supported its holding non-electoral factors are not relevant
in the totality review by relying on the Eleventh Circuit's opinion in Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999). (E.R. 4 at 9-1 0.) The court's reasoning by analogy, comparing the Belle Glade vote denial claim to appellants' vote denial claim, fails to account for fundamental differences between these two cases.
The Belle Glade plaintiffs argued the city's decision not to annex a predominantly Black neighborhood while annexing a predominantly White neighborhood violated a number of statutory and constitutional provisions, including§ 2 of the VRA. Id. at 1186. With respect to the§ 2 vote denial claim, the court held plaintiffs failed to raise a genuine issue of material fact. Id. at 1198. In making this determination, the court did not even reach the question whether "failure to annex" constitutes a "standard, practice, or procedure" under§ 2(a); the court assumed, arguendo, refusal to annex met this definition. 8 Id. at 1197 n. 22. Instead, the court merely looked to the totality of circumstances and held plaintiffs met none of the Senate Factors, thereby negating plaintiffs' claim. Id. at 1198. The court determined that, although plaintiffs presented evidence of housing
8 This distinction alone is relevant, as it is settled appellants are challenging a voting qualification expressly encompassed by § 2.
32

segregation in the community, the court found "no evidence with respect to votm. g."I_d.
The district court interpreted this holding to imply disparate impact evidence not related to voting is irrelevant in the totality review, even though the Eleventh Circuit did not explicitly say so. (E.R. 4 at 9-1 0.) This is an incorrect interpretation of the Belle Glade holding for two reasons.
First, the evidence presented by the Belle Glade plaintiffs cannot be understood to demonstrate the type of"but-for" causation established by appellants. The Belle Glade plaintiffs presented evidence of government-sponsored housing segregation that caused the failure to annex to result in vote denial. Belle Glade, 178 F.3d at 1183-84. However, plaintiffs failed to show that, in the absence of housing segregation, failure to annex would not deny voting rights. In fact, the evidence mitigated against reaching this conclusion, as formal segregation had been prohibited since 1977. Id. at 1183 n. 1. Thus, the Belle Glade plaintiffs could not claim "but for" housing segregation, minorities would not be denied the right to vote by operation of the challenged practice.
Second, and even more important, it cannot be inferred from the approach of the Eleventh Circuit in Belle Glade that non-electoral evidence is excluded from the totality review. To do so contradicts established precedent; the Eleventh Circuit explicitly stated in Hall v. Holder that all relevant evidence, including non-
33

electoral evidence, is properly included in the totality review. Hall v. Holder, 955
F.2d at 1572-73.
Belle Glade is a poor analogy for appellants' claim. A much better analogy
can be found in Allain, where the voting device at issue was clearly a "standard,
practice, or procedure" within the meaning of§ 2(a). Further, like appellants'
evidence of disparate impacts on minorities within the criminal justice system, the
Allain plaintiffs presented disparate impact evidence outside of electoral processes
(in the form of socio-economic disparities) that directly correlated with the
resulting disparity in voting access, establishing "but-for" causation. Viewed in
light of Allain rather than Belle Glade, appellants' evidence is highly relevant and
should have been considered within the totality review.
II. APPELLANTS HAVE STANDING TO CHALLENGE WASHINGTON'S RESTORATION OF VOTING RIGHTS STATUTE AS IT RESULTS IN DISCRIMINATION ON ACCOUNT OF RACE IN VIOLATION OF § 2.
Appellants'§ 2 vote denial claim against Washington's felon
disenfranchisement scheme encompasses Washington's statute for the restoration
of civil rights, Washington Revised Code§ 9.94A.220. The statute provides:
( 1) When an offender has completed the requirements of the sentence, the secretary of the department or the secretary's designee shall notifY the sentencing court, which shall discharge the offender and provide the offender with a certificate of discharge. (2) The discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state.
34

RCW § 9.94A.220. Upon conviction, Article VI,§ 3 deprives offenders of their voting rights; RCW § 9.94A.220 makes that deprivation permanent unless certain enumerated and non-enumerated obligations are fulfilled.9 The statute effectively erects barriers to registration and voting by appellants. Until the statutory requirements are met, no appellant is able to register and vote. Therefore, RCW § 9.94A.220 is a "standard, practice, or procedure" within the meaning of§ 2(a), which has been read expansively by the Court to encompass "any methods for conducting a part of the voting process that might ... be used to interfere with a citizen's ability to vote ...." Holder, 512 U.S. at 918.
Appellants presented evidence to the district court showing the statutory process as applied is cumbersome, excessively complex, and places difficult burdens on offenders seeking restoration of voting rights. (E.R. 4 at 11-12.) Offenders are typically unaware their voting rights were revoked upon conviction, and upon release from incarceration they are generally uninformed as to their status as a voter. Washington's Secretary of State has no policy of either providing information to released felons about their status or ensuring elections officials are trained to answer questions regarding voter eligibility by ex-offenders. Often,
9 Evidence presented by appellants to the district court showed the restoration procedure required offenders to comply with requirements not in the statute, and successful compliance with all terms under the process did not guarantee restoration of voting rights.
35

offenders serve out the remainder of their sentences outside of prison under supervision by corrections department officials. Many of these offenders are under "monetary only" supervision (i.e., the only remaining sentencing obligation is repayment of restitution and supervision fines). Thus, a substantial number of offenders who are productive members of the community are denied voting rights by operation ofRCW § 9.94A.220 until they have repaid their monetary debt. Should the offender fail to fulfill his or her monetary obligation, which can often be quite substantial, the offender will be "terminated" from supervision after ten years. Even those offenders who successfully complete all terms of their sentences may still be denied restoration of their voting rights. Restoration is at the discretion of the sentencing court, and the court can refuse restoration should it find some reason to do so. For example, an offender with a lifetime no-contact order in Washington State will generally not have their voting rights restored, even upon sentence completion. This practice is contrary to the language of the statutory scheme that calls for the mandatory restoration of voting rights following sentence completion.
Appellants argued RCW § 9.94A.220, and the process as applied under the statute, causes a disproportionately-minority population to be prohibited from registering and voting, in violation of§ 2. (E.R. 4 at 11-12 .) The district court did not reach the merits of appellants' claim of vote denial. Instead, the court held
36

appellants did not have standing to bring the claim, as no appellant had
successfully completed the requirements of the statute. (E.R. 4 at 12.)
A. Appellants Have Met the Elements Necessary to Establish the Constitutional Minimum For Standing.
Standing is a threshold jurisdictional question and must be addressed prior to and independent of the merits of appellants' claim. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102 (1998). The Supreme Court has established three elements necessary to meet the constitutional minimum of standing:
First, the plaintiffmust have suffered an "injury in fact"--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555,560-61 (1992) (internal citations and footnote omitted).
The VRA provides all "aggrieved persons" standing to enforce their right to vote. See 42. U.S.C. § 1973a; see also Allen, 393 U.S. at 557. An "aggrieved
person" is any person injured by an act of discrimination. See Trafficante v.
Metropolitan Life Insurance Co., 409 U.S. 205 ( 1972). Appellants are "aggrieved persons" within the meaning of the Act. Washington's felon disenfranchisement scheme results in the denial of voting rights on account of race. The statute, RCW
37

§ 9.94A.220, is a part of this scheme and prevents appellants from registering and voting. Therefore, appellants are injured by a discriminatory act and are aggrieved persons under the VRA.
Appellants meet the first Lujan element where RCW § 9.94A.220 prohibits them from registering and voting, thereby causing an "injury in fact." The VRA vests in appellants the right to participate in electoral processes free from racial discrimination. The enforcement ofRCW § 9.94A.220 deprives them of that right, making the injury concrete, particularized, and actual. A series of cases in the Eleventh Circuit demonstrates the following maxim with respect to standing in challenges to electoral processes: A party who has a personal interest in an electoral process that impacts the party's ability to exercise political power has standing to challenge or defend the process, as any injury resulting from the process is actual or prospective rather than unlawful in the abstract. See Dillard v. Baldwin County Commissioners, 225 F.3d 1271, 1277 (lith Cir. 2000); see also Clark v. Putnam County, 168 F.3d 458,461 (lith Cir. 1999); Meek v. Metropolitan Dade County, Fla., 985 F.2d 1471, 1480 (II th Cir. 1993).
Appellants meet the second and third Lujan elements as well. The vote denial claim is against appellees' maintenance of a statue that results in the denial of voting rights on account of race, in violation of§ 2. The injury (denial of voting rights on account of race) is fairly traceable to the actions of appellees in
38

maintaining felon disenfranchisement, thereby meeting the second element. Finding RCW § 9.94A.220 violates§ 2 would necessarily prohibit appellees from continuing enforcement of the law. The removal of the barriers to registration and voting created by the statute would no longer be in place and appellants would thereafter be able to vote, meeting the third element. In summary, appellants have standing to seek redress for the injury caused them by this statute, which currently and prospectively denies them the ability to register and vote.
Whether Appellants have successfully completed the requirements of RCW § 9.94A.220 is not relevant to the issue of standing. The district court's error on this point becomes clear when RCW § 9.94A.220 is compared to an analogous voting restriction: the poll tax. Both are state-imposed prerequisites to voting that make a citizen's ability to register and vote conditioned upon the payment of a fee. 10 Poll taxes have been invalidated in federal elections, Harman v. Forssenius, 380 U.S. 528 (1965), state elections, Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966), and under the VRA. 42 U.S.C. § 1973h. If the district court's reasoning in the case at bar were applied to a ch?llenge to the discriminatory effects of poll taxes, only those plaintiffs who successfully paid the poll tax would
10 RCW 9.94A.220 makes registration and voting conditioned upon the payment of sentence-imposed costs and fees only for those offenders who have received such sentences. In the case of Appellant Farrakhan, RCW § 9.94A.220 prohibits him from voting only because he has not completed repayment of fines and fees; he has completed all other terms of his judgment and sentence.
39

have standing to bring a claim. This reasoning is incorrect and contradicts established precedent; the plaintiffs in Harper had standing to overturn poll taxes in state elections even though they did not pay the poll tax. In fact, the basis of their claim was their financial inability to pay the $1.50 per year poll tax. See Harper v. Virginia State Bd. of Elections, 240 F.Supp. 270,271 (E.D. Va. 1964). In Harman, the Court rejected defendant State of Virginia's argument plaintiffs lacked standing because they had paid the poll tax. See Harman, 380 U.S. at 533 n. 6.
Relying on Harper and Harmon, the issue whether Appellants have paid the fees required by RCW § 9.94A.220 is not germane to the question of standing. So long as Appellants meet the Lujan elements, as they have, they have standing to bring their claim. B. Appellants' Due Process Claim Against RCW § 9.94A.220 Should Be
Revisited in Light of the Recent Supreme Court Ruling in Bush v. Gore. The district court similarly dismissed on standing grounds appellants' claim
the restoration of voting rights process pursuant to RCW § 9.94A.220 violates procedural due process. (E.R. 4 at 12; I at 18.) This decision should be reversed and remanded for consideration under the standard announced in Bush v. Gore,--U.S. ---, 121 S.Ct. 525 (2000), a decision released twelve days after the district court's order in the case at bar.
In Bush, the Court held due process considerations attached to the procedures utilized by a state to ensure full and equal participation in the electoral
40

process. In this regard, the Court held a state, "[h]aving once granted the right to vote on equal terms, ... may not, by later arbitrary and disparate treatment, value one person's vote over that of another." Bush, 121 S.Ct. at 530 (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)).
Appellants presented ample evidence showing offenders seeking to register and vote in Washington State face difficult and confusing barriers; these barriers do not exist for similarly-situated non-offenders. By enforcing a process for restoration of voting rights that is unnecessarily complex and non-uniform throughout the state, appellees effectively "value" an offender's vote less than a non-offender. This violates the equal protection standard of Bush, which requires a statewide electoral procedure exhibit uniform standards in order to give "at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." Id. at 532. The restoration process does not reflect these standards and therefore violates procedural due process.
CONCLUSION The enforcement of Washington's felon disenfranchisement scheme has the effect of denying minorities the right to vote on account of race. When considered in light of a totality of circumstances analysis that includes racially disparate impact evidence within the criminal justice system, felon disenfranchisement is prohibited by§ 2 of the Voting Rights Act. As appellants are minorities who are
41

currently and prospectively denied the right to vote by operation of RCW § 9.94A.220, appellants are injured in a manner establishing the constitutional minimum requirements for standing. For the reasons set forth herein, this court should reverse the holding of the district court and remand for further proceedings.
Respectfully submitted,
JASON T. VAIL, Legal Intern University Legal Assistance
LAWRENCE A. WEISER, WSBA #6865 University Legal Assistance
D.C. CRONIN, WSBA #16018 Maxey Law Offices
42

APPENDIX A WASHINGTON STATE CONSTITUTION ARTICLE VI: ELECTIONS AND ELECTIVE RIGHTS Section 3: Who Disqualified All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise.
I

APPENDIXB
REVISED CODE OF WASHINGTON CHAPTER 9.94A: SENTENCING REFORM ACT OF 1981
9.94A.220: Discharge upon completion of sentence-Certificate of discharge-Obligations, counseling after discharge
(1) When an offender has completed the requirements of the sentence, the secretary of the department or the secretary's designee shall notifY the sentencing ·court, which shall discharge the offender and provide the offender with a certificate of discharge.
(2) An offender who is not convicted of a violent offense or a sex offense and is sentenced to a term involving community supervision may be considered for a discharge of sentence by the sentencing court prior to the completion of community supervision, provided that the offender has completed at least one- half of the term of community supervision and has met all other sentence requirements.
(3) Except as provided in subsection (4) of this section, the discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state. Nothing in this section prohibits the use of an offender's prior record for purposes of determining sentences for later offenses as provided in this chapter. Nothing in this section affects or prevents use of the offender's prior conviction in a later criminal prosecution either as an element of an offense or for impeachment purposes. A certificate of discharge is not based on a finding of rehabilitation.
(4) Unless otherwise ordered by the sentencing court, a certificate of discharge shall not terminate the offender's obligation to comply with an order issued under chapter I0.99 RCW that excludes or prohibits the offender from having contact with a specified person or coming within a set distance of any specified location that was contained in the judgment and sentence. An offender who violates such an order after a certificate of discharge has been issued shall be subject to prosecution according to the chapter under which the order was originally issued.
II

(5) Upon release from custody, the offender may apply to the department for counseling and help in adjusting to the community. This voluntary help may be provided for up to one year following the release from custody.
III

APPENDIXC UNITED STATES CODE TITLE 42: THE PUBLIC HEALTH AND WELFARE CHAPTER 20-ELECTIVE FRANCHISE SUBCHAPTER I-A-ENFORCEMENT OF VOTING RIGHTS Section 1973: Denial or abridgment of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation (a) No voting qualification or prerequisite to voting or standard, practice, or mpraoncneedrurwehsihcahllrebseulitsmipnosaeddeonriaal poprliaebdribdygeamneynSt toaftethoerrpigohlittiocfalansyubcdiitviziesinonofinthea United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(t)(2) of this title, as provided in subsection (b) of this section. cespnt(oehlaobectorma)cttiilticioiAocentniry.apatvtaiieoTitnooifntohlotanehcotpiiarberoatycxernuttliemiemtcosncieftstpimtmoastaobutnneeebcmwirsiensnbeshc,etiothctrhifseiheotanShpmictaosa(elvlaatmiee)sstihsbcooloeaorefwrlsfpsstpnhocroiiloostiftitcphziaescpaeesatonpsclrsrtttasoiuhpountnerenbdoicdttpttyiiesoevocdilteteshieltsicaeidotlcncaanabtbslysaloriertspehshphurareeonbevrdcosseeteemisncbfes,etteqeaimeoubstninaabvlselele(eeryasladse)doocoooiptfnenfeftgdhntthtehhtttiiooeoser mcoofefnimsciebdeeirrnsedot:hfeaPSprtoraovtteiedceotder,dpTcohllaiatstiscaneloletshcuitnbedgdiviinnisnitohunims ibsseerocstnieeoqnucaierlscttuaombtlshitseahinercsperaowprhiogirchthitontmoianhyathvbeee population.
IV

CERTIFICATION OF COMPLIANCE TO FED. R. APP. 32(a)(7)(C) AND
CIRCUIT RULE 32-1 FOR CASE NUMBER 01-35032
I CERTIFY THAT: Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening brief is proportionately spaced, has a typeface of 14 points, and contains 9,830 words.
DATED this 19th day of April, 2001
LAWRENCE A. WEISER, WSBA #6865 University Legal Assistance

 
 INTEREST OF AMICI CURIAE With the consent of the parties, the Brennan Center for Justice at New York University School of Law and the Lawyers’ Committee for Civil Rights Under Law submit this brief amici curiae in support of Plaintiffs-Appellants. The Brennan Center is a nonprofit, nonpartisan institute that unites the intellectual resources of the academy with the pragmatic expertise of the bar in an effort to help courts and legislatures develop practical solutions to problems in areas of special concern to the late Justice William Brennan, Jr. The Center is dedicated to a vision of inclusive and effective democracy and works to advance this goal by, among other efforts, advocating for an end to restrictions on voting by former offenders. Along with the Lawyers’ Committee, the Brennan Center represents plaintiffs in a pending case challenging Florida’s permanent ban on voting by ex-felons, Johnson v. Bush, No. 00-3542-CIV-King (S.D. Fla., filed Sept. 21, 2000). The Lawyers’ Committee is a nonprofit organization created in 1963 at the request of the President of the United States to involve private attorneys throughout the country in the national effort to assure equal rights to all Americans. Protection of the voting rights of citizens traditionally has been an important aspect of the work of the Committee. The Committee has provided legal
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representation to litigants in numerous voting rights cases throughout the nation over the last 35 years, including cases before the Supreme Court, see, e.g., Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000); Lawyer v. Department of Justice, 521 U.S. 567 (1997); Young v. Fordice, 520 U.S. 273 (1997); United States v. Hays, 515 U.S. 737 (1995); and Chisom v. Roemer, 500 U.S. 646 (1991). The issue of restoring voting rights to felons and former offenders is of particular interest to the Lawyers’ Committee.
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INTRODUCTION AND SUMMARY OF THE ARGUMENT Under Washington’s felon disenfranchisement scheme, one in four African American men have lost the right to vote. See J. Fellner & M. Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 8 (Human Rights Watch & The Sentencing Project 1998). The disproportionate effect on the minority community is stark: While the laws challenged in this case currently disenfranchise some 3% of the state’s total voting age population, the rate for African American men is 24%. See Christopher Uggen & Jeffrey Manza, The Political Consequences of Felon Disfranchisement Laws in the United States, app. 1 (2000).1 As the District Court found, that racial disparity is attributable, in part, to discrimination in the criminal justice system. See Farrakhan v. Locke, No. CS96-76-RHW, Order Granting Summ. J. at *8 (E.D. Wash. Dec. 1, 2000). In effect, the felon disenfranchisement provision transforms racial biases in the criminal justice system and the surrounding society into voter inequality. That transformation has a potentially enormous impact on the ability of the affected minority communities to elect representatives of their choice. For instance, the outcome of the recent presidential contest might well have been
1 Unpublished paper presented at the annual meeting of the American Sociological Association, on file with the authors and at the Brennan Center.
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different but for felon disenfranchisement. In urban settings, where disenfranchised felons are concentrated, the impact on elections is likely much greater. See Uggen & Manza, supra, at 25. Thus Washington’s disenfranchisement provision works like a lever to shift racial inequality from the surrounding social circumstances into the political process.
This is exactly the kind of discriminatory obstacle the Voting Rights Act of 1965 is meant to overturn. As Congress clarified with its 1982 amendments, the Act reaches beyond intentionally discriminatory voting schemes to deal with practices that have discriminatory results when judged in the “totality of circumstances.” 42 U.S.C. § 1973. Yet, the District Court granted summary judgment to the State on the theory that the Plaintiffs could not establish that Washington’s felon disenfranchisement provision, “by itself,” had a discriminatory effect in violation of Section 2 of the Act.
Amici contend in Point I that the District Court fundamentally misunderstood the analysis that applies to a Voting Rights Act claim. Certainly the Plaintiffs must prove that the challenged voter qualification denies or abridges their right to vote on account of race. But the text of the amended Act and the case law interpreting it make clear that factors outside the election system can contribute to a particular voting practice’s disparate impact. When, in the totality
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of circumstances, the challenged provision interacts with discrimination in the surrounding social circumstances to limit minority access to the political process, it violates Section 2.
The District Court’s theory of “by itself” causation would effectively read back into the Act a requirement of proving intentional discrimination. Unless applied with discriminatory animus, a facially race neutral voting qualification, like the one challenged here, can only cause a racially disparate impact when there are race-based differences in the surrounding social context. Without intentional discrimination, a race-neutral device will only deny the right to vote “on account of race” in combination with external discrimination.
The District Court’s “by itself” causation analysis is also unsupported by existing precedent, including this Court’s decision in Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586 (9th Cir. 1997). Other courts evaluating Section 2 claims look to see whether the disparate racial impact of challenged practices results from discrimination in the surrounding circumstances. That interactive analysis accords with the Voting Rights Act’s focus on discriminatory devices and their results, as opposed to individual liability for intentional discrimination.
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In Point II, Amici contend that the District Court also erred when it suggested that finding Washington’s felon disenfranchisement provision violated the Voting Rights Act would lead to an equal protection violation. Plaintiffs did not seek a ruling that the disenfranchisement and restoration laws are invalid only as applied to racial minorities. They asked the court to declare that the laws violate Section 2 and enjoin their enforcement altogether. This is the standard form of relief granted under the Act. It is also the relief that should result under a severability analysis. Since a voter qualification that applied only to one racial group would clearly violate the Equal Protection Clause, courts should presume that the challenged application to minorities is not severable and enjoin the qualification device entirely. Thus a finding that Washington’s felon disenfranchisement laws deny minorities the right to vote should lead the Court to enjoin the laws in their application to everyone.
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ARGUMENT
POINT I
THE DISTRICT COURT’S “BY ITSELF” CAUSATION TEST CONFLICTS WITH THE TOTALITY OF CIRCUMSTANCES ANALYSIS MANDATED IN VOTING RIGHTS ACT CASES.
Congress passed the Voting Rights Act “not only to correct an active history
of discrimination, the denying to Negroes of the right to register and vote, but also
to deal with the accumulation of discrimination.” Thornburg v. Gingles, 478 U.S.
30, 44 n. 9 (1986) (quoting S. Rep. No. 417, 97th Cong. 2d Sess. (1982) at 5,
U.S.C.C.A.N. (1982) at 182). A critical weapon in the attack on the effects of
accumulated racial discrimination is Section 2 of the Act, which bars election
practices that deny or abridge the right to vote “on account of race.” See 42 U.S.C.
§ 1973.2 In 1982, Congress amended Section 2 to clarify that “practices and
2 In relevant part, Section 2 provides as follows: (a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. . . as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate
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procedures that result in the denial or abridgment of the right to vote are forbidden” even without proof of discriminatory intent. Chisom v. Roemer, 501 U.S. 380, 383 (1991).
The District Court below read the “results test” of Section 2 to require the Plaintiffs to demonstrate that Washington’s felon disenfranchisement provision was either “motivated by racial animus or that its operation by itself has a discriminatory effect.” Farrakhan, Order Granting Summ. J. at *6. Although concluding that Washington’s felon disenfranchisement law had a significant disproportionate racial impact, the Court held that Plaintiffs failed to satisfy their causal burden because the cause of this inequality “is not the voting qualification; instead, the cause is bias external to the voting qualification,” id. at *2-*3 – specifically, discrimination in the criminal justice system.
In so ruling, the District Court fundamentally misconceived the analysis for a Section 2 claim. Its demand that a challenged voter qualification by itself create the basis of disqualification on account of race creates a causal standard at odds with the plain language of the Act, its legislative history, judicial precedent interpreting the Act, and the social realities that all of these reflect. Contrary to the
to participate in the political process and to elect representatives of their choice.
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District Court’s ruling, it is well established that Section 2’s results test is satisfied when a challenged voting practice interacts with other circumstances in the jurisdiction to deny minority groups equal opportunity to participate in the political process. A. A Section 2 Claim Must Be Analyzed by Considering How a Challenged
Practice Interacts with Other Circumstances in the Jurisdiction to Cause Racial Discrimination in Voting. 1. A challenged voting requirement need not “by itself” cause racial
discrimination to violate Section 2. Under the applicable results test, a plaintiff “can prevail under Section 2 by demonstrating that a challenged election practice has resulted in the denial or abridgement of the right to vote based on color or race.” Chisom, 501 U.S. at 394. To be sure, Section 2 is only violated by practices that deny or abridge the right to vote “on account of race.” 42 U.S.C. § 1973. But it is clear that this “on account of race” requirement can be established by evidence showing that the interaction of the challenged practice with other circumstances in the jurisdiction causes minorities to lack equal opportunity to participate in the political process. As the Supreme Court stated in Thornburg, “[t]he essence of a [Section] 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white
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voters to elect their preferred representatives.” 478 U.S. at 47. Thus, whether a particular practice results in vote denial or vote dilution in violation of Section 2 always depends on the “totality of the circumstances” in which the practice operates.
The test for Section 2 liability is contextual. This contextual approach means that a challenged voting practice is never evaluated by itself, causally or otherwise. On the one hand, “a bare statistical showing of disproportionate impact on a racial minority does not satisfy the [Section] 2 ‘results’ inquiry,” because plaintiffs must show that the totality of circumstances creates less opportunity to participate in the political process. See Salt River, 109 F.3d at 595. On the other hand, “[e]ven a consistently applied practice premised on a racially neutral policy would not negate a plaintiff’s showing through other factors that the challenged practice denies minorities fair access to the process.” S. Rep. 417, at 207 n. 117. Whether a voting practice works a prohibited racial inequality depends on how the practice interacts with the surrounding social conditions.
Aside from intentionally biased application, the basic question is whether a facially neutral voting device somehow turns existing discrimination into voter disqualification or abridges the right to vote by impeding participation in the political process. Such an impediment to participation may come from any
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combination of the various “Senate factors,” including, for instance, voting polarization and a history of official race discrimination, or from any other relevant social circumstances. See Old Person v. Cooney, 230 F.3d 1113, 1120, 1128-29 (9th Cir. 2000); Gomez v. City of Watsonville, 863 F.2d 1407, 1411-13 (9th Cir. 1988). Hence, the disparate impact of a practice and the background of official discrimination in the jurisdiction may combine to constitute sufficient circumstantial evidence that the practice works its disadvantage to minority voting strength “on account of race.” See, e.g., United States v. Marengo County Commission, 731 F.2d 1546, 1574 (11th Cir. 1984)(overturning district court finding that voter “apathy” was responsible for lack of black electoral success and finding a Section 2 violation where evidence revealed, inter alia, racially polarized voting, a near complete absence of black elected officials, and a history of pervasive racial discrimination leaving blacks economically, educationally, socially, and politically disadvantaged); Harris v. Graddick, 593 F. Supp 128, 130 (M.D. Ala. 1984) (finding likelihood of success on a Section 2 claim that blacks were underrepresented among poll officials based on findings of a history of pervasive official race discrimination “manifested . . . in practically every area of political, social, and economic life”).
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Demanding “by itself” causation would defeat the interactive and contextual totality of the circumstances analysis Congress put in place in Section 2, and deviate substantially from the analysis repeatedly used in Section 2 decisions. This point is well illustrated by the numerous vote dilution cases addressing whether atlarge election systems dilute minority voting power in violation of Section 2. It is clear that at-large systems are not per se violative of the Act and do not necessarily deny minorities equal access to the political process. See Thornburg, 478 U.S. at 46. Nonetheless, these decisions establish that such systems will be found to violate the Voting Rights Act if they interact with racially polarized voting patterns to prevent a geographically cohesive minority group from electing candidates of its choice. See, e.g.,Gomez, 863 F.2d at 1419; see also Thornburg, 478 U.S. at 50, n. 17 (explaining that the requirements of geographic concentration and political cohesiveness insure that vote dilution is only found where it is “proximately caused by the districting plan”)(internal quotations omitted).
The District Court’s “by itself” causation standard also would effectively read an intent requirement back into the Act, in contradiction to the clear command of the 1982 amendments to Section 2. A facially neutral voting qualification can have a disproportionate impact on minority voters only if it is either administered in a discriminatory fashion or interacts with existing racial divisions and disparities
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to disadvantage minority voters. That is how disparate impact comes about. If there is no proof that the challenged qualification was adopted or maintained out of racial animus, its disproportionate effect on minority groups can only be “on account of race” through its connection to race discrimination “outside of the challenged voting mechanism.” Farrakhan, Order Granting Summ. J. at *6.
2. Existing precedent does not support the District Court’s insistence on “by itself” causation.
In demanding evidence of “by itself” causation, the District Court relied on this Court’s statement in Salt River that “Section 2 plaintiffs must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result.” 109 F.3d at 595; see Farrakhan, Order Granting Summ. J. at *6, *8-*9. Neither Salt River, however, nor other opinions discussing causation as an element of a Section 2 claim supports the District Court’s approach.
In Salt River this Court actually applied a totality of the circumstances test that considered the interaction of the challenged voting qualification with numerous “external” factors to determine whether or not a Section 2 violation had been established. Salt River involved a challenge to an agricultural improvement district’s criterion of land ownership for voting in district elections. See 109 F.3d at 588. The Salt River plaintiffs, African American residents who did not own real
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property, alleged that the land ownership requirement was a racially discriminatory voting qualification because land owners in the district were disproportionately white.
In analyzing this claim, this Court carefully considered the interaction of the challenged landowner qualification with the surrounding circumstances and expert testimony regarding the reasons for the underlying racial disparity. Crucially, it affirmed the lower court’s finding of no causal connection between racial discrimination and the landowner qualification only after noting the finding that “the observed difference in rates of home ownership between non-Hispanic whites and African-Americans is not substantially explained by race but is better explained by other factors independent of race.”3 109 F.3d at 591 (emphasis added). In short, the Salt River Court did not exclude factors external to the voting qualification that helped to determine the qualification’s disparate racial impact. Instead, it considered these factors but ultimately concluded that the differential land ownership rates did not reflect racial discrimination. In addition, the plaintiffs in Salt River apparently admitted that there was no evidence of discrimination as measured by nearly all of the Senate Factors, id. at 596, and stipulated to “the
3 The court considered information about home ownership as a proxy for information on landownership, as direct data on the factors affecting the latter were unavailable. 109 F.3d at 589.
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nonexistence of virtually every circumstance which might indicate that landowneronly voting results in racial discrimination.” Id. at 595. Thus, it appears that almost the only evidence left supporting the Section 2 claim in Salt River was a bare statistical showing of disparate impact.
Given this context, Salt River’s statement regarding the need for evidence of a connection between a challenged practice and racial discrimination in voting in no way stands for the proposition that the practice must, “by itself,” cause racial discrimination to exist. Indeed, if this Court had intended to apply such a standard, there would have been no need for it to consider whether land ownership rates reflected racial discrimination or assess other totality of the circumstances factors. As the text of Salt River makes clear, the decision’s reference to causation simply attests to the fact that “a bare statistical showing of disproportionate impact does not satisfy the [Section] 2 ‘results’ test”; instead, some relationship between the challenged practice and racial discrimination must be shown. Id. Under Salt River that relationship can be shown by proving that the disparate impact of the challenged practice results from the effects of discrimination in the surrounding social circumstances. In particular, the requisite link is established where the
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underlying status that triggers a voting qualification (land ownership in Salt River,
or felony conviction here) itself reflects racial discrimination.4
Other cases cited by this Court in Salt River for the proposition that a
statistical showing of disparate impact alone is insufficient to support a Section 2
claim also follow the established totality of the circumstances approach. These
courts conduct a searching, functionally-focused review of the facts to determine
whether the challenged voting practice interacts with surrounding racial
discrimination in a meaningful way or whether the practice’s disparate impact “is
better explained by other factors independent of race.” Id. at 591; see Ortiz v. City
of Philadelphia, 28 F.3d 306, 310-12, 315-17 (1994) (acknowledging that a
challenged practice can violate Section 2 if it interacts with social and historical
4 The District Court also relied on Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999). That case involved a Section 2 challenge to a city’s refusal to annex a black housing project into the city limits. Belle Glade is clearly distinguishable from this case from the outset, because the most significant factor driving the decision was the Eleventh Circuit’s concern that ordering annexation would be an unprecedented and extreme judicial remedy. The court noted that it had been unable to find a single case of court ordered annexation. Id. at 1200. Here, however, the remedy necessitated by upholding the Plaintiffs’ challenge, invalidating the challenged voting qualification, is typical Section 2 relief. Moreover, in the equal protection context, a felon disenfranchisement law has been overturned because of racial bias. See Hunter v. Underwood, 471 U.S. 222, 233 (1985). In any event, like this Court in Salt River, in Belle Glade the Eleventh Circuit undertook a totality of the circumstances analysis, finding that plaintiffs had failed to introduce any evidence of relevant Section 2 factors.
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factors to deny minorities equal access to the political process but finding that the
cause of disproportionately lowered Latino voting strength under Pennsylvania’s
voter purge law was not discrimination but low Latino voter turnout not
attributable to “societal disadvantages”); Salas v. Southwest Texas Junior College
Dist., 964 F.2d 1542, 1555-56 (5th Cir. 1992) (holding that – in a district where
Hispanics were a majority of registered voters – the ultimate cause of Hispanics’
lack of electoral success was not the challenged at-large district but low Hispanic
turnout and noting that “practical impediments to voting” are relevant in assessing a Section 2 challenge);5 Irby v. Virginia State Bd. of Elections, 889 F.2d 1352,
1358 (4th Cir. 1990) (upholding an appointive scheme for selecting county school
boards on the ground that racial disparities in the boards’ memberships were
explained by the fact that fewer blacks sought appointment); Wesley v. Collins, 791
F.2d 1255, 1262 (6th Cir. 1986) (making no reference to data indicating that race
5The conclusions in Salas and Ortiz that low voter turnout was not connected to societal discrimination are highly questionable. See 28 F.3d at 336 (Lewis, J., dissenting); see also Windy Boy v. County of Big Horn, 647 F. Supp. 1002, 1017 (D. Mont. 1986)(finding that despite comparable white and Indian registration rates, lower Indian turnout in recent elections showed “that effects of past discrimination still linger”). But the important point for purposes of this appeal is that these courts concluded that the requisite causal link was lacking only after having ruled out the interaction of external discrimination with the challenged voting device.
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affects criminal conviction rates in concluding that a felon disenfranchisement banned voting by felons not because of race, “but rather because of their conscious decision to commit a criminal act”).
Notably, courts have found violations of Section 2 where the disparate racial impact of challenged devices is attributable to the effects of official or private discrimination in the surrounding social circumstances. See, e.g., Marengo County Comm’n, 731 F.2d at, 1574 (holding that at-large county commission election system violated Section 2 and overturning as clearly erroneous lower court’s finding that voter “‘apathy,’ not the at-large election system, was responsible for the lack of black success at the polls,” emphasizing “history of pervasive racial discrimination that has left Marengo County blacks economically, educationally, socially, and politically disadvantaged”); Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245, 1255-56, 1269 (N.D. Miss. 1987) (striking down Mississippi’s dual registration requirements and restrictions on satellite registration after finding the challenged devices interacted with socioeconomic disparities between blacks and whites that were the lingering effects of official discrimination to make it more onerous for blacks to register), aff’d sub nom. Mississippi State Chapter Operation PUSH, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991); see also Gomez, 863 F.2d at 1418-19 (criticizing district court’s rejection of
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evidence of discrimination by state and private actors in assessing Section 2 challenge to city’s at-large election system).
3. The District Court’s “by itself” causation requirement reflects its failure to appreciate the Voting Rights Act’s focus on discriminatory devices rather than discriminatory animus.
Oddly enough, in justifying its “by itself” causal requirement, the District Court drew an analogy that may actually help to show why no such requirement exists in the context of the Voting Rights Act. The Court likened the challenged felon disenfranchisement provision to a criminal statute under which a minority defendant is prosecuted by a racially biased prosecutor. The resulting conviction might be due to discrimination, the court explained, but “that does not mean that the criminal statute causes the discriminatory result”; the statute is just a “vehicle” used by the racist district attorney, who is the real cause of the discriminatory outcome. Farrakhan, Order Granting Summ. J. at *9 n. 8. In other words, statutes do not discriminate, people do.
The flaw in the District Court’s reasoning is its failure to recognize that the Act was created to eradicate the discriminatory devices, or vehicles, used to restrict minority political access. Moreover, in repudiating the need to prove discriminatory intent, Congress further moved the focus of the Act off the bad behavior of individuals or communities and onto the devices that stood between
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minority citizens and full political participation. As this Court has noted, “the ‘results’ test asks the right question – whether minorities have equal opportunity to participate in the political processes or to elect their chosen candidates as a result of a challenged practice or structure.” Ruiz v. City of Santa Maria, 160 F.3d 543, 557 (9th Cir. 1998) (emphasis added).
In a civil rights case concerned with assessing damages for individual discriminatory harms, it might make sense to require the sort of causal connection sought by the District Court. Unlike civil rights cases that seek to make individuals accountable for discrimination, however, the Voting Rights Act aims to restore the integrity of the democratic process against a background of historical race discrimination. To that end, it targets mechanisms that have racially discriminatory results. See Belle Glade, 178 F.3d at 1196 (“Section 2 ‘was designed as a means of eradicating voting practices that minimize or cancel out the voting strength and political effectiveness of minority groups.’”) (quoting Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479 (1997)) (citation and additional internal quotation omitted). The fact that a voting practice would not accomplish its discriminatory impact without the presence of discrimination elsewhere in the surrounding society is not a reason to uphold the challenged practice. In short, the
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requirement of independent causation imposed by the District Court is completely out of place in the voting rights context.
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B. Plaintiffs Here Have Offered Evidence that, Considered in the Totality of Circumstances Goes to Show that Washington’s Felon Disenfranchisement Provision Violates Section 2. Had the District Court followed the standard totality of the circumstances
analysis and not applied its novel “by itself” causation standard, the Plaintiffs’ evidence would have survived summary judgment. As the Plaintiffs emphasize, the District Court’s factual findings here are significant. The Court found that Washington’s felon disenfranchisement provision has a disparate impact on minorities, concluding that the provision “disenfranchises a disproportionate number of minorities; as a result, minorities are under-represented in Washington’s political process.” Farrakhan, Order Granting Summ. J. at *2. Moreover, it recognized that the disparate racial impact of the provision was the result of discrimination, as indicated by the further finding that “Plaintiffs’ evidence of discrimination in the criminal justice system, and the resulting disproportionate impact on minority voting power, is compelling.” Id. at *8 (emphasis added).
These findings represent the type of racial discrimination found sufficient to support Section 2 claims in other cases, such as PUSH and Marengo. While the District Court found no evidence of historical discrimination underlying the challenged provision or in regard to the voting rights of minorities generally, the Court credited the Plaintiffs’ evidence that racial disparities in the status triggering
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the challenged voter qualification resulted from race bias. Such evidence is hardly irrelevant to the totality of the circumstances inquiry. In fact, the Court’s conclusion that race bias in the criminal justice system accounts for the disparate impact of the felon disenfranchisement provision is precisely the sort of proof this Court found lacking in Salt River.
Of course, the totality of circumstances inquiry requires a court to balance factors indicating that a challenged practice limits political participation on account of race with evidence suggesting more innocuous explanations. As noted above, substantial evidence of a non-racial explanation for a voting practice’s disparate racial impact can suffice to defeat a claim of a Section 2 violation. For instance, in Salt River this Court noted an expert finding that while rates of home ownership were not well explained by race, the “largest net effect on home ownership” was “persons per dwelling.” 109 F.3d at 590. Hence, the District Court’s strong findings regarding the interaction between discrimination in the criminal justice system and Washington’s felon disenfranchisement provision do not necessarily make out a violation of Section 2, regardless of the extent to which other Section 2 factors are present.
The District Court, however, gave no weight to its findings of interaction between the felon disenfranchisement law and discrimination in the criminal
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justice system. Its failure to take adequate account of these findings is clear from its startling assertion that “[e]ven if Plaintiffs established that the disproportionate representation of minorities in the criminal justice system was due to discriminatory animus on the part of prosecutors and judicial officials, this would not establish a causal connection between the voting qualification and the prohibited result in this case.” Farrakhan, Order Granting Summ. J. at *9. Only by applying its erroneous “by itself” causation standard could the District Court have come to this conclusion. For if such evidence of intentional discrimination were indeed irrelevant, Section 2 would be powerless as a means of ensuring that discrimination in other realms did not deny minority groups equal access to the political process.
In this case, whether its findings regarding discrimination in the criminal justice system would be sufficient to support a Section 2 violation under the appropriate totality of circumstances analysis is a determination for the District Court to make in the first instance. Given its failure to undertake the appropriate analysis below, Amici ask this Court to reverse and remand the case to provide the District Court with an opportunity to do so.
POINT II
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THE DISTRICT COURT ALSO ERRED IN SUGGESTING THAT HOLDING WASHINGTON’S FELON DISENFRANCHISEMENT LAWS TO VIOLATE SECTION 2 WOULD CONFLICT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.
At the outset of its discussion of the merits, the District Court held that if it “ultimately concluded that Washington’s provision was invalid with respect to racial minorities, then only white felons could be disenfranchised so long as racial bias existed in the criminal justice system.” Id. at *4. It found that this “would obviously create an Equal Protection problem” and that it was “compelled to read the [Act] in a manner that does not lead to the conclusion Plaintiffs urge.” Id.
The District Court’s holding is both a misstatement of the relief sought by the Plaintiffs and a misapplication of the Voting Rights Act. The extent to which this ruling affected the Court’s analysis is unclear, given its additional conclusion that the Plaintiffs had failed to establish the “by itself” causal link it viewed as necessary to sustain a Section 2 violation. However, since the District Court’s error in applying such a causal requirement merits reversal, it is also important to underscore that its concern regarding a potential conflict between remedying a Voting Rights Act violation and the dictates of the Equal Protection Clause is similarly misplaced.
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The Plaintiffs in this case did not seek a holding that Washington’s felon
disenfranchisement laws are invalid only with respect to racial minorities. Rather,
they asked the Court to declare that these laws violate Section 2 of the Act and to enjoin the laws’ enforcement against all convicted felons.6 This is the standard
form of relief granted where unlawful racial discrimination is established –
elimination of the challenged practice as to every applicable party – and it is the
relief sought in cases such as this challenging felon disenfranchisement laws. For
example, in Hunter v. Underwood, 471 U.S. 222 (1985), the Supreme Court
concluded that the “original enactment” of Alabama’s broad criminal
disenfranchisement law was “motivated by a desire to discriminate against blacks
on account of race and the section continues to this day to have that effect,” and
thus, it violated equal protection. Id. at 233. Having concluded that there was a
constitutional violation due to racial discrimination, the Court affirmed the
6 Specifically, their Request for Relief asked: For the Court to issue a permanent and preliminary injunction preventing defendants and each of them, their officers, agents, employees, and successors in office and all people in active concert or participation with them from enforcing Article 6 sec. 3 of the Washington State Constitution or otherwise preventing convicted felons from voting or registering to vote on the basis of their felony convictions. (Plaintiffs’ Fourth Amended Compl., Request for Relief, ¶ 5, at 12-13.)
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Eleventh Circuit’s decision to strike down the law as to all voters, not just those who are black.
Consistent with the basic tenets of equal protection, where the Supreme Court has found that a voting practice violates the Voting Rights Act because of its discriminatory impact, the Court has struck down the challenged practice for all voters, not only those who suffered the disparate treatment. From the beginning, the Act has been applied in a manner that results in the complete elimination of a voting practice that is found to have a discriminatory impact on minorities. In many Voting Rights Act cases, striking down a provision in its entirety could be seen as a practical necessity in order to remedy the harm to minority voters – for example, an at-large election system cannot be maintained for white voters without affecting black voters as well. But even where drawing a distinction between black and white voters is technically feasible – as when a voting qualification such as a literacy test is challenged as denying minorities the right to vote – courts finding a Voting Rights Act violation have enjoined the challenged voting practice in all of its applications. Thus, in Gaston County v. United States, 395 U.S. 285 (1969), county officials sought to reinstate a literacy requirement to register to vote. The Court concluded that the use of such a test would have a discriminatory effect on black voters in light of discrimination in the North Carolina educational system.
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See id., at 295-96. The Court did not allow the use of a literacy test for white voters only, but instead denied the request to use such a test for any voter. See id., at 288, 297; see also South Carolina v. Katzenbach, 383 U.S. 301, 319, 333-34 (1966) (upholding Voting Rights Act prohibition on literacy tests, which is not limited to prohibiting imposition of such tests on minority voters); Mississippi State Chapter, Operation PUSH, 674 F. Supp. at 1268 (holding that Mississippi’s dual registration and satellite voting restrictions violated Section 2 because of the burdens they imposed on minorities, without suggesting that these restrictions could be applied to white voters).
In these cases, because the disputed practice had a disparate impact on the rights of black voters, the practice could not be applied to any voter. Nor is the explanation for this approach of invalidating a voting practice found to violate the Act in toto difficult to discern. To do otherwise would, as the District Court noted, create an equal protection problem and render the Act unenforceable in every instance.7
7 In addition to violating the Equal Protection Clause, a law that facially distinguished between whites and minorities with regard to voting qualifications would run afoul of the Fifteenth Amendment. See United States v. Reese, 92 U.S. 214, 217-18 (1875) (under the Fifteenth Amendment “[i]f citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be”).
26

The same conclusion results if the question of what relief should be granted is approached under standard severability analysis. When a court upholds a challenge to a law, the general practice is for it to determine whether the invalid provision – or, as in this case, invalid application – can be severed from the scope of the law. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (“‘[A] court should refrain from invalidating more of the statute than is necessary. . . . Whenever an act . . . contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court . . . to maintain the act in so far as it is valid.’”) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)); see generally R. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 197-99 (4th ed. 1996). In assessing severability, the key consideration is whether the statute created when an invalid provision is severed is one the legislature would not have enacted, see Alaska Airlines, 480 U.S. at 684-85, and courts presume that – absent plain language or evidence to the contrary – legislatures do not intend to enact unconstitutional laws, see, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). Hence, since invalidating a challenged voting provision under Section 2 only as applied to minorities would render the law
27

unconstitutional, courts instead legitimately presume that the challenged application is not severable and enjoin the voting practice in its entirety.
The Plaintiffs here sought to overturn the disenfranchisement of all convicted felons because under Washington’s disenfranchisement and restoration scheme racial minority groups have less opportunity than whites to participate in the political process, in violation of the Voting Rights Act. The injunction they requested would apply to anyone disenfranchised through the challenged provisions, and no equal protection violation would result. In the absence of a constitutional conflict, the Court is required to interpret the Voting Rights Act in a manner which will protect the right to vote of all Americans.
28

CONCLUSION

For the foregoing reasons, the District Court’s decision granting summary

judgment to the Defendants-Appellees should be reversed and this case remanded

to the District Court.

Dated: April 26, 2001

By:___________________________

Anita Hodgkiss Lori Outzs Borgen LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW, Suite 400 Washington, DC 20005-2124 (202) 662-8600

Nancy Northup

Jessie Allen

Gillian E. Metzger

Glenn J. Moramarco

BRENNAN CENTER FOR JUSTICE

at N.Y.U. School of Law 161

Avenue of the Americas, 12th Floor

New York, NY 10013

(212)

998-6730

Attorneys for Amici Curiae

29

 
 •
i···t •.•

NO. 01-35032
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MUHAMMAD SHABAZZ FARRAKHAN, et al., Petitioners-Appellants,
v.
GARY LOCKE, eta!., Respondents-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
No. CS-96-076-RHW The Honorable Robert H. Whaley United States District Court Judge

BRIEF OF APPELLEES

CHRISTINE 0. GREGOIRE Attorney General
JEFFREY T. EVEN, WSBA #20367 Assistant Attorney General Office of the Attorney General General Counsel Unit POBox40100 OlvmRia, WA 98504-0100 (360) 586-0728

CHRISTINE 0. GREGOIRE Attorney General
DANIEL J. JUDGE, WSBA #17392 Assistant Attorney General Office of the Attorney General Criminal Justice Division POBox40116 OlymJ)ia, WA 98504-0116 (360) 586-1445

•
TABLE OF CONTENTS
I. STATEMENT OF JURISDICTION................................................................ 1 II. QUESTIONS PRESENTED............................................................................ 1 III. STATEMENT OF THE CASE........................................................................ 2
A. FACTUAL BACKGROUND.................................................................... 2 B. PROCEDURAL IDSTORY ...................................................................... 3 IV. STANDARD OF REVIEW ............................................................................. 5 V. SUMMARY OF THE ARGUMENT .............................................................. 5 VI. ARGUMENT ................................................................................................... 7 A. FELON DISENFRANCIDSEMENT DOES NOT VIOLATE THE
VOTING RIGHTS ACT............................................................................ 7 1. The Right to Vote Protected by the Fourteenth Amendment and
the Voting Rights Act Does Not Extend to Convicted Felons........... 7 2. The History and Purpose of the Voting Rights Act Demonstrate
That It Was Not Intended to Prohibit Felon Disenfranchisement. ..... 9 B. EVEN IF THE VOTING RIGHTS ACT ADDRESSED FELON
DISENFRANCIDSEMENT, PLAINTIFFS HAVE FAILED TO PRODUCE EVIDENCE SUFFICIENT TO SUPPORT THEIR CLAIM..................................................................................................... 14 1. Statistical Disproportionality Standing Alone Does Not
Establish a Voting Rights Act Claim................................................ 14 2. Washington's History Demonstrates a Strong Commitment to
Civil Rights and Voting Rights......................................................... 21 3. The Totality of Circumstances in this Case Weigh Heavily
Against Plaintiffs' Claim................................................................... 26
1

C. WASHINGTON'S PROCEDURES FOR REINSTATING CIVIL RIGHTS DO NOT DENY PLAINTIFFS A RIGHT TO VOTE BASED ON RACE .................................................................................. 32 1. Plaintiffs Lack Standing to Challenge Washington's Process for Restoration of Civil Rights............................................•................... 33 2. Plaintiffs Have Failed to Offer Any Basis For Concluding that Washington's Restoration Process Denies the Right to Vote Based on Race................................................................................... 35
VII. CONCLUSION .............................................................................................. 40
11

TABLE OF AUTHORITIES
Cases
Barker v. People, 20 Johns. *459 (NY Sup. Ct. 1823)....................................................................... 7
Blue Cross and Blue Shield of Wisconsin v. Marshfield Clinic, 152 F.3d 588 (7th Cir. 1998) ............................................................................... 20
Bolker v. Commission of Internal Revenue, 760 F.2d 1039 (9th Cir. 1985) ............................................................................. 38
Burton v. City of Belle Glade, 178F.3d 1175(1IthCir.I999) ..................................................................... 17,29
Bush v. Gore, 531 U.S. 525, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000) .................... 6, 37, 38, 39
C.E. Carlson, Inc. v. S.E.C., 859 F.2d 1429 (lOth Cir. 1988) ........................................................................... 20
California Democratic Partv v. Jones, 530 U.S. 567, 120 S. Ct. 2402, 147 L. Ed. 2d 502 (2000) .................................. 27
Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992), cert. denied, 507 U.S. 992, 113 S. Ct. 1600 (1993)............................................. 20
Celotex Corp. v. Catrett, 477 U.S. 317, I06 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) ...................................... 5
Charfauros v. Bd. of Elections, _ F.3d _(9th Cir. 2001) ............................................................................... 38
Chisom v. Roemer, 501 U.S. 380, Ill S. Ct. 2354, 115 L. Ed. 2d 348 (1991) ........................ 9, 12, 14
City of Mobile v. Bolden,
446 U.S. 55, 100 S. Ct. 1450, 64 L. Ed. 2d 47 (1980) ........................................ II
Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) ............................................................................... 5
u.s. Davis v. Beason, 133 333 (1890) ..............:............................................................................... 8
Ill

Davis v. Scherer,
u.s. 488 183 (1984) ···························································································· 34
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983) ................................ I, 16
East Flatbush Election Comm. v. Cuomo, 643 F. Supp. 260 (E.D. N.Y. 1986) ..................................................................... 35
Emery v. Montana, 580 P.2d 445 (Mont.1978).................................................................................... 8
Farrakhan v.Locke. et al., 987 F.Supp. 1304 (E.D. Wash. 1997).................................................. 3, 10, 17, 27
Feminist Women's Health Center v. Codispoti, 63 F.3d 863 (9th Cir. 1995) ................................................................................. 17
Fernandez v. Kiner, 36 Wn. App. 210, 673 P.2d 191 (1983), review denied, 101 Wn.2d 1003 (1984) ................................................................ 8
Fischer v. Governor, 749 A.2d. 321 (NH 2000) .................................................................................. 8, 9
Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984) ............................................................................... 7
Green v. Board ofElections of City ofNew York, 380 F.2d 445 (2nd Cir. 1967), cert. denied, 389 U.S. 1048 (1968).;...................................................................... 9
u.s. Gregory v. Ashcroft, 501 452 (1991) ............................................................................................ 13
Harden v. Roadway Package Systems, Inc., _F.3d _, 2001 WL 536845 (9th Cir. 2001) .................................................... 38
u.s. Harmelin v. Michigan, 501 957 (1991) ......................................................;....................................... 7
Hasbrouck v. Texaco, 663 F.2d 930 (9th Cir. 1981) ............................................................................... 21
Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 916, 85 L. Ed. 2d 222 (1985) ........................................ 9
IV

Irby v. Virginia State Bd. of Elections, 889 F.2d 1352 (4th Cir. I989) ............................................................................. I4
Jones v. Edgar, 3 F.Supp. 2d 979 (C.D. Ill I998) ..................................................................... 8, 26
Karim-Panahi v. Los Angeles Police Department, 839 F.2d 62I (9th Cir. I988) ................................................................................. I
Lujan v. Defenders of Wildlife, 504 U.S. 555, II2 S. Ct. 2130, II9 L. Ed. 2d 351 (I992) .................................. 34
McClesky v. Kemp, 48I U.S. 279, I07 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) ........................ 19, 20, 30
Milwaukee Branch of the NAACP v. Thompson, 116 F.3d I194 (7th Cir. 1997) ............................................................................. 21
Mixon v. Pennsylvania, 759 A.2d 442 (Pa. Commw. Ct. 2000) .................................................................. 8
NAACP v. Fordice, _F.3d_, 2001 WL 526662 (5th Cir. 2001)................................................. 22
Ortiz v. Philadelphia, 28 F.3d 306 (3d Cir. 1994) ...................................................................... 14, 18, 19
Owens v. Barnes, 711 F.2d 25 (3rd Cir.), cert. denied, 464 U.S. 963 (1983) .................................... 9
Pennzoil Co.v. Texaco, Inc., 481 U.S.1, 107 S. Ct. 1519,95 L. Ed. 2d 1 (1987) ............................................ 16
Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655,41 L. Ed. 2d 551 (1974) ................................. passim
Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1992) ............................................................................. 20
Robi v. Five Platters, Inc., 838 F.2d 318 (9th Cir. 1988) ............................................................................... 17
Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) .................................... 8
v

Rooker v. Fidelity Trust Co., 263 U.S. 413,44 S. Ct. 149,68 L. Ed. 362 (1923) ......................................... 1, 16
Salas v. Southwest Texas Junior College Dist., 964 F.2d 1542 (5th Cir. 1992) ...........................................................................14
Smith v. Salt River Agricultural Improvement & Power Dist.,
109 F.3d 586 (9th Cir. 1997) ...................................................................... passim
Sorchini v. Covina, _ F.3d _(9th Cir. 2001) .............................................................................38
South Carolina v. Katzenbach,
u.s. 383 301 (1966) .......................................................................................... 10
State v. Collins, 69 Wash. 268, 124 P. 903 (1912) .......................................................................25
Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986) ............................. .4, 21, 22
United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996) ..................................20
United States v. Fares, 978 F.2d 52 (2d Cir. 1992) ................................................................................20
United States v. Parham, 16 F.3d 844 (8th Cir. 1994) ...............................................................................20
United States v. State of Oregon, 769 F.2d 1412 (9th Cir. 1985) ........................................................................... 38
Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986) ........................................................... 9, 14, 18,21
Statutes
28 U.S.C. § 1291.................................................................................................... I
42 U.S.C. § 1973............................................................................................passim
Wash. Rev. Code § 9.94A.220 ............................................................ 32, 33, 36, 37
VI

Other Authorities
111 Cong. Rec. 8366 (April23, 1965) ................................................................................................... 11
1890 Civil Rights Act of Washington State............................................................ 23
1965 House Report, reprinted in 1965 U.S. House Code. Cong. & Admin. News........................ 11, 32
1965 Senate Report, reprinted in 1965 U.S.C.C.A.N..................................................................... 11, 32
1982 Senate Report, reprinted in 1982 U.S.C.C.A.N............................................................... 12, 26, 27
Black's Law Dictionary (7th ed. 1999)....................................................................................................... 35
Civil War Amendments............................................................................................. 9
Extension ofthe Voting Rights Act, Hearings before the Subcommittee on Civil and Constitutional Rights ofthe Committee on the Judiciary, House of Representatives, 97th Cong., 1st Sess.
(1981 House Hearings) ........................................................................................ 12
Hearings Before the Subcommittee on the Constitution ofthe Committee ofthe Judiciary, United States Senate, 97th Cong., 2d Sess.
( 1982 Senate Hearings) ....................................................................................... 13
House Report (Judiciary Committee) N. 439, 89th Cong., 1st Sess. (June 1, 1965) ("1965 House Report"), reprinted in 1965 U.S. Code Cong. 7 Admin News 2437 et seq ..................................................................................... 10
National Voter Registration Act ...................................................................... passim
Senate Report (Judiciary Committee), No. 97-417 (May 1982) (" 1982 Senate Report"), reprinted in 1982 U.S.C.C.A.N.......................................................... 12
Territorial Law of 1866 (Rem. & Bal. Code,§ 4755) ................................................................................ 25
United States Constitution, Eighth Amendment.............................................................................................. 20
vii

United States Constitution, Fifteenth Amendment ...................................................................................... 9, 23
United States Constitution, Fourteenth Amendment ................................................................................ passim
Voting Rights Act ..............................................................................::............ passim Washington State Constitution, Article VI ............................................................... 2
Rules Federal Rules of Evidence 404 ............................................................................... 20 Local Rule 56.1 (E.D. Wash.) ............................................................................. 2, 28
Vlll

I. STATEMENT OF JURISDICTION Plaintiffs-Appellants appeal from an order that granted summary judgment in favor of Defendants-Appellees, and dismissed all claims. This is a final appealable order. See Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9th Cir. 1988). Plaintiffs' notice of appeal is timely; this Court has jurisdiction to review the District Court's Order of Summary Judgment and Dismissal. 28 U.S.C. § 1291. Although this Court has jurisdiction to review the orders and judgments of the District Court, it lacks subject matter jurisdiction over any review of the Plaintiffs' state court criminal convictions under the RookerFeldman doctrine. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S. Ct. 1303, 1314, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416,44 S. Ct. 149, 150, 68 L. Ed. 362 (1923).
II. QUESTIONS PRESENTED 1. Does felon disenfranchisement violate Section 2 of the Voting Rights
Act? 2. Even if the Voting Rights Act protects the voting rights of felons,
have Plaintiffs met their burden of proving that under the totality of the circumstances they have been denied the right to vote based on race? 3. Do Plaintiffs have standing to challenge, and have they stated a cause of action challenging, the procedure under which Washington reinstates the civil rights of convicted felons when none of the Plaintiffs qualify for reinstatement?
1

III. STATEMENT OF THE CASE

A. FACTUAL BACKGROUND

Plaintiffs are all individuals convicted in Washington state courts of various

felony offenses. Plaintiffs are all African-American, Hispanic, or Native

American. In Washington, as in nearly all states, a collateral consequence of a

felony conviction is that the convicted individual loses the right to vote until his or

civil rights are restored. Wash. Const. art. VI, § 3. While none of the Plaintiffs

have ever alleged that their individual convictions were in any way based on race

(SER

49-71;

288-89)

1 ,

they

allege

that

they

have

been

denied

the

right

to

vote

as

a

result of their race, in violation of Section 2 of the Voting Rights Act. 42 U.S.C. §

1973.

I

Plaintiff Farrakhan was convicted of multiple counts of theft; he has also been convicted for unlawful issuance of a check and forgery. Plaintiffs Barrientes,

I
I
I
I

Briceno, and Schaaf are convicted of murder. Plaintiff Price has been convicted of possession of a controlled substance. Plaintiff Shadeed has been sentenced to life imprisonment under the state's sentencing laws for repeat offenders. The detailed circumstances of their convictions, including any appellate and collateral challenges, were included in the Defendants' Statement of Material Facts before

the District Court and were not challenged. SER 49-71; 288-89.

"dodinCeofscRRiutg"hemn,ecaw1oetnreShSdtsitse.caedtheopDLmrcreooouepccvmnrauietldemsReneoedtnusnftltsepsiMtnr5hno6aeov.tP1etindlruas(ieaumEidnlp.btDpiieFnfl.friaseWDgc-dAiteavsifpsenehpnun.een)dtl(ihlaltteaehhnsneetsdstrosc-'AtocchuoupeEmnrpttxEeermcolnRlevatersyeepori'tarstnsesSdtsShu)Eou.empRfDpelRai"etsrheEmteercRieodcfn"rtaedtcsCa.itdlsgoenEuasarsix"tgtcesSfnetdiEaalrettpRbee.tydd"s 2

B. PROCEDURAL HISTORY
Plaintiffs' complaint originally alleged numerous constitutional violations, as well as claims under the Voting Rights Act (VRA) of both vote dilution and vote denial. In 1997, Defendants moved to dismiss, arguing that Plaintiffs had failed to state any claim upon which relief could be granted. The district court granted the motion in part and denied it in part. The court dismissed Plaintiffs' constitutional claims and Plaintiffs' claims under the VRA based on a vote dilution theory. However, the District Court allowed Plaintiffs to proceed under a vote denial theory. Farrakhan v. Locke, eta!., 987 F.Supp. 1304, 1312-13 (E.D. Wash. 1997). Thereafter, Plaintiffs' filed a Fourth Amended Complaint alleging they are denied the right to vote based on their race, in violation of the Voting Rights Act. SER 34-36. Plaintiffs withdrew their constitutional claims and their vote dilution claims; the case proceeded solely based upon a vote denial claim under Section 2 ofthe VRA. Id.
Mr. Farrakhan also added claims pertaining to the process for reinstatement of civil rights. He alleged that the reinstatement process violated his rights under the Voting Rights Act and due process, contending that Washington's process for restoration of one's civil rights is "vague, unclear, and unduly burdensome." SER 35-36.
The parties informed the Court at the summary judgment hearing that there was no dispute of fact and that summary judgment was appropriate as a matter of law. SER 363-64. The District Court reviewed Plaintiffs' claims under the Voting Rights Act and concluded "that the totality of circumstances does not establish the
3

requisite causal link between Washington's felon disenfranchisement provision
and reduced minority access to Washington's political process." ER Tab 4 at 5. The District Court examined and discussed a number of factors. For example, the Plaintiffs claimed discrimination in Washington's criminal justice system, not in Washington's system of voting. The District Court noted that "[p]laintiffs have not offered any evidence of a 'history of official discrimination in the state ... that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process', such as to lead the Court to conclude that the circumstances surrounding the disenfranchisement's provision created an inference of discriminatory intent or a causal connection between the provision and the result." Id. at 6-7 (citation omitted) (quoting Thornburg v. Gingles, 478 U.S. 30, 36-37, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986)). The District Court properly held that Plaintiffs' evidence of disproportionality in the criminal justice system was insufficient to support their claim that they were denied the right to vote on account ofrace. ER Tab 4 at 8-9 (citing Smith v. Salt River Agricultural Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir. 1997)). Finally, the District Court determined that the Plaintiffs presented no evidence that Washington's criminal justice system was inherently flawed, as demonstrated by the complete absence of any proof that Plaintiffs' convictions were based on race. ER Tab 4 at 10-11.
The District Court also concluded that Plaintiffs lacked standing to challenge Washington's procedures for restoring civil rights because none of the Plaintiffs had met the qualifications to invoke that process. Alternatively, even if Plaintiffs
4

had standing, Plaintiffs' claims still failed because Plaintiffs presented "no evidence that the restoration process unduly impacts minorities because of race." ER Tab 4 at 12.
IV. STANDARD OF REVIEW
This Court reviews a district court's order granting a motion for summary judgment de novo. Cooper v. Dupnik, 963 F.2d 1220, 1223 (9th Cir. 1992). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Com. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Where there is a complete failure of proof concerning an essential element of the non-moving party's case, all other facts are rendered immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 324. The parties to this case have agreed that there are no factual disputes. SER 363-64.
V. SUMMARYOFTHEARGUMENT
This Court should affirm the District Court's dismissal of Plaintiffs' claims. The Voting Rights Act does not prevent states from disenfranchising convicted felons. It was not intended to do so. A right to vote by felony offenders has never been part of our nation's legal tradition. The right to vote protected by the Fourteenth Amendment does not extend to convicted felons under the express language of that same Amendment. Consequently, states may disenfranchise felons without running afoul of the Voting Rights Act. Although states are not permitted to purposefully discriminate against racial groups with their
5

disenfranchisement laws, there is no evidence of such intent m Washington legislative history. Therefore, Plaintiffs' claims fail.
Even if the Voting Rights Act addressed felon disenfranchisement, Plaintiffs fail to support their claim. They cannot demonstrate that under the totality of the circumstances they have been denied the right to vote on account of race. Plaintiffs' individual cases and Washington history belie their claims. Washington's history demonstrates a strong commitment to civil rights and voting rights. Plaintiffs have all been convicted under valid judgments and sentences in Washington State. No Plaintiff alleged that his conviction was caused by race. Furthermore, this Court cannot review each Plaintiffs state court proceedings. Plaintiffs fail to support their claims with anything other than allegations of statistical disproportionality, which are insufficient as a matter of law. They fail to demonstrate a causal link between their inability to vote and their race.
Finally, Washington's procedures for restoration of civil rights do not deny Plaintiffs the right to vote on account of race. They lack standing to make such a claim because no Plaintiff has completed the requirements of his judgment and sentence. Their claims against these procedures are speculative and only raise hypotheticals regarding what will occur when they complete their judgments and sentences. Even if they had standing, the totality of circumstances fails to support their claims. Adequate procedures provide for reinstatement under Washington law and state policy. Finally, Plaintiffs' reliance on the Supreme Court's unique decision in Bush v. Gore is misplaced, improperly raising an equal protection theory not presented in the District Court.
6

VI. ARGUMENT A. FELON DISENFRANCHISEMENT DOES NOT VIOLATE THE
VOTING RIGHTS ACT 1. The Right to Vote Protected by the Fourteenth Amendment and
the Voting Rights Act Does Not Extend to Convicted Felons. The Constitution permits states to disenfranchise persons convicted of "participation in rebellion, or other crimes." U.S. Const. amend. XIV. Accordingly, a state may disenfranchise convicted felons. Richardson v. Ramirez, 418 U.S. 24, 55-56, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974); Franklin v. MUIJlhy, 745 F.2d 1221, 1231 (9th Cir. 1984). The Supreme Court concluded, after an extensive review of state felon disenfranchisement laws, that Section 2 of the Fourteenth Amendment expressly allows states to deny the elective franchise to convicted felons, including those whom have completed their sentence and parole. Richardson, 418 U.S. at 55-56. The VRA protects against "denial or abridgment of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973(a). The language of the statute protects voting rights. Courts throughout this country have concluded that the Constitutional right to vote does not extend to convicted felons, and states thus may disenfranchise them. Throughout our country's history, felon disenfranchisement has been the norm; states allowing felons to vote have been the exception. Clearly, our country's legal traditions have not encompassed a right of felons to vote. See Harmelin v. Michigan, 501 U.S. 957, 982-83 (1991) (quoting Barker v. People, 20 Johns. *459 (NY Sup. Ct. 1823) ('"The disenfranchisement of a citizen,' he said,
7

'is not an unusual punishment; it was the consequence of treason, and of infamous crimes, and it was altogether discretionary in the legislature to extend that punishment to other offenses."'); see also, Romer v. Evans, 517 U.S. 620,634, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (referring to its holding in Richardson, allowing states to disenfranchise felons, as "unexceptionable" and citing Davis v. Beason, 133 U.S. 333 (1890)).
More recently, courts have continued to reject all claims that voting rights extend to convicted felons. One federal court, rejecting a challenge to Illinois' felon disenfranchisement provision, stated "[t]his court finds no decision from any court holding that the disenfranchisement of felons is invalid." Jones v. Edgar, 3 F.Supp. 2d 979, 980 (C.D. Ill 1998). A Pennsylvania court has recently upheld that state's disenfranchisement of incarcerated felons, finding it well within established norms as a "nonpenal exercise of the power to regulate the franchise." Mixon v. Pennsylvania, 759 A.2d 442, 448 (Pa. Commw. Ct. 2000). See also Fischer v. Governor, 749 A.2d. 321 (NH 2000) (upholding New Hampshire's felon disenfranchisement provision); Emery v. Montana, 580 P.2d 445 (Mont. 1978) (upholding Montana's provision); Fernandez v. Kiner, 36 Wn. App. 210, 673 P.2d 191 (1983), review denied, 101 Wn.2d 1003 (1984) (upholding Washington's disenfranchisement provision).
The Second Circuit discussed the rationale behind disenfranchisement as follows:
· The early exclusion of felons from the elective franchise by many states could well have rested on Locke's concept, so influential at the time, that by entering into society every man "authorizes the society ..
8

. to make laws for him as the public good of the society shall require . . .." A man who breaks the law he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact. On a theoretical plane, it can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases.
Green v. Board of Elections of City of New York, 380 F.2d 445, 451 (2nd Cir.

1967), cert. denied, 389 U.S. 1048 (1968). See also Fischer, 749 A.2d. at 329-30.2

Since the VRA was enacted to enforce the Civil War Amendments, the

i

Supreme Court has viewed it as simply a restatement of those Amendments. Chisom v. Roemer, 501 U.S. 380, 392, 111 S. Ct. 2354, 115 L. Ed. 2d 348 (1991).

!

As the Sixth Circuit has reasoned, "It is undisputed that a state may

I

constitutionally disenfranchise convicted felons, ... and that the right of felons to

I

vote is not fundamental." Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (citing Richardson for the former proposition, and for the latter, Owens v. Barnes,

711 F.2d 25, 27, (3rd Cir.), cert. denied, 464 U.S. 963 (1983)).

2. The History and Purpose of the Voting Rights Act Demonstrate That It Was Not Intended to Prohibit Felon Disenfranchisement.
The Voting Rights Act of 1965 was "designed primarily to enforce the Fifteenth Amendment to the Constitution of the United States and . . . also

2 The Plaintiffs do not allege that Washington's disenfranchisement law is
in any way the product of intentional discrimination. This case is therefore unlike Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 916, 85 L. Ed. 2d 222 (1985). In that case, the Court concluded that the legislative history behind the Alabama disenfranchisement law demonstrated a purposeful effort to deny the right to vote
to Blacks. Id. at 226-31. Based on this purposeful discrimination, to which there is no similarity in the record of this case, the Court struck down Alabama's disenfranchisement law based upon equal protection considerations, not upon the
statutory basis of the VRA.

9

designed to enforce the Fourteenth Amendment and article I, section 4." House Report (Judiciary Committee) N. 439, 89th Cong., 1st Sess. (June 1, 1965) ("1965 House Report"), reprinted in 1965 U.S. Code Cong. 7 Admin News 2437 et seq. This Act was designed to address various exclusionary practices (i.e., literacy tests) in certain regions of the nation (referred to as covered areas) that were designed to prevent African-Americans from voting. The 1965 Act referred to such tests or devices as:
any requirement that a person as a prereqUisite for voting or registration for voting (1) demonstrate the ability to read, write, understand or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. 42 U.S.C. § 1973b[c]. As the District Court observed in its decision on Defendants' motion for dismissal, "Congress created the VRA to put an end to the [several southern] states' 'unremitting and ingenious defiance of the Constitution."' Farrakhan, 987 F.Supp. at 1309 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966)). Outside covered areas, the 1965 Act barred application of tests or devices that had "been used ... for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote on account of race or color, ..." 42 U.S.C. § 1973a[b] (emphasis added). Despite Congress' broader use of language to include situations where the "effect" was present, it was not the intent of Congress for the 1965 Act to apply to felony disenfranchisement, as evidenced in the 1965 Senate Report:
10

The third type of test or device covered is any requirement of good moral character. This definition would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony or mental disability. It applies where lack of good moral character is defmed in terms of conviction of lesser crimes.
1965 Senate Report, reprinted in 1965 U.S.C.C.A.N., p. 2562 (emphasis added).

Thus, the VRA was not intended to extend voting rights to felons. Id.

A similar exemption was described in the 1965 House Report. See 1965

House Report, reprinted in 1965 U.S. House Code. Cong. & Admin. News at 2457

I
I

(the Act "does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction

of a felony or mental disability"). Similar statements were made on the floor of the

Senate. See 111 Cong. Rec. 8366 (April 23, 1965) (statement of Sen. Joseph

Tydings).

Since the passage of the VRA, Congress has re-affirmed its approval of the

disenfranchisement of felons in the 1993 National Voter Registration Act by

specifically listing the conviction of a felony as one of a limited group of reasons

justifying the cancellation of a voter's registration. 42 U.S.C. § 1973gg-6(a)(3).

Congress thereby explicitly approved of felon disenfranchisement within a statute

enacted to remedy racial discrimination in voting, and did so even after the most

recent amendments to the VRA.

Congress amended Section 2 of the Voting Rights Act in 1982 to

legislatively overturn the Supreme Court's decision in City of Mobile v. Bolden,

446 U.S. 55, 100 S. Ct. 1450, 64 L. Ed. 2d 47 (1980) (requiring proof of

discriminatory intent as prima facie evidence). See Voting Rights Act

11

Amendments of 1982, Senate Report (Judiciary Committee), No. 97-417 (May 1982) ("1982 Senate Report"), pp. 2, 18-19, reprinted in 1982 U.S.C.C.A.N., pp. 179, 195-96. The amended statutes prohibits, in addition to intentional discrimination, prerequisites to voting imposed "in a manner which results in a denial or abridgement of the right ... to vote on account of race or color." 42 U.S.C. § 1973(a). It also added subsection (b) to that statute, explaining that a violation of subsection "is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State ... are not equally open to participation by" racial minorities. 42 U.S.C. § I973(b). These amendments therefore established the "results" test in its current form.
In making these amendments, Congress left the scope and coverage of the VRA unchanged. Chisom, 501 U.S. at 384. The earlier legislative history establishing that the Act does not prohibit felon disenfranchisement therefore remains. There is no indication in any record of legislative history that Congress intended that its 1982 amendments would be applied to incarcerated felons. See, ~. 1982 Senate Report at 27, reprinted in 1982 U.S.C.C.A.N., p. 204; Extension of the Voting Rights Act, Hearings before the Subcommittee on Civil and Constitutional Rights ofthe Committee on the Judiciary, House ofRepresentatives, 97th Cong., 1st Sess. (May 6, 7, 13, 19, 20, 27, 28, June 3, 5, 12, 16, 17, 18, 23, 24, 25, and July 13, 1981) (1981 House Hearings); Hearings Before the Subcommittee on the Constitution of the Committee ofthe Judiciary, United States Senate, 97th
12

Cong., 2d Sess. (January 27, 28, February I, 2, 4, 11, 12, 25, and March I, 1982) (1982 Senate Hearings).

The history of the VRA therefore clearly demonstrates that it was never intended to extend the voting rights of convicted felons. Coupled with Congress' later action in the National Voter Registration Act of expressly permitting states to cancel the voter registrations of those who are convicted of felonies, the intent of Congress is clear. Congress did not intend to prohibit states from continuing their long practice of felon disenfranchisement.3

II

I II

3 The same conclusion would follow from the application ofthe "plain

I

statement rule." Federal courts apply the "plain statement rule" as a rule of statutory construction to limit the involvement of the federal courts in traditional state matters absent clear Congressional intent to the contrary:

[I]f Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language ofthe statute.'
* * *

This plain statement rule is nothing more than an acknowledgment

that the States retain substantial sovereign powers under our

constitutional scheme, powers with which Congress does not readily

interfere.

Gregorv v. Ashcroft, 501 U.S. 452,460-61 (1991).

Here, there is no clear record of legislative history that demonstrates Congress' intent to make wholesale changes to the numerous state laws that disenfranchise convicted felons. Congress did not intend to prohibit state felon disenfranchisement absent violation of constitutional magnitude. To the contrary, the only available legislative record demonstrates that Congress did not intend to affect disenfranchisement statutes in 1965 when the VRA was originally passed into law. In 1982, there is no record of any legislative intent to make any changes, let alone wholesale changes, to state disenfranchisement statutes. In 1993, Congress clearly recognized the validity of felon disenfranchisement laws when it passed the National Voter Registration Act by specifically listing the conviction of a felony as one of a limited group of reasons justifying the cancellation of a voter's

registration. 42 U.S.C. § 1973gg-6(a)(3).

13

B. EVEN IF THE VOTING RIGHTS ACT ADDRESSED FELON DISENFRANCHISEMENT, PLAINTIFFS HAVE FAILED TO PRODUCE EVIDENCE SUFFICIENT TO SUPPORT THEIR CLAIM 1. Statistical Disproportionality Standing Alone Does Not Establish a Voting Rights Act Claim. Even if the VRA was intended to address the claim that convicted felons
have been improperly denied the right to vote, Plaintiffs' challenge would fail under the established principles governing claims under Section 2. The Plaintiffs bear the burden of "demonstrating that a challenged election practice has resulted in the denial or abridgment of the right to vote based on color or race." Chisom, 501 U.S. at 394. A successful claimant must prove that the "totality of the circumstances" demonstrates that the challenged legislation "results" in unlawful discrimination. Wesley, 791 F.2d at 1259-60 (quoting42 U.S.C. § 1973(b)).
At most, Plaintiffs show a statistical disparity involving the criminal justice system. This Court has previously explained that a mere statistical disparity is insufficient to satisfY the Section 2 "results" inquiry. Smith v. Salt River Agricultural Improvement & Power Dist., 109 F. 3d 586 (9th Cir. 1997). Other circuits have also held that a mere statistical disparity is insufficient to establish that any denial of voting rights is the result ofrace.4
4 See Ortiz v. Philadelphia, 28 FJd 306, 315 (3d Cir. 1994) (rejecting the contention that Pennsylvania's voter-purge statute violated Section 2 simply because more minority voters than whites were inactive voters); Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1358-59 (4th Cir. 1989) (holding that Virginia's system for selecting school board members complied with Section ~); Salas v. Southwest Texas Junior College Dist., 964 F.2d 1542, 1556 (5th Ctr. 1992) (rejecting challenge to at-large voting system based exclusively on a statistical difference between Hispanic and white voter turnout); Wesley, 791 F.2d at 1262 (rejecting challenge to Tennessee's felon disenfranchisement law that rested primarily on the statistical difference between minority and white felonyconviction rates).
14

In Salt River, plaintiffs challenged a local water district requirement that voters own real property within the boundaries of the district, citing evidence that proportionally fewer minority members owned property within the district. Id. at 589. The court reviewed decisions from other circuits rejecting claims based on statistical disproportionality and concluded that "a bare statistical showing of disproportionate impact on a racial minority does not satisf'y the Section 2 'results' inquiry." Id. at 595. As Plaintiffs concede, a mere showing of disproportionality is insufficient under the Voting Rights Act. Brief of Appellants at 18; see 42 U.S.C. § 1973(b). Nevertheless, Plaintiffs fail to present any evidence beyond mere disproportionality.
The District Court correctly interpreted this Court's decision in Smith v. Salt River by concluding that "there is no evidence that the provision's enactment was motivated by racial animus, or that its operation by itself has a discriminatory effect." ER Tab 4 at 6 (emphasis in original). Here, the District Court found no evidence of discrimination to support Plaintiffs' claims. Furthermore, the District Court properly recognized that Plaintiffs' claims (even if proved) were directed at Washington's criminal justice system, not any voting system in place in Washington. ER Tab 4 at 6 ("At most, this establishes a flaw with the criminal justice system, not with the disenfranchisement provision. Plaintiffs have failed to establish a claim for vote denial because the causal chain runs, if at all, to a factor outside ofthe challenged voting mechanism.").
Plaintiffs stress their disagreement with the District Court's analysis on these points, but that analysis is the product of their own failure to produce any evidence
15

beyond mere statistics. Plaintiffs failed to contest Defendants' factual evidence regarding the factors applicable to a ''totality of the circumstances" analysis. SER 94-95; 288-89. The parties to Salt River entered into an extensive stipulation as to the facts, which the court characterized as a stipulation to "the nonexistence of virtually every circumstance which might indicate" a Section 2 violation. Salt River, 109 F.3d at 595. An examination of that stipulation, as recounted by this Court, reveals the absence of any evidence of similar circumstances in the present case, even though Plaintiffs were not constrained by any similar stipulation. ld. at 595-96.
The District Court's observation on this point rests solidly on the intensely incongruous nature of Plaintiffs' claim. Plaintiffs base their claim on the proposition that any statistical disparity in the treatment of minorities in the criminal justice system is the product of race. They do not, and could not at this stage, claim that their own convictions are the product of race.5 None of the
5 Plaintiffs would be barred under the Rooker-Feldman doctrine from using this action as a forum in which to collaterally attack the validity of their state court judgments and sentences. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 68 L. Ed. 2d 362 (1923). That doctrine prohibits federal courts from engaging in an impermissible appellate review of a state court judgment when it considers arguments that are inextricably intertwined in the state court judgment. Feldman, 460 U.S. at 483 n. 16. Plaintiffs therefore could not, in this case, challenge the validity of their state court convictions based upon the theory that they were the products of racial discrimination. "Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state court judgment." Pennzoil Co.v. Texaco, Inc., 481 U.S. 1, 25, 107 S. Ct. 1519, 95 L. Ed. 2d I (1987) (Marshall, J., concurring).
Res judicata and collateral estoppel principles would similarly bar a belated effort by Plaintiffs to challenge the validity of their state court convictions.
16

Plaintiffs ever alleged in their individual cases that any of them were arrested '
tried, convicted, or sentenced as a result of race or in a racially discriminatory manner. SER 49-7I; 288-89.
Plaintiffs' arguments in this case actually read more like vote dilution claims than vote denial claims. Although they are presently unable to vote, their arguments more strongly concern the effects of felon disenfranchisement on society in general than upon themselves as individuals. Therefore their claims more closely resemble the type of vote dilution claims the District Court dismissed, and they later withdrew (SER 34-36), than vote denial claims. Farrakhan, 987 F.Supp. at 1313. The Eleventh Circuit has even suggested that the "results" test of Section 2 doesn't apply to vote denial claims, but only to vote dilution claims. Burton v. City of Belle Glade, I78 F.3d 1175, II96 (II th Cir. I999) ("Section I973(b) "has come to be known as the 'results test' because it seeks to measure the effect of vote dilution.") (footnote omitted; emphasis in original).6
Plaintiffs never alleged racial discrimination in their criminal proceedings, but this Court has recently reiterated that "claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that has never been litigated, because of a determination that it should have been advanced in an earlier suit." Feminist Women's Health Center v. Codispoti, 63 F.3d 863, 867 (9th Cir. I995). Similarly, "collateral estoppel, or issue preclusion, prevents the relitigation of all issues of fact or law that were actually litigated and necessarily decided in a prior proceeding." Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. I988). Under either formulation, it is too late for Plaintiffs to challenge the validity of their convictions.
6 See, e.g., Brief of Appellant at 24 (citing only vote dilution cases under the Senate factors).
I7

The District Court properly compared Plaintiffs' claims in this case with Salt River's challenge to the district's requirement of land ownership in order to vote because Plaintiffs in this case failed to "show a causal connection between the challenged voting practice and [a] prohibited discriminatory result." Salt River, I 09 F.3d at 595 (quoting Ortiz, 28 F.3d at 315)(internal quotes omitted). Just as the Salt River plaintiffs failed to establish a Section 2 claim by showing that fewer African-Americans owned real estate (and therefore fewer qualified to vote), these Plaintiffs fail to meet their burden merely by indicating a statistical disparity in the criminal justice system.
The Sixth Circuit in Wesley affirmed a decision by the District Court dismissing a challenge to felon disenfranchisement under the VRA for failure to state a claim upon which relief could be granted. Wesley, 791 F.2d at 1257. It therefore follows that in the view of that court, the fate of Plaintiffs' claim is not merely determined based on the sufficiency of the evidence in a particular case; as a matter of law no cause of action exists. Id. at 1260 (statistical disparities and evidence of past discrimination combined "cannot, in the manner of original sin, condemn action that is not in itself unlawful"). The court further reasoned that felon disenfranchisement "does not deny any citizen, ab initio, the equal opportunity to participate in the political process and elect candidates of their choice." Id. at 1262. Similarly, it does not disenfranchise individuals based upon an immutable racial characteristic. Id. The cause of disenfranchisement is not racial discrimination, but rather "their conscious decision to commit a criminal act for which they assume the risks of detection and punishment" Id.
18

In Ortiz, the Third Circuit rejected a challenge to Pennsylvania's statute purging voters who fail to vote for two years. Although the district court found that the purge statute disparately impacted African-American and Latino voters, the district court held that the purge statute did not violate Section 2. The Third Circuit affirmed. The court agreed with three other circuits that plaintiffs in Section 2 cases must "demonstrate a causal connection between the challenged electoral practice and the alleged discrimination that results in a denial or abridgment of the right to vote." Ortiz, 28 F.3d at 310.
This Court's analysis in Salt River is consistent with the manner in which statistical arguments are treated in other contexts. It is clearly recognized, beyond the VRA, that statistical disparities are insufficient to prove that racial discrimination is the cause of an alleged deprivation of rights. Examples include capital cases, in which the federal courts have repeatedly denied racial discrimination claims by minority defendants who have argued that they have been targeted because of their race and have sought to prove their allegations through use of statistical evidence of disparity in imposition of the death penalty. See, e.g. McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). It would certainly be anomalous if the Court were to conclude that Plaintiffs' arguments regarding statistical disparities are sufficient to gain them a right to vote (a right not guaranteed to convicted felons under the Constitution), even while similar evidence is insufficient to preclude an execution?
7 Plaintiffs' theory that the Voting Rights Act is violated because of a statistical a disparity sits uncomfortably beside the federal court's unwillingness to intervene in death penalty cases based on the same alleged disparity. In McClesky,
19

The federal courts in habeas cases are similarly unwilling to entertain arguments of selective prosecution based solely on statistical disparities. United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (I 996).8
In the evidentiary setting, statistical probabilities are not relevant to prove
that an individual acted a certain way. See Fed. R. Evid. 404(b) (evidence of past acts not admissible to "prove the character of a person in order to show action in conformity therewith."). Statistical studies that fail to correct for salient factors, not attributable to the misconduct complained of, that may have caused the harm of which the plaintiff is complaining do not provide a rational basis for a judgment. Blue Cross and Blue Shield of Wisconsin v. Marshfield Clinic, 152 F.3d 588,593 (7th Cir. 1998); see also Milwaukee Branch of the NAACP v. Thompson, 116 F.3d
M5td1pFothh09irofescoe79uctCv2hrrSsUel)tieteuem.a.tSsepthdiken.rnaeyet9aathem.tt9tnhoh2AeSare,ycpemCte1seeoee,1nednnu3efafdtr.loeegtStmyncr..h,tceC.emiCensltstdaa.siriinI.1ntrndhsi6t.guahaI0deifti0nfsr,sieA(cvatod1ai.tret9Li2nnht9sh9etuet3eiw7rm)cto;-acid9bslRae8ef,seauir.e9cvtr7hhtaio1ThdmcefpehtFroeeneN.ndnca2Cdeaidinhlnovtot3ayuh.afb2rLerts9dCaetaihac(wssiet9ircuacilctrsdtlhuile,maidtC9tihiibm4sniaecrp8at.caautastF1ornheui9r.dtes2syi9eeed2drmsh)e1oa,taif4hvnfecn7eeenni3itrdmeEstfa.r(io,p9nrgdloatothelhcosrntmiiwhCiattehiuleoidolarsdyn.,rtt PC5twcTprdpha9aaoiirheescrsro-ser.ph6eisceam,aa01eeSlrmn9slteaau(yhso88d2jt,pieot8eonr1sr)pneuIcdi)e6nnrmtl.plyaoueCeFoiesAnmcmin.errt3tCruib.ciadmtvlueclon1eeerrts8ut9edsit4mra9mdrito4tm2on.hi"un,r)nfeoe;sg8atmnatpAhC,l4sgrse6r.otothEdmh-onsto4ie.cheessw7raceCcdteCsruo(vaoettctov8hrshiniileueotaragshwrrcnttot,ytuhsCsn"5iepci,[ti1muayorstrIgo7]n..nnioasdlsp1cUaeiie.re9nIrdc.ordsl9Ssvueyst.t4..rtaetoe)hsbaASca;drielutt.tfiUEufts4rw4ietahi.nl6Cdh6cethi5ea.e9sat.e.ed,nottdd-rh(8oiTAcyiTne5Ssi·hrdm9tfchtieutiarenhcevFirtgCmrateri.hidi,tsd2mocieuednauvertiafahn.n.redlg1ttessanFeo.4nl,dvrao2foypaerod9Ufternlree,ooeasntfdf,ss1pceifdet4r9neteticaha37dchfducarf78taegetkt-nioSiru3Frtnterthce8s.stan2oidhatst(cdceewlorrsaowO~aa5umeraccatv2yrlhteedsee.,.
20

1194 (7th Cir. 1997) (applying this rule in the context of a vote dilution challenge under Section 2 of the Voting Rights Act). The Jaw is therefore weJJ established, in cases arising in multiple contexts, that mere statistical evidence ofa disparity is insufficient to prove that racial discrimination is the cause ofthat disparity.
The District Court properly determined it was bound by this Court's decision in Salt River that requires Section 2 plaintiffs to prove a causal connection based upon the totality of the circumstances, not simply disproportionality. ER Tab 4 at 8-9 (citing Hasbrouck v. Texaco, 663 F.2d 930, 933 (9th Cir. 1981)). Plaintiffs failed to prove anything more than disproportionality in this case. Furthermore, as the District Court recognized, any such proof would be directed at the criminal justice system in Washington. Here, the District Court found such proof to be completely Jacking, not only in Plaintiffs' individual cases, but regarding the state as a whole. ER Tab 4 at 10-11.
2. Washington's History Demonstrates a Strong Commitment to Civil Rights and Voting Rights.
The Supreme Court has emphasized that judicial review of the totality of the circumstances, including history, requires "an intensely local appraisal of the design and impact of the contested electoral mechanisms." Thornburg v. Gingles, 478 U.S. 30, 79, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986). Plaintiffs are therefore wrong to suggest that the Court can consider the history of other states in assessing the "intensely local" circumstances under which the Washington law operates. Brief of AppeJJants at 14. Rather, the analysis must be "highly individualistic." Wesley, 791 F.2d at 1260; see also NAACP v. Fordice, _ FJd _ , 2001 WL
21

526662 at *4 (5th Cir. 2001). Washington's law does not rise or fall based upon actions taken in the Jim Crow South; Washington's law must be judged based only on Washington history.
Unlike many other states, Washington has a history supportive of civil rights. As the District Court found, "Plaintiffs have not offered any evidence of a 'history of official discrimination in the state ... that touched on the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process."' ER Tab 4 at 6 (quoting Thornburgh, 478 U.S. at 36-37). The court continued, "To the contrary, Washington has historically been very liberal in extending the franchise to racial minorities." Id. at 7.
Washington's civil rights history compares favorably with that of other states. In the trial court, Defendants-Appellees presented the testimony of University of Washington Professor Quintard Taylor, an expert in the history of African-Americans in the Pacific Northwest. SER 150. Dr. Taylor testified that Washington's history of race relations has been markedly more positive than that of other states. Washington developed a national reputation as a "liberal" state in terms of race relations affecting African-Americans. African-Americans historically viewed Washington as an area of economic opportunity that lacked many of the features of racial discrimination present elsewhere in the country. Even compared to other Northwest states, Washington's experience has been more positive. He testified that, unlike Oregon (which became a state 30 years earlier), Washington does not have a history of laws that were designed to discriminate against African-Americans. SER 152-59.
22

Dr. Taylor testified that Washington has never witnessed any organized efforts to disenfranchise African-Americans or deny voting rights to AfricanAmericans based on race. He testified that throughout statehood, AfricanAmericans have played key political roles. African-Americans voted in Washington beginning in 1870, prior to the adoption of the Fifteenth Amendment. William Owen Bush was elected from the Olympia area to Washington State's first legislature in 1890, the first of a series of African-Americans elected by predominantly White constituencies. There he sponsored, and the Legislature enacted, Washington's 1890 Civil Rights Act. SER 155-159. Washington has had no history of discriminatory practices in voting. Washington has not enacted Jim Crow laws or other forms of discrimination. Washington has never been a "covered state" under the Voting Rights Act.9 SER 76, 77, 86, 288-89.
Secretary of State Ralph Munro10 testified that one of his "top priorities in office [was] to encourage broader participation in the electoral system of this state, including participation by members of racial and ethnic minority groups." SER 248. Secretary Munro testified before Congress urging the enactment of the National Voter Registration Act. The measure called for registration at motor vehicle locations, registration by mail, and registration through certain state agencies (all of which were done to some extent in Washington already).

voting States

9 See 42 U.S.C. § 1973b(b) procedures or other devices to deny individuals access to

(referring to geographical areas found by the Attorney General voting based on race).

that have u.sed of the Umted

·syuecacres,ed1b0eedgSibneyncirSneetgcarrieyntaM1ry9u8on1rf.oStsSaetEervRSead2m4a7sS..WRHeaeesdh.lienfgttoonff'sicechiinefJaenleucatrioyn2o0f0f1ic, earnfdorw2a0s

23

Secretary Munro testified that one of his reasons for supporting the passage of NVRA "is to reach out to members of under represented groups in this society and encourage them to participate in the democratic process." During Secretary Munro's tenure, Washington has expanded absentee ballot availability and voting by mail. Secretary Munro has sought to increase accessibility of polling places to the handicapped. Washington State provides voter registration materials in several different languages. The State Voters' Pamphlet is available in Spanish, Chinese, Braille, and cassette tape. Finally, Secretary Munro's administration included a minority outreach program. This program included work with various racial and ethnic communities as well as targeted media communication. The purpose of this program has been to facilitate voter registration and participation amongst these groups. SER 247-54.
Before Secretary Munro's tenure, the 1970 Washington State Legislature directed then-Secretary of State Ludlow Kramer to "conduct a study of the problems of minority voting in the State" and to report its findings to the Legislature. Assistant Secretary of State Donald F. Whiting/ 1 Executive Director to the 1970 Council on Electoral Reform, testified to numerous efforts in Washington in the early 1970s to broaden access to the voting process. This included establishing the council, holding public hearings throughout the state, and offering recommendations to the Legislature. The commission's recommendations were directed at all voters, but were intended to promote minority voting. The recommendations were adopted by the Legislature and included centralization of
11 Assistant Secretary Whiting also left office in January 2001.
24

the county voter registration record, removal of obsolete language regarding literacy tests, Native American voting, and citizenship, and the computerizing of voting records. SER 256-59.
Members of minority groups have enjoyed electoral success in Washington. The largely White Washington electorate has supported African-American candidates beginning with William Owen Bush's election to the Legislature and continuing through the careers of Ron Sims and Norm Rice, both of whom conducted well-supported statewide campaigns during the 1990's, receiving votes that far exceeded the size of the minority community. SER 158-59.12
Washington's disenfranchisement laws are not the product of the Jim Crow era of the Reconstruction South, nor do they represent any effort to evade antidiscrimination laws. They date back to territorial days. See Territorial Law of 1866 (Rem. & Bal. Code, § 4755); State v. Collins, 69 Wash. 268, 270-72, 124 P. 903 (1912). When first enacted they could not have been designed to disenfranchise racial minorities, since the laws predate the Civil War amendments. There is no record that these laws were intended to disenfranchise AfricanAmericans, Native Americans, or Hispanics. There is no evidence that these
pRfAwSCmNrooetmihopaedmpatmrueeremrle,rl.baiesacteesRa1iarTo2nndsniZntdhciaR.s.oeetmt,osifriSSvseniaemmceElmtiSsAiRinJnotbiwodhfmoer1hiahrirvs6sncnie,ite5adyorraAn-Leuvf6n-gfoaeA6rArtAlvsi.hsomciffeucoarriekpninniccrss-ciaatiAtclasnhsnuatme-e-dena·rAAen.evWmmSreGiAecaeeiSnaafnsrrrrntaiihiaycctp,citeaanraewL,nnogn,somat-rSocsAeiseinckpnmfnoercoeaSem,uerntstmrrottaperhirtnecreeeeinatrlsRilentennySlcoyagutSstaitphtviathaoareeseetnFcemmpT'KasroaReanaiscfnynteiioCktgorpims1lorroit.Cenu2naosAorseftudpis,nisSniientaseeatrtnlyacatWreinetivcEtcGnlatetexetA.so.edhevfocilrenOuesfiSrtccgtnattitattahvotheoneteerdene--.r.
25

statutes, or any others in Washington, were devised as a pretext for racial discrimination. Jones, 3 F.Supp. 2d. at 981 (noting the absence of any "taint of historically rooted discrimination.") Instead, the record only demonstrates that Washington's disenfranchisement laws have been a permissible exercise of state power under Section 2 of the Fourteenth Amendment, validated by the Supreme Court in Richardson, and further re-affirmed by Congress under the National Voter Registration Act (NVRA). 42 U.S.C. § 1973gg-6(a)(3).

3.

The Totality of Circumstances Plaintiffs' Claim.

in

this

Case

Weigh

Heavily

Against

Plaintiffs offer little more in support of their argument than the type of statistical disparity this Court has already found to be inadequate. Salt River, I 09 F.3d at 595. As already indicated, Washington's favorable history of race relations in general and voting rights in particular demonstrate that in this state felon disenfranchisement does not operate within circumstances that support Plaintiffs Section 2 claim in any way. A further examination of the totality of the circumstances in which the Washington law operates reveals that the analysis weighs heavily in Washington's favor.

The Senate Judiciary Committee Report that accompanied the 1982
amendments to the VRA set forth eight non-exclusive factors that may be taken into account in determining whether a violation under Section 2 has occurred: (I) a
history of official discrimination in the state; (2) racial polarization in elections; (3) use of districting, requirements, or provisions enhancing the opportunity to discriminate; (4) a candidate-slating process to which the minority group is denied

26

access; (5) an impact on minorities in public services preventing them from political participation; {6) overt or subtle racial appeals in political campaigns; (7) a lack of responsiveness by elected officials to minority groups; and (8) a tenuous policy supporting the state's "use of such voting qualification, prerequisite to voting, or standard, practice, or procedure." Farrakhan, 987 F.Supp. at 1311 (quoting S. Rep. No. 97-417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. (vol. 2) 177, 206-07). 13
In light ofthe Senate factors, the record in this case fails to demonstrates that Plaintiffs' rights are violated under the Voting Rights Act. Washington enjoys a history in which it has promoted voters' rights. The record in this case belies any assertion by Plaintiffs that Washington's disenfranchisement law has had any significant impact on voting in the state as discussed in the factors outlined above. Washington has little history of official discrimination. The record contains no evidence of racially polarized elections or the use of redistricting as a tool for discrimination. Washington has no history of denying minority candidates access to any slating process, but to the contrary, until recently, Washington has practiced the most wide open system for conducting primary elections. See California Democratic Party v. Jones, 530 U.S. 567, 120 S. Ct. 2402, 147 L. Ed. 2d 502 (2000) (holding unconstitutional a system of wide-open "blanket primary"
adhdRfegiaiasllrvuottehretneiiecdolrti.n,d1it3ntitlcsgehTelCeacnhrsiRaefmeerslsaeesefn1vs,a.3cafn"c5ahn)toco.ictstreaoesitrmntso7deiefsnPumst(urlratoeehbinfneyhestretrirfrdriafiteesnst.em'gv1oCAo9tnoot8ssen2trttgdahhrateeeeemnsDitsfeah'ainlacsidtttncromltCiarecseiontmnntCtag.stsooreutEs"orbsRttryordtpehTaiidcedcaoeabngnlVolnyItoitzhitanieoenttdneg,slInycItdhRo. epatiosgpePehpplotlafsriiafeoncdhvAttiioofbctrfttoiess.t
27

pioneered by Washington). Plaintiffs offer no suggestion of any hindrance of participation in the electoral process by any minority groups due to any limitations on public services, such as employment, education, or health. The record does not demonstrate a lack of responsiveness by Washington officials to the needs of minority groups. SER 94-95; 288-89.
In response, Plaintiffs did not contest Defendants' facts of the favorable Washington minority voting history under the Senate factors. SER 94-95; SER 288-89; Local Rule 56.1 (B.D. Wash.).14 Consequently, the District Court had no other factor to weigh in its "totality of the circumstances" analysis, apart from Plaintiffs' claims of disproportionality. Now, on appeal, Plaintiffs criticize the District Court for looking chiefly to Washington's criminal justice system when Plaintiffs presented no other discussion under the Senate factors. See, e.g., CR 135 at 8 ("Many of the factors are not relevant to criminal disenfranchisement laws which, acting as a barrier to voting, result in vote denial rather than vote dilution."). Plaintiffs gave nothing else for the Court to weigh under those factors. Consequently, Plaintiffs devoted their arguments to alleged disproportionality in the criminal justice system. See generally, CR 135. As a result, the record in this case weighs very heavily in favor of the state of Washington under these Senate factors because Defendants' facts were not disputed. A similar circumstance

cCgtooroonnPutsepltnaitit1fuin4oottrniiPofvflinsano'itinientctsiodfd1nfee8stnec'8iniao9stlin.io"olunynp.doStEinhEsaRpRetunTtN2eaac8abwt9tmi4i.vteheantTDtA7heo.meffeeDnArdiircsataitncrntilssce't

facts were

under the factors pertained specifically targeted as a

6 § 1 of the Washington Sta~e

Court properly addressed this

28

occurred in Salt River, 109 F.3d at 595 ("The district court's inquiry was somewhat constrained by the parties' joint stipulation offacts...").
The District Court also compared the present case to the analogous situation presented to the Eleventh Circuit in Burton v. City of Belle Glade, 178 F.3d 1175. The court there rejected a request under Section 2 to force the annexation of a noncontiguous neighborhood within the city, alleging that past discrimination resulted in housing segregation that prevented African-Americans from participation in city government unless they were annexed. The Court of Appeals found that evidence insufficient to establish any nexus to voting, even though other discrimination may have been proven. Id. at 1198.
The conclusion that the totality of circumstances weighs in Washington's favor becomes even more apparent upon consideration of two additional points. First, Plaintiffs' evidence of a statistical disparity in the criminal justice system fails to include any evidence that this disparity is attributable to any specific cause, such as racial discrimination. Second, Plaintiffs fail to show that felon disenfranchisement has any effect on the availability of political opportunity to minorities because they fail to show that it has any effect on the voting strength of minority groups. With regard to both of these points, Plaintiffs' arguments read more like their dismissed and abandoned vote dilution claims than a vote denial theory.
The studies upon which Plaintiffs rely as evidence of a statistical disparity in the criminal justice system do not conclude that racial discrimination is the cause of any disparity. The Washington State Minority and Justice Commission directed
29

Sociologist George Bridges, Ph.D. of the University of Washington, to conduct a survey regarding racial and ethnic dispositions in pretrial release decisions in King County, Washington. SER 211-230. 15 The report did not conclude that disparities in bail and pretrial detention decisions result from overt-prejudicial acts by court officials. Rather, it raised concerns involving the organization ofthe courts and the rules and guidelines established by the legislature and the courts. SER 206. The Commission also initiated a study to examine "the role of race and ethnicity in the case processing and sentencing of felony drug offenders in three counties in Washington State." SER 234. The report found that in the routine changes of pleas entered in superior court between initial filing and conviction "were driven largely by concerns about [scarce] resources" and were not related to race or ethnicity. SER 243. If anything, the study found that White offenders were less likely to have delivery charges dropped than either Hispanic or African-American offenders during the change of plea/plea bargaining process. SER 244. Neither study expressly concluded that any racial disparity was the result of discrimination. 16

15 Dr. Bridges' study did not pertain to any of the six individually named Plaintiffs in this action. SER 330-31. His study was also limited to pretrial release procedures in King County, not other counties in Washington State. SER 219.

16 The parties agree that any relationship between criminal convictions and

race is a novel topic for discussion and study. See, e.g., SER 334 (Bridges

deposition), 346-47 (Mauer the existence of such studies

deposition). in relation to

Although the Supreme Court recognized capital punishment cases in McClesky v.

Kemp, 481 U.S. 279, the Court also noted their limited value because of the many

variables associated with any case and sentenced. Here, Plaintiffs

in which an accused is present nothing from

charged, tried, convicted, their respective criminal

records to indicate that race played any role in their convictions. In addition, they

30

1"v"Ii9ani09nlc0i4cda,a0ridtcr0uyce0Prer)ilartn.aoatgiitnoiHsoatnuinpofcfrewhsarr'ateieotwave"de"isrtmon,tu(efattdshhrsyAkee,.erfsedrnoiucIbcianmsiyanblnt-ahAeonwerymod"oreWieksrfvieccaecruarnosMnostn,sinvaoMrinaDccctrretMo.uudrgaaMsluafl.eyne"alryuo,denSierisdenceedflfoinirnScutoeiEanmfdtidRieodb3nateh5w.ta8rowhat.faecWteiaannhlayes1ghts9erico8nniu8negpnteoatdinnpfi'adescnr .C(rOYcemoognauanilknsjyvoittmiyercari)tatep;Tiydoph1,Cnre4otosv8oxuiomai(ntmvGcitnpoytarugat)atea;cenltlslt1ayyto3Ctre92frotne0huf(gseeKnutlphtoliyetttnisr)mica.isndepePnifstCltaohearoenfoinuffcsrrtnmoaeiitfnmnnyfadcvs)lo;hi'ilvvcepi1sitaredie4lorum2tsnhoao.ea(lfnsTnnaathSlcPuuoEevrlpnxosaRovpttioenniecnr1triti1mfefeCf8rdnsio-onc1mouoem9nsrfiattta(fyhiyKern)e,el;toianorsn1ieigrni4mge.5fsiCiosl(taorarSFruar.tneenth1iow7taoyahtnc)o;ftmmeurol1aaiolsl3tnllth6syey.r pPPrlloaaciinnetstiisffTffsfshriomscmaufnasbtcestshinhosgouwwg"geletiqhtsuttalsaetlltfyihemlaootp,npaecudntnidstueoepnropfnraaarntt"ihctcoheitpiasaveltiomitotyiennnogtbfypsttrhrmeeevneemgcntibthrsceurotsmhfeosmtfasitn[natcohteeres'is"tgyreaolgneuracpolty]uospriiasnsl., dmisapkreopnoortiocnoanlniteyc.tion between their cases and the statistical data regarding devPrrPvieeoldlmeagtaeniniiensnotmartrttaifiafbtn1vffte7feioroBurStPnenhacilsrifihawsrnuhiaincearetacntehsfielthafeehcsftaassasase.sfsnulSeceelnhTevclfeyalterhlivdoeroefeemdonrreser,dfogvhpotliohearorsietntwsefeedoadsrexine,tvPlcaudeaertererilpetcv.totheleiteoIonovdghuno.iatgvsthviheolsoae,ttuehPuSn.gelreEhaevrSiR.enehEgrte7SiRirfs1Eefwt,eg1RFaar3isaesn75rtdd.ern5ar-oitekn5Phtdh6leala1.teinr9ogne,8Patcv6iwllofoal.fyrhtidenBoS.qtriiEusrifcSeafRseglEFiinifl6aRseoi6rtener.d5ctar,a8ekaTnd,hasnhna6ttonda1oott.
31

that its members have less opportunity than other members of the electorate to participate in the political process ...." 42 U.S.C. § 1973(b). This necessarily requires that Plaintiffs show that felon disenfranchisement has a specific negative impact upon minority groups as such, and not merely upon the Plaintiffs as individuals. If convicted felons (of any racial background) do not participate in the process in the first place it is difficult to demonstrate a disparate impact upon the racial group.

The court should also note that although 35 years have passed since enactment of the Voting Rights Act, felon disenfranchisement has not been perceived as a violation of the Act, the issue having been raised only recently. When Congress enacted the VRA in 1965 its legislative history specifically cautioned against drawing the conclusion that it prohibited felon disenfranchisement. 1965 Senate Report, reprinted in 1965 U.S.C.C.A.N., p. 2562; 1965 House Report, reprinted in 1965 U.S. House Code. Cong. & Admin. News at 2457. Plaintiffs therefore ask this Court to depart from the long settled understanding that the VRA does not vest in convicted felons a right that the Fourteenth Amendment expressly denies them.

C.

WASHINGTON'S RIGHTS DO NOT
ON RACE

PROCEDURES FOR REINSTATING DENY PLAINTIFFS A RIGHT TO VOTE

CIVIL BASED

Washington l~w establishes a procedure under which the civil rights of a

convicted felon are automatically restored upon the timely completion of all terms

and conditions of his or her judgment and sentence. Wash. Rev. Code §

9.94A.220. The statute provides the sentencing court with a ministerial,

32

nondiscretionary duty to issue a certificate of discharge, which restores the offender's civil rights. Id. Plaintiffs challenge this process alleging that it is "cumbersome, excessively complex, and places difficult burdens on offenders seeking restoration of voting rights." Brief of Appellant at 35. This challenge must fail for two reasons. First, Plaintiffs lack standing to assert it. Second, Washington's process is not unduly burdensome.
1. Plaintiffs Lack Standing to Challenge Washington's Process for Restoration of Civil Rights.
Washington law provides for the restoration of civil rights upon the completion of all terms and conditions of an offender's judgment and sentence. Wash. Rev. Code § 9.94A.220. Under that statute, a convicted felon has a right to receive a certificate of discharge, restoring his or her civil rights, if, but only if, all of the terms and conditions of his or her judgment and sentence have been completed. State law requires the Department of Corrections ("DOC") to notify the sentencing court when an offender has completed all the terms of his or her judgment and sentence, and requires the sentencing court to issue a certificate of discharge if all terms have been satisfied. I d. DOC policy is the same. SER 301. The issuance of a certificate of discharge reinstates all civil rights, including the right to vote. Wash. Rev. Code§ 9.94A.220(3).
The right to a discharge under that statute arises only if the offender has fully completed his or her sentence. Since none of the Plaintiffs have done so, none ofthem have standing to challenge the process for restoration of civil rights.
33

The District Court concluded that, "Plaintiffs have failed to establish standing to challenge the restoration scheme because none of the Plaintiffs have presented evidence (or even alleged) that they are eligible for restoration and have attempted to have their civil rights restored." ER Tab 4 at 12. Not only have Plaintiffs failed to present such evidence, they could not do so because none of them have completed the terms and conditions of their judgments and sentences. SER 54-55 (Mr. Farrakhan); 56 (Mr. Shadeed); 60 (Mr. Price); 61 (Mr. Barrientes); 66 (Mr. Schaaf); 67 (Mr. Briceno). Since the right to a discharge arises only upon the completion of all terms and conditions of a judgment and sentence, and because none of the Plaintiffs have done so, none of them have standing to challenge the process for restoration. Davis v. Scherer, 488 U.S. 183, 189 n.7 (1984) (parties do not have standing to challenge a statute that does not apply to them).
Plaintiffs' claim of harm from the restoration process is entirely conjectural. It amounts to the mere suggestion that hypothetically these procedures might not be followed if some day one of the Plaintiffs qualified for them. Speculative worries are no substitute for actually proving harm to these Plaintiffs. Plaintiffs lack standing to assert a challenge based upon hypothetical future facts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
Plaintiffs argue that they have standing to challenge the restoration process on the theory that if the process were not there, they would not be barred from registering and voting. Brief of Appellants at 39. This is untrue. Plaintiffs are not
34

denied the right to vote because of the restoration process. They are denied the right to vote because they have not completed the terms and conditions of their judgments and sentences. A challenge to the process for restoring civil rights is not the same as establishing a right to a certificate of discharge in ~d of itself.
Plaintiffs' comparison of legal fmancial obligations to a poll tax also sheds no light on their claim to have standing to challenge the restoration process. A Plaintiff would clearly have standing to challenge a poll tax as a prerequisite to voting without regard to whether it was paid. Unlike the poll tax, Washington's process for restoring civil rights is not a barrier to Plaintiffs' right to vote because they do not qualify as a matter of law for the certificate of discharge that would emerge at the end of that process.18
2. Plaintiffs Have Failed to Offer Any Basis For Concluding that Washington's Restoration Process Denies the Right to Vote Based on Race.
The District Court concluded, in the alternative, that "[e]ven if the Plaintiffs had standing, the Court would still grant summary judgment to the Defendants because there is no evidence that the restoration process unduly impacts minorities
18 Plaintiffs compare the payment of legal financial obligations to the imposition of a poll tax. They offer no argument, however, as to how compliance with a term of duly imposed court order could be construed as a poll tax, suggesting no basis for relief. East Flatbush Election Comm. v. Cuomo, 643 F. Supp. 260, 266 (E.D. N.Y. 1986). A court ordered cost is not a poll tax. Black's Law Dictionary, 1471 (7th ed. 1999) (defining "poll tax" as a tax imposed on all
people within a jurisdiction). Mr. Farrakhan is the only Plaintiff for whom legal financial obligations remain his only outstanding sentence requirement. Mr.
Farrakhan, however, owes his victims restitution of more than $28,000, against which he has paid only $805. SER 54-55. This obligation is every bit as much a part of his valid criminal judgment and sentence as any other component, including his period of incarceration.
35

because of race." ER Tab 4 at 12.19 The District Court was correct because even if Plaintiffs could establish that Washington's procedures for reinstating civil rights and registering to vote were difficult, Plaintiffs must still prove that this denies them the right to vote based on race. 42 U.S.C. § 1973(a). Neither in the trial court nor on appeal have Plaintiffs offered any reason why they believe that Washington's restoration process is any more difficult for members of minority groups than for anybody else. Plaintiffs therefore have utterly failed to state any basis upon which the Court could fmd a violation of the Voting Rights Act, given that such a basis must show a denial ofthe right to vote based on race.
More fundamentally, Plaintiffs and their amici err in characterizing Washington's restoration process as difficult. State law provides offenders a vested right to a certificate of discharge upon completion of an the terms and conditions of their judgments and sentences. Wash. Rev. Code§ 9.94A.220. The Department of Corrections has further simplified procedures by having developed form pleadings to be used when the Department requests the court to enter a certificate of discharge. Department Directive requires the community corrections officer to complete the reinstatement forms. SER 102-07. These forms are then submitted to the prosecutor, who then forwards the forms to the court for entry. In these cases, the parties are in agreement; the court would be entering the discharge by stipulation. SER 130.

19 Plaintiffs' statement on appeal that Plaintiffs' claim is therefore untrue. Briefof

the Court Appellant

did not at 36.

reach

the

merits

of

36

Corrections implements this statute by a unifonn statewide policy that includes infonning convicted felons of the process for restoring their rights and of forwarding requests for certificates of discharge to the sentencing court. SER I 0212; 129-34.
The Supreme Court cautioned against reliance upon Bush v. Gore in addressing future election disputes, stating that the case is limited to its facts. The Court explained that, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Bush, 121 S. Ct. at 532. The factors making the case unique make Bush v. Gore inapposite to this case. See Sorchini v. Covina,_ F.3d _ , slip op. at 2 n. 2 (9th Cir. 2001); but see Charfauros v. Bd. of Elections,_ F.3d _ (9th Cir. 2001) (citing Bush v. Gore in analysis of procedure used to challenge qualifications of registered voters in the Northern Mariana Islands).
Additionally, Plaintiffs did not present their equal protection argument to the District Court. Issues not raised before the District Court are generally not raised before the Court of Appeals. United States v. State of Oregon, 769 F.2d 1412 (9th Cir. 1985). There are three exceptions to this rule: "(I) 'to prevent a miscarriage of justice'; (2) 'a new issue arises while appeal is pending because of a change in the law'; and (3) 'when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed."' Harden v. Roadway Package Svstems, Inc., _F.3d _ , 2001 WL 536845 (9th Cir. 2001) (quoting Bolker v. Commission oflntemal Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985)).
38

Here, the ACLU Amicus presents equal protection theories not presented to the District Court. They argue violation of the Equal Protection Clause as a result of alleged arbitrary enforcement of Washington's felon disenfranchisement law. See ACLU Amicus Brief at 21-27. This Court should not review the issues here because none of the exceptions are applicable. Plaintiffs fail to demonstrate a gross miscarriage of justice. As the District Court found, Plaintiffs have not met the requirements of their judgments and sentences; therefore, they lack standing. In addition, this issue does not prevent the Court from reviewing their other claims This case does not pertain to a new case while this matter was on appeal regardless of Plaintiffs' reliance on Bush v. Gore. Despite the novelty of the Bush opinion, Plaintiffs cite it for propositions they could have raised in the District Court, but did not. Finally, the issues they raise are not purely legal. The issue of the consistency on a county-by-county basis in the enforcement of felon disenfranchisement law is not a purely legal matter. Plaintiffs did not raise it in the District Court; they cannot do so now. II II II II II II II II
39

VII. CONCLUSION

For the foregoing reasons, the Defendants-Appellees respectfully request

that this Court affirm the decision of the District Court.

RESPECTFULLY SUBMITTED this

l

. rt:
day

of

June,

200

I.

CHRISTINE 0. GREGOIRE

Attorney General

T'h-':P

!J
g y

.tt;-r-1/t--/)/

'

.
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DANIEL J. JUDGE WSBA # 17392

Assistant Attorney General

POBox40116

Olympia, WA 98504-0116

(360)-586-1445

.

r

f

JEFF Y T. EVEN, WSBA # 20367

Assistant Attorney General

P0Box40100

Olympia, WA 98504-0100

(360) 586-0728

Attorneys for Defendants-Appellees

40

No. 01-35032

Farrakhan v. Locke

STATEMENT OF RELATED CASES

Respondents-Appellees are not aware of any case that may be deemed related to this case pursuant to Ninth Circuit Local Rule 28-2.6.

No. 01-35032

Farrakhan v. Locke
CERTIFICATE OF COMPLIANCE

I certify that

1.

Pursuant to Fed. R. attached answering

App. bnef

P. is

32(a)(7XC)

and

Ninth

Circuit

Rule

32-1,

the

Proportionately spaced, has contains 11,25!) words,

a

typeface

of

14

points

or

more

and

or is

Monospaced,
- - words.

has

10.5

or

fewer

characters

per

inch

and

contains

DATE ",, fJE I ' ,;{- 0 u I

'f' YT. EVEN, WSBA #20367
DANIEL J. JUDGE, WSBA #17392 Assistant Attorneys General

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MUHAMMAD SHABBAZ FARRAKHAN (AKA ERNEST S. WALKER), et al.,
Petitioners-Appellants,

NO. 01-35032
· DC No. CS-96-00076-RHW Eastern District of Washington (Spokane)

v.
GARY LOCKE, et al.,

AFFIDAVIT OF SERVICE BY MAILING

Res ondents-A ellees.

STATE OF WASHINGTON )

) ss.

County ofThurston

)

JUDY LONBORG, being first duly sworn upon oath, depose and say: That I am a citizen of the United States over the age of eighteen and competent
to be a witness herein.
That on the lj!! day of June, 2001, I deposited in the United States mail,
postage prepaid, and addressed as follows:
DENNIS C. CRONIN MAXEY LAW OFFICES 1835 WEST BROADWAY SPOKANE WA 99201
LARRY A WEISER UNIVERSITY LEGAL ASSISTANCE 721 NORTH CINCINNATI POBOX3528 SPOKANE WA 99220-3528
II
II

I

r ,

NANCY L. TALNER

AMERICAN CIVIL LIBERTIES 705 SECOND AVENUE, #300

UNION

OF

WASHINGTON

SEATTLE WA 98104

ANITA HODGKISS LORI OUTZS BORGEN LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 NEW YORK AVENUE NW, SUITE 400 WASHINGTON DC 2005-2124

NANCY NORTffiJP JESSIE ALLEN GILLIAN E. METZGER GLENN J. MORAMARCO BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW 161 AVENUE OF THE AMERICAS, 12TH FLOOR NEWYORKNY 10013 a copy of the following documents in the above-referenced cause: BRIEF OF APPELLEES; RESPONDENTS-APPELLEES' SUPPLEMENTAL EXCERPTS OFRECORD; andAFFIDA VIT OFSERVICE BYMAILING.

SUBSCRIBED AND SWORN to Before me this .!/!!:._{a: of June, 2001.

2

 
 Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 1 of 25
CLOSED,LC01
Eastern District of Washington U.S. District Court (Spokane) CIVIL DOCKET FOR CASE #: 2:96−cv−00076−RHW

Farrakhan, et al v. Gregoire, et al Assigned to: Senior Judge Robert H. Whaley Demand: $5,000,000 Case in other court: 9CCA, 06−35669 Cause: 28:1983 Civil Rights Plaintiff Muhammad Shabazz Farrakhan individually also known as Ernest S Walker
Plaintiff Al−Kareem Shadeed on behalf of themselves and all others similarly situated TERMINATED: 05/27/1997

Date Filed: 02/02/1996 Date Terminated: 07/07/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Alan Lynn McNeil University Legal Assistance 721 North Cincinnati Street P O Box 3528 Spokane, WA 99220−3528 509−313−5791 Fax: 15093235805 Email: amcneil@lawschool.gonzaga.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Charles Cronin Dennis Cronin Law Office 1708 W Mission Spokane, WA 99201 509−328−5600 Email: dcc99208@yahoo.com TERMINATED: 02/07/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan P Haygood NAACP Legal Defense and Educational Fund Inc 99 Hudson Street Suite 1600 New York, NY 10013 212−965−2235 Email: rhaygood@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence Arthur Weiser University Legal Assistance 721 North Cincinnati Street P O Box 3528 Spokane, WA 99220−3528 509−313−5791 Fax: 5093135805 Email: lweiser@lawschool.gonzaga.edu ATTORNEY TO BE NOTICED
represented by Alan Lynn McNeil (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Charles Cronin

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 2 of 25

(See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Michael D Adams on behalf of themselves and all others similarly situated TERMINATED: 05/27/1997

represented by Alan Lynn McNeil (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
David Conyers on behalf of themselves and all others similarly situated TERMINATED: 05/27/1997

represented by Alan Lynn McNeil (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
George Mitchell on behalf of themselves and all others similarly situated TERMINATED: 05/27/1997

represented by Alan Lynn McNeil (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Marcus X Price individually

represented by Alan Lynn McNeil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 02/07/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence Arthur Weiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan P Haygood

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 3 of 25

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ramon Barrientes individually

represented by Alan Lynn McNeil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 02/07/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence Arthur Weiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan P Haygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Michael Aivarado on behalf of themselves and all others similarly situated TERMINATED: 05/27/1997

represented by Alan Lynn McNeil (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Tracy Huitt on behalf of themselves and all others similarly situated TERMINATED: 05/27/1997

represented by Alan Lynn McNeil (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Timothy Schaaf individually

represented by Alan Lynn McNeil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 02/07/2006 LEAD ATTORNEY

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 4 of 25

ATTORNEY TO BE NOTICED

Lawrence Arthur Weiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan P Haygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Richard Snell on behalf of themselves and all others similarly situated TERMINATED: 05/27/1997

represented by Alan Lynn McNeil (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 05/27/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Clifton Briceno individually

represented by Alan Lynn McNeil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 02/07/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence Arthur Weiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan P Haygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ernest S Walker TERMINATED: 11/13/1997

represented by Alan Lynn McNeil (See above for address) TERMINATED: 11/13/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 11/13/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

represented by

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 5 of 25

Bevin Maxey TERMINATED: 11/13/1997

Dennis Charles Cronin (See above for address) TERMINATED: 11/13/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant National Rifle Association, Inc. and its director, officers, stockholders, and heirs TERMINATED: 04/08/1996 Defendant State of Washington
Defendant Mike Lowry individually and as Governor of the State of Washington TERMINATED: 05/27/1997 Defendant Chase Riveland individually and as Secretary of Department of Corrections of the State of Washington TERMINATED: 05/27/1997 Defendant

represented by Jeffrey Todd Even Attorney General of Washington − OLY Olympia Division P O Box 40100 Olympia, WA 98504−0100 360−753−6200 Fax: 13606642963 Email: jeffe@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol A Murphy Attorney General of Washington − OLY Olympia Division P O Box 40100 Olympia, WA 98504−0100 360−664−9018 Fax: 13606642963 TERMINATED: 01/08/2010 ATTORNEY TO BE NOTICED
Daniel John Judge Attorney General of Washington − OLY Torts Division PO Box 40126 Olympia, WA 98501−0126 360−586−6300 Fax: 360−664−8716 Email: DanielJ@atg.wa.gov TERMINATED: 12/28/2010 ATTORNEY TO BE NOTICED
represented by Daniel John Judge (See above for address) TERMINATED: 12/28/2010 ATTORNEY TO BE NOTICED
represented by Daniel John Judge (See above for address) TERMINATED: 12/28/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 6 of 25

Christine O Gregoire in her official capacity as Governor of the State of Washington

represented by Jeffrey Todd Even (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A Murphy (See above for address) TERMINATED: 01/08/2010 ATTORNEY TO BE NOTICED

Daniel John Judge (See above for address) TERMINATED: 12/28/2010 ATTORNEY TO BE NOTICED

Defendant
Sam Reed in his official capacity as Secretary of State for the State of Washington

represented by Jeffrey Todd Even (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A Murphy (See above for address) TERMINATED: 01/08/2010 ATTORNEY TO BE NOTICED

Daniel John Judge (See above for address) TERMINATED: 12/28/2010 ATTORNEY TO BE NOTICED

Defendant
Harold W Clarke in his official capacity as Secretary as Secretary of the Department of Corrections of the State of Washington

represented by Jeffrey Todd Even (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A Murphy (See above for address) TERMINATED: 01/08/2010 ATTORNEY TO BE NOTICED

Daniel John Judge (See above for address) TERMINATED: 12/28/2010 ATTORNEY TO BE NOTICED

Plaintiff
Al−Kareem Shaheed individually

represented by Alan Lynn McNeil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Charles Cronin (See above for address) TERMINATED: 02/07/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence Arthur Weiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 7 of 25

Plaintiff
Carl Maxey individually TERMINATED: 11/13/1997

Ryan P Haygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan Lynn McNeil (See above for address) TERMINATED: 11/13/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Charles Cronin (See above for address) TERMINATED: 11/13/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Gary Locke in his official capacity as Governor of the State of Washington TERMINATED: 10/28/2005
Defendant Joseph Lehman in his official capacity as Secretary of the Department of Corrections of the State of Washington TERMINATED: 10/28/2005
Defendant Ralph Munro in his official capacity of Secretary of State and Chief Election Officer for the State of Washington TERMINATED: 10/28/2005

represented by Jeffrey Todd Even (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol A Murphy (See above for address) TERMINATED: 01/08/2010 ATTORNEY TO BE NOTICED
Daniel John Judge (See above for address) TERMINATED: 12/28/2010 ATTORNEY TO BE NOTICED
represented by Jeffrey Todd Even (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol A Murphy (See above for address) TERMINATED: 01/08/2010 ATTORNEY TO BE NOTICED
Daniel John Judge (See above for address) TERMINATED: 12/28/2010 ATTORNEY TO BE NOTICED
represented by Jeffrey Todd Even (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol A Murphy (See above for address) TERMINATED: 01/08/2010

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 8 of 25
ATTORNEY TO BE NOTICED
Daniel John Judge (See above for address) TERMINATED: 12/28/2010 ATTORNEY TO BE NOTICED

Date Filed 02/02/1996 02/21/1996 04/08/1996 04/08/1996
04/22/1996 04/22/1996
05/23/1996 05/23/1996 05/29/1996
06/03/1996 06/10/1996 06/10/1996 06/10/1996 06/10/1996 06/13/1996 06/14/1996 06/14/1996 06/25/1996

# Docket Text
COMPLAINT Fee−status: ifp Receipt #: ifp (FmrEmp) (Entered: 02/02/1996)
Law Clerk assigned to case is RM (NS) (Entered: 02/21/1996)
1 COMPLAINT (Summons(es) issued) Fee−status: ifp Receipt #: ifp (FmrEmp) (Entered: 04/08/1996)
2 ORDER TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT IN PART WITH PREJUDICE, AND DIRECTING SERVICE by Judge Robert H. Whaley (Clerk to file cmp w/o pmyt of filing fee; Clerk to mail cc: #1 #2 pltf AG; USM to serve dfts); response due 5/23/96; IT IS ORDERED that the claims against the State of Washington are DISMISSED WITH PREJUDICE; IT IS ORDERED Pltff's claims against the National Rifle Association are DISMISSED WITH PREJUDICE; the Clerk is further directed to TERMINATE Defendants National Rifle Association, Inc., and the State of Washington from this action. (FmrEmp) (Entered: 04/08/1996)
3 ATTORNEY APPEARANCE for defendant; Atty Daniel John Judge appearing (PW) (Entered: 04/22/1996)
4 MOTION by plaintiff for reconsideration of the court's order to dismiss plaintiffs complaint in part with prejudice , and to amend the complaint with supplemental pleadings (PW) (Entered: 04/22/1996)
5 SUMMONS/RETURN OF SERVICE executed upon defendant Mike Lowry (PW) (Entered: 05/24/1996)
6 SUMMONS/RETURN OF SERVICE unexecuted − attempted as to defendant Chase Riveland (no response to waiver) (PW) (Entered: 05/24/1996)
7 ORDER Denying Motion For Reconsideration And Denying Motion To Amend by Judge Robert H. Whaley denying motion for reconsideration of the court's order to dismiss plaintiffs complaint in part with prejudice [4−1], denying motion to amend the complaint with supplemental pleadings [4−2] (cc: all counsel) (PW) (Entered: 05/30/1996)
8 NOTICE by plaintiff Muhammad Shabazz Farrakhan of change of address (PW) (Entered: 06/03/1996)
9 MOTION by defendants for dismissal under Fed. R. Civ. P. 12(b)(6) (PW) (Entered: 06/10/1996)
10 Memorandum of authorities by defendants in support of motion for dismissal under Fed. R. Civ. P. 12(b)(6) [9−1] (PW) (Entered: 06/10/1996)
11 Notice by defendants of hearing setting motion for dismissal under Fed. R. Civ. P. 12(b)(6) [9−1] (w/o oral argument 7/8/96 ) (PW) (Entered: 06/10/1996)
12 Proof of service by defendants of: # 9 −11 (PW) (Entered: 06/10/1996)
Law Clerk assigned to case is LT (NS) (Entered: 06/13/1996)
13 MOTION by plaintiff Muhammad Shabazz Farrakhan to transfer case (PW) (Entered: 06/14/1996)
14 Affidavit in support of motion to transfer case (PW) (Entered: 06/14/1996)
15 Memorandum by defendant in opposition to motion to transfer case [13−1] (PW) (Entered: 06/25/1996)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 9 of 25

06/27/1996 06/28/1996 06/28/1996 06/28/1996 07/01/1996 07/08/1996
07/17/1996 07/31/1996
08/05/1996 08/19/1996
08/26/1996
09/09/1996 09/11/1996
09/13/1996 09/13/1996
09/13/1996
09/13/1996 09/16/1996 09/16/1996 09/16/1996 09/16/1996

16 ORDER by Judge Robert H. Whaley ; Telephone status conf reset 8:00 7/17/96 Spokane, WA court will initiate call (cc: all counsel) (PW) (Entered: 06/27/1996)
17 Stipulated MOTION for continuance of hearing on defendants' motion to dismiss (PW) (Entered: 06/28/1996)
18 Status Conference Certificate (PW) (Entered: 06/28/1996)
18 Discovery Plan pur. to FRCP 26(F) (PW) (Entered: 06/28/1996)
19 Notice by defendants of hearing setting motion for continuance of hearing on defendants' motion to dismiss (07/03/96) [17−1] (PW) (Entered: 07/01/1996)
20 ORDER by Judge Robert H. Whaley granting motion for continuance of hearing on defendants' motion to dismiss [17−1] setting motion for dismissal under Fed. R. Civ. P. 12(b)(6) [9−1] ; w/o oral argument 8/19/96 (cc: all counsel) (PW) (Entered: 07/08/1996)
TELEPHONIC CONFERENCE HELD Hrg Location: S/RHW; Tape 96−RHW−4, 5207−5714 court reporter (PW) (Entered: 07/18/1996)
21 ORDER by Judge Robert H. Whaley ; Telephone status conf reset 8:00 8/28/96 Spokane, WA setting motion to transfer case [13−1] 8:00 8/28/96 with status conference (cc: all counsel) (PW) (Entered: 07/31/1996)
Status Conference Notice ;telephonic status conf 9:00 8/28/96 Spokane, WA (NS) (Entered: 08/05/1996)
22 MOTION and notice by plaintiff Muhammad Shabazz Farrakhan for enlargement of time to file answer to defendant's motion to dismiss complaint (PW) (Entered: 08/20/1996)
23 ORDER by Judge Robert H. Whaley (granting motion for enlargement of time to file answer to defendant's motion to dismiss complaint [22−1]; pltfs shall file resp by 9/9/96; setting motion for dismissal under Fed. R. Civ. P. 12(b)(6) [9−1] ; w/o oral argument 9/20/96 ; Telephone status conf set 8:30 9/26/96 Spokane, WA setting motion to transfer case [13−1] 8:30 9/26/96) (cc: all counsel) (LAM) (Entered: 08/27/1996)
24 Response by plaintiff Muhammad Shabazz Farrakhan to motion for dismissal under Fed. R. Civ. P. 12(b)(6) [9−1] (PW) (Entered: 09/09/1996)
25 MOTION by plaintiff Muhammad Shabazz Farrakhan for determination of a class in connection with challenge to State of Washington's voting qualifications (PW) (Entered: 09/12/1996)
26 MOTION by plaintiff Muhammad Shabazz Farrakhan for appointment of counsel (PW) (Entered: 09/16/1996)
27 Memorandum by plaintiff in support of motion for appointment of counsel [26−1], motion for determination of a class in connection with challenge to State of Washington's voting qualifications [25−1] (PW) (Entered: 09/16/1996)
28 Notice by plaintiff of hearing setting motion for appointment of counsel [26−1] (w/o oral argument 9/20/96 ), setting motion for determination of a class in connection with challenge to State of Washington's voting qualifications [25−1] (w/o oral argument 9/20/96 ) (PW) (Entered: 09/16/1996)
End file #2 (PW) (Entered: 10/02/1996)
29 Reply Memorandum by defendant to Memorandum in Opposition to motion for dismissal under Fed. R. Civ. P. 12(b)(6) [9−1] (PW) (Entered: 09/17/1996)
30 Proof of service by defendant of: # 29 (PW) (Entered: 09/17/1996)
31 MOTION by plaintiff for three judge panel pursuant to 28 U.S.C. 2284 and 42 U.S.c. 1973(c) (PW) (Entered: 09/17/1996)
32 Memorandum by plaintiff in support of motion for three judge panel pursuant to 28 U.S.C. 2284 and 42 U.S.c. 1973(c) [31−1] (PW) (Entered: 09/17/1996)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 10 of 25

09/16/1996 09/18/1996
09/24/1996 10/15/1996 01/29/1997
02/25/1997 02/26/1997 04/16/1997 04/16/1997 04/16/1997 04/16/1997 04/16/1997 04/16/1997 04/18/1997
04/18/1997 04/18/1997

33 Notice by plaintiff of hearing setting motion for three judge panel pursuant to 28 U.S.C. 2284 and 42 U.S.c. 1973(c) [31−1] (w/o oral argument 9/20/96 ) (PW) (Entered: 09/17/1996)
34 ORDER by Judge Robert H. Whaley (in light of pltf's recent filings, the hrg dates for all motions currently pending before the Court are stricken and reset for hrg w/o oral arg on 10/11/96; setting motion for three judge panel pursuant to 28 U.S.C. 2284 and 42 U.S.c. 1973(c) [31−1] ; w/o oral argument 10/11/96, setting motion for appointment of counsel [26−1] ; w/o oral argument 10/11/96, setting motion for determination of a class in connection with challenge to State of Washington's voting qualifications [25−1] ; w/o oral argument 10/11/96, setting motion to transfer case [13−1] ; w/o oral argument 10/11/96, setting motion for dismissal under Fed. R. Civ. P. 12(b)(6) [9−1] ; w/o oral argument 10/11/96) (cc: all counsel) (LAM) (Entered: 09/19/1996)
35 Memorandum by defendants in opposition to motion for three judge panel pursuant to 28 U.S.C. 2284 and 42 U.S.c. 1973(c) [31−1], motion for appointment of counsel [26−1], motion for determination of a class in connection with challenge to State of Washington's voting qualifications [25−1] (PW) (Entered: 09/25/1996)
36 Proof of service by defendants of: #29 &35 (PW) (Entered: 10/15/1996)
37 ORDER Granting Plaintiffs' Motion For Appointment Of Counsel, Inter Alia by Judge Robert H. Whaley granting motion for appointment of counsel, appointing Denis Cronin of the Maxey Law Offices for plaintiffs [26−1] vacating [13−1] motion to transfer case vacating [25−1] motion for determination of a class in connection with challenge to State of Washington's voting qualifications vacating [9−1] motion for dismissal under Fed. R. Civ. P. 12(b)(6) vacating [31−1] motion for three judge panel pursuant to 28 U.S.C. 2284 and 42 U.S.c. 1973(c) with leave to renew; telep status conference set 2/25/97 2:00 p.m., court to initiate call (cc: all counsel) (PW) (Entered: 01/29/1997)
TELEPHONE STATUS CONFERENCE HELD S/RHW; Tape−97−RHW−2, 1900−2518 (PW) (Entered: 02/26/1997)
38 Status Conference Order by Judge Robert H. Whaley: tele status conference set 10:00 4/18/97; pltfs' oral motion for an extension of the response deadlines for defts' motions granted to 4/30/97 (cc:all counsel) (PW) (Entered: 02/26/1997)
39 MOTION by plaintiffs to amend pro se complaint (PW) (Entered: 04/18/1997)
Proposed First Amended Complaint re: motion to amend pro se complaint [39−1] (PW) (Entered: 04/18/1997)
41 Notice by plaintiff of hearing setting motion to amend pro se complaint [39−1] (tele argument) 9:00 5/29/97 (PW) Modified on 05/09/1997 (Entered: 04/18/1997)
42 MOTION by plaintiffs for extension of deadlines (PW) Modified on 05/09/1997 (Entered: 04/18/1997)
43 Proof of service of: #39−42 (PW) Modified on 05/09/1997 (Entered: 04/18/1997)
40 FIRST AMENDED COMPLAINT for damages, attorneys' fees, declaratory and injunctive relief [1−1] (PW) (Entered: 05/09/1997)
44 Notice for plaintiffs Muhammad Shabazz Farrakhan, plaintiff Al−Kareem Shadeed, plaintiff Michael D Adams, plaintiff David Conyers, plaintiff George Mitchell, plaintiff Marcus Price, plaintiff Ramon Barrientes, plaintiff Michael Aivarado, plaintiff Tracy Huitt, plaintiff Tim Schaff, plaintiff Richard Snell, plaintiff Clifton Briceno, plaintiff Ernest S Walker of association of attorney Alan Lynn McNeil (PW) Modified on 05/09/1997 (Entered: 04/18/1997)
45 ORDER by Judge Robert H. Whaley Pltfs may file objections or other comments regarding Pltf's motion to amend pro se complaint on or before 5/8/97; if no objections are filed, court will consider motion on 5/29/97 (cc: all counsel) (PW) Modified on 05/09/1997 (Entered: 04/18/1997)
TELEPHONIC STATUS CONFERENCE HELD Hrg Location: S/RHW; Tape 97−RHW−8 2028−2612; Order Forthcoming (LAM) (Entered: 04/21/1997)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 11 of 25

05/07/1997 05/08/1997 05/13/1997 05/19/1997
05/22/1997 05/27/1997
06/02/1997
06/02/1997 06/20/1997 06/20/1997 06/20/1997 06/20/1997 06/20/1997 06/20/1997 06/20/1997 06/20/1997 06/24/1997 06/26/1997

46 Objections by plaintiff Marcus Price to motion to amend pro se complaint [39−1] (PW) Modified on 05/09/1997 (Entered: 05/08/1997)
47 Objections by plaintiff Michael Aivarado to motion to amend complaint [39−1] (PW) Modified on 05/09/1997 (Entered: 05/09/1997)
Law Clerk assigned to case is RP (DC) (Entered: 05/13/1997)
48 ORDER by Judge Robert H. Whaley (in anticipation of the parties' agreement re the prop amd cmp, the tele hrg on the mtn to amend pro se cmp (Ct. Rec. 39) is canceled; amended complaint to be filed by 5/27/97; obj or acquiescence in the filing thereof to be filed by 5/29/97, or may be communicated to Court in the telephonic presence of opposing counsel; in the event that the parties do not reach an agreement on the filing of the prop amd cmp, the court will resched oral arg on pltf's mtn) (cc: all counsel, pltf Barrientes, Briceno, Price &Schaaf) (LAM) Modified on 05/20/1997 (Entered: 05/20/1997)
49 Objections by plaintiff Marcus Price to dismissal as a plaintiff [48−2] (PW) (Entered: 05/22/1997)
50 SECOND AMENDED COMPLAINT for Damages, Attorneys' Fees, Declaratory and Injunctive Relief and Attorney Fees by plaintiff (terming Al−Kareem Shadeed, Michael D Adams, David Conyers, George Mitchell, Michael Aivarado, Tracy Huitt, Richard Snell, Mike Lowry, Chase Riveland; adding Al−Kareem Shaheed, Carl Maxey, State of Washington, Gary Locke, Joseph Lehman, Ralph Munro) (LAM) (Entered: 05/28/1997)
51 ORDER by Judge Robert H. Whaley granting motion to amend pro se complaint [39−1]; Clerk directed to file 2nd amend compl; pltfs shall serve 2nd amnd compl in accordance with FRCP and LR; Once this has been done &responsive pldg has been filed by defts, Court will sched stat conf; Clerk directed to provide copies of this Order to pltfs Barrientes, Briceno, Price &Schaaf; Pltfs are advised that the Court will treat plfts' atty Dennis Cronin as pltfs' sole representative in future proceedings; Hence, unless otherwise ordered by Court, copies of future Orders will be sent only to Mr Cronin (cc: all counsel, Barrientes, Briceno, Price &Schaaf) (LAM) (Entered: 06/02/1997)
End file #3 (PW) (Entered: 06/23/1997)
52 ATTORNEY APPEARANCE for defendant State of WA, defendant Gary Locke, defendant Joseph Lehman, defendant Ralph Munro ; Atty Daniel John Judge, Jeffrey Todd Even appearing (PW) (Entered: 06/20/1997)
53 MOTION by defendants for dismissal for failure to state a claim (PW) (Entered: 06/20/1997)
54 Memorandum by defendants in support of motion for dismissal for failure to state a claim [53−1] (PW) (Entered: 06/20/1997)
55 Notice by defendants of hearing setting motion for dismissal for failure to state a claim [53−1] (w/o oral argument 7/23/97 ) (PW) (Entered: 06/20/1997)
56 MOTION by defendants to file overlength brief (PW) (Entered: 06/20/1997)
57 Affidavit of Daniel J Judge regarding motion to file overlength brief (PW) (Entered: 06/20/1997)
58 Notice by defendant of hearing setting motion to file overlength brief [56−1] (w/o oral argument 7/23/97 ) (PW) (Entered: 06/20/1997)
59 Proof of service by defendants of: #52−58 (PW) (Entered: 06/20/1997)
60 MOTION and Affidavit for continuance of filing plaintiffs' reply brief (LE) (Entered: 06/25/1997)
61 ORDER by Judge Robert H. Whaley GRANTING MOTION FOR CONTINUANCE OF FILING PLAINTIFFS' REPLY BRIEFS [60−1] (the new filing deadline shall be July 11, 1997) (cc: all counsel) (LE) (Entered: 06/26/1997)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 12 of 25

07/02/1997 07/10/1997 07/10/1997 07/15/1997 07/25/1997
08/07/1997
08/07/1997
08/07/1997 08/08/1997 08/08/1997
08/08/1997
09/02/1997
09/05/1997 09/05/1997 09/18/1997 09/18/1997 09/18/1997 09/18/1997
09/26/1997 09/26/1997 09/26/1997

62 WAIVER of SERVICE by defendant Gary Locke, defendant Joseph Lehman, defendant Ralph Munro ; (PW) (Entered: 07/02/1997)
63 Stipulation to an Agreed Order Extending Time of Filing Plaintiffs' Response Brief (LE) (Entered: 07/11/1997)
Proposed Agreed Order re: stipulation [63−1] (LE) (Entered: 07/11/1997)
64 ORDER by Judge Robert H. Whaley (granting stipulation to extend time of filing plaintiffs' response brief) [63−1] (cc: all counsel) (LE) (Entered: 07/15/1997)
65 ORDER by Judge Robert H. Whaley (re motion for dismissal for failure to state a claim [53−1] ; 7/23/97 hrg date is stricken; mtn reset w/o oral argument 9/2/97) (cc: all counsel) (LAM) (Entered: 07/28/1997)
66 MOTION by plaintiffs for leave to amend complaint pursuant to FRCP 15(a) , and to substitute parties pursuant to FRCP 25(a) and Request for Oral Argument Pursuant to LR 7.1(h) (LE) (Entered: 08/07/1997)
67 Memorandum of Law by plaintiffs in support of motion for leave to amend complaint pursuant to FRCP 15(a) [66−1], and motion to substitute parties pursuant to FRCP 25(a) [66−2] (LE) (Entered: 08/07/1997)
68 MOTION by plaintiffs to extend time for hearing , and to file overlength brief pursuant to LR 7.1(f) (LE) (Entered: 08/07/1997)
69 Notice by plaintiff of hearing setting motion for leave to amend complaint pursuant to FRCP 15(a) [66−1] (w/o oral argument 9/10/97 ) (LE) (Entered: 08/08/1997)
69 Notice by plaintiff setting hearing on motion for leave to amend complaint pursuant to FRCP 15(a) [66−1] (w/o oral argument 9/10/97 ), and to substitute parties pursuant to FRCP 25(a) [66−2] (w/o oral argument 9/10/97 ) (LE) (Entered: 08/08/1997)
70 Notice by plaintiff setting hearing on motion to extend time for hearing [68−1] (w/o oral argument 9/10/97 ), and to file overlength brief pursuant to LR 7.1(f) [68−2] (w/o oral argument 9/10/97 ) (LE) (Entered: 08/08/1997)
71 ORDER by Judge Robert H. Whaley granting motion to extend time for hearing [68−1], granting motion to file overlength brief pursuant to LR 7.1(f) [68−2] re−setting motion for dismissal [53−1] with oral arg 1:00 10/17/97 Spokane, WA (cc: all counsel) (PW) (Entered: 09/02/1997)
72 Plaintiffs' Responsive Memorandum Of Authorities In Opposition To Defndant's Motion To Dismiss [53−1] (ECH) (Entered: 09/08/1997)
73 Plaintiffs' Third AMENDED COMPLAINT Adding New Plaintiff And New Cause Of Action re:complaint [50−1] (ECH) (Entered: 09/08/1997)
74 MOTION by defendants for extension of time to file response to motion for leave to file third amended complaint (LE) (Entered: 09/18/1997)
75 Affidavit of Daniel J. Judge regarding motion for extension of time to file response to motion for leave to file third amended complaint (LE) (Entered: 09/18/1997)
76 Proof of service by defendant of: #74−#75 and Proposed Order (LE) (Entered: 09/18/1997)
Proposed Order Granting Defendants' Motion for extension of time to file response to motion for leave to file third amended complaint [74−1] (LE) (Entered: 09/18/1997)
77 Response by defendant to motion for leave to amend complaint pursuant to FRCP 15(a) [66−1] (LE) (Entered: 09/26/1997)
78 Reply Memorandum by defendants re motion for dismissal for failure to state a claim [53−1] (LE) (Entered: 09/26/1997)
79 Proof of service by defendants of: #77 &#78 (LE) (Entered: 09/26/1997)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 13 of 25

09/30/1997 10/17/1997 11/13/1997
11/28/1997 11/28/1997 11/28/1997 11/28/1997
11/28/1997 11/28/1997 12/11/1997 01/06/1998
02/17/1998 04/06/1998 04/06/1998 04/14/1998 04/20/1998 06/05/1998

80 ORDER by Judge Robert H. Whaley granting defendants' motion for extension of time re Motion for leave to Amend [74−1] (cc: all counsel) (LE) (Entered: 10/01/1997)
MINUTES: HEARING before RHW/SPO; court reporter Debra Clark; re Motion to Dismiss &Motion for Leave to File Third Amended Complaint; Order forthcoming (LE) (Entered: 10/20/1997)
81 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING IN PART PLAINTIFFS' MOTION TO AMEND by Judge Robert H. Whaley (defts' motion for dismissal for failure to state a claim [53−1] is granted in part and denied in part; defts' motion is denied as to pltfs' vote denial claim; pltfs' vote dilution claim and all of pltfs' constitutional claims are dismissed; the parties are instructed to note that only Farrakhan, Shaheed, Price, Barrientes, Schaaf and Briceno remain as plaintiffs in this action; motion for leave to amend complaint pursuant to FRCP 15(a) [66−1] is granted in part and denied in part; pltfs' motion to add Bevan Maxey is granted, nunc pro tunc, for the purposes of appeal; [66−2]; pltfs' motion to add a due process claim is denied [66−1];) terminating party Bevin Maxey, party Carl Maxey, party Ernest S Walker, COB: 155−41 (cc: all counsel) (LE) (Entered: 11/14/1997)
82 MOTION by defendants for Leave to File Interlocutory Appeal and to stay , and Alternative Motion for extension of time (LE) (Entered: 12/01/1997)
83 Memorandum of Authorities by defendants in support of Defendants' Motion for Leave to File Interlocutory Appeal [82−1] and stay [82−2], and alternative motion for extension of time [82−3] (LE) (Entered: 12/01/1997)
84 Affidavit of Daniel J. Judge regarding motion for Leave to File Interlocutory Appeal, regarding motion to stay, regarding motion for extension of time (LE) (Entered: 12/01/1997)
85 Notice by defendants setting hearing on motion for Leave to File Interlocutory Appeal [82−1] (w/o oral argument 12/30/97), setting motion to stay [82−2] (w/o oral argument 12/30/97), setting alternative motion for extension of time [82−3] (w/o oral argument 12/30/97) (LE) (Entered: 12/01/1997)
Proposed Order Granting Defendants' Motion for Leave to File Interlocutory Appeal [82−1] and stay [82−2] submitted by defendants (LE) (Entered: 12/01/1997)
86 Proof of service by defendants of: #82−#85 &Proposed Order (LE) (Entered: 12/01/1997)
87 Responsive Memorandum by plaintiffs in opposition to defendants' Motion for Leave to File Interlocutory Appeal [82−1], and stay [82−2] (LE) (Entered: 12/11/1997)
88 ORDER GRANTING DEFENDANTS' MOTION FOR LEAVE TO FILE INTERLOCUTORY APPEAL by Judge Robert H. Whaley (granting motion for Leave to File Interlocutory Appeal [82−1], granting motion to stay [82−2], striking motion for extension of time [82−3]) (cc: all counsel) (LE) (Entered: 01/06/1998)
89 COPY of 9CCA Order − petition for permission to appeal per 28 USC 1292 is Denied (SAP) (Entered: 02/23/1998)
90 ANSWER by defendants (LE) (Entered: 04/07/1998)
91 Joint Pretrial Status Report and Report from Telephone Conferences filed (LE) (Entered: 04/08/1998)
92 Joint Pretrial Status Report, And Report From Telephone Conferences (ECH) (Entered: 04/17/1998)
93 Scheduling Conference Order by Judge Robert H. Whaley Disp mtn ddl: 1/4/99; ;discovery to be complete 12/1/09 (cc:all counsel) (ECH) (Entered: 04/20/1998)
94 Discovery Plan by Muhammad Shabazz Farrakhan, Al−Kareem Shaheed, Marcus X Price, Ramon Barrientes, Timothy Schaaf, Clifton Briceno pur. to FRCP 26(F)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 14 of 25

08/28/1998 08/28/1998 08/28/1998 09/09/1998
11/02/1998
01/12/1999 01/12/1999 01/13/1999
04/23/1999
08/03/1999
08/16/1999 08/17/1999
08/23/1999 10/26/1999 10/26/1999 10/26/1999 12/01/1999 12/10/1999 12/10/1999 12/22/1999

(ECH) (Entered: 06/22/1998)
95 MOTION for entry of stipulated order modifying pretrial schedule filed by defts (LAM) (Entered: 08/28/1998)
96 Affidavit of Daniel J. Judge (LAM) (Entered: 08/28/1998)
97 Proof of service of: #95, 96 &prop order (LAM) (Entered: 08/28/1998)
98 ORDER Modifying Pretrial Schedule by Judge Robert H. Whaley (re motion for entry of stipulated order modifying pretrial schedule [95−1] ; disclosure of experts shall occur by 11/1/98; ddl Discovery 2/1/99; disp mtn ddl 3/1/99) (cc: all counsel) (LAM) (Entered: 09/10/1998)
99 Stipulated Agreement to Modify Pretrial Schedule for Disclosure of Expert Witnesses Pursuant to FRCP 26 and to Delay Settlement Conference Date (KH) (Entered: 11/04/1998)
Proposed Stipulated Motion and Order Staying Proceedings (KH) (Entered: 01/12/1999)
100 Affidavit of service by Mail of: Stipulated Motion and Order staying Proceedings (KH) (Entered: 01/12/1999)
101 Stipulation and ORDER by Judge Robert H. Whaley : staying Proceedings (Motion for extension of time is granted; matter is stayed until further order of this court, pretrial schedule is stricken; on or by 3/30/99, the court shall receive from Plt or Dft or both, a written letter briefly advising the court re the progress of settlement and whether this Court's stay should continue) : (cc: all counsel) (KH) (Entered: 01/13/1999)
102 ORDER Setting Settlement Conference by Magistrate Judge Cynthia Imbrogno Settlement conference: 9:00 5/17/99 Spokane, WA (cc: all counsel) (KH) (Entered: 04/23/1999)
103 ORDER Setting Status Conference by Judge Robert H. Whaley Telephonic Status Conf Hrg at 10:30 8/16/99 Spokane, WA , (cc: all counsel) (KH) (Entered: 08/03/1999)
104 Telephonic Status Hearing MINUTES: Hrg Location: Spokane; Tape 98−RHW−29 court reporter (KH) (Entered: 08/16/1999)
105 Scheduling Order Inter Alia by Judge Robert H. Whaley Disp mtn ddl: 3/7/00; ;discovery to be complete 2/15/00, stay lifted (cc:all counsel) (KH) (Entered: 08/18/1999)
Law Clerk assigned to case is 1 (NS) (Entered: 08/23/1999)
106 MOTION by plaintiff to amend complaint pursuant to FRCP 15(a) (LE) (Entered: 10/26/1999)
107 Memorandum by plaintiff in support of motion to amend complaint pursuant to FRCP 15(a) [106−1] (LE) (Entered: 10/26/1999)
108 FOURTH AMENDED COMPLAINT ADDING NEW CAUSES OF ACTION re: complaints [73−1], [50−1], [40−1], [1−1], [0−1] (LE) (Entered: 10/26/1999)
109 Defendant's Witness list submitted (KH) (Entered: 12/02/1999)
110 Stipulated Agreement on Service and Filing of Plaintiff's Fourth Amended Complaint (KH) (Entered: 12/11/1999)
111 PROPOSED RECEIVED Order On Service re: stipulation [110−1] (KH) (Entered: 12/11/1999)
112 ORDER ON SERVICE AND FILING OF PLAINTIFF'S FOURTH AMENDED COMPLAINT (by Judge Robert H. Whaley); USM directed to serve dft; response due 2/7/00 (cc: all counsel) (FmrEmp) (Entered: 12/22/1999)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 15 of 25

12/27/1999 01/05/2000 01/25/2000 02/03/2000 05/30/2000 06/01/2000
06/26/2000 06/26/2000
06/26/2000 06/26/2000 07/19/2000 07/19/2000
07/19/2000 07/21/2000
08/01/2000 08/01/2000 08/01/2000 08/01/2000 08/01/2000
08/01/2000 08/01/2000 08/01/2000

113 ANSWER by defendant to Plaintiff's Fourth Amended Complaint (KH) (Entered: 12/27/1999)
114 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant on 12/30/99 (KH) (Entered: 01/05/2000)
115 PROPOSED RECEIVED Joint Stipulation Motion and Order Modifying Pretrial Schedule (KH) (Entered: 01/25/2000)
116 Joint Stipulated Motion and Order Modifying Pretrial Schedule by Judge Robert H. Whaley :( (cc: all counsel) (KH) (Entered: 02/03/2000)
117 PROPOSED RECEIVED Joint Stipulated Motion and Order modifying pretrial schedule re: submitted by plaintiff (KH) (Entered: 05/31/2000)
118 Stipulation and ORDER by Judge Robert H. Whaley :(Discovery shall be completed on or before 5/15/00; Dispositive motions shall be filed by 8/1/00; Oral Argument on the motions shall be set for 9/8/00 (cc: all counsel) (KH) (Entered: 06/01/2000)
119 MOTION by defendant for leave to file an amended answer to plaintiff's fourth amended complaint (KH) (Entered: 06/26/2000)
120 Memorandum by defendant in support of motion for leave to file an amended answer to plaintiff's fourth amended complaint [119−1] (KH) (Entered: 06/26/2000)
121 AMENDED ANSWER by defendant to plaintiff's fourth amended complaint ( deft reserves right to demand jury trial) (KH) (Entered: 06/26/2000)
122 Affidavit of Service by mail by defendant of: 119−122 (KH) (Entered: 06/26/2000)
123 PROPOSED RECEIVED Joint Stipulated MOtion and Order for permission to file an overlength brief (KH) (Entered: 07/19/2000)
124 PROPOSED RECEIVED Joint Stipulated motion and order regarding deft motion for leave to file an amended answer to Plaintiff's Fourth Amended Complaint (KH) (Entered: 07/19/2000)
125 affidavit of personal service of: Proposed Motion and orders (KH) (Entered: 07/19/2000)
126 ORDER by Judge Robert H. Whaley granting motion for leave to file an amended answer to plaintiff's fourth amended complaint [119−1] (cc: all counsel) (VR) (Entered: 07/21/2000)
127 MOTION by defendant for summary judgment and dismissal (VR) (Entered: 08/01/2000)
128 Memorandum of authorities by defendant in support of motion for summary judgment and dismissal [127−1] (VR) (Entered: 08/01/2000)
129 Statement of facts by defendant in support of motion for summary judgment and dismissal [127−1] (VR) (Entered: 08/01/2000)
130 Declaration of Daniel J. Judge by defendant re motion for summary judgment and dismissal [127−1] (VR) (Entered: 08/01/2000)
131 Notice by defendant of hearing setting motion for summary judgment and dismissal [127−1] ;oral argument 10:30 9/8/00 Spokane, WA (VR) (Entered: 08/01/2000)
132 SJ Exhibit list by defendant (VR) (Entered: 08/01/2000)
133 AFFIDAVIT of by defendant State of WA of: service [127−132] (VR) (Entered: 08/01/2000)
134 MOTION by plaintiffs' for summary judgment (VR) Modified on 08/01/2000 (Entered: 08/01/2000)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 16 of 25

08/01/2000 08/01/2000 08/01/2000 08/01/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/16/2000 08/18/2000 08/21/2000 08/21/2000 08/21/2000 08/22/2000 08/24/2000
10/05/2000
11/03/2000
12/01/2000
12/05/2000
12/05/2000

135 Memorandum of points and authorities by plaintiffs' in support of motion for summary judgment [134−1] (VR) (Entered: 08/01/2000)
136 LR 56.1 Statement of facts by plaintiffs' in support of motion for summary judgment [134−1] (VR) (Entered: 08/01/2000)
137 Notice by plaintiffs of hearing setting motion for summary judgment [134−1] ;oral argument 10:30 9/8/00 Spokane, WA (VR) (Entered: 08/01/2000)
138 AFFIDAVIT by plaintiffs of: personal service [134−137] (VR) (Entered: 08/01/2000)
139 Responsive Memorandum by plaintiffs in opposition to motion for summary judgment [127−1] (SAP) (Entered: 08/15/2000)
140 LR56.1 Response by plaintiffs to statement of material facts [129−1] (SAP) (Entered: 08/15/2000)
141 AFFIDAVIT of service by mail by plaintiffs of: docs 139 &140 (SAP) (Entered: 08/15/2000)
142 CounterStatement of material facts by defendants re motion for summary judgment [134−1] (SAP) (Entered: 08/15/2000)
143 Response by defendants' to plaintiffs' motion for summary judgment [134−1] (VR) (Entered: 08/15/2000)
144 SUPPLEMENTAL SJ Exhibit list by defendants' (VR) (Entered: 08/15/2000)
145 affidavit by defendant of: service by mail (VR) (Entered: 08/15/2000)
146 Correction to counterstatement of facts by defendant [142−1] (KH) (Entered: 08/17/2000)
147 Plaintiff's Memorandum of Points and Authorities in reply to defendant's responsive memorandum [143−1] (KH) (Entered: 08/18/2000)
148 Reply Memorandum by defendan in support of summary judgment and dismissal [147−1] (KH) (Entered: 08/21/2000)
149 Second Supplemental SJ Exhibit list by defendant (KH) (Entered: 08/21/2000)
150 Affidavit of Service by mail by defendant of: 148−150 (KH) (Entered: 08/21/2000)
151 Defendant's corrections to their reply memorandum in support of motion for summary judgment [148−1] (KH) (Entered: 08/22/2000)
Pink slip routed setting motion for summary judgment [134−1] with oral arg 1:30 10/12/00 Spokane, WA, setting motion for summary judgment and dismissal [127−1] with oral arg 1:30 10/12/00 Spokane, WA (MF) (Entered: 08/24/2000)
Pink slip routed setting motion for summary judgment [134−1] with oral arg 10:30 11/3/00 Spokane, WA, setting motion for summary judgment and dismissal [127−1] with oral arg 10:30 11/3/00 Spokane, WA (MF) (Entered: 10/05/2000)
152 Summary Judgment Motion Hearing MINUTES: before Judge Robert H. Whaley Hrg Location: Spokane, WA; Debra Clark court reporter (KH) (Entered: 11/06/2000)
153 ORDER by Judge Robert H. Whaley denying Plaintiff motion for summary judgment [134−1], granting Defendant motion for summary judgment and dismissal [127−1]COB 177−16 terminating case (cc: all counsel) (KH) (Entered: 12/01/2000)
154 ORDER by Judge Robert H. Whaley; DCE to enter judgment on all claims in favor of defendants; DCE to close file COB−177−25 (cc: all counsel) (SAP) (Entered: 12/05/2000)
155 JUDGMENT as ordered by Judge Robert H. Whaley; jgm is entered on all claims in favor of defts (cc: all counsel) COB: 177−26 (SAP) (Entered: 12/05/2000)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 17 of 25

12/13/2000 12/13/2000 12/13/2000 12/19/2000
01/18/2001
01/18/2001
01/19/2001 01/19/2001 01/22/2001 01/25/2001 01/31/2001 02/20/2001 02/27/2001 02/26/2002 05/31/2002 07/29/2003 09/15/2003 03/08/2004

156 PROPOSED Bill of costs submitted by defendant State of WA, defendant Gary Locke, defendant Joseph Lehman, defendant Ralph Munro; taxation ddl 9:30 1/2/01 (SAP) (Entered: 12/13/2000)
157 Memorandum by defendant State of WA, defendant Gary Locke, defendant Joseph Lehman, defendant Ralph Munro in support of bill of costs (SAP) (Entered: 12/13/2000)
158 Affidavit of service by mail by defendant State of WA, defendant Gary Locke, defendant Joseph Lehman, defendant Ralph Munro of: docs #156 &157 (SAP) (Entered: 12/13/2000)
159 Notice of appeal by plaintiff Muhammad Shabazz Farrakhan, plaintiff Marcus X Price, plaintiff Ramon Barrientes, plaintiff Timothy Schaaf, plaintiff Clifton Briceno, plaintiff Al−Kareem Shaheed from Dist. Court decision filed 12/1/00 [153−2] Fee Paid, Receipt #046247 (cc: all counsel and 9CCA) (SAP) Modified on 01/04/2001 (Entered: 12/20/2000)
160 TRANSCRIPT DESIGNATION AND ORDER. Date appl filed: 12/19/00 CR: Debra Clark Type of Proceeding: Summary Judgment Date: Unknown by Muhammad Shabazz Farrakhan (Sent amended desig form out) cc:9CCA (SAP) (Entered: 01/18/2001)
161 TRANSCRIPT DESIGNATION AND ORDER. Date appl filed: 12/19/00 CR: E. Huffman Type of Proceeding: Summary Judgment Date: Unknown by Muhammad Shabazz Farrakhan (Sent amended desig w/docket out) cc:9CCA (SAP) (Entered: 01/18/2001)
162 Notification by Circuit Court of Appellate Docket Number [159−1] 9CCA Number: 01−35032 Date appeal filed: 12/19/00 (VR) (Entered: 01/19/2001)
163 COPY 9CCA ORDER FOR TIME SCHEDULE. 9CCA: 01−35032 Designation due: 1/18/01 Transcript due: 2/20/01 Open Brief due: 4/6/01 Appellees Brief due: 5/7/01 (VR) (Entered: 01/19/2001)
164 ORDER on Costs by Judge Robert H. Whaley; each party shall bear its own costs (cc: all counsel) (SAP) (Entered: 01/23/2001)
165 TRANSCRIPT DESIGNATION AND ORDER. 9CCA: 01−35032 Date appl filed: 12/19/00 CR: Debra Clark Type of Proceeding: Pretrial hrg 10/17/97 &Summary jgm hrg 11/3/00 by plaintiffs. cc:9CCA (SAP) (Entered: 01/25/2001)
166 REPORTER'S TRANSCRIPT FILED. CR: Debra Clark Judge Robert H. Whaley City: Spokane, WA Date: 11/3/00 Type of Proceeding: Hearing on Motions for Summary Judgment [See Expando File] (SAP) (Entered: 01/31/2001)
167 REPORTER'S TRANSCRIPT FILED. CR: Debra Clark before Judge Robert H. Whaley City: Spokane, WA Date: 10/17/97 Type of Proceeding: Motions Hearing [See Expando File] (SAP) (Entered: 02/20/2001)
168 Copy 9CCA certificate of record − Original forwarded to 9CCA 9CCA: 01−35032 (SAP) (Entered: 02/27/2001)
Clerk's record on appeal forwarded to 9CCA. 9CCA: 01−35032 Sent 6 vols &1 expando file (SAP) (Entered: 02/26/2002)
Clerk's record on appeal forwarded to 9CCA. 9CCA: 01−35032 Sent via Fed Ex Vols 81, 82 &83 (attachments to #132) (SAP) (Entered: 05/31/2002)
169 COPY of 9CCA Order. 9CCA: 01−35032 Before Wood, D.W. Nelson, and Paez, Circuit Judges − The parties shall bear their own costs on appeal. (VR) (Entered: 07/30/2003)
170 COPY of 9CCA Order. 9CCA: 01−35032 Appellants are directed to file a response (RF) (Entered: 09/15/2003)
171 Mandate from 9CCA. 9CCA: 01−35032 AFFIRMED in Part; REVERSED in part and REMANDED the Decision of the District Court [Appeal [159−1] (cc: all counsel) (RF) (Entered: 03/08/2004)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 18 of 25

12/10/2004 12/20/2004
01/24/2005
01/28/2005 02/04/2005 02/10/2005 02/10/2005
03/15/2005
03/24/2005 04/01/2005 08/24/2005
08/30/2005 08/30/2005 08/30/2005 08/30/2005 08/30/2005 08/30/2005

Appeal Record Returned from 9CCA: re 159 Notice of Appeal, 9CCA: 01−35032. (SAP, Case Administrator) (Entered: 12/13/2004)
172 NOTICE OF SUBSTITUTION OF COUNSEL on behalf of Defendants State of Washington, Gary Locke, Joseph Lehman, Ralph Munro. Carol A Murphy is substituted as counsel for Defendants. Attorney Daniel John Judge terminated. (SAP, Case Administrator) (Entered: 12/21/2004)
173 ORDER SETTING TELEPHONIC STATUS CONFERENCE−−joint status report deadline 2/4/05; Telephonic Status Conference set for 2/10/2005 01:00 PM in Telephonic Argument before Judge Robert H. Whaley. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 01/25/2005)
174 Mail Returned as Undeliverable. Mail sent to Marcus Price re 173 . (SAP, Case Administrator) (Entered: 02/02/2005)
175 STATUS REPORT Joint by Timothy Schaaf, Clifton Briceno, Muhammad Shabazz Farrakhan, Gary Locke, Joseph Lehman, Ralph Munro, Marcus X Price, Ramon Barrientes. (Murphy, Carol) (Entered: 02/04/2005)
176 NOTICE of Change of Address (via letter from Attorney General of Washington) for Marcus Price (SAP, Case Administrator) (Entered: 02/10/2005)
177 Minute Entry for TELEPHONIC proceedings held before Judge Robert H. Whaley : Scheduling Conference held on 2/10/2005. Order Forthcoming. (Reported/Recorded by: Debra Clark) (MF, Courtroom Deputy) (Entered: 02/10/2005)
178 SCHEDULING ORDER: Telephonic Pretrial Conference set for 2/16/2006 09:00 AM in Telephonic Argument before Judge Robert H. Whaley. Bench Trial set for 3/6/2006 09:00 AM in Spokane before Judge Robert H. Whaley. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 03/15/2005)
179 Mail Returned as Undeliverable. Mail sent to Marcus Price Re−sent to address written on envelope 223 S. Browne, Spokane, WA 99201−3617(VR, Case Administrator) (Entered: 03/24/2005)
180 Mail Returned as Undeliverable re 178 . Mail sent to Marcus Price. (Attachments: # 1) (SAP, Case Administrator) (Entered: 04/04/2005)
181 NOTICE by Muhammad Shabazz Farrakhan of Motion to Admit Attorney Janai S. Nelson Pro Hac Vice Without Oral Argument (Weiser, Lawrence) Modified on 8/25/2005−−MOTION TO BE FILED AGAIN, INCORRECT EVENT USED (SAP, Case Administrator). (Entered: 08/24/2005)
182 MOTION for Limited Admission To Admit Pro Hac Vice re Attorney: Ryan P. Haygood. by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 08/30/2005)
183 DECLARATION by Ryan P. Haygood in Support re 182 MOTION for Limited Admission To Admit Pro Hac Vice re Attorney: Ryan P. Haygood. filed by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 08/30/2005)
184 MOTION for Limited Admission to Admit Pro Hac Vice re Attorney: Janai S. Nelson. by Muhammad Shabazz Farrakhan. (Attachments: # 1)(Weiser, Lawrence) (Entered: 08/30/2005)
185 DECLARATION by Janai Nelson in Support re 184 MOTION for Limited Admission to Admit Pro Hac Vice re Attorney: Janai S. Nelson. filed by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 08/30/2005)
186 Praecipe filed by Muhammad Shabazz Farrakhan: Re 182 MOTION for Limited Admission To Admit Pro Hac Vice re Attorney: Ryan P. Haygood. Proposed Order Admitting Pro Hac Vice. (Weiser, Lawrence) (Entered: 08/30/2005)
Payment Received: Receipt #SPO000007 in the amount of $100.00 from Ryan Haygood re Pro Hac Vice. (SAP, Case Administrator) (Entered: 08/30/2005)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 19 of 25

09/02/2005
09/02/2005 09/02/2005 09/07/2005 09/16/2005 09/19/2005 09/22/2005 10/13/2005 10/14/2005 10/14/2005 10/14/2005
10/14/2005
10/14/2005 10/18/2005 10/18/2005
10/18/2005
10/18/2005

187 ORDER granting 182 Motion for Limited Admission. Added Attorney Ryan P Haygood for plaintiffs Al−Kareem Shaheed; Muhammad Shabazz Farrakhan; Marcus X Price; Ramon Barrientes; Timothy Schaaf and Clifton Briceno . Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 09/02/2005)
188 Non−Compliance Notice To Ryan P. Haygood dated 9/2/05 − Electronic Filing and Service Required re 187 (SAP, Case Administrator) (Entered: 09/02/2005)
189 Non−Compliance Notice To Dennis Cronin dated 9/2/05 − Electronic Filing and Service Required re 187 (SAP, Case Administrator) (Entered: 09/02/2005)
190 NOTICE by State of Washington, Gary Locke, Joseph Lehman, Ralph Munro of Association of Counsel (Judge, Daniel) (Entered: 09/07/2005)
192 NOTICE BY CLERK: Attorney Ryan P. Haygood is now registered for electronic filing and noticing. THIS IS A TEXT−ONLY NOTICE − NO PDF WILL ISSUE (VH, Intake Clerk) (Entered: 10/10/2005)
198 NOTICE BY CLERK: Attorney Ryan Haygood is now registered for electronic filing and noticing. THIS IS A TEXT−ONLY NOTICE − NO PDF WILL ISSUE (VH, Intake Clerk) (Entered: 10/17/2005)
191 AFFIDAVIT by Jacob White of Mailing Expert Witness Disclosure by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 09/22/2005)
199 NOTICE BY CLERK: Attorney Dennis Cronin is now registered for electronic filing and noticing. THIS IS A TEXT−ONLY NOTICE − NO PDF WILL ISSUE (VH, Intake Clerk) (Entered: 10/17/2005)
193 MOTION to Substitute Party Substitute Public Officers by all defendants. (Even, Jeffrey) (Entered: 10/14/2005)
194 MEMORANDUM in Support re 193 MOTION to Substitute Party Substitute Public Officers filed by State of Washington. (Even, Jeffrey) (Entered: 10/14/2005)
195 NOTICE of Hearing on Motion re 193 MOTION to Substitute Party Substitute Public Officers: Motion Hearing set for 11/16/2005 at 06:30 PM Without Oral Argument for 193 , before Chief Judge Robert H. Whaley (Even, Jeffrey) (Entered: 10/14/2005)
196 CERTIFICATION re 193 MOTION to Substitute Party Substitute Public Officers, 194 Memorandum in Support of Motion, 195 Notice of Hearing on Motion Certificate of Service by State of Washington, Gary Locke, Joseph Lehman. (Even, Jeffrey) (Entered: 10/14/2005)
197 Praecipe filed by State of Washington, Gary Locke, Joseph Lehman: Re 193 MOTION to Substitute Party Substitute Public Officers Proposed Order. (Even, Jeffrey) (Entered: 10/14/2005)
200 MOTION to Expedite Hearing on Motion to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule by all defendants. (Attachments: # 1 Text of Proposed Order)(Even, Jeffrey) (Entered: 10/18/2005)
201 NOTICE of Hearing on Motion re 200 MOTION to Expedite Hearing on Motion to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule: Motion Hearing set for 10/21/2005 at 06:30 PM Without Oral Argument for 200 , before Chief Judge Robert H. Whaley (Even, Jeffrey) (Entered: 10/18/2005)
202 MEMORANDUM in Support re 200 MOTION to Expedite Hearing on Motion to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule filed by State of Washington, Gary Locke, Joseph Lehman, Ralph Munro. (Even, Jeffrey) (Entered: 10/18/2005)
203 MOTION to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule by all defendants. (Attachments: # 1 Text of Proposed Order)(Even, Jeffrey) (Entered: 10/18/2005)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 20 of 25

10/18/2005 10/18/2005 10/18/2005 10/21/2005 10/21/2005 10/24/2005 10/24/2005 10/25/2005 10/28/2005
10/28/2005 12/06/2005 12/13/2005 12/13/2005 12/13/2005 12/13/2005 12/13/2005

204 NOTICE of Hearing on Motion re 203 MOTION to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule: Motion Hearing set for 10/28/2005 at 06:30 PM Without Oral Argument for 203 , before Chief Judge Robert H. Whaley (Even, Jeffrey) (Entered: 10/18/2005)
205 MEMORANDUM in Support re 203 MOTION to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule filed by State of Washington, Gary Locke, Joseph Lehman, Ralph Munro. (Even, Jeffrey) (Entered: 10/18/2005)
206 DECLARATION by Carol Murphy in Support re 203 MOTION to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule filed by State of Washington, Gary Locke, Joseph Lehman, Ralph Munro. (Attachments: # 1 Exhibit A−D, Correspondence)(Even, Jeffrey) (Entered: 10/18/2005)
207 MEMORANDUM in Opposition re 203 MOTION to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule filed by Muhammad Shabazz Farrakhan. (Attachments: # 1 # 2)(Weiser, Lawrence) (Entered: 10/21/2005)
208 DECLARATION by Larry A. Weiser in Opposition re 203 MOTION to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule filed by Muhammad Shabazz Farrakhan. (Attachments: # 1 # 2)(Weiser, Lawrence) (Entered: 10/21/2005)
209 Witness List Defendants' Experts by State of Washington, Gary Locke, Ralph Munro. (Even, Jeffrey) (Entered: 10/24/2005)
210 REPLY MEMORANDUM re 203 MOTION to Exclude Plaintiffs' Expert Witnesses or, in the Alternative, to Amend Pretrial Schedule filed by State of Washington, Mike Lowry, Gary Locke. (Even, Jeffrey) (Entered: 10/24/2005)
211 AMENDMENT to 193 MOTION to Substitute Public Officers by defendants. (SAP, Case Administrator) (Entered: 10/25/2005)
212 ORDER GRANTING 193 MOTION FOR SUBSTITUTION OF PUBLIC OFFICERS. Caption shall be corrected to substitute (1) Hon. Christine O. Gregoire for Hon. Gary Locke, (2) Hon. Sam Reed for Hon. Ralph Munro and (3) Hon. Harold Clarke for Hon. Joseph Lehman. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 10/28/2005)
213 ORDER AMENDING PRETRIAL SCHEDULE 178 . Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 10/28/2005)
214 MOTION to Withdraw as Attorney (atty Dennis C. Cronin) by Muhammad Shabazz Farrakhan. (Attachments: # 1)(Weiser, Lawrence) (Entered: 12/06/2005)
215 MOTION for Summary Judgment by Christine O Gregoire, Sam Reed, Harold W Clarke, State of Washington. (Attachments: # 1 Text of Proposed Order)(Judge, Daniel) (Entered: 12/13/2005)
216 MEMORANDUM in Support re 215 MOTION for Summary Judgment filed by Christine O Gregoire, Sam Reed, Harold W Clarke, State of Washington. (Judge, Daniel) (Entered: 12/13/2005)
217 STATEMENT OF Material FACTS re 215 MOTION for Summary Judgment filed by Christine O Gregoire, Sam Reed, Harold W Clarke, State of Washington. (Attachments: # 1 Exhibit pp. 14−88# 2 Exhibit pp. 89−163# 3 Exhibit pp. 164−240)(Judge, Daniel) (Entered: 12/13/2005)
218 NOTICE of Hearing on Motion Oral Argument Requested re 215 MOTION for Summary Judgment: Motion Hearing set for 2/9/2005 at 01:30 PM Spokane for 215 , before Chief Judge Robert H. Whaley (Judge, Daniel) (Entered: 12/13/2005)
219 PROOF OF SERVICE by Christine O Gregoire, Sam Reed, Harold W Clarke, State of Washington re 215 MOTION for Summary Judgment, 216 Memorandum in Support of Motion, 217 Statement of Facts,, 218 Notice of Hearing on Motion (Judge, Daniel) (Entered: 12/13/2005)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 21 of 25

12/21/2005 01/13/2006
01/13/2006
01/17/2006 01/17/2006 01/17/2006 01/23/2006 01/23/2006 01/23/2006 01/27/2006 01/27/2006 01/27/2006 01/27/2006 01/27/2006 01/27/2006 01/27/2006

220 STIPULATION to Amend Scheduling Order by Muhammad Shabazz Farrakhan. (Attachments: # 1)(Weiser, Lawrence) (Entered: 12/21/2005)
221 ORDER CONDITIONALLY DENYING MOTION FOR ADMISSION PRO HAC VICE. Motion 184 to admit attorney Janai S. Nelson Pro Hac Vice is Reserved. Plaintiffs shall submit payment within 30 days. Case management deadline set for 2/13/06. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 01/13/2006)
222 ORDER AMENDING SCHEDULING ORDER Granting 220 Stipulation. Motions for Summary Judgment shall be heard on 4/20/06 at 1:30 PM in Spokane, WA. Trial date of 3/6/06 is Stricken. The pretrial conference of 2/16/06 at 9:00 AM is Stricken. Motion hearing of 2/9/06 at 1:30 PM is Stricken. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 01/13/2006)
223 MOTION for Leave to File Excess Pages by Muhammad Shabazz Farrakhan. (Attachments: # 1)(Weiser, Lawrence) (Entered: 01/17/2006)
224 MOTION to Withdraw 184 MOTION for Limited Admission to Admit Pro Hac Vice re Attorney: Janai S. Nelson. by Muhammad Shabazz Farrakhan. (Attachments: # 1 # 2)(Weiser, Lawrence) (Entered: 01/17/2006)
225 NOTICE of Hearing on Motion re 224 MOTION to Withdraw 184 MOTION for Limited Admission to Admit Pro Hac Vice re Attorney: Janai S. Nelson.: Motion Hearing set for 2/17/2006 at 06:30 PM Spokane for 224 , before Chief Judge Robert H. Whaley (Weiser, Lawrence) (Entered: 01/17/2006)
226 ORDER GRANTING LEAVE TO FILE EXCESS PAGES Granting 223 Motion to Exceed Page Limit on Summary Judgment Memorandum of Authorities. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 01/23/2006)
227 ORDER WITHDRAWING 184 MOTION TO ADMIT ATTORNEY JANAI S. NELSON PRO HAC VICE. Granting 224 Motion to Withdraw . Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 01/23/2006)
228 ORDER TO SHOW CAUSE. Show Cause Response due by 1/30/2006 re Mr. Cronin's Ex Parte Motion to Withdraw. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 01/23/2006)
230 MOTION for Summary Judgment (Oral Argument Requested) by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 01/27/2006)
231 NOTICE of Hearing on Motion Oral Argument Requested re 230 MOTION for Summary Judgment (Oral Argument Requested): Motion Hearing set for 4/20/2006 at 01:30 PM Spokane for 230 , before Chief Judge Robert H. Whaley (Weiser, Lawrence) (Entered: 01/27/2006)
232 MEMORANDUM of Points and Authorities in Support re 230 MOTION for Summary Judgment (Oral Argument Requested) filed by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 01/27/2006)
233 STATEMENT OF MATERIAL FACTS re 230 MOTION for Summary Judgment (Oral Argument Requested) filed by Muhammad Shabazz Farrakhan. (Attachments: # 1 # 2 # 3 # 4 # 5)(Weiser, Lawrence) (Entered: 01/27/2006)
234 MEMORANDUM of Points and Authorities in Support re 230 MOTION for Summary Judgment (Oral Argument Requested) and in Opposition to Defendants' Motion for Summary Judgment filed by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 01/27/2006)
235 RESPONSE to Motion re 215 MOTION for Summary Judgment Plaintiffs' Responses to Defendants' Statement of Material Facts filed by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 01/27/2006)
236 Praecipe filed by Muhammad Shabazz Farrakhan: Re 230 MOTION for Summary Judgment (Oral Argument Requested) (Proposed) Order Granting Plaintiffs' Motion for Summary Judgment. (Weiser, Lawrence) (Entered: 01/27/2006)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 22 of 25

01/27/2006
01/27/2006 02/07/2006 03/01/2006 03/01/2006 03/01/2006 03/07/2006 03/07/2006
03/09/2006 03/09/2006 03/13/2006
03/22/2006 03/22/2006 04/20/2006

237 CERTIFICATION re 231 Notice of Hearing on Motion, 232 Memorandum of Points and Authorities in Support of Motion, 233 Statement of Facts, 234 Memorandum of Points and Authorities in Support of Motion, 235 Response to Motion, 236 Praecipe, 230 MOTION for Summary Judgment (Oral Argument Requested) by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 01/27/2006)
238 Praecipe filed by Muhammad Shabazz Farrakhan: Re 230 MOTION for Summary Judgment (Oral Argument Requested) Corrected Proposed Order Granting Plaintiffs' Motion for Summary Judgment. (Weiser, Lawrence) (Entered: 01/27/2006)
240 ORDER GRANTING 214 MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFFS . Attorney Dennis C. Cronin is terminated. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 02/07/2006)
241 REPLY MEMORANDUM re 230 MOTION for Summary Judgment (Oral Argument Requested), 215 MOTION for Summary Judgment and Response to Plaintiffs' Cross−Motion for Summary Judgment filed by all defendants. (Murphy, Carol) (Entered: 03/01/2006)
242 STATEMENT OF MATERIAL (SUPPLEMENTAL) FACTS re 215 MOTION for Summary Judgment filed by all defendants. (Murphy, Carol) (Entered: 03/01/2006)
243 PROOF OF SERVICE by all defendants re 242 Statement of Facts, 241 Reply Memorandum and Response to Cross−Motion for Summary Judgment (Murphy, Carol) (Entered: 03/01/2006)
244 MOTION to Amend/Correct Scheduling Order to Extend Due Date of Plaintiff's Response to Defendant's Reply to Motion for Summary Judgment by Muhammad Shabazz Farrakhan. (Attachments: # 1 # 2)(Weiser, Lawrence) (Entered: 03/07/2006)
245 NOTICE of Hearing on Motion re 244 MOTION to Amend/Correct Scheduling Order to Extend Due Date of Plaintiff's Response to Defendant's Reply to Motion for Summary Judgment: Motion Hearing set for 3/10/2006 at 06:30 PM Spokane for 244 , before Chief Judge Robert H. Whaley (Weiser, Lawrence) (Entered: 03/07/2006)
246 RESPONSE to Motion re 244 MOTION to Amend/Correct Scheduling Order to Extend Due Date of Plaintiff's Response to Defendant's Reply to Motion for Summary Judgment filed by all defendants. (Attachments: # 1 Exhibit Murphy Declaration)(Murphy, Carol) (Entered: 03/09/2006)
247 RESPONSE re 246 Response to Motion, Plaintiffs' Memorandum in Response to Defendants' Opposition to Additional Plaintiff Declarations by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 03/09/2006)
248 ORDER AMENDING SCHEDULING ORDER Granting 244 Motion to Amend the Scheduling Order to Extend Due Date of Plaintiffs' Response to Defendants' Reply to Motion for Summary Judgment. Plaintiffs shall file their reply memorandum to their cross−motion for summary judgment on or before 3/22/06. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 03/13/2006)
249 REPLY re 241 Reply Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 03/22/2006)
250 RESPONSE re 242 Statement of Facts Plaintiffs' Responses to Defendants' Supplemental Statement of Material Facts (LR56.1(b)) by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 03/22/2006)
251 Minute Entry for proceedings held before Judge Robert H. Whaley : Motion Hearing held on 4/20/2006 re 230 MOTION for Summary Judgment (Oral Argument Requested) filed by Muhammad Shabazz Farrakhan,, 215 MOTION for Summary Judgment filed by Christine O Gregoire,, State of Washington,, Sam

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 23 of 25

05/16/2006
06/01/2006 07/07/2006 07/07/2006 08/04/2006
08/04/2006 08/04/2006 08/04/2006 08/04/2006 08/14/2006 08/14/2006
08/14/2006 09/05/2006 09/05/2006
09/07/2006

Reed,, Harold W Clarke,. (Reported/Recorded by: Debra Clark) (MF, Courtroom Deputy) (Entered: 04/20/2006)
252 REPORTER'S TRANSCRIPT: Proceedings held on 4/20/06 in Spokane, WA before Judge Robert H. Whaley. Type of proceeding(s): Hearing on Motions for Summary Judgment. Court Reporter: Debra Kinney Clark. Page Numbers: 1−93. Transcript is available in paper format in the Clerk's Office. (SAP, Case Administrator) (Entered: 05/16/2006)
253 NOTICE of Change of Address by Carol A Murphy (Attachments: # 1 Affidavit Certificate of Service re Address)(Murphy, Carol) (Entered: 06/01/2006)
254 ORDER GRANTING DEFENDANTS' MOTION 215 , DENYING PLAINTIFFS' MOTION 230 FOR SUMMARY JUDGMENT. File is closed. Signed by Judge Robert H. Whaley. (SAP, Case Administrator) (Entered: 07/07/2006)
255 JUDGMENT is entered for Defendants on all claims. Defendants' Motion for Summary Judgment is Granted. Plaintiffs' Motion for Summary Judgment is Denied. (SAP, Case Administrator) (Entered: 07/07/2006)
256 LODGED NOTICE OF APPEAL with Attached Docketing Statement from District Court decision as to 254 Order on Motion for Summary Judgment,, 255 Clerk's Judgment by Muhammad Shabazz Farrakhan. Filing fee $ 455, receipt number Check1304. (Attachments: # 1)(Weiser, Lawrence) (Entered: 08/04/2006)
257 STATEMENT re 256 Lodged Notice of Appeal, Representation Statement by Muhammad Shabazz Farrakhan. (Weiser, Lawrence) (Entered: 08/04/2006)
258 NOTICE OF APPEAL from District Court decision as to 254 Order on Motion for Summary Judgment, 255 Clerk's Judgment by all plaintiffs (RF, Case Administrator) (Entered: 08/04/2006)
259 9CCA Payment Notification form re 258 Notice of Appeal. Received $455, receipt number SPO002434. Copy of docket entries forwarded to 9CCA. (RF, Case Administrator) (Entered: 08/04/2006)
260 Letter from Appeal Deputy Clerk to Larry Weiser dated 8/4/06 ORIGINAL LETTER AND ENCLOSURES WILL BE MAILED TO ADDRESSEE ONLY. (RF, Case Administrator) (Entered: 08/04/2006)
261 Appeal Case Number 06−35669 for 258 Notice of Appeal filed 8/4/06. (RF, Case Administrator) (Entered: 08/14/2006)
262 9CCA Time Schedule as to 258 Notice of Appeal filed by Muhammad Shabazz Farrakhan, Ernest S Walker, Clifton Briceno, Richard Snell, George Mitchell, Al−Kareem Shadeed, Michael D Adams, David Conyers, Ramon Barrientes, Michael Aivarado, Tracy Huitt, Al−Kareem Shaheed, Carl Maxey, Marcus X Price, Timothy Schaaf, Bevin Maxey. Designation Due: 9/5/06. Transcript Due: 10/4/06. Opening Brief Due: 11/20/06. Appellees Brief Due: 12/20/06. 9CCA: 06−35669. (RF, Case Administrator) (Entered: 08/14/2006)
263 NOTICE by Muhammad Shabazz Farrakhan re 258 Notice of Appeal Notification of Transcript to be Ordered (Weiser, Lawrence) (Entered: 08/14/2006)
264 PROOF OF SERVICE by Muhammad Shabazz Farrakhan Certificate of Service RE Transcript Order Form (Weiser, Lawrence) (Entered: 09/05/2006)
265 TRANSCRIPT DESIGNATION of Record on Appeal by all plaintiffs re 258 Notice of Appeal. Date Appeal Filed: 8/4/06. Court Reporter: Debra Clark. Type of Proceeding and Date of Hearing: 4/7/06 − Hearing re Cross−Motions for Summary Judgment. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 09/06/2006)
266 AMENDED TRANSCRIPT DESIGNATION of Record on Appeal by all plaintiffs re 258 Notice of Appeal. Date Appeal Filed: 8/4/06. Court Reporter: Debra Clark. Type of Proceeding and Date of Hearing: Hearing on Cross Motions for Summary Judgment − 4/20/06. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 09/07/2006)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 24 of 25

10/04/2006 03/05/2008 03/19/2008
05/14/2009 01/05/2010 01/07/2010
01/07/2010
01/28/2010 02/12/2010 04/28/2010 04/28/2010 05/04/2010 05/20/2010 05/20/2010 05/28/2010
06/23/2010 06/28/2010 07/02/2010

267 AMENDED CERTIFICATE OF RECORD re 258 Notice of Appeal. 9CCA Case Number: 06−35669 (SAP, Case Administrator) (Entered: 10/04/2006)
268 Clerk's Record on Appeal forwarded to 9CCA re 258 Notice of Appeal 9CCA: 06−35669. (ECH, ) (Entered: 03/05/2008)
269 COPY OF 9CCA ORDER as to 258 Notice of Appeal. The motions of the Natl Black Police Assn et al, the Leading Criminologists, and the Community Service Society for leave to file amici briefs are granted. The motion of the ACLU for leave to file an amicus brief is denied. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 03/19/2008)
270 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 05/14/2009)
271 9CCA Slip Opinion: Decision of the District Court is REVERSED, and the case is REMANDED with instructions to GRANT summary judgment to Plaintiffs. 9CCA Case No. 06−35669. (PH, Case Administrator) (Entered: 01/05/2010)
272 NOTICE OF ELECTRONIC FILING DELIVERY FAILURE. The Clerk's Office has received an undeliverable Notice of Electronic Filing for the following attorney − Carol A Murphy − at this email address − CarolM@ATG.WA.GOV −on 1/5/10 ; The Clerk's Office has been informed that this attorney is no longer with the Office of the Attorney General of Washington. Electronic Noticing is no longer available for this attorney. (LAM, ) (Entered: 01/07/2010)
273 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Defendants Christine O Gregoire, Sam Reed, Harold W Clarke, State of Washington. Attorney Carol Murphy is withdrawing. Jeffrey Todd Even is substituted as counsel for Defendants. Jeff Even and Dan Judge will remain as counsel for Defendants. (Even, Jeffrey) (Entered: 01/07/2010)
274 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 01/28/2010)
275 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 02/12/2010)
276 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 04/28/2010)
277 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 04/28/2010)
278 COPY OF 9CCA ORDER as to 258 Notice of Appeal. Plaintiffs' motion for a continuance of oral argument is granted. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 05/04/2010)
279 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 05/20/2010)
280 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 05/20/2010)
281 COPY OF 9CCA ORDER as to 258 Notice of Appeal filed by Ernest S. Walker, Muhammad Shabazz Farrakhan, Michael D Adams, Clifton Briceno, Bevin Maxey, Carl Maxey, Al−Kareem Shadeed, David Conyers, Richard Snell, George Mitchell, Ramon Barrientes, Marcus X Price, Tracy Huitt, Al−Kareem Shaheed, Timothy Schaaf, Michael Aivarado, 9CCA: 06−35669. (CS, Case Administrator) (Entered: 05/28/2010)
282 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 06/23/2010)
283 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 06/28/2010)
284 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 07/02/2010)

Case: 2:96-cv-76 As of: 01/17/2013 09:34 AM PST 25 of 25

08/13/2010 10/07/2010 10/29/2010 12/28/2010 04/04/2011 08/23/2011

285 COPY OF 9CCA ORDER as to 258 Notice of Appeal. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 08/13/2010)
286 9CCA Slip Opinion: Decision of the District Court is Affirmed. 9CCA Case No. 06−35669. (Attachments: # 1 Concurring Opinion 1, # 2 Concurring Opinion 2)(LE, Case Administrator) (Entered: 10/07/2010)
287 MANDATE from 9CCA as to 258 Notice of Appeal. Decision of the District Court is AFFIRMED. 9CCA: 06−35669. (SAP, Case Administrator) (Entered: 10/29/2010)
288 NOTICE OF WITHDRAWAL OF COUNSEL by Daniel John Judge on behalf of Defendants Harold W Clarke, Christine O Gregoire, State of Washington (Judge, Daniel) (Entered: 12/28/2010)
Appeal Record Returned: 9CCA #: 06−35669. (CS, Case Administrator) Modified on 4/6/2011 − Vols. 81, 82, 83. (LE, Case Administrator). (Entered: 04/04/2011)
Appeal Record Returned: 9CCA #: 06−35669. Received Vols. 1−6, 80. (SAP, Case Administrator) (Entered: 08/23/2011)

 
 No. 06-35669

United States Court of Appeals for the Ninth Circuit

MUHAMMAD SHABAZZ FARRAKHAN, A/K/A ERNEST S. WALKER-BEY; AL-KAREEM SHADEED; MARCUS PRICE; RAMON BARRIENTES; TIMOTHY SCHAAF; AND CLIFTON BRICENO,

— v. —

Plaintiffs-Appellants,

CHRISTINE O. GREGOIRE, GOVERNOR OF THE STATE OF WASHINGTON; SAM REED, SECRETARY OF STATE FOR THE STATE OF
WASHINGTON; HAROLD W. CLARKE, DIRECTOR OF THE WASHINGTON DEPARTMENT OF CORRECTIONS; AND THE STATE OF WASHINGTON,

Defendants-Appellees.

APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON, NO. CV-96-076-RHW THE HONORABLE ROBERT H. WHALEY, JUDGE PRESIDING

BRIEF OF PLAINTIFFS-APPELLANTS

LAWRENCE A. WEISER, ESQ. ANGELA GIANOLI, LEGAL INTERN IAN WHITNEY, LAW CLERK UNIVERSITY LEGAL ASSISTANCE
AT GONZAGA LAW SCHOOL 721 North Cincinnati Street Spokane, WA 99220-3528 509.323.5791
DANIELLE C. GRAY, ESQ. Four Times Square New York, NY 10036 212.735.3925

RYAN P. HAYGOOD, ESQ. THEODORE SHAW, ESQ.
DIRECTOR-COUNSEL NORMAN J. CHACHKIN, ESQ. DEBO P. ADEGBILE, ESQ. NAACP LEGAL DEFENSE
& EDUCATIONAL FUND, INC. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 212.965.2235

Counsel for Plaintiffs-Appellants

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .................................................................................iv INTRODUCTION AND PRELIMINARY STATEMENT .....................................1 STATEMENT OF JURISDICTION .......................................................................3 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...............4 STATEMENT OF THE ISSUES ............................................................................4 STANDARD OF REVIEW ....................................................................................5 STATEMENT OF FACTS .....................................................................................5
A. Procedural History ..............................................................................5 B. Plaintiffs’EvidenceofRacialBiasandDiscriminationin
WashingtonState’sCriminalJusticeSystem......................................9 SUMMARY OF ARGUMENT ............................................................................16 ARGUMENT........................................................................................................21 I. THE DISTRICT COURT ERRED BY PLACING EXCESSIVE
WEIGHT ON THE ABSENCE OF A HISTORY OF DISCRIMINATION IN THE AREA OF VOTING IN WASHINGTON .........................................................................................22 A. SenateFactorOneHasLimitedRelevancetoPlaintiffs’Vote
Denial Claim.....................................................................................23 B. Courts Have Found Section 2 Violations in Cases Involving No
History of Official Electoral Discrimination .....................................30 II. THE DISTRICT COURT ERRED BY CONSIDERING
IRRELEVANT SENATE FACTORS AND DISREGARDING RELEVANT SENATE FACTORS.............................................................37
ii

A. The District Court Erroneously Considered Irrelevant Senate Factors ..............................................................................................40
B. TheDistrictCourt’sDisregardoftheTenuousJustifications Offered in Support of the Policy Was Clear Error .............................47
III. THE DISTRICT COURT ERRED BY HOLDING THAT SECTION 2 DOES NOT PROTECT INDIVIDUAL VOTERS ...................................57
CONCLUSION ....................................................................................................59 CERTIFICATION OF COMPLIANCE TO FED. R. APP. P. 32(a)(7)(C)
AND CIRCUIT RULE 32-1 FOR CASE NUMBER 06-35669 ..................62
iii

TABLE OF AUTHORITIES CASES Page
Black Political Task Force v. Galvin, 300 F. Supp. 2d 291 (D. Mass. 2004) ............................................................................................ 31, 34, 35, 36
Bryant v. Lawrence County, 814 F. Supp. 1346 (S.D. Miss. 1993) .......................31 Buckanaga v. Sisseton Independent School District, 804 F.2d 469 (8th Cir.
1986) ..............................................................................................................25 Carrington v. Rash, 380 U.S. 89 (1965)................................................................55 Clark v. Calhoun County, 88 F.3d 1393 (5th Cir. 1996)...................... 31, 33, 34, 44 Corbett v. Sullivan, 202 F. Supp. 2d 972 (E.D. Mo. 2002) ....................................31 Dillenburg v. Kramer, 469 F.2d 1222 (9th Cir. 1972) ...........................................48 Dunn v. Blumenstein, 405 U.S. 330 (1972) .....................................................49, 55 East Jefferson Coalition for Leadership and Development v. Parish of
Jefferson, 926 F.2d 487 (5th Cir. 1991)...........................................................31 Ewing v. Monroe County, 740 F. Supp. 417 (N.D. Miss. 1990) ............................31 Farrakhan v. Gregoire, No. CV-96-076-RHW, 2006 WL 1889273 (E.D.
Wash. July 7, 2006) .................................................................................passim Farrakhan v. Locke, 987 F. Supp. 1304 (E.D. Wash. 1997) ..............................6, 52 Farrakhan v. Locke, No. CS-96-76-RHW, 2000 U.S. Dist. LEXIS 22212
(E.D.Wash.Dec.1,2000)(“2000Order”).............................................6, 7, 28 Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003)
(Farrakhan I).......................................................................................... passim
iv

Farrakhan v. Washington, 359 F.3d 1116 (9th Cir.), cert. denied sub nom. Locke v. Farrakhan, 543 U.S. 984 (2004) .........................................................7
Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990) .............................25 Georgia v. Ashcroft, 539 U.S. 461 (2003) .............................................................24 Gomez v. City of Watsonville, 863 F.2d 1407 (9th Cir. 1988).........................passim Goodloe v. Madison County Board of Election Commissioners, 610 F. Supp.
240 (S.D. Miss. 1985) ...............................................................................31, 36 Goosby v. Town Board, 180 F.3d 476 (2d Cir. 1999) ............................................26 Gunn v. Chickasaw County, 705 F. Supp. 315 (N.D. Miss. 1989) ...................31, 45 Harper v. City of Chicago Heights, Nos. 87 C 5112, 88 C 9800, 1997 WL
102543 (N.D. Ill. Mar. 5, 1997) ......................................................................31 Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).................................50 Harvell v. Blytheville School District #5, 71 F.3d 1382 (8th Cir. 1995) ................43 Houston v. Lafayette County, 20 F. Supp. 2d 996 (N.D. Miss. 1998) ....................31 Hunter v. Underwood, 471 U.S. 222 (1985)..........................................................49 Johnson v. Bush, 405 F.3d 1214 (11th Cir.), cert. denied, 126 S. Ct. 650
(2005) .............................................................................................................49 Johnson v. DeGrandy, 512 U.S. 997 (1994)...................................................passim League of United Latin American Citizens v. North East Independent School
District, 903 F. Supp. 1071 (W.D. Tex. 1995) ................................................31 League of United Latin American Citizens v. Perry, 126 S. Ct. 2594 (2006).........54 Marks v. Stinson, No. Civ. A. 93-6157, 1994 WL 146113 (E.D. Pa. Apr. 26,
1994) ........................................................................................................31, 36
v

Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), aff’dsubnom.MississippiStateChapter,Operation Push, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991)..........................................46
Mobile v. Bolden, 446 U.S. 55 (1980) .............................................................29, 56 Old Person v. Cooney, 230 F.3d 1113 (9th Cir. 2000) ................................5, 42, 43 Reno v. Bossier Parish School Board, 520 U.S. 471 (1997)..................................24 Reynolds v. Sims, 377 U.S. 533 (1964) .................................................................21 Richardson v. Ramirez, 418 U.S. 24 (1974) ..........................................................49 Rybicki v. State Board of Elections of Illinois, 574 F. Supp. 1147 (N.D. Ill.
1983), supplemented by 574 F. Supp. 1161 (N.D. Ill. 1983) .....................32, 33 Shaw v. Hunt, 517 U.S. 899 (1996).......................................................................57 South Carolina v. Katzenbach, 383 U.S. 301 (1966).............................................23 Thornburg v. Gingles, 478 U.S. 30 (1986) .....................................................passim United States v. Blaine County, Montana, 363 F.3d 897 (9th Cir.
2004) .................................................................................................. 25, 29, 30 United States v. Marengo County Commission, 731 F.2d 1546 (11th Cir.
1984) ........................................................................................................24, 25 Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1985) ..................................................52 Westwego Citizens for Better Government v. City of Westwego, 872 F.2d
1201 (5th Cir. 1989)........................................................................................43 White v. Regester, 412 U.S. 755 (1973) ..........................................................26, 56 Zimmer v. McKeithen, 485 F.2d 1297 (1973) ........................................................56
vi

STATUTES 42 U.S.C. § 1973....................................................................................... 1, 3, 4, 57 42 U.S.C. § 1973(a) ........................................................................................57, 58 42 U.S.C. § 1973(b) ............................................................................ 18, 22, 26, 29 28 U.S.C. § 1291.....................................................................................................3 28 U.S.C. § 1331.....................................................................................................3 28 U.S.C. § 1391(b) ................................................................................................3 28 U.S.C. § 2201.....................................................................................................3 28 U.S.C. § 2202.....................................................................................................3 Fed. R. Civ. P. 57....................................................................................................3 Fed. R. Civ. P. 65....................................................................................................3 Revised Code of Washington § 9.94A.637..........................................................4, 6 S. Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177
(“SenateReport”)................................................................................... passim OTHER
Armand Derfner, Vote Dilution and the Voting Rights Act Amendments of 1982, in Minority Vote Dilution 145 (Chandler Davidson ed., 1984)..............56
Developments in the Law, One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939 (2002) ......................................51
Erik Eckholm, States Are Growing More Lenient in Allowing Felons to Vote, N.Y. Times, Oct. 12, 2006, at A18..................................................................52
Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 Harv. L. Rev. 1663, 1671-72 (2001) ...............................................................42 vii

Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147 (2004) .............................................................................................................53
Ellen D. Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, Final Report of the Voting Rights Initiative, 39 U. Mich. J.L. Reform 644 (2006) available at http://sitemaker.umich.edu/votingrights/files/finalreport.pdf (last visited Nov. 29, 2006) ..........................................................................................30, 44
Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 303 (2000).......................................................................54
The Sentencing Project, Felony Disenfranchisement, http://www.sentencingproject.org/pubs_05.cfm (last visited Nov. 26, 2006) ..............................................................................................................51
Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L. Rev. 689 (2006) ................................................26
Washington State Constitution, Article VI, § 3 ...................................................4, 6 Washington State Sentencing Guidelines Commission, Disproportionality and
Disparity in Adult Felony Sentencing (2003), available at http://www.sgc.wa.gov/PUBS/Disproportionality/Adult_Disproportionality _Report2003.pdf ...............................................................................................9
viii

INTRODUCTION AND PRELIMINARY STATEMENT For the second time, the District Court in this action issued a ruling fundamentally at odds with the plain language, history and purpose of Section 2 of theVotingRightsAct,42U.S.C.§1973(“VRA”).Notwithstandingitsfindingof “compellingevidenceofracialdiscriminationandbiasinWashington’scriminal justicesystem”that“‘clearlyhinder[s]theabilityofracialminoritiestoparticipate effectivelyinthepoliticalprocess,’”Farrakhan v. Gregoire, No. CV-96-076RHW, 2006 WL 1889273, at *11 (E.D. Wash. July 7, 2006) (quoting Farrakhan v. Washington, 338 F.3d 1009, 1020 (9th Cir. 2003)) (alteration in original), the DistrictCourtconcludedthatWashington’sfelondisfranchisementschemedoes not violate Section 2. In so ruling, the District Court performed a contorted application of the totality of the circumstances inquiry that is unsupported by Section2’stext,legislativehistoryanddecadesofcaselaw(includingthisCourt’s decision in Farrakhan I) interpreting that provision. In reaching its conclusion, the District Court found that other Senate Factors — principally, the absence in Washington of an official history of discrimination against racial minorities in the area of voting — trumpedPlaintiffs’compelling evidence of present day official racial discrimination in the criminal justice system (and other areas). Not only did the District Court misjudge the relevancy of these factors to a claim of vote denial (as opposed to vote dilution), but it also failed to

recognizethatthisCourt’sremandwouldhavebeenentirelyunnecessary if such factors could overcome a finding that racial bias in the criminal justice system “clearly hinder[s]the ability ofracialminorities” in Washington to vote. Farrakhan v. Washington, 338 F.3d 1009, 1020 (9th Cir. 2003) (Farrakhan I).
As the District Court found, Plaintiffs have shown that existing racial disparitiesateverystageofWashingtonState’scriminaljusticesystem,fromarrest to charging to incarceration, are not reflective of or warranted by the extent to which racial minorities actually participate in crime. As a result of the interaction ofracialdiscriminationinthecriminaljusticesystem withWashingtonState’s felon disfranchisement scheme, Blacks, Latinos and Native Americans are disproportionately denied access to the one fundamental right that is preservative ofallothers.Plaintiffs’evidencedemonstratesthatthedisproportionatedenialof the right to vote to racial minorities is caused by that interaction, resulting in the disfranchisement of nearly one-quarter — an incredible 24% — of all Black men in Washington, and nearly 15% of the entire Black population in the State.
This result is precisely what Section 2 proscribes. Simply put, the District Court’stotalityofthecircumstancesanalysisappears,from top to bottom, to rest on the fundamental misconception that, no matter how compelling, a Section 2 challenge against a felon disfranchisement law can never succeed. This Court rejected that reading of Section 2 in Farrakhan I and it should do so again. For
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these reasons, and those set forth below, the District Court’s ruling should be reversed.
STATEMENT OF JURISDICTION The District Court has subject matter jurisdiction over this action under 42 U.S.C.§1973and28U.S.C.§1331. Plaintiffs’claim fordeclaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of the Court. Venue is proper under 28 U.S.C. § 1391(b), as a substantial part of the events giving rise to the claim occurred in the Eastern District of Washington. Jurisdiction is conferred on this Court by 28 U.S.C. § 1291. The United States District Court for the Eastern District of Washington entered an order denying Plaintiffs’MotionforSummaryJudgmentonJuly7, 2006. Farrakhan, 2006 WL 1889273. This final judgment disposed of all claims with respect to all parties. Plaintiffs filed a timely notice of appeal on August 4, 2006.Pls.’NoticeofAppeal(Appellants’Excerpts of the Record [hereinafter “E.R.”](E.R.653).
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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Washington State Constitution Article VI, § 3, Revised Code of Washington
§ 9.94A.637, and 42 U.S.C. § 1973 are the constitutional and statutory provisions relevant to this case.
STATEMENT OF THE ISSUES (1) Did the DistrictCourterrin concluding thatWashington’s felon
disfranchisement law does not violate Section 2, notwithstanding its findingofracialbiasinWashington’scriminaljusticesystem andits conclusion that such discrimination clearly hinders the ability of racial minorities to participate in the political process? (2) Did the District Court err, in conducting its totality of the circumstances analysis, by placing excessive weight on its finding that Washington does not have an official history of racial discrimination in the area of voting? (3) Did the District Court err, in conducting its totality of the circumstances analysis, by considering irrelevant factors, such as the extent to which minority candidates have been elected in Washington and the level of responsivenessofWashington’sofficialstoracialminoritycitizens? (4) Did the District Court err, in conducting its totality of the circumstances analysis,by disregarding Plaintiffs’evidenceconcerning the tenuous
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justifications for felon disfranchisement, and in finding that this factor favored the State? (5) Did the District Court err in concluding that Section 2 does not protect individual voters?
STANDARD OF REVIEW This Court reviews a district court’sfindingsoffact,includingitsultimate finding of whether racial minorities have an equal opportunity to participate in the political process, for clear error. Old Person v. Cooney, 230 F.3d 1113, 1119 (9th Cir.2000).ThisCourt“retain[s]thepower,however,‘tocorrecterrorsoflaw, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.’” Id. (quoting Thornburg v. Gingles, 478 U.S. 30, 79 (1986)). Accordingly, whereadistrictcourt’sultimatefindingconcerningSection2liabilityisbasedon “amisreadingofthegoverning law,”thereisreversibleerror. Johnson v. DeGrandy, 512 U.S. 997, 1022 (1994).
STATEMENT OF FACTS
A. Procedural History Plaintiffs Muhammad Shabazz Farrakhan (also known as Ernest WalkerBey), Al-Kareem Shadeed, Marcus Price, Ramon Barrientes, Timothy Schaaf and
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Clifton Briceno are citizens who are otherwise qualified to register to vote but for the operation of Article VI, § 3 of the Washington State Constitution and the Revised Code of Washington § 9.94A.637, the law implementing it. Plaintiffs Farrakhan, Price, Shadeed and Schaaf are Black; Plaintiff Barrientes is Latino; and Plaintiff Briceno is Native American. Plaintiffs filed this action pro se on February2,1996intheEasternDistrictofWashington,challengingWashington’s felon disfranchisement scheme under Section 2 of the Voting Rights Act and the United States Constitution and seeking both declaratory and injunctive relief. The DistrictCourtentertainedPlaintiffs’claimsofvotedenialundertheVRA,but dismissed their vote dilution claim and constitutional claims. Farrakhan v. Locke, 987 F. Supp. 1304, 1315 (E.D. Wash. 1997).
Although the District Court, in its 2000 ruling on cross-motions for summaryjudgment,recognizedthat“Plaintiffs’evidenceofdiscriminationinthe criminal justice system, and the resulting disproportionate impact on minority votingpower,iscompelling,”itnevertheless held that evidence of discrimination inthecriminaljusticesystem wasnotrelevanttoSection2’stotalityofthe circumstances analysis. Farrakhan v. Locke, No. CS-96-76-RHW, 2000 U.S. Dist. LEXIS22212,at*14(E.D.Wash.Dec.1,2000)(“2000Order”).Instead,focusing onWashington State’sdisfranchisementschemeby itself, the District Court concluded that there was no evidence that the enactment of the disfranchisement
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provision“wasmotivatedbyracialanimus,orthatitsoperationby itself has a discriminatoryeffect,”and,therefore,determinedthatPlaintiffsfailedtoestablish a Section 2 violation. Id. at *9-10.
This Court reversed and remanded to the District Court, holding that the totalityofthecircumstancesinquiry“requiresthecourt to consider the way in whichthedisenfranchisementlaw interactswithracialbiasinWashington’s criminal justice system to deny minorities an equal opportunity to participate in the state’spoliticalprocess.” Farrakhan I, 338 F.3d at 1014. In light of the District Court’sfindingthatPlaintiffs’evidencewas“compelling,”theCourtpositedthat, “hadthedistrictcourtproperlyinterpretedthecausationrequirementunderthe totalityofthecircumstancestestinsteadofapplyingitsnovel‘byitself’causation standard,thecourtmighthavereachedadifferentconclusion.” Id. at 1020. In additiontoevidenceofracialbiasinWashington’scriminaljusticesystem,this Court noted that evidence that the State’s policy justifications for the disfranchisement law were tenuous would be relevant in the totality of the circumstances inquiry. Id. at 1020 n.15. Accordingly, the Court reversed and remanded the case to the District Court to evaluate the record evidence in light of the proper analysis. Id. at1012.TheState’spetitionsforrehearingandrehearing en banc were denied. Farrakhan v. Washington, 359 F.3d 1116 (9th Cir.), cert. denied sub nom. Locke v. Farrakhan, 543 U.S. 984 (2004).
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On remand, the District Court again found that Plaintiffs had set forth “compellingevidenceofracialdiscriminationandbiasinWashington’scriminal justicesystem.” Farrakhan, 2006 WL 1889273, at *6 (crediting conclusions drawnbyPlaintiffs’expertsas“admissible,relevant,andpersuasive”). The DistrictCourtfurtherfoundthat“thisdiscrimination‘clearlyhinder[s]theability of racial minorities to participate effectively in the political process, as disenfranchisementisautomatic.’” Id. at 646 (alteration in original) (quoting Farrakhan I, 338 F.3d at 1020).
Notwithstanding this finding, however, the District Court concluded that, under the totality of the circumstances, Plaintiffs failed to demonstrate a Section 2 violation.ThoughtheDistrictCourtstatedthatit“ha[d]nodoubtthatmembersof racialminoritieshaveexperienceddiscriminationinWashington’scriminaljustice system,”itheldthat“[o]therfactors,particularlyWashington’shistory,orlack 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-dayfunctioningofWashington’scriminaljustice system.” Id. at650. Amongthose“otherfactors”apparentlyreliedonbythe District Court wereseveralthatitconcededwereirrelevanttoPlaintiffs’vote denial claim. Id. at649.WithrespecttoPlaintiffs’claimthatthejustificationsfor the policy were tenuous, the District Court concluded that this particular factor
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favored the State, notwithstanding the absence of any articulated justification (by the State or the District Court) for the law. Id. at 650.
TheDistrictCourtconcludedbynotingthat,“[i]fthedenialorabridgmentof one citizen’s right to vote ‘on account of race or color’ established a violation of Section2oftheVRA,thisCourtwouldfindforPlaintiffsinthismatter.” Id. It declined to do so,however,because itviewed the “statutory language of subsection(a)ofSection2oftheVRA”as“limit[ing]itsapplication to those circumstances the totality of which establish the existence of discrimination in votingonabroaderscale.”Id.
B. Plaintiffs’ Evidence of Racial Bias and Discrimination in WashingtonState’sCriminalJusticeSystem
In this litigation, Plaintiffs have produced a record of substantial — and undisputed — evidenceregardingracialdiscriminationinWashingtonState’s criminaljustice system. As the State’s own sentencing commission found, “[p]eopleofcolorareover-represented at every stageofWashington’scriminal justicesystem,from arrestthroughsentencingandincarceration.” Washington State Sentencing Guidelines Commission, Disproportionality and Disparity in Adult Felony Sentencing (2003), available at http://www.sgc.wa.gov/PUBS/Disproportionality/Adult_Disproportionality_Report 2003.pdf, E.R. 498. Indeed, for every year between 1996 and 2005, 19% to 22.9%
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of the incarcerated population in Washington State was Black, even though Blacks comprise only 3% of the general population. Id. Native Americans, who constitute only 2% of the State population, represent nearly 4% of the prison population. Id. Collectively, though Blacks, Latinos and Native Americans constituteonly12% ofWashingtonState’sgeneralpopulation,theyrepresent an incredible36% oftheState’sprisonpopulation.Id.
Significantly, the over-representation of racial minorities at every stage of WashingtonState’scriminaljusticesystemisnotwarrantedbytheextenttowhich racial minorities actually participate in illegal behavior. Expert Report by Robert D. Crutchfield, Ph.D. (E.R. 179-255). Plaintiffs’evidencedemonstratesthat Blacks, Latinos and Native Americans are subjected to racial profiling in Washington State at rates that cannot be justified by differential involvement in crimes that are likely to lead to arrests. Id. at 182. Even after legally relevant variables such as offense seriousness and the number of violations are taken into account, racial minority drivers are significantly more likely to be searched by Washington State Police than White drivers during a routine traffic stop. Id. at 209. Specifically, Native Americans are more than twice as likely to be searched as Whites, Blacks are more than seventy percent more likely, and Latinos are more than fifty percent more likely to be searched than Whites. Id. at204.Plaintiffs’ evidence of racial profiling is significant because disparate police searches lead to
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the racially disparate filing of felony charges, which in turn subjects racial minorities to Washington State’s felon disfranchisement scheme at disproportionate rates. Id. at 213.
In addition to being subjected to racial profiling by Washington State Police, prosecutors subject racial minorities to discriminatory treatment, even where welldeveloped statutory standards are in place. Id. at 216-220. For example, in King County, Whites are less likely to have charges filed against them than racial minorities (60% of White cases filed compared to 65% of racial minority cases). Id. at 213. These significant charging disparities persist even after legally relevant characteristics (such as offense seriousness, offenders’ criminal histories, and weapons charges) are taken into account. Id.
Moreover, bail is recommended for Blacks more often than Whites, who are released on their own recognizance more often than Blacks. Id. Racial disparities also exist in the recommended length of confinement even after legal factors have been considered. Id. at 214. Specifically, prosecutors recommend that, for the same crime, Blacks spend approximately one half of a day more for each day a White defendant is recommended to be confined to prison. Id. In addition, Blacks are 75% less likely than Whites to be recommended for an alternative sentence. Id.
Significant racial disparities also persist in the sentencing outcomes of felonycasesinWashington’scriminaljusticesystem,evenafterlegallyrelevant
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factors — such as the seriousness of the offense, the criminal histories of offenders, and legislatively established aggravating factors (e.g., the presence of a weapon in the commission of a crime) — are taken into account. Id. at 230. The statistical disparity between Blacks and Whites in Washington State prisons is 9.28 to 1. Id. at 194-195. That is, a Black person in Washington State is more than nine times more likely to be in prison than a White person in the State. Id. at 195. However, the ratio of Black to White arrests for violent offenses (requiring the least amount of police discretion) is only 3.72 to 1. Id. Thus,“substantially more than one half ofWashingtonState’sracialdisproportionalitycannotbeexplainedbyhigher levelsofcriminalinvolvementasmeasuredbyviolentcrimearreststatistics.” Id. (emphasis added). In sum, Washington cannot justify the disproportionate incarcerationofBlackscomparedtothatofWhites“onthebasisofhigherviolent crimeinvolvementbytheformer.”Id.
Racialdiscriminationinthecriminaljusticesystem inWashington’smost racially diverse city, Seattle, is no less pervasive than it is in the State more broadly. In Seattle, the majority of users of marijuana and serious drugs such as heroin, methamphetamine, powder cocaine, crack cocaine and ecstasy are White. Expert Report by Katherine Beckett (E.R. 258, 264-65). In addition, the majority of those who deliver serious drugs in Seattle are White. Id. at 258. However, 52.2% of those arrested by the Seattle Police Department (SPD) for possessing serious drugs
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and 64.2% of those arrested for delivery of serious drugs in Seattle from January 1999 through April 2001 were Black. Id.; see also id. at 265-66, 273-74.
The over-representation of Blacks and Latinos among drug possession arrestees and of Blacks among drug delivery arrestees is largely the result of the followingthreefactors:(1)lawenforcement’sconcentrationonthoseenmeshedin the crack cocaine market (as opposed to those involved in the powder cocaine, methamphetamineandheroinmarkets);(2)law enforcement’sconcentration on outdoor drug venues (although this practice was not as important in numerical terms as the focus on crack users and dealers); and (3) the geographic focus on outdoor drug venues in the downtown area. Id. at 258. None of these organizational practices are explicable in race-neutral terms. Id. at 258-59.
First,theSPD’sfocusoncrackoffendersisnotexplicableintermsofthe legal status of serious drugs, since each of these substances is classified by the State legislature at Level 8 ofWashingtonState’sfelonysentencinggrid. Id. at 259.NoristheSPD’sfocusonthecrackmarketaconsequenceofthefrequency with which crack is exchanged or the degree to which the various drug markets are associated with violence or public health problems. Id. Second,theSPD’sfocus on outdoor drug venues is not explained by citizen complaints, organizational/personnel constraints, or volume productivity (i.e., the amount of drugs or cash yielded per officer hour invested). Id. Finally, the SPD’sgeographic
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focus on the downtown area is not explicable in terms of crime rates or complaints by citizens. Id.
Insum,Plaintiffs’evidencedemonstratesthatBlacksandLatinosareoverrepresented, and Whites under-represented,amongSeattle’sdrugarrestees as compared with the best available evidence regarding the actual offender population. Id. Plaintiffs’evidencealsodemonstratesthattheorganizationalpracticesthat produce these disparities are not explicable in race-neutral terms. Id. at 258.
In addition to the racial discrimination that has infected every stage of Washington’scriminaljusticesystem,thereisahistoryofdiscriminationagainst racial minorities in the State in the areas of employment, housing and education, which continues in the modern day. Plaintiffs submitted a report by Professor J. Morgan Kousser (E.R. 288-306), a renowned voting rights expert, who noted that substantial“anti-blackemploymentdiscrimination”occurredevenbefore1940,a findinghefound“shocking”inlightofthe“minusculepercentagesofAfricanAmericans in the state before the defense-relatedemploymentboom.” Id. at 302 & 24.HefurtherexamineddiscriminationinWashington’shousingmarkets,and he chronicled various acts that have resulted in a discriminatory pattern: weak enforcement powers in the State agency charged with investigating housing and employment discrimination complaints; the refusal of a major newspaper to run adsforrealestatebrokerswhosoldhomestoBlacksin“White”neighborhoods;a
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state Supreme Court decision striking down a 1957 law against housing discrimination; the defeat of an open housing ordinance in Seattle; and the enforcement of racially restrictive covenants. Id. at 304-05 & 28.“In1960,75 percent ofSeattle’sblackslivedinfourcensustractsintheCentralDistrict....” Id. That disparity persists today, and in a manner that results in substantial school segregation. See id. Thus, Plaintiffs produced substantial evidence of discrimination in Washington State in areas other than the criminal justice system, which has contributed to existing socioeconomic disparities in Washington in the modern day. See generally id. at 301-06 && 22-31. Not only does this history negatively impact the opportunities of racial minorities to participate in the politicalprocess,butitalsomakesnavigatingtheState’svotingrightsrestoration process especially difficult and, in some cases, impossible. See id. at 292-95 && 413.
Finally, Plaintiffs produced expert evidence concerning unconscious bias, which explains that “structural” factors that cause racial differences in legal outcomes are sometimes better understood as policy choices, some of which are known to produce racially unequal outcomes. Beckett Report (E.R. 282-86). Plaintiffs also produced studies demonstrating that many people who do not harbor overt racial animus and do not intend to discriminate are nonetheless influenced by unconscious and widespread racial stereotypes. Id. at 286. These studies have
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found that“implicitbias” shapes both perceptions ofthe severity ofsocial problems such as drug use, crime and disorder and fuels support for more punitive responses to those problems. Id.
********** In sum, Plaintiffs presented substantial and undisputed evidence that the existingracialdisparitiesateverystageofWashingtonState’scriminaljustice system are not warranted by the extent to which racial minorities participate in crime. As the District Court noted, the State has failedto“presentanyevidenceto refute Plaintiffs’ experts’ conclusions” on the substantialevidence ofracial discriminationinWashington’scriminaljusticesystem. Farrakhan, 2006 WL 1889273, at *6.
SUMMARY OF ARGUMENT The Senate Report accompanying the 1982 amendments to the Voting Rights Act contains a non-exhaustivelistof“typicalfactors”thatcourtsmayfind relevantinanalyzingwhether,underthe“totalityofthecircumstances,”Section2 has been violated. See S. Rep. No. 97-417, at 21, 28 (1982), reprinted in 1982 U.S.C.C.A.N.177(“SenateReport”).AsthisCourtmadeclearinFarrakhan I, “Congressdidnotintendthislisttobecomprehensiveorexclusive,nordidit intendthat‘anyparticularnumberoffactorsbeproved,orthatamajority of them pointonewayortheother.’” 338F.3dat1015(quotingSenateReportat29).
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Rather,Section 2 demands an “interactive and contextual totality of the circumstances analysis” that takes account of factors that are pertinent to the particular claim at hand. Farrakhan I, 338 F.3d at 1018; see Thornburg v. Gingles, 478 U.S. 30, 45 (1986).
The District Court’s analysis in this case flouts these basic principles of adjudicatingSection2claims.TheDistrictCourtfound“compelling”evidenceof racialdiscriminationandbiasinWashington’scriminaljusticesystem;thatsuch discrimination could not be explained by race-neutralfactors;andthat“this discrimination‘clearly hinder[s] the ability of racial minorities to participate effectively in the politicalprocess,as disenfranchisementis automatic.’” Farrakhan, 2006 WL 1889273, at *6 (quoting Farrakhan I, 338 F.3d at 1020) (alteration in original) (emphasis added). Notwithstanding these findings, the DistrictCourtrejectedPlaintiffs’claim based on its conclusion that other Senate Factors predominated in the totality of the circumstances inquiry. In reaching this conclusion, the District Court suggested that Section 2 requires Plaintiffs to demonstrate that a majority of the Senate Factors point in their favor. The text, legislative history, and decades of case law from the Supreme Court and this Court, however, make clear that such an interpretation of Section 2 is erroneous.
Indeed, not one of the circumstances identified by the District Court in its assessmentoftheSenateFactorsdiminishestheimpactofWashington’sfelon
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disfranchisementlaw on the State’s racialminority citizens — i.e., those circumstancesdonotalterthefactthatWashington’slaw clearlydeniesthose citizens the ability “to participate in the politicalprocess and to elect representativesoftheirchoice.” 42U.S.C.§1973(b). Becausetheparticular FactorsreliedonbytheDistrictCourthavelittletonorelevancetoPlaintiffs’ claim, the decision below isrifewithlegalerrorsthatreflecttheDistrictCourt’s fundamental misconception about how to evaluate the totality of the circumstances in a vote denial, as opposed to vote dilution, case.
First, the District Court erred by attaching far too much weight to the first Senate Factor, which concerns evidence that a challenged jurisdiction has a history of official discrimination in the area of voting. That Factor is typically relied upon in vote dilution cases as circumstantial evidence of the challengedpractice’s discriminatory effect. In vote denial cases, like this one, its relevance is far more limited, as the discriminatory impact of the challenged practice is ordinarily manifest. Moreover, even if the first Senate Factor does have some relevance to Plaintiffs’votedenialclaim,theabsenceofofficialelectoraldiscriminationin WashingtondoesnotdiminishPlaintiffs’compellingevidencethattheStatehas violated Section 2. Under the DistrictCourt’s view,because the State of Washington does not have a history of official discrimination in voting, it is
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effectively immune from Section 2 liability. That interpretation of Section 2 is patently incorrect.
Second, the District Court erred by considering plainly inapposite Senate Factors. The District Court conceded that several of the Factors should not apply toPlaintiffs’claim,butapparentlyproceededtoconsiderthem.Specifically,the District Court faulted Plaintiffs for not producing evidence concerning minority candidate electoral success and the level of responsiveness of the State to the needs of minority citizens. But the District Court failed to explain why either Factor — both of which concern the success and actions of aspiring and elected politicians — should be relevant to minority voters’claim that the franchise itself has been denied,notthatitseffectivenesshasbeendiluted.TheDistrictCourt’semphasis on responsiveness is particularly troubling in light of the explicit statement in the Senate Report that the Factorisof“limitedrelevance”andthat,accordingly, “unresponsivenessisnot anelementofPlaintiffs’case.”SenateReportat29n.116.
Third, the District Court erred by not fully considering those Senate Factors that are actually pertinent to Plaintiffs’claim. AlthoughtheDistrictCourt followed thisCourt’spreviousinstruction to evaluatePlaintiffs’evidenceof discriminationinWashington’scriminaljusticesystem,itgavelittleweighttoits finding that Plaintiffs had established proof of what actually is the most probative evidenceofvotedenialinthiscase.Moreover,theDistrictCourt’sfindingthatthe
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SenateFactorconcerningthetenuousnessofthepolicy’sjustificationfavored the State was clearly erroneous. At no point in this litigation has the State offered a justification for the policy, and Plaintiffs offered expert testimony explaining that there is in fact no legitimate rationale for disenfranchising people with felony convictions.
Finally, the District Court erred in holding that it could not rule for Plaintiffs because Section 2 does not protect individual voters. It is well settled that Section 2protectsindividuals. ContrarytotheDistrictCourt’sholding,“thedenialor abridgement of onecitizen’srighttovote‘onaccountofraceorcolor’”does,in fact, violate Section 2 of the VRA. Farrakhan, 2006 WL 1889273, at *9. The DistrictCourt’sdecisionthusrestsonanerroneousviewofthelawandshouldbe reversed.
In sum, Plaintiffs have demonstrated that Washington State’s felon disfranchisement scheme interacts with social and historical circumstances — namely,racialdiscriminationandbiasateveryleveloftheState’scriminaljustice system — in a manner that shifts racial inequality into the political process. Section2,byitsplainlanguage,clearlyprohibitsthisresult.TheDistrictCourt’s conclusion to the contrary rests on several individual errors and an overall refusal toadheretothisCourt’smandateinFarrakhan I that Section 2 liability can attach upon a showing that racial bias in the criminal justice system interacts with
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WashingtonState’sfelondisfranchisementlaw “tocreatethekindsofbarriersto politicalparticipation on accountofrace thatare prohibited by Section 2.” 338 F.3d at 1020. AsaresultoftheDistrictCourt’sdecision,adisproportionately large number of Black, Latino and Native American residents of the State of Washingtonareleftwithoutrecoursetothat“‘fundamentalpoliticalright’”thatis “‘preservativeofotherbasiccivilandpoliticalrights.’”Reynolds v. Sims, 377 U.S. 533,562(1964)(citationomitted). NothingintheVRA orthisCourt’scases permits that result to stand.
ARGUMENT The decision below rests on a fundamentally misconceived Section 2 analysis: the District Court sought to impose a framework that is appropriate for vote dilution claims challenging reapportionment decisions on the analytically distinct vote denial claim at issue in this case. In a vote dilution challenge to a districting scheme, the analysis requires an assessment of the effectiveness of racial minority votes that are cast. In other words, although individual voters have a statutory right to cast undiluted votes, courts can only determine whether votes have been diluted by examining whether, in the relevant geographic area, the individual belongs to a racial minority group that has an equal opportunity to elect representatives of choice and influence the political process. Accordingly, in those circumstances, courts must consider a number of factors to determine whether,
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notwithstanding this access parity at the ballot box, existing districts are drawn in a mannerthatprovidesminorityvoterswith“lessopportunitythanothermembersof the electorate to participate in the political process and to elect representatives of theirchoice.”42U.S.C.§1973(b).1 In contrast to vote dilution challenges, vote denial challenges are much simpler — ifindividuals’accesstothefranchisehas been denied or abridged on account of race, it is indisputable that those voters have “lessopportunitythanothermembersoftheelectoratetoparticipateinthepolitical processandtoelectrepresentativesoftheirchoice”inviolationofSection2.By failing to recognize this distinction between vote dilution and vote denial, the District Court improperly relied on Senate Factors that have little to no relevance toPlaintiffs’claim.
I. THE DISTRICT COURT ERRED BY PLACING EXCESSIVE WEIGHT ON THE ABSENCE OF A HISTORY OF DISCRIMINATION IN THE AREA OF VOTING IN WASHINGTON TheDistrictCourt’sconsiderationofthetotalityofthecircumstancesrested
almost entirely — if not exclusively — on its conclusion that the first Senate Factor (history of official voting discrimination) was not satisfied. The District Court’stotalityofthecircumstancesanalysisbeganwithtextfrom its2000Order
1 However,asexplainedbelow,theDistrictCourt’sanalysiswouldhavebeen incorrect even if it were appropriate to apply the vote dilution framework to this case.
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addressing that Factor, and repeated its prior conclusion that this Factor alone “stronglyfavorsafindingthatWashington’sfelondisenfranchisementlaw does notviolateSection2oftheVRA.”Farrakhan, 2006 WL 1889273, at *7. Without conducting any further analysis, the District Court found that the “remarkable absence of any history of official discrimination in Washington factors heavily in theCourt’stotalityofthecircumstancesanalysis.” Id. The near-dispositive weight placed on this Factor by the District Court was clear error.
A. SenateFactorOneHasLimited RelevancetoPlaintiffs’Vote Denial Claim
ContrarytotheDistrictCourt’sview,forthe purposes of Section 2 liability, there is nothing “remarkable” aboutthe “absence ofany history ofofficial discrimination”inWashingtonState— or in any other jurisdiction. To be sure, theVRAwasenactedtorespondtothe“insidiousandpervasiveevil which had been perpetuated in certain parts of our country through unremitting and ingenious defianceoftheConstitution.” South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).Yetthe97thCongresswasequallyconcernedaboutferretingout“voting discrimination in any area of the country where it may occur,”andtothatend enactedSection2,which“broadlyprohibitstheuseofvotingrulestoabridge exerciseofthefranchiseonracialgrounds.”Id. at 316 (emphasis added). Indeed, Section 2 hasbeen“consistentlyunderstood”to“combatdifferentevilsand,
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accordingly,toimposeverydifferentdutiesupontheStates”thanotherpartsofthe VRA. Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 477 (1997). Unlike Section 5, for example, which “is limited to particular covered jurisdictions” with a demonstratedhistoryofofficialdiscriminationinvoting,Section2“appliestoall States,”regardlessoftheirpasts.Georgia v. Ashcroft, 539 U.S. 461, 478 (2003).
Plaintiffs do not, of course, contend that the history of official discrimination in the area of voting is irrelevant. In many Section 2 claims, evidence of such past discriminatory practices by the challenged jurisdiction is relevant as a means of determiningwhether“pastdiscrimination [has] severely impair[ed] the present-day abilityofminoritiestoparticipateonanequalfootinginthepoliticalprocess.” UnitedStatesv.MarengoCountyComm’n, 731 F.2d 1546, 1568 (11th Cir. 1984). If a jurisdiction has a long history of official electoral discrimination, people of color may have registration and voting rates that are lower than those of their White counterparts. See id. at1567(“Pastdiscriminationmaycauseblacksto registerorvoteinlowernumbersthanwhites.”). Thiswould be relevant to a Section 2 vote dilution claim in which plaintiffs argue that a jurisdiction must create a majority-minority district in order to provide individual members of the minority group an equal opportunity to participate in the political process and elect
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candidates of their choice.2 Indeed, such evidence is particularly important in
reapportionmentcases,because“[w]henthequestion...comesdowntothe
reasonableness of drawing a series of district lines in one combination of places
ratherthan another,judgmentsaboutinequality may become closercalls.”
Johnson v. DeGrandy, 512 U.S. 997, 1013 (1994); see also United States v. Blaine
County, Mont., 363 F.3d 897, 906 (9th Cir. 2004) (noting that Congress recognized
that Section 2 vote dilutioncases“aresomeofthemostdifficulttolitigatebecause
plaintiffs must usually present the testimony of a wide variety of witnesses —
political scientists, historians, local politicians, lay witnesses — and sift through
records going back more thanacentury”).
2 Evidence of past discrimination in voting may also be indicative of a presentday intent to discriminate against minority voters. See Gomez v. City of Watsonville, 863 F.2d 1407, 1418 (9th Cir. 1988) (explaining that the first Senate Factorisrelevantto the “plaintiff’sability to prove intentional discrimination”);Buckanaga v. Sisseton Indep. Sch. Dist., 804 F.2d 469, 474 (8thCir.1986)(“[A]historyofdiscriminationagainstaminorityisimportant evidenceofbothdiscriminatoryintentanddiscriminatoryresults.”);United Statesv.MarengoCountyComm’n,731F.2d1546,1567(11thCir.1984)(“A history of pervasive purposeful discrimination may provide strong circumstantial evidence that the present-day acts of elected officials are motivated by the same purpose, or by a desire to perpetuate the effects of that discrimination.”).Althoughthe1982AmendmentstotheVRA establishthat plaintiffs need not prove intentional discrimination in order to succeed under Section 2, proof of intentional discrimination remains a valid ground upon which plaintiffs may rely to win such suits. See Garza v. County of Los Angeles, 918 F.2d 763, 766 (9th Cir. 1990).
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Butasonescholarhasobserved,“[a]courtdoesnotneedtorelyonsuch circumstantial evidence, however, when there is direct evidence that an electoral practicehastheresultofdisproportionatelydenyingminorityvotes”— as is the case here. Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L. Rev. 689, 721 (2006). That is because, for the most part, evidence of discriminatory effect is readily apparent in vote denial cases: racial minorities either are being disproportionately denied access to the ballot or they are not. Cf. Goosby v. Town Bd., 180 F.3d 476, 500 (2d Cir. 1999) (Leval, J., concurring) (noting that compared to the more difficult challenge of determining whether Section 2 has been violated in a vote dilution case like White v. Regester, 412 U.S.755 (1973),an “easy case” underSection 2 “mightoccurwhere established polling places are geographically inaccessible to a new settlement of votersin aprotected class”). If such disproportionate denial occurs, it is indisputablethattheminoritygroup’s“membershavelessopportunitythanother members of the electorate to participate in the political process and to elect representativesoftheirchoice.”42U.S.C.§1973(b).
Moreover, excessive emphasis on the first Senate Factor — particularly when the presence or absence of that Factor does not serve as circumstantial evidence of discriminatory effect — isatoddswith Section 2’sfocuson discriminatory results. This Court has cautioned that focusing primarily on the
26

history of official discrimination in voting, to the exclusion of other enumerated or non-enumeratedfactors,runstheriskof“plac[ing]toomuchemphasisonthe plaintiff’sabilitytoproveintentionaldiscrimination”— the precise risk that Section 2 was amended to avoid. Gomez v. City of Watsonville, 863 F.2d 1407, 1418 (9th Cir. 1988). Indeed, the first Senate Factor, like all of the Senate Factors, is only relevant to the extent that it sheds lightonthequestion“whether,‘asa result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political process and to elect candidates of their choice.’”Gingles, 478 U.S. at 44 (quoting Senate Report at 28); see also id. at 4445(notingthattheSenateFactors“typicallymayberelevant”toansweringthis ultimatequestion,andfurthernotingthat“thelistoftypicalfactorsisneither comprehensiveorexclusive.”).
TheDistrictCourt’streatment of the first Senate Factor in both its 2000 opinion, and the decision under review, demonstrates precisely the type of inappropriate emphasis on that Factor that contravenes the mandate of the Senate Report itself — as well as case law from the Supreme Court and this Court. In its 2000 opinion, the District Court evaluated the first Senate Factor in connection withitsobservationthat“[t]hemoststrikingthingaboutthiscaseisthat,although the disenfranchisement provision clearly has a disproportionate impact on racial minorities,thereisnoevidencethattheprovision’senactmentwasmotivatedby
27

racial animus, or that its operation by itself hasadiscriminatoryeffect.” 2000 Order, 2000 U.S. Dist. LEXIS 22212, at *9-10. This Court rejected the District Court’s“byitself”causationstandardinpartbecauseit“wouldeffectivelyreadan intent requirement back into the VRA, in direct contradiction of the clear command ofthe1982 Amendmentsto Section 2.” Farrakhan I, 338 F.3d at 1019. NotwithstandingthisCourt’swarningaboutimproperlyresurrectingtheintenttest, it appears that, once again, the District Court has endeavored to have Plaintiffs produceevidenceofdiscriminatoryintentbehindtheenactmentofWashington’s felon disfranchisement law. Compare Farrakhan, 2006 WL 1889273, at *9 (“Otherfactors,particularlyWashington’shistory,orlackthereof,ofracialbiasin its electoral process and in its decision to enact the felon disenfranchisement provisions, counterbalance the contemporary discriminatory effects that result....”)(emphasisadded),with id. at648(“‘Plaintiffshavenotofferedany evidence of a [history of official discrimination in the area of voting] such as to lead the Court to conclude that the circumstances surrounding the disenfranchisement’sprovisioncreated an inference of discriminatory intent or a causal connection between the provision and the result.’”)(quoting2000Order, 2000 U.S. Dist. LEXIS 22212, at *10-11) (emphasis added). Such a requirement, however, is decidedly not the law.
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In explaining its decision to overrule the intent test set forth in Mobile v. Bolden,446U.S.55(1980),theSenateJudiciaryCommitteeobservedthat“ifan electoral system operates today to exclude blacks or Hispanics from a fair chance toparticipate,thenthematterofwhatmotiveswereinanofficial’smind100years ago is of the most limited relevance. The standard under the Committee amendment is whether minorities have equal access to the process of electing their representatives.” SenateReportat36;see Blaine, 363 F.3d at 909 (recognizing thisrationaleasCongress’s“principaljustificationforrejectingtheintenttest”).
In this case, that Washington has a different history than another State when it comes to discriminating against minorities at the polls sheds little light on whether its felon disfranchisement law causes racial minorities, in the modern day, tohave“lessopportunitythanothermembersoftheelectoratetoparticipateinthe politicalprocessandtoelectrepresentativesoftheirchoice.”42U.S.C.§1973(b). GivenCongress’sintenttohaveSection2,unlikeSection5,applynationwide,itis simply absurd to suggest that the fact that Washington does not have a history of official electoral discrimination can effectively trump the most compelling evidence of present-day racial bias. Because this is not a case in which the discriminatory effects of the challenged electoral practice are unclear or debatable, resort to the history of official discriminatory voting practices is not informative
29

under the totality of the circumstances. 3 Indeed, precisely because the discriminatoryeffectsofWashingtonState’sfelondisfranchisementlawcouldnot be clearer, the controlling weight attached to the first Senate Factor by the District Court was clearly erroneous.
B. Courts Have Found Section 2 Violations in Cases Involving No History of Official Electoral Discrimination
It is not surprising, given the nation’s dark history of excluding racial minoritiesfrompoliticalparticipation,thatcourtsconductingSection2’stotalityof the circumstances analysis may frequently find that the first Senate Factor is satisfied. That fact, however, does not mean that jurisdictions like Washington without a history of official discrimination in voting are immune from Section 2 liability. Indeed, courts have frequently found that such jurisdictions have violated the VRA. See generally Ellen D. Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, Final Report of the Voting Rights Initiative, 39 U. Mich. J.L. Reform 644, 676 n.174 (2006), available at
3 Notably, the Supreme Court in Gingles observed that even in vote dilution cases,“otherfactors,suchasthefirstSenatefactor,‘aresupportiveof,butnot essential to,aminorityvoter’sclaim.’” Blaine, 363 F.3d at 915 (quoting Gingles, 478 U.S. at 48 n.15); see id. (concludingthatplaintiffs’Section2vote dilution claim could succeed even without a demonstration that the first Senate
(cont'd)
30

http://sitemaker.umich.edu/votingrights/files/finalreport.pdf (last visited Nov. 29, 2006)(notingthatcourtshavefoundSection2violations“withoutconsidering SenateFactor1”or“afterconsidering,butnotfinding,Factor1”satisfied).Some courts have found a violation of Section 2 without considering the first Senate Factor at all. See, e.g., E. Jefferson Coal. for Leadership and Dev. v. Parish of Jefferson, 926 F.2d 487, 494 (5th Cir. 1991); Marks v. Stinson, No. Civ. A. 936157, 1994 WL 146113, at *34 (E.D. Pa. Apr. 26, 1994); Corbett v. Sullivan, 202 F. Supp. 2d 972, 983-985 (E.D. Mo. 2002); Bryant v. Lawrence County, 814 F. Supp. 1346, 1354 (S.D. Miss. 1993); Goodloe v. Madison County Bd. of Election Comm’rs, 610 F. Supp. 240, 243 (S.D. Miss. 1985). And an even greater number have found Section 2 liability after considering, but not finding, the first Senate Factor satisfied. See, e.g., Clark v. Calhoun County, 88 F.3d 1393, 1399 (5th Cir. 1996); Gomez, 863 F.2d at 1418-19; Black Political Task Force v. Galvin, 300 F. Supp. 2d 291, 313 (D. Mass. 2004); Houston v. Lafayette County, 20 F. Supp. 2d 996, 1003 (N.D. Miss. 1998); Harper v. City of Chicago Heights, Nos. 87 C 5112, 88 C 9800, 1997 WL 102543, at *8 (N.D. Ill. Mar. 5, 1997); League of United Latin Am. Citizens v. N. E. Indep. Sch. Dist., 903 F. Supp. 1071, 1085 (W.D. Tex. 1995); Ewing v. Monroe County, 740 F. Supp. 417, 422 (N.D. Miss. 1990); Gunn v.
________________________ (cont'd from previous page)
Factor was satisfied). If the first Senate Factor is not essential to a vote dilution claim, then a fortiori it is not essential to a vote denial claim.
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Chickasaw County, 705 F. Supp. 315, 320 (N.D. Miss. 1989); Rybicki v. State Bd. of Elections of Ill., 574 F. Supp. 1147, 1151 (N.D. Ill. 1983), supplemented by 574 F. Supp. 1161 (N.D. Ill. 1983).
Simplyput,itisneithernovelnor“remarkable”tofindaSection2violation notwithstanding the absence of a history of official electoral discrimination. Rather, these cases simply reflect courts giving the first Senate Factor its proper weight and relevance when considering the totality of the circumstances — exactly what the District Court failed to do here.
This Court has long recognized that the absence of historical official discrimination in the area of voting does not preclude a finding of Section 2 liability. In Gomez,LatinovoterschallengedthelegalityofWatsonville’sat-large mayoral and city council elections. 863 F.2d at 1409. After finding each of the three Gingles preconditions satisfied, id. at 1413-1417, the Court turned to the totality of the circumstances inquiry, id. at 1417-1419. The opinion contains a lengthydiscussionoftheDistrictCourt’sconclusionthatthefirstandfifthSenate Factors — a“historyofofficialdiscrimination”intheareaofvotingand“the extent to which the minority continues to bear the effects of discrimination in socioeconomic areas that hinder their ability to participate in the political process effectively”— were not present. Id. at 1417. Notably for purposes of this appeal, however, this Court in Gomez did not conclude that the plaintiffs satisfied their
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burden of proving that the first and fifth Senate Factors weighed in their favor. See id. at1419(decliningtotake“judicialnoticeofthepervasivediscrimination against Hispanics in California, including discrimination, committed by the state government, that has touched the ability of California Hispanics to participate in theelectoralprocess”).Rather,theCourtconcludedthat,“even without such a showing, plaintiffshaveclearlyestablishedaviolationofSection2.”Id. (emphasis added).
Other Circuits have similarly found Section 2 violations notwithstanding an absence of official discrimination that touches on the right to vote — even where, unlike here, the plaintiffs claim vote dilution. See supra at 30-31. For example, in Rybicki v. State Bd. of Elections of Ill., in the wake of the newly-amended VRA, a three-judge panel found that a statewide redistricting plan could dilute Black voting strength, and thus required the state to resubmit an alternative plan. 574 F. Supp. at 1157-58.Inreachingthisconclusion,theCourtnotedthatthe“record... doesnotdiscloseahistoryofovertandsystematicelectoraldiscrimination”and that“therehasbeen no systematic exclusion of blacks from, or denial of meaningfulparticipationin,Chicago’sandIllinois’politicalprocessescomparable to the history outlined in White v. Regester.”Id. at 1151.
Clark v. Calhoun County offers the flip-side to Rybicki. In that case, also concerning a Section 2 challenge to a redistricting plan, the Fifth Circuit
33

recognizedthattheCountyhad“concede[d],asitmust,thatCalhounCounty[, Miss.] has a history of [voting-related] racial discrimination and that socioeconomic differences between white [sic] and blacks continue to exist in the County.”88F.3dat1399.Nonetheless,thecourtconcludedthatthedistrictcourt appropriately“disregard[ed]thehistoryofpastdiscriminationandsocioeconomic disparity”— i.e., the first and fifth Senate Factors — in its totality of the circumstances analysis. Id. at1399.Importantly,theplaintiffs’inabilitytoshow thatthesetwoFactorsweighedintheirfavor,aswellasthedistrictcourt’sfinding that the County was responsive to Black citizens, did not preclude the Fifth Circuit from finding a Section 2 violation. See id. at1402(concludingthat“thisisnotthat ‘unusualcase’inwhichthethreeGingles preconditions are satisfied but the totality of circumstances failtoshowaSection2violation”).
While Rybicki and Clark are illustrative of courts considering the first Senate Factor before disregarding the import of that factor in the totality of the circumstances analysis, a more recent case demonstrates that any assessment of the history of electoral discrimination is sometimes unnecessary, even in a vote dilution case. In Black Political Task Force v. Galvin, a three-judge panel concluded that the redistricting plan for the Massachusetts House of Representatives diluted the voting strength of Black voters in violation of Section 2. 300 F. Supp. 2d at 316. In an opinion for the court by Judge Selya, the panel made
34

clear that, in gauging the totality of the circumstances, it attached the most weight to a factor thatwasnotenumeratedintheSenateReport:thefactthat“race[was] usedasatooltoachieveincumbencyprotection.” Id. at 313; see also id. at 313314(“[a]ttachinggreatimportance”totheredistrictingcommittee’sdecisionto “sacrific[e]racialfairnesstothevotersonthealtarofincumbencyprotection”) (citing Garza v. County of Los Angeles, 918 F.2d 763, 778-79 (9th Cir. 1990) (Kozinski, J., concurring and dissenting in part)); id. at 315 (finding that the use of “raceasaproxyinachieving incumbency protection . . . weighs heavily in the plaintiffs’favorinaconsiderationofthetotalityofthecircumstances”).Indeed, the court found that the totality of the circumstances demonstrated a Section 2 violation notwithstanding that certain enumerated Senate Factors favored the State, such asthecourt’sconclusion that“Massachusettslegislatorsaregenerally responsivetotheparticularizedneedsofminorities.” Id. at 313; see also id. (noting electoral success of Blacks in State offices over the last twenty-five years, butconcludingthatthisparticularSenateFactorwas“neutral[ized]”becausesuch successhasbeenlargelylimitedto“heavilyblackdistricts”).Notably,thecourt concluded that the majority of the Senate Factors — including“thehistoryof officialdiscriminationatthepollsinBoston”— did“notaddsubstantiallyto[its] understandingofthetotalityofthecircumstances,”andthusmadenoattemptto weigh those factors in the balance. Id.
35

In short, the court undertook the exact inquiry into the relevancy of factors (includingthosenotlistedintheSenateReport)thata“practicalevaluation”ofa Section 2 claim requires. Far from placing primary emphasis on the first or any of the other Senate Factors, the panel opinion demonstrates careful consideration of the particular circumstances of that case — precisely what Section 2 demands.
********** Cases involving vote denial will often present circumstances in which consideration of the history of electoral discrimination willfailto “add substantiallyto[an]understandingofthetotalityofthecircumstances.” Black Political Task Force, 300 F. Supp. 2d at 313. It is doubtful, for example, that the presence or absence of a history of official discrimination in voting reveals much about whether the cancellation of absentee ballots from largely-minority neighborhoods violates Section 2. See, e.g., Marks, 1994 WL 146113, at *34 (findingSection2violationinacaseconcerningcounty’sballotprogram without considering the first Senate Factor); Goodloe, 610 F. Supp. at 243 (finding that cancellation of absentee ballots violated Section 2 without considering first Senate Factor). As noted, see supra Part I.A, the discriminatory effect of electoral practices that bar individuals from casting a ballot — as opposed to electoral practices that abridge the ability of individuals to aggregate their votes in an effective manner — is generally manifest.
36

Such is the case here. Blacks, Latinos and Native Americans are
disproportionately denied the right to vote as a collateral consequence of a felony
conviction. The lack of an official history of discrimination at the polls in
Washington State does not alter the present reality that, today, the State utilizes a
voting qualification that interacts with racial discrimination in the criminal justice
system to result in a denial of the right to vote to Plaintiffs on account of race.
II. THE DISTRICT COURT ERRED BY CONSIDERING IRRELEVANT SENATE FACTORS AND DISREGARDING RELEVANT SENATE FACTORS The District Court’s elevation of the first Senate Factor as a necessary
prerequisite to a Section 2 vote denial challenge was in and of itself reversible error.TheDistrictCourt’serror,however,ispartofalargerproblem withthe lowercourt’slegalanalysis,whichfailedtoreflecta“practicalevaluation”ofthe
Senate Factors. Senate Report at 30. Such an evaluation necessarily requires
courts reviewing Section 2 challenges to consider those factors that are relevant to
the particular claim at hand and to disregard those factors that are not. As this
Court made clear in Gomez:
The [Senate] Report emphasized . . . that this list of factors was not a mandatory seven-pronged test; the list was only meant as a guide to illustrate some of the variables that should be considered by the court. AsstatedintheReport,“thereisnorequirementthatany particular number of factors be proved, or that a majority of them pointonewayortheother.” [SenateReportat29];accord id. at 29 n.118...(“[T]heCommittee[doesnot]intend[thatthesefactors]be
37

usedasamechanical‘pointcounting’device.Thefailureofplaintiff to establish any particular factor is not rebuttal evidence of [no violation].”).
The Senate Committee also notedthat,whilethebasic“totality ofthecircumstances”testremainsthesame,the range of factors that would be relevant in any given case will vary depending upon the nature of the claim and the facts of the case. See id. at28...(“To establish a violation, plaintiffs could show a variety of factors, depending upon the kind of rule, practice, or procedure called into question.”);see also id. at 30 . . . (noting that the proof sufficient to sustain a challenge based upon a series of events or episodes“would notnecessarilyinvolvethesamefactors”thatwouldberelevantina challenge to a permanent structural barrier).
863 F.2d at 1412 (emphasis added); see also Farrakhan I, 338 F.3d at 1015-1016.
TheSupremeCourt’sdecisioninGingles recognized that certain Senate
Factors would be more probative of and relevant to particular Section 2 claims than
others. The Gingles Court was explicit that the second and seventh Senate Factors
— the“extenttowhichminoritygroupmembershavebeenelectedto public office
inthejurisdiction”andthe“extenttowhichvotingintheelectionsofthestateor
politicalsubdivisionisraciallypolarized,”see Senate Report at 29 — are“the
most important Senate Report factors bearing on Section 2 [vote dilution]
challengestomultimemberdistricts.” Gingles,478U.S.at48n.15.“Ifpresent,”
theCourtstated,“theotherfactors...aresupportiveof,butnot essential to, a
minorityvoter’sclaim.”Id. Emphasisonthosetwoparticularfactors“effectuates
theintentofCongress”byrequiringplaintiffstoprovethattheyhavebeeninjured
by an electoral practice. Id. (“[I]fdifficultyinelectingandwhiteblocvotingare
38

not proved, minority voters have not established that the multimember structure interfereswiththeirabilitytoelecttheirpreferredcandidates.”).
Gingles thus illustrates that it is entirely consistent with Congressional intent for courts to isolate only a few, relevant factors when undertaking the totality of the circumstances inquiry. Gingles further recognized that the factors that are most probative of one type of Section 2 claim may be entirely different from the factors that are most probative of another type of Section 2 claim. See id. at46n.12(“We note . . . that we have no occasion to consider whether the standards we apply to respondents’ claim thatmultimember districts operate to dilute the vote of geographically cohesive minority groups, that are large enough to constitute majorities in single-member districts and that are contained within the boundaries of the challenged multimember districts, are fully pertinent to other sorts of vote dilutionclaims....”);see also Gomez, 863 F.2d at 1413.
TheDistrictCourt’semphasisonclearlyinappositeSenateFactorsand its cursory rejection of the most pertinent Senate Factors to a vote denial claim is fundamentally atodds with the “interactive and contextualtotality of the circumstancesanalysis”thatSection2requires.Farrakhan I, 338 F.3d at 1018. The District CourttreatedtheSenateFactorsasa“mechanical‘pointcounting’ device,” rather than considering the “relevant factors in [this] particular case” — far short of the practical and functional inquiry that Congress intended. Senate
39

Report at 29 n.118; see Gomez,863F.2dat1413(“[R]atherthanapplyingthe
factors in a mechanical fashion, courts must judge Section 2 claims based on a
‘searching practicalevaluation of the “pastand presentreality” and on a
“functional”viewofthepoliticalprocess.’”)(quoting Gingles, 478 U.S. at 45).
A. The District Court Erroneously Considered Irrelevant Senate Factors
The District Court conceded that it considered Senate Factors that have no
relevancetoPlaintiffs’votedenialclaim:
ItisPlaintiffs’burdentoshowthe Senate factors weigh in their favor. Plaintiffs have not carried this burden in that they failed to present any substantial evidence regarding many of the other Senate factors, including those considering racial polarization of the vote, various voting mechanisms, candidate slating processes, or the use of racial appeals in political campaigns. Admittedly, several of these factors are not relevant in a VRA vote denial claim. Still, Plaintiffs have not presented any evidence on the extent to which minority group members have been elected to political office in Washington or the level of responsiveness elected officials have to the particularized needs of members of minority groups. These factors are certainly relevanttoPlaintiffs’VRA claim.Plaintiffs’failuretoproduceany evidence to the contrary leads the Court to believe these factors favor Defendants’position.
Farrakhan, 2006 WL 1889273, at *8 (emphasis added).
The District Court’s reasoning manifests the legal error that infects its
opinion in several ways. For one thing, the District Court appears to have
simultaneouslycreditedPlaintiffs’argumentthattheSenateFactorsconcerning
“racial polarization of the vote, various voting mechanisms, candidate slating
40

processing, or the use of racialappealsinpoliticalcampaigns”areirrelevanttothis caseandtheState’sargumentthatPlaintiffshave“failedtopresentanysubstantial evidenceregarding”thoseveryfactors.Id. The District Court simply cannot have it both ways under any proper reading of Section 2 precedent. Moreover, other portions of the opinion further suggest that the District Court credited irrelevant factors as part of its improper checklist approach to the totality of the circumstances inquiry. See, e.g., id. at *7.(“AlthoughtheCourtisnotboundby thelistofSenatefactors,itfindsrelevanceinfactorsotherthannumbers5and9.”) (citation omitted); id. at*9(“Otherfactors...counterbalancethecontemporary discriminatory effects that result from the day-to-dayfunctioningofWashington’s criminaljusticesystem.”).
For another thing, the two Senate Factors expressly identified by the District CourtasrelevanttoPlaintiffs’votedenialclaimarethemostinappositefactorsof them all: the extent to which minority group members have been elected to political office in Washington (Senate Factor 7) and the level of responsiveness elected officials have to the particularized needs of members of minority groups (Senate Factor 8). Farrakhan, 2006 WL 1889273, at *6-7.
With respect to the seventh Senate Factor, it is unclear what the success of minority candidates has to do with assessing a claim by minority voters that their vote has been denied. If Washington State enacted a literacy test or a passport
41

requirement as a condition for voting tomorrow, one could not seriously contend that the fact that it has previously elected Black candidates to office could somehow diminishtheState’sliabilityunderSection2.AstheSupremeCourt noted in Gingles, the seventh Senate Factor is most relevant to vote dilution claims. 478U.S.at50n.15(notingthatthesecondandtheseventhSenateFactorsare“the most important Senate Report factors bearing on Section 2 challenges to multimemberdistricts”);see also Old Person v. Cooney, 230 F.3d 1113, 1128 (9th Cir.2000). TheseventhSenateFactor’sprobativevalueinsuchcasessimply reflectsthenatureofavotedilutionclaim: “Itisobviousthatunlessminority group members experience substantial difficulty electing representatives of their choice, they cannot prove that a challenged electoral mechanism impairs their ability‘toelect.’”Gingles, 478 U.S. at 50 n.15 (quoting 42 U.S.C. § 1973(b)). In a vote denial claim, by contrast, there is no such need for Plaintiffs to rely on the seventh Senate Factor to prove their claim, as their contention is not that a particular practice is “responsible for minority voters’ inability to electits candidates,”id. at 50, but rather that a particular practice denies minority voters their right to cast a ballot — for their candidate of choice or any other candidate. See generally Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 Harv. L. Rev. 1663, 1671-72(2001)(distinguishingbetween“firstgeneration” votedenialclaimsthat“concerneddirect,formallimitations(polltaxes,literacy
42

tests,andthelike)ontheabilityofminoritiestoregisterandcastaballot”and “secondgeneration”votedilutionclaimsthatarisewhenajurisdictionattemptsto “takeadvantageof[araciallypolarized]votingpatterntounderminetheabilityof minoritygroupmemberstoaffectthepoliticalprocess”and“electacandidateof choice”).
TheDistrictCourt’semphasisontheeighthSenateFactorfaresnobetter. Congress itself recognized the limited relevance of this Factor by specifically calling attention to its diminished importance. The Senate Report states that “[u]nresponsiveness is not an essential partof plaintiff’s case,” and thus “defendants’proofofsomeresponsivenesswouldnotnegateplaintiff’sshowing by other, more objective factors enumerated here that minority voters nevertheless wereshutoutofequalaccesstothepoliticalprocess.”SenateReportat29n.116. Indeed, this Court has cautioned against giving too much weight to this factor. See Old Person,230F.3dat1129n.14(notingthatDistrictCourt’s“findingof responsivenessofelectedofficials[toNativeAmericanvoters]maybeof‘limited relevance’”);see also Harvell v. Blytheville Sch. Dist. #5, 71 F.3d 1382, 1390 (8th Cir. 1995) (en banc) (“Even accepting the [district court’s] finding of responsiveness as not clearly erroneous, however, it is similarly insufficient to countertheotherfactorsthatcensurethisscheme.”);Westwego Citizens for Better Gov't v. City of Westwego,872F.2d1201,1213n.15(5thCir.1989)(“Wealso
43

note that a finding that city officials are responsive to the concerns of minority residents is not enough, by itself, to defeat a voting dilution claim.”).4
There are several reasons why the eighth Senate Factor is of limited
relevance. First, responsiveness, as Congress acknowledged, is a rather subjective factor. AstheFifthCircuitobserved,“[r]esponsiveness,likemanythings,isa
question of both kind and degree. While two cities may both be said to be
responsive to minority needs, the two may vary greatly in approach and commitment.” Clark, 88 F.3d at 1401. Because this factor often requires an assessmentof“difficultqualitative judgments,” id., courts are appropriately
reluctant to place great weight on this factor.
Second, like the seventh Senate Factor (minority candidate success), the
responsiveness of elected officials bears little relevance to a claim that minority
voters are being denied access to the polls. While the responsiveness factor may
4 That courts are reluctant to place much emphasis on this factor is further evidenced by the lack of judicial decisions addressing this factor. A recent survey of 331 lawsuits addressing Section 2 claims since 1982 found only 107 lawsuits that addressed this factor — and only 20 (18.7%) of those that have found responsiveness lacking. See Ellen D. Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, Final Report of the Voting Rights Initiative, 39 U. Mich. J.L. Reform 644, 655, 722 (2006), available at http://sitemaker.umich.edu/votingrights/files/finalreport.pdf (last visited Nov. 29, 2006). Indeed, this Court has found Section 2 violations without addressing this particular factor at all. See Gomez, 863 F.2d at 1417-1419.
44

bear upon whether or not minorities are able to participate in the political process and influence elections, and thus have some bearing on vote dilution challenges to redistricting plans, it is simply inapposite to the challenge in this case. That Washington’selectedleadersmaynothaveturnedacoldshouldertoallofthe needs and concerns of its racial minority citizens does not change the fact that the State utilizes a voting qualification with demonstrated discriminatory effects on the ability of Blacks, Latinos and Native Americans to participate in the selection of those leaders. Cf. Gunn,705F.Supp.at322(“Abenevolentmonarchywouldbe nonetheless non-democratic.”).
Finally, to the extent the District Court considered the other plainly irrelevant Senate Factors (which it listed, but did not discuss), the decision cannot stand. The District Court apparently faulted Plaintiffs for failing to present evidence underlying the SenateFactorsthataddressthe“racialpolarizationofthe vote, various voting mechanisms, candidate slating processes, or the use of racial appealsinpoliticalcampaigns.” Farrakhan, 2006 WL 1889273, at *8. The first and the last of those Senate Factors are most pertinent to demonstrating the existence of a racially polarized electorate, a factor that is certainly relevant to a dilution challenge to a redistricting plan, see Gingles, 478 U.S. at 50 n.15, but wholly inapposite to a claim that a practice operates to deny the vote to racial minorities. The Senate Factor that directs courts to make an inquiry into
45

minorities’accesstothecandidateslatingprocess(whichWashingtonStatedoes not have) is also irrelevant, as that Factor is on its face only applicable“if there is a candidateslatingprocess,”SenateReportat29(emphasisadded),andisprobative only insofar as it may reflect on a challenge to the State’s use of a similar mechanism.Similarly,theSenateFactorconcerningtheuseof“unusually large election districts, majority vote requirements, anti-singleshotprovisions”andother such factors, id., is plainly designed as circumstantial evidence concerning the State’spresentuseofasimilarelectoralpractice.ButPlaintiffsdonotchallenge Washington’smethodofaggregatingelectoralvotes;theychallengeWashington’s refusal to permit certain individuals to vote at all.
TheDistrictCourt’sconsiderationofSenateFactorsthat,thoughprobative of vote dilution claims, cast no light onPlaintiffs’votedenialchallengewasclear error. See Miss. State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1263-65,1268(N.D.Miss.1987)(findingthatMississippi’svoterregistration procedures violated the VRA, while explicitly disputing the relevance of the second, third, fourth, and sixth Senate Factors to plaintiffs’ Section 2 challenge), aff’dsubnom.Miss.StateChapter,OperationPush,Inc.v.Mabus, 932 F.2d 400 (5th Cir. 1991).
46

B. TheDistrictCourt’sDisregard oftheTenuousJustifications Offered in Support of the Policy Was Clear Error
Under Section 2’s totality ofthe circumstances inquiry,“the ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts.”Johnson v. DeGrandy, 512 U.S. 997, 1011 (1994). In this case, the District CourtgavethetwoFactorsthatareundeniablyrelevanttoPlaintiffs’claim the most cursory treatment in its totality of the circumstances analysis. The District Court provided no explanation for why “other factors” operated to “counterbalance”Plaintiffs’compellingevidenceofracialdiscriminationinthe criminal justice system under the fifth Senate Factor. And as discussed below, the DistrictCourtgavelittleconsiderationtotheState’sfailuretoevenattemptto justifyitsfelondisfranchisementpolicy.TheDistrictCourt’sabbreviatedinquiry into those two Senate Factors is particularly surprising given that they are the only factors that this Court explicitly drew attention to in Farrakhan I. See 338 F.3d at 1019-20 & n.15 (discussing the fifth and ninth Senate Factors).
Although the District Court did consider the ninth Senate Factor — the tenuousnessoftheState’spolicy justification — its finding that the Factor favored the State was clearly erroneous. Plaintiffs presented expert testimony that concludedthat“[a]utomaticdisenfranchisementfollowingafelonyconvictionisa tenuouspolicy.”See Expert Report by Alec Ewald (E.R. 356). Additionally,
47

Plaintiffs noted that, in Dillenburg v. Kramer, this Court cast doubt on the rationality of felon disfranchisement. 469 F.2d 1222, 1224 (9th Cir. 1972) (noting that“[c]ourtshavebeenhardpressedtodefinethestateinterest served by laws disenfranchisingpersonsconvictedofcrimes”).Moreover,heretheStatefailedto profferanyjustificationforitspolicyandmadenoattempttocounterPlaintiffs’ expert testimony and arguments — an omission that did not go unnoticed by the District Court. Farrakhan,2006WL1889273,at*8(“AsinDillenburg, the State heredoesnotexplainwhydisenfranchisementoffelonsis‘necessary’tovindicate any identified state interest.”).
Nonetheless, the District Court still found that this Factor favored the State and it offered two reasons for reaching that conclusion. First, the District Court emphasizedthat,“[u]nlikeotherstatevotingqualifications,theConstitutionofthe UnitedStatesrecognizesthestates’powertodisenfranchisefelons.” Id. (citing U.S. Const. amend. XIV, § 2 and Richardson v. Ramirez, 418 U.S. 24, 54 (1974)). Second, the District Court attached great weight to the fact that all but two states currently have laws disenfranchising people with felon convictions, a fact that the DistrictCourtbelieved rendered its “ability to examine the tenuousness of Washington’sfelondisenfranchisementlaws...extremelylimited.” Id. Neither argument is sound.
48

TheDistrictCourt’sfirstargumentisunavailing.The Supreme Court held in Richardson that felon disfranchisement laws are generally constitutional, in part due to the fact that the Constitution itself recognizes the power of States to enact felon disfranchisement laws. Richardson v. Ramirez, 418 U.S. 24, 54 (1974). But Richardson simply stands for the proposition that the presumption of unconstitutionality that attaches to most restrictions on the fundamental right to vote, see Dunn v. Blumenstein, 405 U.S. 330, 340 n.10 (1972), does not similarly apply to felony disfranchisement laws. Richardson does not stand for the proposition that the Constitution has shielded such laws from any and all legal challenges. States cannot, for example, purposefully disenfranchise people with felony convictions on the basis of their race. Hunter v. Underwood, 471 U.S. 222 (1985) (finding Alabama constitutional provision that disenfranchised persons convicted of crimes involving moral turpitude violated equal protection, as its original enactment was motivated by a desire to discriminate against Blacks). Similarly,States“maynotdisenfranchisecriminalsinamannerresultingina raciallydiscriminatorydenialoftherighttovote.” Johnson v. Bush, 405 F.3d 1214, 1241 (11th Cir.) (en banc) (Wilson, J., concurring in part and dissenting in part), cert. denied,126S.Ct.650(2005).TheDistrictCourt’sargumenttothe contrary is an attempt to resuscitate the argument that this Court rejected in Farrakhan: that the VRA cannot apply to felon disfranchisement laws because
49

Section 2 of the Fourteenth Amendment explicitly acknowledges such laws. See Farrakhan I,338F.3dat1016(“Althoughstatesmaydeprivefelonsoftherightto
vote without violating the Fourteenth Amendment, when felon disenfranchisement
results in denial of the right to vote or vote dilution on account of race or color, Section 2 affords disenfranchised felons the means to seek redress.” (citation omitted)).5
TheDistrictCourt’ssecondargumentissimilarlymisplaced.Accordingto
the District Court, the fact that the majority of the States have some form of felon
disfranchisement law must mean that the policy has some rational justification.
Poll taxes, for example, also have a long lineage in American history. The fact that
such restrictions were commonplace in many parts of the country or date back to thenation’sfoundingdidnot,however,preventtheSupremeCourtfromdeclaring
them unconstitutional. See Harper v. Va. Bd. of Elections, 383 U.S. 663, 669
5 Indeed,theDistrictCourtconcededthat,notwithstandingthisCourt’sdecision in Farrakhan I, it remained troubled by the application of the VRA to felon disfranchisement laws. Farrakhan, 2006 WL 1889273, at*2(“TheFarrakhan II dissent [by Judge Kozinski] raises questions regarding the constitutionality of applying the VRA to felon disenfranchisement laws, and these concerns are echoed and elaborated upon in recent en banc opinions issued by the Second and Eleventh Circuits. Considering these opinions, this Court continues to have concernsregardingtheconstitutionalityofapplyingtheVRAtoWashington’s felondisenfranchisementprovisions.”(citationsomitted)).TheDistrictCourt’s heavy emphasis on the first Senate Factor further demonstrates the District
(cont'd)
50

(1966)(findingthatcourtsare“notshackled to the political theory of a particular era”andarenot“confinedtohistoricnotionsofequality”or“whatwasatagiven timedeemedtobethelimitsoffundamentalrights”). Moreover,theDistrict Court’srelianceonthetraditionoffelondisfranchisement laws cannot be squared with the legislative history of the Voting Rights Act, which makes clear that “‘[e]venaconsistently applied practice premised on a racially neutral policy would notnegateaplaintiff’sshowingthroughotherfactorsthat the challenged practice deniesminoritiesfairaccesstothe[political]process.’”Farrakhan I, 338 F.3d at 1019 (quoting Senate Report at 29 n.117). Finally, to the extent that the existing practices in the states should be a factor in considering the tenuousness of the policy justification, it should not be a one-way ratchet: The recent trend in the States has been liberalization of felon disfranchisement laws, which suggests that States are reconsidering their historic rationales for these policies. See generally Developments in the Law, One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1942-49 (2002) (discussing liberalization trends in the States); The Sentencing Project, Felony Disenfranchisement, available at http://www.sentencingproject.org/pubs_05.cfm
________________________ (cont'd from previous page)
Court’sconceptualdifficultywitharesults-based Section 2 challenge to a facially neutral felon disfranchisement law.
51

(last visited Nov. 26, 2006); Erik Eckholm, States Are Growing More Lenient in
Allowing Felons to Vote, N.Y. Times, Oct. 12, 2006, at A18.
TheDistrictCourt’srationalesforitsconclusionthattheninthSenate Factor
“favorsDefendants”areevenmoreperplexinggivenitsearlieropinioninthisvery
case, which made clear that it considered Dillenburg’srejectionofthecommonly-
advanced justifications for felon disfranchisement laws to be binding and that it did
not think Richardson “limited”itsabilitytoconsiderpolicyjustificationsoffered
forthelaw.Inits1997rulingontheState’smotiontodismiss,theDistrictCourt
rejectedtheState’sargument,basedonWesley v. Collins, 791 F.2d 1255 (6th Cir.
1985), that felon disfranchisement is justified based on “John Locke’s social
contract theory,” which dictates that “those individuals who do not abide by
society’srulescannotparticipateintheirpromulgation.”Farrakhan v. Locke, 987
F. Supp. at 1312. TheDistrictCourtrejectedthis“sanctityoftheballotbox
argument”andprovidedananalysisthatdiffersdramaticallyfromitsassessmentof
the ninth Senate Factor in 2006:
Dillenburg remains applicable . . . to the extent that the decision discusses the alleged justifications for felon disenfranchisement statutes. The panel in Dillenburg criticizedtheLocke’s“purityofthe ballotbox”argumentasoverlyacademicandempiricallyunfounded. ThedecisionalsocriticizedWashington’slaw inparticular, since it denies felons the right to vote based on the possible penalty for their offense, rather than their actual penalty or conduct. On the basis of Dillenburg,therefore,consideration ofWashington’s interestin disenfranchising felons is not conclusive as to whether the totality of the circumstances standard can be met.
52

Id. at 1312-13 (citation omitted) (footnote omitted). The District Court offers no explanation for its reversal on this issue and the State has failed to offer any additional arguments or evidence that justify a finding in its favor on this Senate Factor. The DistrictCourt’s failure to meaningfully considerthis Factoris especiallysurprisinggiventhisCourt’sremandwiththeviewthattheninthSenate Factor — and the above-quoted rationale in particular — might factor into the DistrictCourt’stotalityofthecircumstancesanalysis.See Farrakhan I, 338 F.3d at 1020 n.15 (noting that “Plaintiffs also presented evidence regarding the tenuous policyjustifications”andthattheDistrictCourt’srulingonthemotiontodismiss “notedourcriticism [inDillenburg] of the underlying policy justifications for Washington’slaw”).
Finally, even if Dillenburg is not binding on this Court, its observation that courts have searched in vain for rational justifications for felon disfranchisement laws remains true. Scholars have noted the difficulty of justifying such laws under any of the conventional theories of criminal punishment. See Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1166 (2004) (“Nor can disenfranchisement be explained as a realistic deterrent of criminal behavior. It seems unlikely that an individual who is not deterred by the prospect of imprisonment or fines or other restrictions on his liberty will be dissuaded by the
53

threatoflosinghisrighttovote....”)(footnoteomitted);AlexanderKeyssar,The Right to Vote: The Contested History of Democracy in the United States 303 (2000)(“Asapenalmeasure,disfranchisementdidnotseem toserveanyofthe four conventional purposes of punishment: there was no evidence that it deterred crimes; it was an ill-fitting form of retribution; it did not limit the capacity of criminals to commit further crimes; and it certainly did not further the cause of rehabilitation.”). These arguments,however,were notconfined to scholarly writingsbutwerepresentedbyPlaintiffstotheDistrictCourt.Plaintiffs’expert similarly foundthatWashingtonState’slawcouldnotbejustifiedwithrespectto any plausible criminal punishment objective. See Ewald Report (E.R. 362-63). He alsoopinedthattheState’sfailuretoassertalegitimateinterestservedbyitslaw notwithstanding thelaw’sdemonstrateddiscriminatoryeffectsisfurtherevidence of its tenuousness. Id. at371(concludingthat“[s]trikingevidenceofthepolicy’s disproportionate racial impact intensifies the need to ask what practical objective thestate’sdisenfranchisementlaw pursues”);cf. League of United Latin Am. Citizens v. Perry,126S.Ct.2594,2623(2006)(concludingthattheState’s incumbency protection rationale for redistricting, “whatever its validity in the realm of politics, cannot justify the effectonLatinovoters”andcitingtheSenate Factorof“whether‘the policy underlying’ the State’s action ‘is tenuous’”) (quoting Gingles, 478 U.S. at 45).
54

Moreover, the Supreme Court has made clear that the State has no legitimate interest in policing the way in which anyone votes. See Carrington v. Rash, 380 U.S.89,94(1965)(holdingthat“‘fencingout’from thefranchiseasectorofthe populationbecauseofthewaytheymayvoteisconstitutionallyimpermissible”);cf. Dunn,405U.S.at355,56(“‘The fact that newly arrived [Tennesseans] may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral voteoftheirnewhomestate.’”)(alterationinoriginal)(citationomitted).
********** The District Court’s decision to consider irrelevant Senate Factors was apparently guided by its belief that focusing on only a minority of the enumerated Senate Factors — i.e., the fifth and ninth Factors, as Plaintiffs suggested — would render the totality of the circumstances inquiry incomplete. As demonstrated, however,thatview isatoddswithCongress’sstatedintent,see Senate Report at 28-30,thisCourt’sprecedents,see Gomez, 863 F.2d at 1412, and over 20 years of case law under the amended version of Section 2, supra, at 37-46. Indeed, the Supreme Court in Gingles not only recognized that a select number of the Senate Factors (the second and the seventh) would be particularly relevant to challenges to multi-member districts, but also that the entire list of Senate Factors was
55

particularly relevant to vote dilution claims. See Gingles,478U.S.at45(“While the enumerated factors will often be pertinent to certain types of Section 2 violations, particularly to vote dilution claims, other factors may also be relevant andmaybeconsidered”)(emphasisadded). Thatmanyofthoseenumerated factors are more probative in vote dilution cases than they are in vote denial cases is unsurprising given that the focus of the Congress that amended the VRA in 1982 was how to overrule Mobile v. Bolden, 446 U.S. 55 (1980), without providing minorities with a right to proportional representation. See Gingles, 478 U.S. at 4346; see generally Armand Derfner, Vote Dilution and the Voting Rights Act Amendments of 1982, in Minority Vote Dilution 145, 153-156 (Chandler Davidson ed., 1984).6 That Congress chose to enumerate a list of factors dealing with the difficult,often“closercall,”judgmentsaboutwhetheraminoritygroup’svotehas been diluted, cf. DeGrandy, 512 U.S. at 1013, does not mean that those factors must apply equally to all forms of voting discrimination prohibited by Section 2 — including vote denial.
6 TheSenateFactors“werederivedfrom theanalyticalframeworkofWhite v. Regester, 412 U.S. 755 (1973), as defined and developed by the lower courts, in particular by the Fifth Circuit in Zimmer v. McKeithen, 485 F.2d 1297 (1973) (enbanc).” Gingles, 478 U.S. at 36 n.4 (citing S. Rep. No. 417, at 28 n.113). Like Gingles, White and Zimmer both involved Section 2 challenges to at-large electoral schemes, and thus the factors outlined in those opinions were directed toward the particular concern about how to measure vote dilution.
56

III. THE DISTRICT COURT ERRED BY HOLDING THAT SECTION 2 DOES NOT PROTECT INDIVIDUAL VOTERS UnderSection2oftheVotingRightsAct,“[n]ovotingqualificationor
prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of raceorcolor.” 42U.S.C.§1973(a).Theplaintextofthisprovisionprotects the rights of individual citizens. Indeed, applying this plain text, the Supreme Court has held that Section 2 rights belong to individual voters, not groups. See Shaw v. Hunt,517U.S.899,917(1996)(“Toaccept[appellees’argument]impliesthat[a Section 2] claim . . . belongs to the minority as a group and not to its individual members. It does not. See §1973(‘therightofanycitizen’).”). Anyother interpretation would not only contravene the text of the statute, it would not make sense. If a single Native American voter is told by elections officials that she may not register to vote because of her ethnicity, her right to vote has surely been denied on account of race or color in violation of Section 2 — regardless of whether other Native American experience the same discrimination or whether overall Native American registration rates are higher or lower than those of other groups.
The District Court, however, failed to recognize that Section 2 protects the rights of individual voters. TheDistrictCourtstated:“Ifthedenialorabridgement
57

of onecitizen’srighttovote‘onaccountofraceorcolor’establishedaviolationof Section 2 ofthe VRA,this Courtwould find forPlaintiffs in this matter.” Farrakhan, 2006 WL 1889273, at *9. That should have been the end of the inquiry. As explained above, the text of Section 2 states in no uncertain terms that “thedenialorabridgementoftherightofanycitizen...tovoteonaccountofrace orcolor”establishesaSection2violation, 42 U.S.C. § 1973(a), and Supreme Court precedent is equally clear that Section 2 protects the rights of individual citizens. The District Court, however, did not adhere to the plain text of Section 2 ortheSupremeCourt’sinterpretationofthestatute. Rather, without explanation, theDistrictCourtconcludedthat“[t]hestatutorylanguageofsubsection(a)of§2 of the VRA limits its application to those circumstances the totality of which establish the existence of discrimination in voting on a broaderscale.”Farrakhan, 2006WL1889273,at*9.ContrarytotheDistrictCourt’sconclusion,nothingin the language ofSection 2 “limits its application” to cases where plaintiffs demonstrate“discriminationinvotingonabroaderscale.”7
7 In fact, the denial or abridgement of one citizen’srighttovoteonaccountof race is sufficient to state a Section 2 violation. In this case, Plaintiffs have demonstratednotsimplythat“onecitizen”orevena“few”havehadtheirvote denied, but rather that entire groups of minority voters have been disproportionately denied the franchise based on discrimination in Washington State’scriminaljusticesystem.
58

The District Court’serroronthisissueissufficientgroundstoreversethe decision below, because the District Court explicitly stated that, if Section 2 protected individual citizens, it would have ruled for Plaintiffs. In other words, the DistrictCourt’sultimate finding concerning Section 2 liability was based on a “misreadingofthegoverninglaw,”andtherefore,thedecisionmustbereversed. DeGrandy, 512 U.S. at 1022.
CONCLUSION For the foregoing reasons, the judgment of the District Court should be reversed and judgmentshould beentered in favorofPlaintiffs’claim that WashingtonState’sfelondisfranchisementschemeviolatesSection2.
59

 
 NO. 06-35669
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MUHAMMAD SHABAZZ FARRAKHAN, et aI.,
Plaintiffs-Appellants,
v.
CHRISTINE O. GREGOIRE, et aI.,
"
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
No. CV-96-076-RHW The Honorable Robert H. Whaley United States District Court Judge
BRIEF OF DEFENDANTS-APPELLEES
ROBERT M. MCKENNA Attorney General
DANIEL L JUDGE Assistant Attorney General
JEFFREY T. EVEN CAROL MURPHY Deputy Solicitors General PO Box 40100 Olympia, WA 98504-0100 (360) 664-9018

TABLE OF CONTENTS
I. STATEMENT OF JURISDICTION................................................................ 1
II. STATEMENT OF ISSUES PRESENTED...................................................... 1
III. STATEMENT OF THE CASE........................................................................ 2
IV. STATEMENTOFFACTS .............................................................................. 4
A.· Plaintiffs' Background................................................................................ 4.
B. Washington's Felon Disenfranchisement Law.......................................... 5
C. Enactment Of The Voting Rights Act ....................................................... 7
V. SUMMARY OF THE ARGUMENT .............................................................. 8
VI. ARGUMENT .................................................................................................. 10
A. The Voting Rights Act Does Not Apply To Felon Disenfranchisement Laws........................................................................ 10
1. The Court Should Reexamine The Applicability Of The Voting Rights Act To Washington's Felon Disenfranchisement Law ......... 10
2. Congress Did Not hitend The Voting Rights Act To Apply To Felon Disenfranchisement Laws ....................................................... 12
3. Constitutional Provisions And Principles Further Bolster The Conclusion That The Voting Rights Act Does Not Address Felon Disenfranchisement................................................................. 18
4. The Conclusion That Section 2 Of The Voting Rights Act Does Not Extend To Felon Disenfranchisement Does Not Eliminate Relief From Racial Discrimination ................................................... 23
B. The Plaintiffs Lack Standing To Claim Race Based Vote Denial Under Section 2 Of The Voting Rights Act ............................................ 27
C. Based On The Totality Of The Circumstances Test That Applies To Claims Under Section 2, The District Court Correctly Concluded That Plaintiffs Flailed To Show That Washington's Felon Disenfranchisement Law Denies The Right To Vote Based On Race.... 29
1

1. The Totality Of The Circumstances Test Requires Consideration Of All Relevant Factors....................:................................................ 29
2. Plaintiffs' Evidence Of Racial Bias In Washington's Criminal Justice System Is Very Limited And, As A Matter of Law, Is Inadequate To Demonstrate That Even Senate FactorS Favors Plaintiffs' Claim ................................................................................ 32
3. Even Fully Crediting Plaintiffs' Limited Evidence Of Racial Bias In Aspects Of Washington's Criminal Justice System, The Totality Of The Circumstances Test Strongly Supports The Conclusion That Washington's Felon Disenfranchisement Law Does Not Deny Individuals The Right To Vote On Account Of Race ................................................................................................... 38 a.. Washington's Felon Disenfranchisement Law Readily Satisfies The Totality Of The Circumstances Test..................... 38 h. No Authority Supports Ignoring Relevant Factors When Applying The Totality Of The Circumstances Test ................... 41 c. The District Court Properly Determined That The Plaintiffs Did Not Show That Washington's Reason For Felon Disenfranchisement Is Tenuous .................................................. 43
VII. CONCLUSION .............................................................................................. 45
11

TABLE OF AUTHORITIES

Cases

Bd. ofTrustees ofUniv. ofAlabama v. Garrett, . 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001) .................................... 21

Bivens v. Six Unknown Named Agents, 403 U.S. 388,91 S. Ct. 1999,29 L. Ed. 2d 619 (1971) ...................................... 26

Chisom v. Roemer, 501 U.S. 380, 111 S. Ct. 2354, 115 L. Ed. 2d 348 (1991) ..............;................... 30
City ofMobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490,64 L. Ed. 2d 47 (1980) ........................................ 15

Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005) ............................................................................. 33

Duke Power Co. v. Carolina Envtl. Study, 438 U.S. 59,98 S. Ct. 2620,57 L. Ed. 2d 595 (1978) ........................................ 28

Edward J. DeBartolo Corp. v. Florida GulfCoast

Bldg. & Constr. Trades Council,

.

485 U.S. 568, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988) ........................ 18, 19,23

Farrakhan v. Locke, 987 F. Supp. 1304 (E.D. Wash. 1997).......................................................;..... 3,24

Farrakhan v. Washington, .

.

338 F.3d 1009 (9th Cir. 2003) ............................................................. 3, 10, 11,32

Farrakhan v. Washington,
359 F.3d 1116 (9th Cir. 2004) ...................................................................... passim

Flast v. Cohen, 392 U.S. 83,88 S. Ct. 1942, 20L. Ed. 2d 947 (1968) ........................................ 28

Gomez v. City of Watsonville, 863 F.2d 1407 (9th Cir. 1988) ............................................................................. 42

Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991) .................................. 21

iii

Harmelin v. Michigan,

.

501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) .......:.......................... 19

Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) ......................................................................... passim

Heck V. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) .................................. 28

Hunter V. Underwood, 471 U.S. 222, 105 S. Ct. 1916, 85 L. Ed. 2d 222 (1985) .............................. 20, 24

Johnson v. Governor ofthe State ofFlorida, 405 F.3d 1214 (1Ith Cir. 2005) .................................................................... passim

Jones V. City ofLos Angeles,

.

444 F.3d 1118 (9th Cir. 2006) ............................................................................. 28

Kimel V. Florida Bd. ofRegents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000) ...................................... 21

Locke v. Farrakhan, 543 U.S. 984, 125 S. Ct. 477, 16 L. Ed. 2d 365 (2004) ........................................ 3

McCleskey V. Kemp, 481 U.S. 279, 107 S. Ct. 1756,95 L. Ed. 2d 262 (1987) .............................. 25, 29

McDonnell Douglas Corp. V. Green, 411 U.S. 792, 93 S. Ct. 1817,36 L. Ed. 2d 668 (1973) ...................................... 33

Mendenhall V. Nat'l Transp. Safety Bd.,

.

213 F.3d 464 (9th Cir. 2000) ............................................................................... 11

Murray V. The Charming Betsy,

.

2 Cranch. 64, 6 U.S. 64,2 L. Ed. 208 (1804) ............................................ ~ ......... 18

Oregon V. Mitchell, 400 U.S. 112,91 S. Ct. 260, 27 L. Ed. 2d 272 (1970) ........................................ 21

Owens V. Barnes, 711 F.2d 25 (3d Cir. 1983) ....................,............................................................. 20

Paradis V. Arave, 20 F.3d 950 (9th Cir. 1994) .............................~ ................................................... 25

iv

Quest Comm 'ns, Inc. v. Berk£dey, 433 F.3d 1253 (9th Cir. 2006) ............................................................................. 33

Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655,41 L. Ed. 2d 551 (1974) ............................ 19, 20,.24

Smith v. Salt River Project Agr. Imp. & Power Dist.,

.

109 F.3d 586 (9th Cir. 1997) ........................................................................ passim

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg 'I Planning Agency, 216 F.3d 764 (9th Cir. 2000) ............................................................................... 11

. Thornburg v. Gingles,

.

478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986) ...................... 30,31,40,42 .

United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996) .................................. 25

United States v. Marengo Cy. ·Comm 'n, 731 F.2d 1546 (1Ith Cir. 1984) ........~ ......................~........................................... 43

United States v. Ward, 352F.2d329 (5thCir. 1965) ............................................................................... 15

Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013 (9th Cir. 2004) ..........................•.................................................. 33

Washington State v. Collins,

.

69 Wash. 268, 124 P.903 (1912) ........................................................................ 25

Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986) ................................................................. 34, 35,40

Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997) ......................................................................... 18,22

Withrow v. Larkin, 421 U.S. 35, 195 S. Ct. 1456,43 L. Ed. 2d 712 (1975) ....................................... 25

v

Statutes 28 U.S.C. § 1331 ........................................................................................................ 1 28 U.S.C. § 1291 ....................................................................................................... 1 28' U.S.C. § 2254 ..................................................................................................... 25 42 U.S.C. § 15483(a)(2)(A)(ii)(I) ........................................................................... 17 42 U.S.C. §.1971 ............................................................................................... 27,39 42 U.S.C. § 1973 ............................................................................................. 1, 8,26 42 U.S.C. § 1973(a)...........................................................................................:....... 6 42 U.S.C. § 1973(b) .....~...................................................................................... 9,30 42 U.S.C. § 1973a[b]................................................................................................. 7 42 U.S.C. § 1973gg-10............................................................................................ 27 42 U.S.C. § 1973gg-6(a)(3)(B) ......................................................;........................ 16 42 U.S.C. § 1973gg-6(g)(3) :................................................................................... 17 42 U.S.C. § 1983 ............................................................................................... 26,39 Pub. Law No. 109-246, 120 Stat 577 (2006) ................................... ~...................... 16 Territorial Law of 1866, Rem &Bal. Code § 4755 .................................................. 5 Territorial Sufferage Act of 1867.............................................................................. 5 Wash. Rev. Code § 29A.04.079 (2006) .................................................................... 5
vi

Other Authorities H. Rep. No. 89-439 (1965), reprinted in 1965 U.S.C.C.A.N. 2437 ....................... 13 H. Rep. No. 109-478 (2006) 2006 WL 1403199 .................................................... 16 S. Rep. No. 89-162 (1965), reprinted in 1965 U.S.C.C.A.N. 2508 ........................ 13 S. Rep. No. 109-295 (2006) ..................................................................................... 16
Constitutional Provisions U.S. Const. amend. XIV.............................................. ~ ............................................ 19 U.S. Const. art. III, § 2 ............................................................................................. 27 Wash. Const. art. VI, §§ 1, 3 ..................................................................................... 5
vii

I. STATEMENT OF JURISDICTION This timely appeal is from an order of the United States District Court for the Eastern District of Washington, dismissing the sole remaining claim on crossmotions for summary judgment, in a lawsuit brought under 42 U.S.C. § 1973. ER 653-55; ER 636-51. This Court has jurisdiction to hear this appeal under 28 U.S~C. § 1291 and § 1331.
II. STATEMENT OF ISSUES PRESENTED 1. The United States Constitution and the legislative history of the Voting Rights Act (VRA), 42 U.S.C. § 1973, and subsequent federal enactments demonstrate that Congress did not intend the VRA to apply to felon disenfranchisement laws. Is Washington's felon disenfranchisement law outside the purview of the VRA? 2. No Plaintiff has demonstrated that his felony conviction was in any way the product of race discrimination. Absent such a showing, do the Plaintiffs lack standing to claim that they have been denied the right to vote on account of race in violation of Section 2 of the VRA? 3. Plaintiffs' evidence of ·racial disparities in Washington's criminal justice system is extremely limited in subject, geography, and time, and demonstrates no discriminatory motive or intent. Is this evidence insufficient to show that "members of the minority group . . . bear the effects of
1

discrimination. .. which hinder their. ability to participate effectively in the political process" under Factor 5 of the VRA's totality of the circumstances test?
. 4. Apart from Plaintiffs' meager evidence of race discrimination in Washington's criminal justice system, the totality of the circumstances strongly support· the conclusion that Washington's felon disenfranchisement laws do not deny citizens the right to vote on account of race. Did the district court thus correctly conclude that Plaintiffs failed to make out a claim of race-based vote denial under the VRA?
III. STATEMENT OF THE CASE This case is before this Court for a second time. In 1996, six individuals, Muhammad Shabazz Farrakhan, AI-Kareem Shadeed, Marcus Price, Ramon Barientes, Timothy Schaaf, and Clifton Briceno-all of whom were convicted of felonies-filed this action in the United States District Court for the Eastern District of Washington. SER 1-34. They alleged that Washington's felon disenfranchisement law violated the Voting Rights Act (VRA) and the United States Constitution. The claim underlying this litigation for over a decade is the assertion that certain racial minorities are disproportionately prosecuted and sentenced, resulting III disproportionate representation among felons disenfranchised under Washington law. Plaintiffs alleged that this disproportionate
2

representation satisfied the results test under Section 2 of the VRA, constituting denial of the right to vote on account of race.
The district court dismissed all claims except the claim of vote denial under the VRA. Farrakhan v. Locke, 987 F. Supp. 1304, 1312-13 (E.D. Wash. 1997). Later, the six Plaintiffs filed a fourth amended complaint, alleging that Washington's felon disenfranchisement law, including procedures to restore the right to vote to felons, constituted denial of the right to vote on account of race in violation of the VRA. SER 35-47.
The district court dismissed the Plaintiffs' vote denial claim on summary judgment after review of statistics, .reports, and expert testimony provided to the court by the parties. On Plaintiffs' appeal, this Court remanded the matter to the district court to again consider the totality of circumstances, including factors external to the challenged voting mechanism, specifically alleged racial discrimination in Washington's criminal justice system. Farrakhan v. Washington, 338 F.3d 1009, 1011-12 (9th Cir. 2003). The State Defendants petitioned for rehearing en banc, which was denied. Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004). The State's Petition for Writ of Certiorari was also denied. Locke v. Farrakhan, 543 U.S. 984, 125 S. Ct. 477, 16 L.Ed. 2d 365 (2004).
On remand, the district court again considered statistics, reports, and expert testimony submitted by the parties, and again dismissed the Plaintiffs' sole
3

remaining claim on summaryjudgment. ER 636-51. Based on the totality of the circumstances, including the lack of any history of racial bias in Washington's electoral process or its decision to enact felon disenfranch~sement, the court below concluded that Washington's felon disenfranchisement law does not deny the right to vote on account of race. ER 650.
The six Plaintiffs again appeal to this Court, claiming that the district court erred when, as directed by this Court, it applied the VRA's totality of the circumstances test and when it determined that Plaintiffs failed to meet their burden to show that they were denied the right to vote on account of race in violation of Section 2 of the VRA.
IV. STATEMENT OF FACTS A. Plaintiffs' Background
Of the six felon Plaintiffs, four are Black, one is Latino, and one is Native American. Plaintiffs-Appellants Br. at 6. At the time that they filed this lawsuit, the Plaintiffs could not vote because they were convicted of felonies. Neither in the course of their criminal.proceedings nor in their criminal appeals, did any of the six Plaintiffs prove or even claim that racial bias played a part in their individual felony convictions. SER 49. Nor is there evidence in the record that any other individual was convicted of a felony as a result of racial discrimination.
4

There is no evidence in this record of the voting history of the individual six Plaintiffs who filed this lawsuit or of the voting history or voting patterns of felons-either by race or generally. Further, there is no evidence in this record of the voting history or voting patterns of Blacks, Latinos, or Native Americans. B. Washington's Felon Disenfranchisement Law
Felon disenfranchisement in Washington began before statehood. The felon disenfranchisement provision adopted by the constitutional convention dates back to 1866, when Washington was a Territory and the Fifteenth Amendment extending the vote to BlackS had not yet been adopted. See Territorial Law of 1866, Rem & Bal. Code § 4755 ("[n]o ... persons convicted of an infamous crime, shall be entitled to the privilege of an elector.,,).l Washington's 1889 Constitution declared that a person convicted of an "infamous crime unless restored to their civil rights" is ineligible to vote. Wash. Const. art. VI, §§ 1, 3. The provision has been virtually unchanged as related to felon disenfranchisement since its enactment. The legislature has defined "infamous crime" as essentially a felony punishable by death or imprisonment (for a year or more). Wash. Rev. Code § 29A.04.079 (2006). It is undisputed that there is no indication, historically or legally, of any racially discriminatory intent associated with Washington's felon
1 Voting rights of Blacks in Washington were protected by the Territorial SufferageAct of 1867, three·years before ratification of the Fifteenth Amendment. SER205.
5

disenfranchisement law. SER 327-28, 379. There is no history of official discrimination in Washington against Blacks, Latinos, and Native Americans related to the right to vote. SER 327-28, 497-503. Washington does not have a history of laws designed to discriminate against Blacks. SER 201-02. Throughout its statehood, Washington voters have elected members of classes protected by 42 U.S.C. § 1973(a) to various legislative, judicial,and executive positions. Washington's top local elected positions, including Governor, Supreme Court Justice, and County Executive, have been filled ,by members of such classes. SER205.
Washington has been a leader among states in addressing racial inequality in criminal sentencing and other aspects of the criminal justice system. In 1987, the Washington State Minority and Justice Task Force was established by the Washington Supreme Court in response to legislation seeking to improve the treatment of racial and ethnic minorities in courts and the legal system throughout the state. SER 84-86, 229. In 1990, the Washington Supreme Court formed a permanent Minority and Justice Commission. SER 231,325-26. As a result of the work of the Commission, educational programs have been developed and taught to court personnel for increasing diversity, cultural awareness, and mutual respect among those who deliver court services. SER 242-89.
6

There is no evidence in Washington of racially-polarized voting, any
election procedures that discriminate on the basis of race, political campaigns
characterized by racial appeals, or a lack of responsiveness by elected officials to
particular needs of minority groups. ER 649; SER 47-48,328.
C. Enactment Of The Voting Rights Act
Congress enacted the Voting Rights Act of 1965, recognizing that some
states were using voting procedures that discriminated on account of race. The Act
specifically barred insidious exclusionary practices designed to prevent Blacks
from voting (such as requiring literacy, educational achievement, or good moral .
. character) in certain regions referred to as covered areas. Outside covered areas,
the 1965 Act barred tests or devices that had "been used ... for the purpose or with
the effect of denying or abridging the right of any citizen of the United States to
vote on account of race or color". 42 U.S.C. § 1973a[b].
As amended in 1982, Section 2 of the VRA states:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a
7

class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973. (Emphasis in original.)
v. SUMMARY OF THE ARGUMENT
For the second time in this case, and as directed by this Court, the district
court has applied the "totality of the circumstances" test, including consideration of
the "Senate Factors", and has ruled that Washington's felon disenfranchisement
laws do not violate Section 2 of the Voting Rights Act. The district court's
decision should be affirmed for four reasons.
First, as the state argued in the first appeal of this case, and as the Second
and Eleventh Circuits subsequently have concluded, the VRA does not apply to
felon disenfranchisement provisions. This conclusion alone provides a complete
basis for affirming the decision of the district court, and this Court need not
proceed to consider any further issues. Second, none of the Plaintiffs in this case
have alleged, let alone demonstrated, that their felony convictions and attendant
disenfranchisement resulted from racial bias or discrimination in Washington's
criminal justice system. Accordingly, no Plaintiff has standing to assert a claim of
vote denial under Section 2 of the VRA, similarly providing a complete basis upon
8

which this Court should affirm the decision of the district court. Third, there is no substantial evidence in the record that racial discrimination in Washington's criminal justice system has resulted in denial of the right to vote based on race. Apart from a mere statistical disparity, inadequate to make out a claim under the VRA, the only additional evidence of race discrimination in Washington's criminal justice system that the Plaintiffs have presented is extremely narrow in subject and very limited in time and geographic area. It is not linked to race-motivated discrimination and does not establish that "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by [Section 2 of the VRA] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b). As a matter of law, under Senate Factor 5 and the totality of the circumstances test, Plaintiffs' meager evidence fails to demonstrate that Washington's criminal justic~ system has hindered VRA protected groups' ability to participate effectively in the political process. ER 646. Fourth, even considering Plaintiffs' limited evidence relating to racial bias in Washington's criminal justice system, the district court correctly concluded that, based on the "totality of the circumstances" test of the VRA, Plaintiffs have failed to demonstrate that Washington disenfranchises felons based on race in violation of
9

the VRA. For all of these reasons, this Court should affirm the decision of the

district court.

VI. ARGUMENT

A.· The Voting Rights Act Does Not Apply To Felon Disenfranchisement

Laws

.

1. The Court Should Reexamine The Applicability Of The Voting . Rights Act To Washington's Felon Disenfranchisement Law

Two other federal circuits, both sitting en bane in cases decided after a panel of this Court issued its first opinion in this case, have concluded that the Voting

Rights Act does not apply to felon disenfranchisement laws. Hayden v. Pataki,

449 F.3d 305 (2d Cir. 2006) (en bane); Johnson v. Governor of the State of

Florida, 405 F.3d 1214 (l1th Cir. 2005) (en bane), eert. denied, Johnson v. Bush,

126 S. Ct. 650, 163 L. Ed. 2d 526 (2005). For the reasons expressed in those

opinions, and in the opinion dissenting from the denial of rehearing en bane by this Court,2 this Court should reexamine its contrary conclusion. Farrakhan v. Washington, 338 F.3d 1009,1016 (9th Cir. 2003). This Court should join the other

federal circuits that have considered the matter and conclude that the Voting Rights

Act does not apply to felon disenfranchisement.

2 Farrakhan, 359 F.3d 1116 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en bane).
10

In the context of the first appeal in this case, this Court concluded that, "as a preliminary matter," the challenge to felon disenfranchisement "is cognizable under Section 2 of the VRA." Farrakhan, 338 F.3d at 1016. This Court should reexamine that conclusion in light of the subsequent decisions of the Second and Eleventh Circuits. As this Court has explained, "a panel of this court has discretion to depart from the law of the case established by the same panel, or another," where at least one of several possible circumstances arise. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg 'I Planning Agency, 216 F.3d 764, 787 (9th Cir. 2000). Those circumstances include: "(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, .(2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial." ld. (quoting Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en bane)). "The law of the case doctrine is not dispositive, . .particularly when a court is reconsidering its own judgment, for the law of the case 'directs the court's discretion, it does not limit the tribunal's power.'" Mendenhall v. Nat'l Transp. Safety Bd., 213 F.3d 464, 469 (9th Cir. 2000) (quoting Arizona v. California, 460 u.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983)).
The subsequent intervening authority of sister circuits reveals that this Court's conclusion was clearly erroneous and works a manifest injustice. The Second and Eleventh Circuits both decided, en bane, that Section 2 of the Voting
11

Rights Act does not extend to a cause of action challenging a state's law .disenfranchising convicted felons, a conclusion that makes further consideration of other issues unnecessary. Both circuits did so after this Court issued its opinion, and so those decisions obviously were not before this Court for consideration. Hayden, 449 F.3d 305; Johnson, 405 F.3d 1214.
2. Congress Did Not Intend The Voting Rights Act To Apply To Felon Disenfranchisement Laws
Both the Second and Eleventh Circuits carefully examined the text and ·history of the Voting Rights Act, and both concluded that Congress did not intend that it apply to felon disenfranchisement laws. This included the history and context of both the original enactment of the Voting Rights Act in 1965 and its 1982 amendments. Hayden, 449 F.3d at 317-23; Johnson, 405 F.3d at 1232-35.
Congress made clear when it originally enacted the Voting Rights Act in 1965 that it did not prohibit felon disenfranchisement. Despite the VRA's otherwise broad remedial purpose,. it is "indisputable that Congress did not explicitly consider felon disenfranchisement laws to be covered by the Act and, indeed, affirmatively stated that such laws were not implicated by provisions of the statute." Hayden, 449 F.3d at 318 (emphasis by the court). In the context of discussing Section 4 of the VRA, "the Senate Report reflects that legislators intended to exempt the voting restrictions on felons from the statute's coverage". Johnson, 405 F.3d at 1233 (emphasis by the court). The report explained that the
12

VRA "would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony or mental disability." S. Rep. No. 89-162, at 24 (1965) (reprinted in 1965 U.S.C.C.A.N. 2508, 2562 Goint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, Tydings, Dirksen, Hruska, Fong, Scott and Javits)) (quoted in Hayden, 449 F.3d at 318; Johnson, 405 F.3d at 1233). The House Report explained the Act similarly, agreeing that the VRA was not designed to reach felon disenfranchisement. "This subsection does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony or mental disability." H.R. Rep. No. 89-439, at 25-26 (1965) (reprinted in 1965 U.S.C.C.A.N. 2437, 2457 (1965) (quoted in Hayden, 449 F.3d at 318; Johnson, 405 F.3d at 1233). It was also emphasized on the floor of the Senate that the VRA "was not intended to prohibit 'a requirement that an applicant for voting or registration for voting be free of conviction of a felony or mental disability. '" Hayden, 449 F.3d at 318 (quoting 111 Congo Rec. S8366 (daily ed. April 23, 1965) (statement of Senator Tydings)).3
3 The Hayden court prefaced its discussion of this legislative history by . explaining its reasons for examining that history rather than relying strictly upon the statutory language. "We are not convinced that the use of broad language in the statute necessarily means that the statute is unambiguous with regard to its
13

Both the Hayden and Johnson courts accordingly concluded that the VRA
was not intended to prohibit felon disenfranchisement. Hayden, 449 F.3d at 319
("it is apparent to us that Congress's effort to highlight the exclusion of felon
disenfranchisement laws from a VRA provision that otherwise would likely be
read to invalidate such laws is indicative of its broader intention to exclude such
laws from the reach of the statute"); Johnson, 405 F.3d at 1233 ("These reports
indicate that neither house of Congress intended to . include felon
application to felon disenfranchisement laws." Hayden, 449 F.3d at 315. The court found "persuasive reasons to believe that Congress did not intend to include felon disenfranchisement provisions within the coverage of the Voting Rights Act, and we must therefore look beyond the plaint text of the statute in construing the reach of its provisions." ld. (citing Watt v. Alaska, 451 U.S. 259, 266, 101 S. Ct. 1673,68 L. Ed. 2d 80 (1981)). Those reasons included:
(1) the explicit approval given such laws in the Fourteenth Amendment; (2) the long history and continuing prevalence of felon disenfranchisement provisions throughout the United States; (3) the statements in the House and Senate Judiciary Committee Reports and on the Senate floor explicitly excluding felon disenfranchisement laws from provisions of the statute; (4) the absence of any affirmative consideration of felon disenfranchisement laws during either the 1965 passage of the Act or its 1982 revision; (5) the introduction thereafter of bills specifically intended to include felon disenfranchisement provisions within the VRA's coverage; (6) the enactment of a felon disenfranchisement statute for the District of Columbia by Congress soon after the passage of the Voting Rights Act; and (7) the subsequent passage of statutes designed to facilitate the removal of convicted felons from the voting rolls.
ld. at 315-16. For these reasons, the court concluded that Section 2 "was not intended to--and· thus does not-encompass felon disenfranchisement provisions." ld. at 316.
14

disenfranchisement within the statute's scope"). The Hayden court, in fact, described the statement of congressional intent on this point as "emphatic." Hayden, 449 F.3d at 319; see also Farrakhan, 359 F.3d at 1120 (Kozinski, J., dissenting from denial of rehearing) (reciting the same legislative history relied upon by the Hayden and Johnson courtS).4
Congressional intent on this point did not change when Congress amended the VRA in 1982. "Neither the plain text nor the legislative history of the 1982 amendment declares Congress's intent to extend the Voting Rights Act to felon disenfranchisement provisions." Johnson, 405 F.3d at 1234. Indeed, even though the 1982 Senate Report recited "many discriminatory techniques used by certain jurisdictions, [it] inade no mention of felon disenfranchisement provisions." ld. ,The 1982 amendments were designed for a very different purpose-that of responding to the Supreme Court's decision in City ofMobilev. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980), "in an attempt to clarify the standard for finding Section 2 violations." Johnson, 405 F.3d at 1233. It "follows that
4 An earlier decision by the Fifth Circuit supports the same conclusion. In 1965, shortly after the original enactment of the Voting Rights Act, that court entered an injunction against various voting practices employed at that time by the state of Louisiana, but specifically exempted from the injunction any effect upon felon disenfranchisement rules. United States v. Ward, 352 F.2d329, 332 (5th Cir. 1965).
15

Congress did not have [felon disenfranchisement] in mind when the VRA section at issue took its present form in 1982." Hayden. 449 F.3d at 321.5 .
Other congressional actions further bolster the conclusion that Congress has never viewed the VRA as prohibiting felon disenfranchisement. If Congress did regard the Voting Rights Act as prohibiting felon disenfranchisement, it seems unlikely that Congress would enact other statutes recognizing, or even mandating, that very practice. In 1971 "Congress affirmatively enacted a felon disenfranchisement statute in the District of Columbia, over which it had plenary power" at the time. Hayden, 449 F.3d at 320 (citing Pub. L. No. 92-220, § 4, 85 Stat. 788, 788 (1971)). More recently, the National Voter Registration Act of 1993 (NVRA)explicitly provides for "criminal conviction" as one of a limited number of grounds upon which a state can legitimately cancel a person's voter registration. 42 U.S.C. § 1973gg-6(a)(3)(B). The NVRA also elicits the aid of federal prosecutors in support of the removal of felons from the voting rolls by requiring United States Attorneys to give written notice to state election officials when
5 When Congress again reauthorized the Voting Rights Act in 2006, it made no amendments to Section 2 and made no reference to felon disenfranchisement. Pub. Law No. 109-246, 120 Stat 577 (2006). This is true despite "the development of one of the most extensive legislative records in the Committee on the Judiciary's history." House Report 109-478 at 5, 2006 WL 1403199, *5(2006). Neither the House Report nor the Senate Report made any mention of felon disenfranchisement. House Report 109-478 (2006); Senate Report 109-295 (2006).
16

felony convictions occur. 42 U.S.C. § 1973gg~6(g)(3). The Help America Vote Act of 2002 goes farther, expressly instructing states to coordinate their voter registration lists with records of felony conviction for the purpose of removing disenfranchised felons from the rolls. 42 U.S.C. § 15483(a)(2)(A)(ii)(I). "These bills further indicate that Congress itself continues to assume that the Voting Rights Act does not apply to felon disenfranchisement provisions." Hayden, 449 F.3d at 322; see also Johnson, 405 F.3d at 1234 n.39 (observing that the NVRA provisions "suggest[] that Congress did not intend to sweep felon disenfranchisement laws within the scope of the VRA").
The Hayden and Johnson courts further noted the extensive history of felon disenfranchisement, including its "ancient origin." Hayden, 449 F.3d at 316; see also Johnson, 405 F.3d at 1228 (referring to felon disenfranchisement as, "deeply rooted in this Nation's history"). Felon disenfranchisement laws were adopted in America from colonial times, and most states had such provisions when the Fourteenth Amendment was adopted in 1868. Today virtually every state, including every state in this circuit,6 disenfranchises felons. Hayden, 449 F.3d at 316-17. Based on all of this "persuasive evidence," the court concluded "that Congress has never intended to extend the coverage of the Voting Rights Act to
6 Farrakhan~ 359 F.3d at 1125 (Kozinski, J., dissenting from denial of rehearing) ("[EJvery state in our circuit-indeed, every state in the country save Maine and Vermont-does not allow imprisoned felons to vote.").
17

felon disenfranchisement provisions, [and] we deem this one of the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters. '" Hayden, 449 F.3d at 322-23 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct 1026, 103 L. Ed. 2d 290 (1989)).
3. Constitutional Provisions And Principles Further Bolster The Conclusion That The Voting Rights Act Does Not Address Felon Disenfranchisement
Both the Second and Eleventh Circuits considered an additional principle of statutory construction in concluding that the Voting Rights Act does not extend to felon disenfranchisement "The starting point for our analysis is the explicit approval given felon disenfranchisement provisions in the Constitution." Hayden, 449 F.3d at 316; see also Johnson, 405 F.3d at 1228-29. A "cardinal principle" of . statutory construction, in all circuits, is that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988) (tracing this principle to Chief Justice Marshall's opinion for the Court in Murray v. The Charming Betsy, 2 Cranch. 64, 6 U.S. 64, 118, 2 L. Ed. 208 (1804)); see also Williams v. Babbitt, 115 F.3d 657, 662 (9th Cir. 1997) ("At the
18

core of DeBartolo lies the presumption that, if Congress means to push the"
constitutional envelope, it must do so explicitly").
The United States Constitution permits states to disenfranchise persons
convicted" of "participation in rebellion, or other crime." U.S. Const. amend. XIV.
Based upon this explicit language in the Fourteenth Amendment,7 our country's
legal traditions and other authorities, the Supreme Court has concluded that states
are expressly allowed to deny the elective franchise to felons. Richardson v.
Ramirez, 418 U.S. 24, 55-56, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974). "See also,
Harmelin v. Michigan, 501 U.S. 957, 982-83, 111 S. Ct. 2680, 115 L. Ed. 2d 836
(1991).8
A construction of the Voting Rights Act that would place it at odds with the
Fourteenth Amendment would raise serious constitutional concerns. Johnson, 405
F.3d at 1229; Farrakhan, 359 F.3d at 1121-22 (Kozinski, J., dissenting-from denial
7 One amicus brief relies upon a decision of the Supreme Court of Canada for the proposition that felon disenfranchisement is impermissible in a democracy. Amici "Leading Criminologists" at 10-11 (citing Suave v. Canada, 3 S.C.R. 519, 550 (Canada 2002). Whatever merit that view may have under the law of another country, it has no application to the United States where the Fourteenth Amendment explicitly permits states to disenfranchise convicted felons.
8 The historical pedigree of felon disenfranchisement is illustrated by the Supreme Court's quotation in Harmelin of an early nineteenth century decision: "'The disenfranchisement of a citizen ... is not an unusual punishment; it was the consequence of treason, and of infamous" crimes, and it was altogether discretionary in the legislature to extend that punishment to other offences. '" Harmelin, 501 U.S. at 982-83 (quoting Barker v. People, 20 Johns. 457, 459 (N.Y. Sup. Ct. 1823)).
19

of rehearing). Because the Fourteenth Amendment expressly permits felon
disenfranchisement, felons are not, per se, members of the class whose voting
rights the Constitution protects. Richardson, 418 U.S. at 24; Owens v. Barnes, 711
F.2d 25, 27 (3d Cir. 1983) (citing Richardson for the proposition that convicted
felons have no fundamental right to vote).9
"To be a valid exercise of Congress's enforcement power, 'there must be a
congruence and proportionality between the injury to be prevented or remedied and
the means adopted to that end.'" Johnson, 405 F.3d at 1230 (quoting City of
Boerne v. Flores, 521 U.S. 507, 520, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997)).
Congressional enforcement power of the Fourteenth and Fifteenth Amendments
"arguably does not extend to prohibiting constitutionally protected practices." Id.
9 Since felon disenfranchisement is explicitly endorsed by the Fourteenth Amendment, state laws relating to disenfranchisement are presumptively constitutional. Courts have reached a different result only in the circumstancevery different from this case-in which the disenfranchisement is the product of intentional discrimination, as in Hunter v. UnderWood, 471 U.S. 222, 105 S. Ct. 1916, 85 L. Ed. 2d 222 (1985). In that case, the Court concluded that the legislative history behind the Alabama disenfranchisement law demonstrated a purposeful attempt to deny the right to vote based on race. Id. at 226-31. The constitutional defect in such cases arises not from the fact that the state is disenfranchising felons, for that it clearly may do; the defect lies in the intentionally discriminatory nature of the law. "Only a narrow subset of [disenfranchisement laws]-those enacted with invidious, racially discriminatory purpose-is unconstitutional." . Farrakhan, 359 F.3d at 1121 (Kozinski, J., dissenting from denial of rehearing en bane) (distinguishing Hunter); see also Johnson, 405 F.3d at 1223-27 (similarly limiting the application of Hunter); Hayden, 449 F.3d at 316 n.1l (same).
20

Additionally, "[t]or Congress to enact proper enforcement legislation, there must be a record of constitutional violations." ld., 405 F.3d at 1231 (citing Bd. of Trustees ofUniv. ofAlabama v. Garrett, 531 U.S. 356, 368, l2lS. Ct. 955, 148 L. Ed. 2d 866 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 89, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000)).. The Supreme Court, in the two cases cited in Johnson, concluded that the Americans With Disabilities Act and the Age Discrimination in Employment Act, respectively, could not be enforced against the states because Congress failed to support them with adequate findings of unconstitutional discrimination. Garrett, 531 U.S..at 374; Kimel, 528 U.S. ·at 91; see also Oregon v. Mitchell, 400 U.S. 112, 130, 91 S. Ct. 260, 27 L. Ed. 2d 272 (1970) (noting that in statutorily lowering the voting age to 18, Congress had made no findings that the requirement of attaining the age of 21 was used by the states to disenfranchise voters on account of race).
The Second Circuit addressed the same concern by relying upon the "clear statement rule"... Hayden, 449 F.3d at 323. As established by the Supreme Court, the "clear statement rule" is a canon of interpretation that requires that Congress make its intent "unmistakably clear" when enacting a statute that would alter the usual constitutional balance between state and federal governments. Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). "Accordingly, to the extent that the Voting Rights Act would affect this balance if
21

applied to felon disenfranchisement statutes, we must construe the statute not to encompass such provisions if it is even unclear whether Congress intended the Voting Rights Act to apply to such laws." Hayden, 449 F.3d at 323 (emphasis added). The Second Circuit concluded that the application of the Voting Rights Act to felon disenfranchisement would alter the usual balance between state and federal governments because the Fourteenth Amendment permits felon disenfranchisement. ld. at 326. "[E]xtending the coverage of the Voting Rights Act to these provisions would introduce a change in the federal balance not contemplated by the framers of the Fourteenth Amendment." ld. The court further concluded that the legislative history of the Voting Rights Act, recited above, "demonstrate[s] Congress's lack of intent to include felon disenfranchisement provisions in the coverage of the Voting Rights Act, and compel us to conclude that. Congress unquestionably did not manifest an 'unmistakably clear' intent to include felon disenfranchisement laws under the VRA." .ld. at 328. In the words of this Court, "if Congress means to push the constitutional envelope, it must do so explicitly." Williams, 115 F.3d at 662.
For these reasons, any construction of the Voting Rights Act that supports a claim based on felon disenfranchisement rai,ses "grave constitutional concerns."
22

Johnson, 405 F.3d at 1232.10 In contrast, the conclusion that the Voting Rights Act does not extend to felon disenfranchisement avoids these constitutional concerns and, as set forth more fully in the prior section, fully comports with congressional intent. This Court.should, accordingly, reexamine the earlier decision of a panel of this Court, and adopt the construction that comports with legislative intent and avoids grave constitutional questions. This Court should conclude that the Voting Rights Act does not extend to felon disenfranchisement. This Court need not address any further issues presented by this case and should affirm the district court.
4. The Conclusion That Section 2 Of The Voting Rights Act Does Not Extend To Felon Disenfranchisement Does Not Eliminate Relief From Racial Discrimination
The absence of a basis for challenging. felon disenfranchisement under Section 2 of the Voting Rights Act does not deprive actual victims of racial discrimination in the criminal justice system of any remedy. Other remedies are available that are better suited to the plight of an individual who experiences racial discrimination in the criminal justice system. These· remedies include
10 The Supreme Court has cautioned that where, as here, a construction of the statute that does not raise constitutional concerns is fully consistent with legislative intent, courts should adopt that construction. DeBartolo Corp., 485 u.S. at 575. This construction should be adopted based on the concern raised by a constitutional question, and does not require that the court conclude that the statute would be unconstitutional otherwise. Johnson, 405 F.3d at 1230 n.31.
23

(a) constitutional relief in the event that felon disenfranchisement was used as the means by which to accomplish intentional racial discrimination, (b) relief through appellate and habeas corpus proceedings where race infected the individual's criminal conviction, (c) federal civil rights actions, and (d) potentially the application of other federal election statutes.
Thus, if Plaintiffs had been able to prove that Washington engaged in intentional discrimination on the basis of race in adopting its felon disenfranchisement law, the Constitution would have provided them a remedy. Hunter, 471 U.S. at 226-31. Although the Fourteenth Amendment generally sanctions felon disenfranchisement, Richardson, 418 U.S. at 24, it does not sanction intentional discrimination based on race. Hunter, 471 u.S. at 233. Plaintiffs, of course, were unable to sustain such a claim in this case, and their equal protection challenge to the Washington law was dismissed at an early stage. Farrakhan v. Locke, 987 F. Supp. 1304, 1313-14 (E.D. Wash. 1997) (concluding that Plaintiffs failed to adequately state a claim for violation of the Fourteenth or Fifteenth Amendments because such a claim would require proof that discrimination was a motivating factor in the enactment of the facially neutral law). 11
11 Washington's felon disenfranchisement law was originally enacted in 1866, well before the adoption of either the Fourteenth or Fifteenth Amendments.
24

Similarly, had Plaintiffs' complaint been that their own criminal convictions
were the result of racial discrimination, they could have sought relief either in their ,
original criminal proceedings (including appeals) or through collateral relief such
as federal habeas corpus. 28 U.S.C. § 2254 (federal habeas corpus). As discussed
more fully elsewhere in this brief, none of the Plaintiffs in this action have ever
made such an allegation.12
See Washington State v. Collins; 69 Wash. 268, 270-71, 124 P. 903 (1912). This undercuts any notion that felon disenfranchisement was enacted as a subterfuge to deny the right to vote based on race. Farrakhan, 359 F.3d at 1122 (Kozinski, J., dissenting from denial of rehearing). Plaintiffs, in any event, have taken no appeal from the order dismissing their constitutional claims~
12 Of course, the evidence that Plaintiffs have been able to muster in this case would not support a habeas corpus claim. Habeas petitioners must have standing to make claims of racial discrimination; they cannot simply cite studies inapplicable to them. McCleskey v. Kemp, 481 U.S. 279, 297-98, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (concluding that studies showing a statistical disparity were insufficient to support habeas relief); see also Farrakhan, 359 F.3d at 1117 (Kozinski, J., dissenting from dynial of rehearing en banc) (noting the insufficiency of similar studies in the present case). Habeas petitioners must show clear proof of intentional discrimination in the decision to prosecute a crime, including the decision to seek the death penalty. McCleskey, 481 U.S. at 297. "Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." United States v. Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996). In similar fashion, habeas petitioners claiming judicial bias must demonstrate actual bias on the part of the judge; bias is not presumed. See, e.g., Withrow v. Larkin, 421 U.S. 35, 47, 195 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); Paradis v. Arave, 20 F.3d 950, 958 (9th Cir. 1994).
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In the appropriate case, however, such remedies would be available and would avoid the incongruity -inherent in the relief that Plaintiffs seek for themselves. Even if Plaintiffs could demonstrate that their felony convictions were the product of race discrimination (and they cannot), the relief they seek would not remedy the underlying wrong. The VRA would not release the Plaintiffs from prison or expunge their convictions. In fact, the "remedy" available under Section 2 of the VRA would ignore the underlying wrong; it would simply permit Plaintiffs to vote, while in some case, remaining in prison and remaining convicted felons. Where, as here, Plaintiffs cannot demonstrate that their individual felony convictions were the product of any race discrimination at all, it would be truly anomalous to provide to them a remedy under the VRA. Plaintiffs offer no conceptual framework to justify restoring a person's right to vote based on the idea that it was denied "on account of race" (42 U.S.C. § 1973), even in the absence of a basis for setting aside the person's underlying criminal conviction for the same' reason. Where racial discrimination infecting a criminal conviction is the legal wrong, federal habeas and similar proceedings, not the VRA, provide a remedy appropriately tailored to the wrong that has been suffered.
Third, in the appropriate case, federal law offers civil relief from racial discrimination undertaken under color of state law. 42 U.S.C. § 1983; Bivens v. Six Unknown Named Agents, 403 U.S. 388, 391-92, 91 S. Ct. 1999, 29 L. Ed. 2d
26

619 (1971). Plaintiffs in this·case raise no such theory, independent of their claim under the Voting Rights Act.
Finally, the Voting Rights Act is not the only statute in which Congress has provided remedies for racial discrimination related to voting. Even before the enactment of the Voting Rights Act, federal law guaranteed to all qualified voters the right to vote "without distinction of race, color, or previous condition of servitude" and provided a remedy for the enforcement of that right. 42 U.S.C. § 1971. In addition, federal law provides criminal sanctions against any election official who improperly denies any individual the right to register to vote or to vote, without regard to whether racial discrimination was involved. 42 U.S.C. § 1973gg-10. B. The Plaintiffs Lack Standing To Claim Race Based Vote Denial Under
Section 2 Of The Voting Rights Act No evidence was presented that showed racial bias in any aspect of the felony convictions that caused the Plaintiffs here to be disenfranchised. Based on the uncontroverted facts, the Plaintiffs lack standing under article III. U.S. Const. art. III, § 2 ("[t]he judicial Power shall extend to . . . Cases . . . [and] Controversies ..."). As in Hayden, 449 F.3d at 314 n.8, the Plaintiffs "do not
27

allege any discrimination inplaintiffs' particular convictions.,,13 Nevertheless, the
Plaintiffs seek to proceed on their claims of vote denial without any demonstrable
showing that their convictions resulted from the discrimination of which they
complain.
The question of standing is jurisdictional and may be raised at any time.
Jones v. City ofLos Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006). The standing
requirement is necessary to ensure that "the dispute sought to be adjudicated will
be presented in an adversary context and in a form historically viewed as capable
ofjudicial resolution." Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942,20 L. Ed.
2d 947 (1968). In order for the standing requirement to be met, a plaintiff must not
only suffer a distinct and palpable injury, but also a fairly traceable causal
connection between the claimed injury and the challenged conduct. Duke Power
Co. v. Carolina Envtl. Study, 438 U.S. 59, 72, 98 S. Ct. 2620, 57 L. Ed. 2d 595
(1978). The Plaintiffs here lack standing to claim that they were denied the right to
13 The majority in Hayden recognized the Plaintiffs "did well not to make this claim, for such an assertion might have raised questions under the doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), which provides that '[i]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of . habeas corpus.' ld. at 486-87."
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vote on account of race as none of the evidence in the record has any relevance to their felony convictions. See McCleskey, 481 U.S. at 292-93 (rejecting a capital defendant's challenge to his own sentence where he offered "no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence").
None of the limited evidence presented with respect to racial disparity or bias in Washington's criminal justice system, in certain stages of criminal proceedings in specific geographic areas, is linked to any of the Plaintiffs' convictions. Thus, the Plaintiffs Jack standing to assert a federal statutory violation based upon those convictions and the loss of voting rights that automatically follows. C. Based On The Totality Of The Circumstances Test That Applies To
Claims Under Section 2, The District Court Correctly Concluded That Plaintiffs Flailed To Show That Washington's Felon Disenfranchisement Law Denies The Right To Vote Based On Race 1. The Totality Of The Circumstances Test Requires Consideration
Of All Relevant Factors The district court properly considered the totality of circumstances in this case, including factors that weigh in favor of the State. The totality of circumstances analysis comes from the VRA itself. Based on the totality of circumstances, plaintiff must show that the political processes are not equally open to participation by members of a protected class in that its members have less
29

opportunity than other members of the electorate to participate in the political process and elect representatives of their choice. 42 U.S.C. § I973(b). This Court also has recognized that the totality of the circumstances approach applies to both vote denial and vote dilution claims. Smith v. Salt River Project Agr. Imp. & Power Dist., 109 F.3d 586, 596 n.8 (9th Cir. 1997). As directed by the Court, the district court was entirely correct to apply the totality of circumstances test in deciding whether Plaintiffs' Section 2 claim survived summary judgment.
In applying the test, the court has discretion to consider a wide range of factors, conducting a practical evaluation of the past and present reality and a functional view of the political process. Thornburg v. Gingles, 478 U.S. 30, 46, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986). While the factors may vary from case to case, the test does not. And while proof of discriminatory intent is not required to meet the totality of the circumstances test, proof of a practice that results in discrimination on account of race is required. Moreover, statistical disparity alone cannot prove that a practice results in discrimination on account of race. Chisom v. Roemer, 501 U.S. 380, 394, 111 S. Ct. 2354, 115 L. Ed. 2d 348 (1991), Salt River 109 F.3d at 594.
The district court here properly used the totality of the circumstances test, also known as the results test, in this Section 2 case. The purpose of totality of the circumstances test is to determine whether circumstances surrounding the
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practice-the practice in this case being felon disenfranchisemente-create an
inference of discriminatory intent, or establish a causal connection between the
practice and a discriminatory result. Thornburg, 478 U.S. at 36-37, 44-45.
Although the VRA provides the test for determining whether a Section 2 claim is
proven, case law has adopted a non-exclusive list of typical factors, taken from the
Senate Report adopting the 1982 amendments to the VRA, that may be relevant in
determining whether the totality of circumstances test is met:
(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise participate in the democratic process;
(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;
(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination againstthe minority group;
(4) if there is a. candidate slating process, whether the members of the minority group have been denied access to that process;
(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle racial appeals;
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(7) the extent to which members of the minority group have been elected to public office in the jurisdiction;
(8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;
(9) whether the policy underlying the state or political subdivision's use of such. voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Farrakhan, 338 F.3d at 1015 (quoting S. Rep. No. 97-417, 97th Cong., 2d Sess.
28-29 (1982), reprinted in 1982 U.S.C.C.A.N. (Vol. 2) 177,206-07).
2. Plaintiffs' Evidence Of Racial Bias In Washington's Criminal Justice System Is Very Limited And, As A Matter of Law, Is Inadequate To Demonstrate That Even Senate Factor 5 Favors Plaintiffs' Claim
In concluding that Senate Factor 5 cuts in favor of Plaintiffs' claim, the
district court relied on the testimony of two experts, Professor Crutchfield and
Professor Beckett. ER 645. The district court correctly observed that the "experts
cannot pinpoint evidence of discrimination in Washington's criminal justice
system." ER 645. In addition, the district court correctly recognized that Beckett's
report on racial disparities in drug arrests in Seattle was "limited in nature." ER 643.14
14 Plaintiffs incorrectly assert that the district court's treatment of this, and other, factors is reviewed for clear error, as if they were findings of fact. PlaintiffsAppellants Br. at 5. This case is before this Court on review of the district court's
32

However, the district court then made several critical errors. First, the
district court wrongly "extrapolate[d] Becketts' drug-arrest in Seattle-specific
findings to Washington felony arrests and convictions generally." ER 644. There
was no basis in law or in the evidence for the district court to do so. No evidence
in the record supports the· expansion of the expert's testimony simply to fit the
allegations of the Plaintiffs in this case. The State presented deposition testimony
of each of the experts showing severe limitations to the relevance of their reports to
this case. SER 369-78; ER 258-59 (testimony of Beckett that her findings are
limited to specific drug arrests in very limited geographic area); ER 423 (testimony
of Beckett that every data source she utilized has limitations and biases).
Second, the district court compounded that fatal error by erroneously .
disregarding well-established law that statistical disparity alone is inadequate to
prove a claim under the VRA, by adopting the burden-shifting framework of
disparate impact employment discrimination' suits. ER 645. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)
order granting summary judgment. ER 636-51. This Court reviews such decisions de novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). The district court does not enter findings of fact in a summary judgment setting because its task is not to weigh the evidence. Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1040 (9th Cir. 2005). Accordingly, Plaintiffs' statement that such findings are reviewed for "clear error" is inapplicable. Rather, the correct standard is that this Court's review is governed by the same standards used by the trial court in deciding a summary judgment motion. Quest Comm 'ns, Inc. v. Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006).
33

(suggesting use of statistical evidence of employment policy and practice toward demonstrating pretext).15
Statistical disproportionality is not sufficient evidence of a violation of the Voting Rights Act. Salt River, 109 F.3d at 595. In Salt River, this Court rejected a Section 2 VRA claim alleging that a land ownership voting qualification resulted in discrimination on account of race. The evidence relied upon was an undisputed statistical disparity in land ownership between minorities and non-minorities. This Court considered expert reports in the case, but concluded that the evidence did not show that the reason or cause of the disproportionate percentage of non-minority landownership was racial discrimination. ld. at 595-96. Statistics are not enough; a causal connection between the voting practice and a discriminatory result is required. ld. at 595, citing Ortiz v. City of Philadelphia Office of the City Comm'rs, 28 F.3d 306, 315 (3rd Cir. 1994); lrby v. Virginia State Bd. OfElections, 889 F.2d 1352, 1358-59 (4th Cir. 1989); Salas v. Southwest Texas Jr. College Dist., 964 F.2d 1542, 1556 (5th Cir. 1992).; Wesley v. Collins, 791 F.2d 1255, 1262 (6th Cir. 1986)~ In Wesley, the Sixth Circuit rejected a Section 2 challenge to
15 Even if such an analytical approach were the correct approach under Section 2 of the VRA, Plaintiffs' claim fails on the record in this case. Like the vast majority of other states, Washington's felon disenfranchisement laws are supported by legitimate nondiscriminatory policy choices, and Plaintiffs have utterly failed to demonstrate that those policy justifications are a pretext for discrimination. Accordingly, Plaintiffs' arguments regarding the allegedly tenuous nature ofthe policy are inapplicable.
34

Tennessee's felon disenfranchisement law relying primarily on the statistical difference between minority and white felony conviction rates. Wesley, 791 F.2d at 1262.
It is important to point out that none of the Plaintiffs' experts conclude that any statistical disparity cited is a result of a racially discriminatory practice. ER 184-85, 259. The evidence is similar to the expert testimony in the Salt River case where demographic data was analyzed by experts and some found a statistically significant relationship, but had not undertaken to identify and examine other variables that may have contributed to the disparity. Salt River, 109F.3d at 590.
Third, there is nothing in the record, not even statistics, connecting asserted discrimination in the criminal justice system to the standard upon which Senate Factor 5 turns. The last clause of Factor 5 requires a plaintiff to show that the· effects of discrimination in areas other than voting hinder the ability of members of protected minority groups to participate effectively in the electoral process. Plaintiffs made no showing in this respect. Instead, without requiring Plaintiffs to produce any evidence connecting asserted bias in the criminal justice system to the ability of protected minorities to effectively participate in the political process, the district court simply adopted the Plaintiffs' per se theory-that any discrimination in Washington's criminal justice system hinders the ability of racial minorities to
35

participate effectively in the political process because disenfranchisement is automatic upon conviction. ER 646. This reflects a fundamental misapprehension of the Plaintiffs' burden of proof in a Section 2 claim.
The law in this Circuit is clear regarding the burden of proof: "Section 2 plaintiffs must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result." Salt River, 109 F.3d at 595. The Plaintiffs did not make any attempt to meet their burden in this regard. It is undisputed that the Plaintiffs did not respond at all to the State's discovery request after this Court's remand of the matter, requesting any documents that purport to show that racial bias in Washington's criminal justice system denies racial minorities the opportunity to participate in the state's political process. SER 356, 365.
For each of these reasons, the district court erred as a matter of law in concluding that even one of the Senate Factors-Factor 5-provides support for Plaintiffs' claim.
In addition,. in determining that Senate Factor 5 favored the Plaintiffs, the court below also concluded as a factual matter that Plaintiffs had shown more than statistical disparity demonstrating race discrimination in Washington's criminal justice system. The evidence offered by Plaintiffs actually falls far short of any such showing, and the district court erred in finding otherwise.
36

First, it is difficult· to determine the experts' conclusions on which the district court relies, as the Crutchfield and Beckett reports do not explain the . statistical disparity with any conclusion regarding causation. The district court does point to a single ambiguous statement by Beckett that she is unable to explain "in race-neutral terms" racial disparities in drug arrests in Seattle. ER 644. It is not evident how this conclusion is anything other than another way of saying that there was race-based statistical disparity in drug arrests in Seattle. Regardless, Beckett's ambiguous conclusion that the over-representation of minorities in Seattle drug arrests do not "appear to be explicable in race-neutral terms" is contradicted by the very reasons that she cites for the disparities-law enforcement concentration on (1) crack cocaine, (2) outdoor venues and (3) downtown drug areas. ER 266-70. In addition, the record contains expert testimony that many racial disparities in the criminal justice system are not attributable to race discrimination. For instance, George Bridges, in his report to the Washington State . Minority and Justice Commission, indicated that disparities have complex causes and that disparities in charging and sentencing felony drug offenders are, for the most part, not attributable to race. SER 260-62; 265. Even Crutchfield offers many potential causes for the observed racial disparities in Washington's criminal justice system that do not involve a discriminatory motive. ER 240-43; SER 36870, 400. And as noted, Beckett's conclusion that the over-representation of
37

minorities in Seattle drug arrests do not "appear to be explicable in race-neutral terms" is contradicted by the very reasons that she cites for the disparities. ER 266-70.
3. Even Fully Crediting Plaintiffs' Limited Evidence Of Racial Bias In Aspects Of Washington's Criminal Justice System, The Totality Of The Circumstances Test Strongly Supports The Conclusion That Washington's Felon Disenfranchisement Law Does Not Deny Individuals The Right To Vote On Account Of Race a. Washington's Felon Disenfranchisement Law Readily Satisfies The Totality Of The Circumstances Test
The Plaintiffs rest upon the misconception that limited evidence of one Senate Factor is adequate to overcome opposing evidence or' a lack of evidence of any other factor that is relevant to the totality of the circumstances. And because their evidence was lacking, they claim that the court found that "a Section 2 challenge against a felon disenfranchisement law can never succeed." PlaintiffsAppellants Br. at 2. This is inaccurate. The court below did not suggest, as the Plaintiffs claim, that a plaintiff is required to, demonstrate that a majority of the Senate Factors point in their favor. Plaintiffs-Appellants Br. at 17. Rather, the district court balanced the limited evidence presented by the Plaintiffs with the totality of relevant circumstances, and correctly ruled that the Plaintiffs had failed
38

in their burden to demonstrate that Washington's felon disenfranchisement law
denies individuals the right to vote on account of race. 16
No other Senate factor favors the Plaintiffs. There is no evidence of any
history of official discrimination in Washington touching on the right of members
of protected minority groups to participate in the political process (Factor 1); no
evidence of racially polarized elections (Factor 2); no evidence of practices that
enhance the opportunity for discrimination against protected minority groups
16 The felons also erroneously criticize the district court's observation that the denial of one citizen's right to vote does not make out a violation of Section 2 of the VRA. Plaintiffs-Appellants Br. at 57-58. The district court's observation simply reflects the language of the federal statute. Section 2 addresses only the application or imposition of a "voting qualification" or "prerequisite to voting" by government, or a government "standard, practice or procedure." The court's observation assumes the absence of such a measure. Section 2 is further confined to voting qualifications, prerequisites, standards, practices or procedures that, when considered under the "totality of the circumstances" result in "members [of .protected racial minorities] having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their own choice." The district court thus correctly discerned that Section 2 of the VRA addresses voting laws and practices of state and local government, and requires a claimant to show something more than a single instance of discriminatory denial of the right to vote. Isolated individual instances of civil rights violations find remedies in other legal provisions, not Section 2. See, e.g., 42 U.S.C. § 1983, 42 U.S.C. § 1971.
As the district court correctly points out, "[r]eading subsections (a) and (b) [of § 1973] together demonstrates that a claimant must show more than one instance of discriminatory denial or abridgment of the right to vote." ER 640. The district further recognized a Section 2 claim requires that "the claimant ... prove, by a preponderance of the evidence, that the totality of the circumstances supports the conclusion that 'members' of protected minorities 'have less opportunity than other members of the electorate to participate in the political process an to elect representatives of their choice' on account of race." ER 640.
39

(Factor 3); no candidate slating process and, thus,· no denial of access to that process (Factor 4); no evidence of political campaigns characterized by overt or subtle racial appeals (Factor 6); clear evidence of the election of members of minority groups to public office (Factor 7); no evidence of a lack of responsiveness by elected officials to particularized needs of protected minority groups ( Factor 8); and no evidence that the policy underlying Washington's felon disenfranchisement law is tenuous to the state's legitimate interests in crafting its electoral systems (Factor 9).
In addition, as the Supreme Court recognized in Thornburg, this list of Senate Factors is "neither comprehensive nor exclusive." Thornburg, 478 U.S. at 45 (quoting U.S. Code Congo & Admin. News 1982, pp. 29-30). Another highly relevant factor not discussed by Plaintiffs is that each of them is disenfranchised only because they voluntarily committed a felony. Felons are disenfranchised not "because of an immutable characteristic, such as race, but rather because of their conscious decision to commit a criminal act for which they assume the risks of detention and punishment." Wesley, 791 F2d at 1262.
The simple fact is that the voter fully controls whether he or she will forfeit the right to vote under Washington's felon disenfranchisement law. The voter need only refrain from committing a felony to retain his or her right to participate fully in the electoral process. Id. Washington disenfranchises only persons who
40

have been convicted of a felony. And Washington disenfranchises all persons who are convicted of committing· a felony, regardless of their race. Where the voting qualification itself is fully within the voter's control, it makes little sense to treat the qualification as though it instead is the product of external factors. This factor, too, is properly part of the "totality of the circumstances" to be considered in evaluating whether Washington's law denies the vote "on account of race" and also strongly demonstrates that it does not.
h. No Authority Supports Ignoring Relevant Factors When Applying The Totality Of The Circumstances Test
Plaintiffs assert that the district court should have ignored certain of the Senate Factors because their claim is one of vote denial. Although Washington's felon disenfranchisement law certainly denies the right to vote to all felons, Plaintiffs' attempt to use that fact to limit the factors that should be considered by the court to determine whether a state law discriminates "on account of race" should be rejected. Such a limitation is contrary to the text of Section 2 of the VRA and the totality of circumstances test that it contains. That Plaintiffs' claim is premised on a state law explicitly denying the right to vote rather than on a law or . practice that does not explicitly deny or dilute the right to vote, but has that effect, is no reason to change the analytical framework. In either case, the question is the same under Section 2 of the VRA-under the totality of the circumstances, does the law or practice deny the right to vote on account of race? Whether a claim is
41

based on vote denial or vote dilution, "[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Thornburg, 478 U.S. at 47.
And significantly, this Court has already rejected the argument that the Senate Factors only apply to a vote dilution claim. "To the contrary, the 'totality of the circumstances' test established in § 2(b) was initially applied only in 'vote denial' claims such as this." Salt River, 109 F.3d at 595 n.8.
The district. court correctly concluded that the Plaintiffs did not present any evidence of several factors. ER 649. The Plaintiffs do not contest this conclusion; they merely argue that the totality of the circumstance in this case should be limited to only two factors. Plaintiffs simply are incorrect. As the Plaintiffs point out, when a court applies the totality of circumstances test and considers the Senate Factors, "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or another". Gomez v. City of Watsonville, 863 F.2d 1407, 1412 (9th Cir. 1988). But there is no "mechanical" use of the Senate Factors such as the Plaintiffs advocate here. ld. Where factors are relevant, "[n]o formula for aggregating the factors applies in every case." . United States v. Marengo Cy. Comm 'n, 731 F.2d 1546, 1574 (l1th Cir. 1984), cert
42

denied and appeal dismissed, 105 S. Ct. 375(1984). The district court appropriately considered and balanced the relevant factors.
c. The District Court Properly Determined That The Plaintiffs Did Not Show That Washington's Reason For Felon Disenfranchisement Is Tenuous
Plaintiffs and amici assert that the district court was incorrect when it determined that Plaintiffs failed to show that the policy reason for Washington's felon disenfranchisement law was tenuous. As discussed below, the district court's conclusion in this respect is well-founded. Moreover, like all of the Senate Factors, this factor is hardly determinative of a VRA claim.
The Plaintiffs and amici are incorrect when they assert that the State has the burden to justify the public policy choice underlying its felon disenfranchisement laws. State law is entitled to a strong presumption of validity, and Plaintiffs have suggested nothing that reasonably would lead one to believe that the VRA somehow reverses this fundamental rule or was intended to give the judiciary free reign to second~guess legitimate legislative policy choices. Moreover, the district court's finding that this factor favored the State must be affirmed for at least three reasons. First, the Washington constitutional convention and the state legislature can make a voting regulation for any policy reason as long as it is not a discriminatory or illegal policy reason. The State does not have a burden to further
43

justify its public policy choices. Rather, the Plaintiffs bear the burden of showing that Washington's policy is not legitimate.
Second, the Plaintiffs and amici are incorrect that the State has not explained .the policy reason for felon disenfranchisement. The State's reason for felon disenfranchisement is the longstanding and wholly rational view that those who disobey the law by committing felonies should not be entitled to participate in making the law. Johnson, 405 F.3d at 1234-35 (felon disenfranchisement "is a policy decision" that the United States Constitution expressly gives to state governments, not the federal courts). Plaintiffs and amici would dismiss this explanation merely because they disagree with it. However, their strenuous disagreement with the policy does not make the policy tenuous.
Third, whether the State's qualification is based on tenuous policy reasons is an inquiry to inform whether the State's policy is a pretext for discrimination. That plainly is not the case in Washington. The Plaintiffs have provided no evidence whatsoever that Washington's felon disenfranchisement law is a sham designed to deny the right to vote. based on race. Plaintiffs' assertion that felon disenfranchisement should not be Washington's public policy would be an appropriate argument to make to the Washington Legislature, but it is irrelevant to validity of Washington's law under the VRA.
44

VII. CONCLUSION Based upon the arguments above, the State Defendants-Appellees respectfully request that this Court affirm the decision of the district court. RESPECTFULLY SUBMITTED this 2nd day of February, 2007.
ROBERT M. MCKENNA Attorney General
~ YVUMftur
DANIEL J. JUDGE, WSBA #17392 Assistant Attorney General JEFFREY T. EVEN, WSBA #20367 CAROL MURPHY, WSBA#21244 Deputy Solicitors General PO Box 40100 Olympia, WA 98504-0100 (360) 664-9018
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Certificate of Compliance Pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit Rule 32-1 for Case Number 06-35669
I certify that:
~ 1. Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached Brief of Defendants-Appellees is:
• Proportionately spaced, has a typeface of 14 points or more and contains 11,334 words.

Date

CAROL MURPHY . WSBA#21244

46

CERTIFICATE OF SERVICE
I hereby certify that I mailed by United States Postal Service, postage
prepaid, the foregoing document and Supplemental Excerpts of Record (Volumes
1 and 2) to the following:
CATHY CATTERSON CLERK OF THE COURT NINTH CIRCUIT COURT OF APPEALS PO BOX 193939 SAN FRANCISCO, CA 94110-3939
LAWRENCE WEISER UNIVERSITY LEGAL ASSISTANCE GONZAGA LAW SCHOOL 721 N. CINCINNATI STREET SPOKANE WA 99220
THEODORE M. SHAW RYANPHAYGOOD NORMAN J. CHACHKIN DEBO P. ADEGBILE NAACP LEGAL DEFENSE & EDUCATION FUND, INC. :99,HUDSON STREET, SUITE 1600
' ..
NEW YORK NY 10013
DEBORAH GOLDBERG ERIKA WOOD BRENNAN CENTER FOR JUSTICE 161 AVE OF THE AMERICAS 12TH FL
NEW YORK NY 10013
SAM HIRSCH / CHINH LE JENNER & BLOCK 601 13TH ST NW WASHINGTON DC 20005.
47

PETER DANELO SARAHDUNNE NANCY ABUDU HELLER EHRMAN 701 FIFTH AVE STE 6100 SEATTLE WA 98104 DEREK TARSON DEBEVOISE & PLIMPTON 919 THIRD AVE NEW YORK NY 10022 DENNIS CRONIN "ATTORNEY AT LAW 1708 W MISSION SPOKANE WA 99201 DANIEL GRAY FOUR TIMES SQUARE NEWYORK NY 10036 JUAN CARTAGENA COMMUNITY SERVICE SOCIETY 105 EAST 22ND STREET NEWYORK NY 10010
EXECUTED this 2nd day of February, 2007, at Olympia, WA.
Rose Samps ,Legal Assistant
48

 
 No. 06-35669
mniteb ~tate5 ([ourt of ~ppeaI5 for tbe jf!intb ([irruit
MUHAMMAD SHABAZZ FARRAKHAN, AIKIA ERNEST S. WALKER-BEY; AL-KAREEM SHADEED; MARCUS PRICE; RAMON BARRIENTES; TIMOTHY SCHAAF; AND CLIFTON BRICENO,
Plaintiffs-Appellants, v.
CHRISTINE O. GREGOIRE, GOVERNOR OF THE STATE OF WASHINGTON; SAM REED, SECRETARY OF STATE FOR THE STATE OF
WASHINGTON; HAROLD W. CLARKE, DIRECTOR OF THE WASHINGTON DEPARTMENT OF CORRECTIONS; AND THE STATE OF WASHINGTON,
Defendants-Appellees.
APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON, NO. CV-96-076-RHW THE HONORABLE ROBERT H. WHALEY, JUDGE PRESIDING
REPLY BRIEF OF PLAINTIFFS-APPELLANTS

LA WRENCE A. WEISER, ESQ. IAN WHITNEY, LAW CLERK UNIVERSITY LEGAL ASSISTANCE
ATGONZAGA LAW SCHOOL 721 North Cincinnati Street Spokane, WA99220-3528 509.323.5791
DANIELLE C. GRAY, ESQ. Four Times Square New York, NY 10036 212.735.3925

THEODORE SHAW, ESQ. DIRECTOR-COUNSEL
NORMAN J. CHACHKIN, ESQ. DEBO P. ADEGBILE, ESQ. RYAN P. HAYGOOD, ESQ. NAACP LEGAL DEFENSE
& EDUCATIONAL FUND, INC. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 212.965.2235

Counsel for Plaintiffs-Appellants

TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... ii INTRODUCTION AND PRELIMINARY STATEMENT ...................................... 1 ARGUMENT ............................................................................................................ 3
I. A Three-Judge Panel Has No Authority To Reexamine Farrakhan I ...................................................... ..................................... 3
II. Plaintiffs Have Standing to Claim Race-Based Vote Denial Under Section 2 of the Voting Rights Act............................................ 7
III. The District Court's Totality of the Circumstances Analysis Cannot Stand ....................................................................................... 10
CONCLUSION ....................................................................................................... 19 CERTIFICATION OF COMPLIANCE TO FED. R. APP. P. 32(a)(7)(C)
AND CIRCUIT RULE 32-1 FOR CASE NUMBER 06-35669 .................. 22

TABLE OF AUTHORITIES CASES
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ..................................................................................... 17, 18
Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996) ............................................................. 6 Batson v. Kentucky, 476 U.S. 79 (1986) ................................................................. 18 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................... 14 Farrakhan v. Gregoire, No. CV-96-076-RHW,
2006 WL 1889273 (E.D. Wash. July 7,2006) ......................................... 2, 12, 13 Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003) ..............................passim Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004) ................................. 6, 16 General Construction Co. v. Castro, 401 F.3d 963 (9th Cir. 2005) ......................... 4 Gomez v. City o/Watsonville, 863 F.2d 1407 (9th Cir. 1988) ................................ 11 Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) ............................................... 3,4 Hayden v. Pataki, 449 F .3d 305 (2d Cir. 2006) .................................................... 4, 6 International Chemical Workers Union Council o/the United Food &
Commercial Workers International v. National Labor Relations Board, 467 F.3d 742 (9th Cir. 2006) ................................................................................ 6 Irons v. Carey, _ F.3d _, 2007 WL 656345 (9th Cir. Mar. 6, 2007) ..................... 3 Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) ....................................................... 5
Johnson v. Governor 0/State ofFlorida,
405 F.3d 1214 (11 th Cir. 2005) ........................................................................ 4,6
11

Kimball v. Callahan, 590 F .2d 768 (9th Cir. 1979) .................................................. 4 League of United Latin American Citizens v. North East Indep. Sch. Dist.,
126 S.Ct. 2594 (2006) ........................................................................................ 18 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................ 8 McCleskey v. Kemp, 481 U.S. 279 (1987) ................................................................ 9 Mendenhall v. National Transport Safety Board,
213 F.3d 464 (9th Cir. 2000) ................................................................................ 5 Miller v. Gammie, 335 F .3d 889 (9th Cir. 1993) ...................................................... 3 Moore v. Jas. H. Matthews & Co., 682 F.2d 830 (9th Cir. 1982)............................. 4 Ruiz v. City ofSanta Maria, 160 F.3d 543 (9th Cir. 1998) ..................................... 14 Santamaria v. Horsley, 110 F.3d 1352 (9th Cir. 1997)............................................. 3 Smith v. Salt River Project Agr. Importation & Power District,
109F.3d 586 (9thCir. 1997).................................................................... 2, 14, 15 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg 'I Planning Agency,
216 F.3d 764 (9th Cir. 2000) ................................................................................ 5 Thornburgv. Gingles, 478 U.S. 30 (1986).............................................................. 11 United States v. Gay, 967 F.2d 322 (9th Cir. 1992) .................................................. 3 United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990) .......................................... 3 United States v. Washington, 872 F.2d 874 (9th Cir. 1989) ................................. 1,4 Washington v. Davis, 426 U.S. 229 (1976) ............................................................. 16
III

INTRODUCTION AND PRELIMINARY STATEMENT Defendants' brief not a response to this appeal; it is a petition for rehearing of this Court's 2003 decision in this case. Notwithstanding that a unanimous panel of this Court concluded, in this very litigation, that a challenge to Washington's felon disfranchisement scheme is cognizable under Section 2 of the Voting Rights Act and that Plaintiffs accordingly have standing to pursue their vote denial claim a ruling that a majority of the active judges in this Circuit declined to reconsider, and which the United States Supreme Court decided not to reVIew Defendants nonetheless devote nearly two-thirds of their brief to arguing that Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003) (Farrakhan I), was wrongly decided and that this panel should "reexamine" that ruling. Of course, as Defendants undoubtedly are aware, three-judge panels "are bound by decisions of prior panels, unless an en bane decision, Supreme Court decision, or subsequent legislation undermines those decisions." United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989). Because not one of those limited circumstances is applicable here, Defendants' invitation for this panel to overturn the settled law of this Circuit is wholly without merit. The portion of Defendants' brief that is arguably responsive to the issues presented in this appeal fares no better. Rather than offering any explanation as to why the factors considered by the District Court are relevant to a claim of vote

denial or how such factors can overcome a finding of "colnpelling evidence of racial discrimination . . . in Washington's criminal justice system" that "clearly hinder[s] the ability of racial minorities to participate effectively the political process," Farrakhan v. Gregoire, No. CV-96-076-RHW, 2006 WL 1889273, at *6 (E.D. Wash. July 7, 2006), Defendants argue that affirmance is appropriate because the District Court's conclusion that the fifth Senate Factor favored Plaintiffs was wrong. Defendants do not dispute that the District Court, ruling on a summary judgment motion, had before it a substantial body of undisputed expert evidence (as well as a report from Washington's own Sentencing Guidelines Commission) detailing the stark, unwarranted racial disparities in Washington's criminal justice system - disparities that Plaintiffs' experts concluded were not "better explained by other factors independent of race" that might "adequately rebu[t] any inference of racial bias that the [disparate impact] statistics might suggest." Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 591 (9th Cir. 1997). Defendants' attelnpt on this appeal to offer a rebuttal to those expert conclusions for the first time in this decade-long litigation should not be countenanced.
2

ARGUMENT I. A Three-Judge Panel Has No Authority to Reexamine Farrakhan I
The conclusion that this Court reached in Farrakhan I - that, among other things, the Voting Rights Act applies to felon disfranchisement laws and that Plaintiffs could proceed with their suit is binding upon this panel. As this Court has ruled, "[0]nce a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court." Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). Accordingly, "a later three-judge panel considering a case that is controlled by the rule announced in an earlier panel's opinion has no choice but to apply the earlieradopted rule; it may not any more disregard the earlier panel's opinion than it may disregard a ruling of the Supreme Court." Id. (emphasis added). This well-settled rule, which is essential to the sound administration of justice, has been repeatedly reaffirmed in this Circuit. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc); Irons v. Carey, F.3d _,2007 WL 656345, at *6 n.5 (9th Cir. Mar. 6,2007); Santamaria v. Horsley, 110 F.3d 1352, 1355 (9th Cir. 1997); United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992); United States v. Mandel, 914 F.2d 1215, 1221 (9th Cir. 1990).
There are only three intervening events that justify departing from this rule: (1) an intervening Supreme Court decision that is closely on point; (2) an
3

intervening decision by an en banc panel of this Circuit; and (3) intervening legislation. Hart, 266 F.3d at 1171 & n.28; Washington, 872 F.2d at 880. None of those exceptions are applicable here. Instead, Defendants, in an argument entirely without merit, invite this Court to "reexamine its [previous] conclusion" in light of the decisions from the Second Circuit in Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) and the Eleventh Circuit in Johnson v. Governor ofthe State ofFlorida, 405 F.3d 1214 (11th Cir. 2005). (Defs.' Br. 10.) The decisions of those courts, however, neither are binding on this panel nor reflect the type of intervening higher authority that would permit this panel to simply disregard, as Defendants suggest, Farrakhan 1. See Gen. Constr. Co. v. Castro, 401 F.3d 963,975-76 (9th Cir. 2005) (rejecting argument that prior panel decision should be reconsidered in light of its "inconsist[ency] with the law in other circuits"), cert. denied, 126 S. Ct. 1023 (2006).
Defendants claim that their novel request is supported by exceptions to the law of the case doctrine, a doctrine that "ordinarily precludes a court from reexamining an issue previously decided by the same court, or a higher appellate court, in the same case." Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833 (9th Cir. 1982); see Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir. 1979) ("[U]nder the 'law of the case' doctrine one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior
4

appeal in the saIne case."). Relying on Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency, 216 F.3d 764, 787 (9th Cir. 2000), Defendants
argue that this panel has discretion to reconsider Farrakhan I because "subsequent
intervening authority of sister circuits reveals that this Court's conclusion was
clearly erroneous and works a manifest injustice." (Defs.' Br. 11.)1 This argument,
once again, is fundamentally misplaced.
First, Tahoe-Sierra does not hold that any "intervening authority," much less
out-of-circuit authority, provides grounds for departing from the law of the case.
Indeed, it clearly states that the relevant authority must be "intervening controlling
Defendants, citing Mendenhall v. National Transportation Safety Board, 213 F.3d 464, 469 (9th Cir. 2000), suggest that appellate panels have limitless discretion to revisit their prior decisions. (Defs.' Br. 11.) As this Court, sitting en bane, explained, they do not:
Certainly, law of the case is a discretionary doctrine. "The doctrine 'merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power. '" That discretion, however, is not unfettered. "While courts have some discretion not to apply the doctrine of law of the case, that discretion is limited." The prior decision should be followed unless: "'(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial. '"
Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en bane) (internal citations omitted); see also Tahoe-Sierra, 216 F.3d at 787, aff'd on other grounds, 535 U.S. 302 (2002) (noting that court may depart from the law of the case only in "appropriate circumstances").
5

authority." 216 F.3d at 787 (emphasis added); see Int'l Chem. Workers Union Council a/the United Food & Commercial Workers Int'l v. NLRB, 467 F.3d 742, 748 n.3 (9th Cir. 2006) (noting that decisions from other Courts of Appeals are "out-of-circuit authority, which are not binding on us").
Second, the unanimous panel decision in this case cannot be characterized as "clearly erroneous." While Defendants may vigorously disagree with its conclusion, it is one that three judges of this Court reached after careful deliberation and which a majority of the active judges of this Circuit did not deem worthy of reconsidering three years ago. See Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004). Moreover, the issue of whether the Voting Rights Act applies to felon disfranchisement has led to split decisions among every en bane panel to have considered the question. See Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) (en bane); Johnson v. Governor ofFla., 405 F.3d 1214 (11th Cir. 2005) (en bane), cert. denied sub nom. Johnson v. Bush, 126 S. Ct. 650; Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996) (en bane) (equally divided). Defendants' contention that this Court committed clear error in Farrakhan I is absurd.
Finally, Defendants' suggestion that this Court's recognition of a cognizable claim under the Voting Rights Act in these circumstances "works a manifest injustice," see Defs.' Br. 11, is also plainly overwrought. Defendants, not surprisingly, do not cite a single case where a court departed from the law of the
6

case doctrine in such circumstances i.e., where a court arguably erred in recognizing a cause of action or permitted a la\vsuit to continue. No such case exists.
For these reasons, Defendants' defense of the judgment below on the ground that the Voting Rights Act does not apply to felon disfranchisement, see Defs.' Br. 10-27, must fail? II. Plaintiffs Have Standing to Claim Race-Based Vote Denial Under
Section 2 of the Voting Rights Act Defendants argue that Plaintiffs lack standing to litigate this suit because "[n]o evidence was presented that showed racial bias in any aspect of the felony convictions that caused Plaintiffs here to be disenfranchised." (Defs.' Br. 27.) This argument is merely a variant of Defendants' primary argument for affirmance of the District Court's decision below: that people with felony convictions can never challenge felon disfranchisement laws under the Voting Rights Act. Defendants' argument fails because it was conclusively resolved in Farrakhan I and because it is plainly incorrect.
2 This reply, accordingly, does not respond to the merits of Defendants' argument, but rather incorporates by reference the briefs that Plaintiffs and their amici filed in this litigation in 2003. Because of the page limitations in this reply brief, Plaintiffs cannot fully respond to Defendants' lengthy argument in this filing. 7

As Defendants recognize, the question of standing is jurisdictional. (Defs.' Br. 28.) Because this Court must assure itself of jurisdiction in every case, the Farrakhan I decision thus stands for the proposition that Article III poses no bar to Plaintiffs' assertion of vote denial claims. Accordingly, for the same reason that Farrakhan I is binding as to the question of the applicability of the Voting Rights Act, see supra Part I, it is similarly binding on the issue of Plaintiffs' standing. 3
In any event, it is clear that the requirements for Article III standing are satisfied in this case. Vote denial constitutes an injury in fact; that injury is traceable to Washington State's felon disfranchisement law; and invalidation of that law will redress that injury. The "irreducible constitutional minimum" of Article III requires no more, and Defendants' suggestion to the contrary is erroneous. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The essence of Defendants' argument, then, is not that Article III is not satisfied (which is perhaps why Defendants cite Article III cases without explaining why they are
3 Defendants argued in Farrakhan i, as they do here, that Plaintiffs could not state a claim under the VRA because "[t]hey do not, and could not at this stage, claim that their own convictions are the product of race. None of Plaintiffs ever alleged in their individual cases that any of them were arrested, tried, convicted, or sentenced as a result of race or in a racially discriminatory manner." Brief of Appellees, Farrakhan v. Locke, No. 01-35032, available at 2001 WL 34128004, at *16-17 (June 7, 2001). Accordingly, if the Farrakhan I panel believed that only people with felony convictions alleging discrimination in their convictions
(cont'd)
8

implicated, see Defs.' Br. 28). Rather, Defendants seek to require people with felony convictions to prove intentional discrilnination in order to state a claim under the Voting Rights Act - an approach that was expressly rejected by this Court in Farrakhan I and by decades of Suprelne Court case law. Defendants, in support of their meritless position, cite to McCleskey v. Kemp, 481 U.S. 279 (1987), as the sole authority for their argument. The citation to McCleskey, however, serves only to expose the weakness of Defendants' argument.
In McCleskey, the Supreme Court considered the defendant's constitutional claim that Georgia's death penalty statute violated the Equal Protection clause - a claim that was ultilnately rejected by the Court because the defendant did not satisfy his "burden of proving 'the existence of purposeful discrimination. '" Id. at 292 (emphasis added). McCleskey did not, however, involve a claim under the Voting Rights Act, which does not require a showing of intentional discrimination. McCleskey is thus inapposite.
In this case, Plaintiffs have not alleged racial discrimination in their own convictions for the simple reason that their claim is not one of purposeful discrimination under the Constitution, but one of discriminatory impact under the Voting Rights Act. By definition, such a claim does not involve an allegation of
(conf'dfrom previous page)
could raise a VRA challenge to Washington's law, it would not have held that Plaintiffs could proceed with this litigation.
9

discrimination in the individual plaintiff s case. Instead, it requires an allegation that "the discriminatory impact of a challenged voting practice is attributable to racial discrimination in the surrounding social and historical circumstances." Farrakhan 1,338 F.3d at 1019 (emphasis added).
As this Court previously recognized, "[pJermitting a citizen, even a convicted felon, to challenge felon disenfranchisement laws that result in either the denial of the right to vote or vote dilution on account of race animates the right that every citizen has of protection against racially discriminatory voting practices." Id. at 1016. Nothing in Farrakhan I, or in Supreme Court jurisprudence more broadly, suggests that Plaintiffs' ability to challenge Washington State's felon disfranchisement law under the Voting Rights Act is in any way dependent on a showing of intentional discrimination in their individual felony convictions. Plaintiffs clearly have Article III standing to mount such a challenge. III. The District Court's Totality of the Circumstances Analysis Cannot
Stand In their opening brief, Plaintiffs demonstrated that the District Court placed near-dispositive weight on those Senate Factors that have extremely limited - if any - relevance to Plaintiffs' vote denial claim. In particular, Plaintiffs have explained in great detail why the District Court erred in concluding that certain factors - particularly, the history of official discrimination in areas of voting could overcome the court's own finding of "compelling" evidence that racial
10

discrimination in Washington's criminal justice system "hinder[s] the ability of racial minorities to participate effectively in the political process." (See Plaintiffs' Br. 23-30, 37-46.) In response, Defendants argue that the evidence on the other Senate Factors favors them, but they fail to proffer any explanation as to why evidence of racially polarized voting, candidate slating processes, overt racial appeals in political campaigns, the electoral success of minority politicians, and responsiveness of non-minority politicians are in fact relevant to a claim of a denial of a racial minority group's right to vote. (CI Defs.' Br. 39-40.) Instead, Defendants siInply conclude, without citing to any authority for their position, that these Senate Factors are relevant here because all of the factors listed in the Senate Report are always relevant, regardless of the nature of the clailn at issue. As Plaintiffs have explained, however, such an approach to the totality of the circumstances analysis is at odds with the plain language, purpose and spirit of the Voting Rights Act, Congress's intent, see Senate Report at 28-30, and decades of Supreme Court and Ninth Circuit precedent, see Thornburg v. Gingles, 478 U.S. 30, 75 (1986); Gomez v. City a/Watsonville, 863 F.2d 1407, 1412 (9th Cir. 1988).
Rather than offering a theory of how such evidence is relevant, if at all, to Plaintiffs' vote denial claim, Defendants attempt to (1) recharacterize Plaintiffs' evidence of racial discrimination in Washington State's criminal justice system, recognized by the District Court to be "compelling," as "limited evidence," and (2)
11

argue that the District Court erred In finding that Senate Factor Five favored Plaintiffs.
As to the first argument, the District Court did not, in fact, conclude that Plaintiffs' evidence was "limited." Rather, adopting a mechanical point-counting approach to the "totality of the circumstances" test, the District Court concluded that other Senate Factors that did not favor Plaintiffs outweighed the "compelling" evidence underlying the District Court's finding that Senate Factor Five favored Plaintiffs.
Defendants' second argument is equally unavailing. Defendants claim that the District Court committed "fatal error" by "disregarding well-established law that statistical disparity alone is inadequate to prove a claim under the VRA." (Defs.' Br. 33.) In fact, the District Court, in reaching its determination that Plaintiffs presented "compelling evidence of racial discrimination . . . in [the] criminal justice system" that "clearly hinder[s] the ability of racial minorities to participate in the political process," Farrakhan v. Gregoire, No. CV-96-076-RHW, 2006 WL 1889273, at *6 (B.D. Wash. July 7, 2006), did not merely rely upon bare evidence of statistical disparities. Rather, Plaintiffs offered undisputed expert evidence that the staggering racial disparities in Washington State's criminal justice system could not be explained by race-neutral factors: (1) the overrepresentation of racial minorities at every stage of Washington's criminal justice
12

system is not warranted by the extent to which racial minorities actually participate
In cnme; (2) racial profiling and racial disparity in charging and sentencing
decisions persist even after race-neutral characteristics (offense
offenders' criminal histories, aggravating factors, etc.) are taken into account; and
(3) the over-representation of Blacks and Latinos among drug-related arrests in
Washington's most racially diverse city is not explicable by law enforcement
organizational practices or the legal status of crack cocaine (as opposed to powder
cocaine) in Washington. (See Pis.' Br. 9-16 (summarizing record of substantial
and undisputed evidence before the District Court).) The District Court was thus
correct to conclude that Plaintiffs' undisputed expert reports delTIOnstrate that such
disparities "are not explicable in race neutral terms.,,4
4 The District Court's conclusion was driven by the fact that "Plaintiffs vigorously assert[ed that] the statistical disparity and disproportionality evident in Washington's criminal justice system arise from and result in discrimination, and they submit[ted] expert reports that substantiate this assertion" expert reports that were never disputed by Defendants. See Farrakhan, 2006 WL 1889273, at *6 (emphasis added). "As was the case in 2000, the facts in this matter are not in dispute." Id. at *2; ida at *6 ("Significantly, Defendants do not present any evidence to refute Plaintiffs' experts' conclusions."). Indeed, not only did Defendants fail to offer any expert opinions to rebut the findings of Plaintiffs' experts, but they also failed to set forth the specific facts that they believed would have established a genuine dispute on an issue of material fact precluding summary judgment for Plaintiffs, as is expressly required by Local Rule 56.1 (b). Accordingly, the District Court did not inappropriately weigh evidence or make credibility determinations; it simply accepted the truth of
(cont'd)
13

For this reason, the District Court's analysis, which distinguished Plaintiffs'

evidence from that provided by the plaintiffs in Smith v. Salt River Project

Agricultural Improvement & Power

109

586 (9th Cir. 1997), is

entirely consistent with this Court's ruling in that case. In Salt River, the plaintiffs

challenging a district's land ownership voting qualification offered a single type of

evidence: statistical evidence that a disproportionate percentage of landowners in

the district were White. All other potentially relevant facts to their Section 2

challenge were stipulated, such that the sole question for trial was the legal

significance of that disparity. 109 F.3d at 590-91.

As this Court emphasized in Farrakhan I, that joint stipulation of facts

included "plaintiffs' admission that there was no evidence of discrimination as

measured by the Senate report factors and their stipulation to 'the nonexistence of

virtually every circumstance which might indicate that landowner-only voting

results in racial discrimination,' leaving only a bare statistical showing of disparate

(cont'dfrom previous page)
Plaintiffs' undisputed evidence, as it is entitled to do on summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To oppose summary judgment, "Plaintiffs, of course, are not required to prove" that Section 2 has been violated; "they need only show a genuine dispute of material fact." Ruiz v. City ofSanta Maria, 160 F.3d 543, 559 (9th Cir. 1998). Accordingly, at best, the conclusory rebuttal that Defendants offer now (for the first time) to show that racial disparities in Washington's criminal justice system "are not attributable to race discrimination" (Defs.' Br. 37) does not
(cont'd)

14

impact to support their Section 2 claim." 338 F.3d at 1018 (quoting Salt River, 109
F.3d at 595). In other words, Salt River was a case in which "the observed
difference[s] in rates of home ownership between non-Hispanic whites and
African-Americans . . . [was] better explained by other factors independent of
race" which "adequately rebutted any inference of racial bias that the [disparate
impact] statistics might suggest." Id. at 101 7 (quoting Salt River, 109 F.3d at
591 ).5
The record in this case, as the District Court recognized, is dramatically
different. Unlike in Salt River, Plaintiffs here introduced substantial and
undisputed evidence of the type that this Court in Salt River and Farrakhan 1 held would suffice to demonstrate causation.6 Specifically, Plaintiffs demonstrated not
only marked racial disparity in Washington State's criminal justice system, but
also racial disparity that could not be explained by race-neutral factors. Professor
(cont'dfrom previous page)
demonstrate that summary judgment is proper; rather, it simply creates a genuine issue of material fact that warrants a trial. 5 As Farrakhan 1 emphasized, the conclusion that the disparity was not the result of racial discrimination was "dictated" by the joint stipulation in that case, particularly Plaintiffs' concessions. Farrakhan 1,338 F.3d at 1018. 6 Indeed, if Defendants' view of Plaintiffs' evidence as insufficient as a matter of law was correct - a view expressed by Judge Kozinski in his dissent from the denial of rehearing en bane in Farrakhan 1 - then the appropriate course for the Farrakhan 1 Court would have been to affirm the denial of SUlnmary
(cont'd)
15

Robert Crutchfield's expert report, for example, concluded that "there is credible

evidence that there are significant racial disparities that are not fully warranted by

racial or ethnic differences in illegal behavior."

182.) Moreover, Professor

Katherine Beckett's expert report, which found that the striking racial disparities in

drug arrests in Seattle are difficult to explain "in race neutral terms," concluded

that there is no race-neutral explanation for law enforcement's focus on crack

cocaine, outdoor venues, and downtown drug areas. (E.R. 258-59, 266-70.) Thus,

the District Court, "[v]iewing the evidence in a light most favorable to the non-

movants" for summary judgment, correctly concluded that such discrimination

"clearly hinder[s] the ability of racial minorities to participate effectively in the

political process, as disenfranchisement is automatic." Farrakhan I, 338 F.3d at

1020.

For their part, Defendants fundamentally misunderstand the type of evidence

required to sustain a Section 2 challenge to felon disfranchisement laws.

Defendants ignore that while evidence of disparate impact is not necessarily

determinative of racial bias in Washington's criminal justice system, it is

nevertheless relevant and important evidence that at a minimum raises an inference

of racial discrimination. See Washington v. Davis, 426 U.S. 229, 242 (1976)

(cont'dfrom previous page)
judgment in that case. See 359 F.3d at 1117-18 (Kozinski, 1., dissent from denial of rehearing and rehearing en banc).
16

("Necessarily, an invidious discriminatory purpose may often be inferred from the
totality of the relevant facts, including the fact, if it is true, that the law bears more
heavily on one race than another. Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 266 (1977) ("The impact of the official action ... may provide an
important starting point. Sometimes a clear pattern, unexplainable on grounds
other than race, emerges from the effect of the state action even when the
governIng legislation appears neutral on its face."). In noting Plaintiffs'
undisputed evidence of disparate impact and the absence of race-neutral
explanations, the District Court did not adopt "the burden-shifting framework of
disparate impact employment discrimination suits." (Defs.' Br. 33.)7 Instead, it
followed decades of settled law by undertaking "a sensitive inquiry into such
7 Defendants are wrong to claim that Plaintiffs' experts "had not undertaken to identify and examine other variables that may have contributed to the disparity." (Defs.' Br. 35.) Professor Robert Crutchfield and Katherine Beckett both expressly considered the conceivable race-neutral causes of the stark disparities in Washington's criminal justice system - and rejected all of them in their reports. The District Court did not in any way require Defendants to offer a race-neutral explanation for the disparity, as would be expected under a traditional burden-shifting analysis. To the contrary, it simply found that Plaintiffs' evidence of a complete absence of such explanations was an undisputed fact. At the summary judglnent stage, again, Plaintiffs were not required to prove discrimination in Washington's criminal justice system; they were simply expected to demonstrate the existence of a genuine issue of fact for trial. That the District Court concluded that there was no genuine issue because the evidence clearly favored Plaintiffs does not demonstrate an impermissible
(cant/d)
17

circumstantial and direct evidence of intent as may be available," Arlington Heights, 429 U.S. at 266, including "proof of disproportionate impact," Batson v. Kentucky, 476 U.S. 79,93 (1986). The importance and relevance such evidence reflects "that under SOine circumstances proof of discriminatory impact 'may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination IS very difficult to explain on nonracial grounds. '" Id. (citation omitted).
Finally, it is Defendants, not the District Court, that have attempted to shift the burden of proof for Section 2 claims. The fifth Senate Factor calls for evaluation of "the extent to which members of the minority group bear the effects of discrimination" in the surrounding socio-economic environment, Senate Report at 28; it does not call for an assessment of whether discriminatory social circumstances rise to the level of an equal protection violation. Cf League of United Latin American Citizens v. North East Indep. Sch. Dist., 126 S.Ct. 2594 (2006) (holding that redistricting plan violated Section 2 and factoring into totality of the circumstances analysis evidence of "intentional discriInination that could give rise to an equal protection violation" without deciding whether such evidence in fact constituted a constitutional violation). At bottom, Defendants'
(cont'dfrom previous page)
shift in the burden to demonstrate discriminatory intent, but an appropriate application of summary judgment principles.
18

characterization of Plaintiffs' evidence as legally insufficient, once again, betrays

an attempt to reintroduce a discriminatory intent requirement into Section 2 of the

Voting Rights Act. That attempt was

in Farrakhan I and this

should

do so again.

Accordingly, the District Court did not err in concluding that Plaintiffs'

undisputed evidence of stark racial disparities in Washington State's criminal

justice system and the complete absence of race-neutral explanations for such

disparities was compelling evidence of racial bias in Washington that clearly

hinders the ability of racial minorities in Washington State to participate in the

political process.

CONCLUSION For the foregoing reasons, the judgment of the District Court should be reversed and judgment should be entered in favor of Plaintiffs' claim that Washington State's felon disfranchisement scheme violates Section 2 of the Voting Rights Act.

19

Dated this 16th day of March, 2007.
Respectfully Submitted,
WRENCE A. WEISER, WSBA#: 6865
ANGELA GIANOLI, LEGAL INTERN IAN WHITNEY, LAW CLERK UNIVERSITY LEGAL ASSISTANCE
721 NORTH CINCINNATI STREET
P.O. Box 3528
SPOKANE, WASHINGTON 9922Q-3528 509.323.5791
RYANP.HAYGOO ,
THEODORE M. SHA
DIRECTOR-COUNSEL
NORMAN J. CHACHKIN, ESQ.
DEBO P. ADEGBILE, ESQ. NAACP LEGAL DEFENSE
& EDUCATIONAL FUND, INc. 99 HUDSON STREET, SUITE 1600 NEW YORK, NEW YORK 10013-2897 212.965.2235 rhaygood@naacpldf.org
DANIELLE C. GRAY, ESQ. FOUR TIMES SQUARE
NEW YORK, NEW YORK 10036 212.735.3925 dangray@probonolaw.com
Attorneys for Plaintiffs-Appellants
20

IAN WHITNEY, LAW CLERK UNIVERSITY LEGAL ASSISTANCE
721 NORTH CINCINNATI STREET P.O. Box 3528 SPOKANE, WASlllNGTON 99220-3528 509.323.5792 iwhitney@lawschool.gonzaga.edu
21

CERTIFICATION OF COMPLIANCE TO FED. R. APP. P. 32(a)(7)(C) AND CIRCUIT RULE 32-1 FOR CASE NUMBER 06-35669
I CERTIFY THAT: Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the
attached reply brief is proportionately spaced, has a typeface of 14 points, and contains 4,551 words.
DATED this 16th day of March, 2007
22

 
 Farrakhan v. Gregoire ‐‐‐ F.3d ‐‐‐‐, 2010 WL 10969
C.A.9 (Wash.),2010. January 05, 2010
‐‐‐ F.3d ‐‐‐‐, 2010 WL 10969 (C.A.9 (Wash.)), 10 Cal. Daily Op. Serv. 116, 2010 Daily Journal D.A.R. 161
United States Court of Appeals, Ninth Circuit. Muhammad Shabazz FARRAKHAN, aka Ernest S. Walker; Al‐Kareem Shadeed; Marcus X. Price; Ramon Barrientes; Timothy Schaaf; Clifton Briceno, Plaintiffs‐Appellants, v. Christine O. GREGOIRE; Sam Reed; Harold W. Clarke; State of Washington, Defendants‐Appellees. No. 06‐35669. Argued and Submitted April 8, 2008. Filed Jan. 5, 2010. Background: Convicted felons filed suit challenging Washington's felon disenfranchisement laws under Voting Rights Act (VRA) provision that prohibited denial of right to vote on account of race or color. The district court granted state's motion for summary judgment, and felons appealed. The Court of Appeals, 338 F.3d 1009, affirmed in part, reversed in part, and remanded. On remand, the United States District Court for the Eastern District of Washington, Robert H. Whaley, Chief Judge, 2006 WL 1889273, granted summary judgment for defendants. Felons appealed.

Holdings: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) prior panel decision was not clearly erroneous;
(2) felons had standing;
(3) state had to be deemed to have admitted validity of facts contained in felons' statement;
(4) felons did not have to present additional evidence regarding other factors that were of less relevance to their claim;
(5) lack of any history of official discrimination in Washington in area of voting did not negate showing that state's felon disenfranchisement law had discriminatory result;
(6) tenuousness of Washington's policy justification for felon disenfranchisement did not weigh against violation of VRA;
(7) denial of right to vote to convicted felons under Washington's felon disenfranchisement law was “on account of race or color”; and
(8) VRA prevented felons legitimately convicted from being disqualified from voting if state's criminal justice system had been infected with racial bias and felony conviction resulted in automatic disenfranchisement.
Reversed.
McKeown, Circuit Judge, filed dissenting opinion.
Ryan P. Haygood, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Lawrence A. Weiser, University Legal Assistance at Gonzaga Law School, Spokane, WA, for the plaintiffs‐appellants.
Carol Murphy, Deputy Solicitor General, Olympia, WA, for the defendants‐appellees.
Peter A. Danelo, Heller Ehrman, Seattle, WA, for the amici curiae American Civil Liberties Union and ACLU of Washington.
Juan Cartagena, New York, NY, for the amicus curiae Community Service Society.
Sam Hirsch, Jenner & Block, Washington, DC, for the amici curiae National Black Police Association, National Latino Officers Association of America, and Zachary W. Carter, et al., eight prominent former state and federal law‐enforcement officials.
Derek S. Tarson, Debevoise & Plimpton, New York, NY, for the amici curiae Alfred Blumstein, et al., 23 leading criminologists.

Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, District Judge, Presiding. D.C. No. CV‐96‐0076‐RHW.
Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and M. MARGARET McKEOWN, Circuit Judges.
TASHIMA, Circuit Judge:
Plaintiffs, minority citizens of Washington state who have lost their right to vote pursuant to the state's felon disenfranchisement provision, filed this action in 1996 challenging that provision on the ground that, due to racial discrimination in the state's criminal justice system, the automatic disenfranchisement of felons results in the denial of the right to vote on account of race, in violation of § 2 of the Voting Rights Act (“VRA”), 42 U.S.C. § 1973. We earlier reversed the district court's grant of summary judgment to Defendants. See Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003), cert. denied, 543 U.S. 984, 125 S. Ct. 477, 160 L.Ed.2d 365 (2004) (“ Farrakhan I ”). On remand, the district court again granted summary judgment to Defendants. Plaintiffs timely appeal. We reverse and grant summary judgment to Plaintiffs.
I. BACKGROUND
Plaintiffs Muhammad Shabazz Farrakhan, Al‐Kareem Shadeed, Marcus Price, Ramon Barrientes, Timothy Schaaf, and Clifton Briceno (collectively, “Plaintiffs”) are minority citizens FN1 who were convicted of felonies in Washington. Id. at 1012. As a result of their felony convictions, Plaintiffs lost their right to vote pursuant to Washington's felon disenfranchisement law as set forth in Article VI, § 3 of the Washington Constitution.FN2
Plaintiffs alleged that “minorities are disproportionately prosecuted and sentenced, resulting in their disproportionate representation among the persons disenfranchised under the Washington Constitution”; consequently, that the Washington felon disenfranchisement law “causes vote denial and vote dilution on the basis of race, in violation of the VRA....” Farrakhan v. Locke, 987 F.Supp. 1304, 1307 (E.D.Wash.1997). The district court granted Defendants' FN3 motion to dismiss as to Plaintiffs' vote dilution claim, but permitted Plaintiffs' vote denial claim to proceed.FN4 Id. at 1315.
On subsequent cross‐motions for summary judgment, the district court granted Defendants' motion and denied Plaintiffs' motion. Farrakhan v. Locke, No. CS‐96‐76‐RHW, 2000 U.S. Dist. LEXIS 22212 (E.D.Wash. Dec. 1, 2000). The court found that “Plaintiffs' evidence of discrimination in the criminal justice system, and the resulting disproportionate impact on minority voting power, is compelling.” Id. at *14. Nevertheless, it concluded that such evidence was “legally insufficient to establish causation under the

VRA,” id. at *17, because “it is discrimination in the criminal justice system, not the disenfranchisement provision itself, that causes any vote denial,” id. at *15.
On appeal, we reversed the district court's 2000 order and remanded for further proceedings. Farrakhan I, 338 F.3d at 1012, 1023. We first held that Plaintiffs' challenge to Washington's disenfranchisement law “is cognizable under Section 2 of the VRA.” Id. at 1016. We then held that the district court “erred in failing to consider evidence of racial bias in Washington's criminal justice system” and that it “misconstrued the causation requirement of a Section 2 analysis.” Id. We explained that “a Section 2 ‘totality of the circumstances' inquiry requires courts to consider how a challenged voting practice interacts with external factors such as ‘social and historical conditions' to result in denial of the right to vote on account of race or color.” Id. at 1012 (quoting Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986)). Consequently, “evidence of discrimination can be relevant to a Section 2 analysis.” Id.
Following remand, the parties conducted additional discovery and ultimately filed new cross‐motions for summary judgment. In their motion, Plaintiffs relied heavily on the reports of two expert witnesses: Dr. Robert Crutchfield, a Professor of Sociology at the University of Washington, who has “conducted extensive research on racial disparity in the Washington State criminal justice system,” Crutchfield Report at 9, and Dr. Katherine Beckett, an Associate Professor of Sociology at the University of Washington, who “conducted a 2004 study entitled Race and Drug Law Enforcement in Seattle,” Beckett Report at 16.
Dr. Crutchfield's expert report consisted of an extensive literature review of the empirical research that has been conducted on racial disparities in the various levels of Washington's criminal justice system (policing and investigation, prosecution, and sentencing). He described studies showing, inter alia, that the racial disparities in the state's criminal justice system cannot be explained by “legitimate” factors, such as racial minorities' higher level of involvement in criminal activity,FN5 Crutchfield Report at 4‐9; evidence of “unwarranted” racial disparities in the rates of vehicle searches, id. at 18, 21; and “observable racial differences” in the processing of criminal cases ( e.g., charging and bail recommendations, lengths of confinement, and alternative sentencing), id. at 26‐30.
Dr. Beckett's report described the findings of her study “analyzing the extent and causes of racial disparity in Seattle drug [possession and] delivery arrests.” Beckett Report at 1. Her research found that “blacks and Latinos are over‐represented, and whites under‐represented, among Seattle's drug arrestees,” and that “the organizational practices that produce these disparities”‐specifically, the

police's focus on crack cocaine, on outdoor drug activity, and on the downtown area‐“are not explicable in race neutral terms.” Id. at 3.
The district court again granted the State's motion for summary judgment and denied Plaintiffs' motion. Farrakhan v. Gregoire, No. CV‐96‐076‐RHW, 2006 WL 1889273, at *1 (E.D.Wash. July 7, 2006). Reviewing the reports of Plaintiffs' expert witnesses, the district court found that Plaintiffs had presented “compelling evidence of racial discrimination and bias in Washington's criminal justice system.” Id. at *6. Moreover, “[c]ontrary to Defendants' assertion that these reports are based solely on statistics and are thus insufficient evidence for a VRA claim,” the district court found that “these experts' conclusions, drawn from the available statistical data, are admissible, relevant, and persuasive.” Id. The district court also found it significant that Defendants had not “present[ed] any evidence to refute Plaintiffs' experts' conclusions.” Id. Thus, the district court concluded that it was “compelled to find that there is discrimination in Washington's criminal justice system on account of race,” id., and that such discrimination “clearly hinder[s] the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic,” id. (quoting Farrakhan I, 338 F.3d at 1220) (internal quotation marks omitted) (alteration in original).
Nevertheless, the district court went on to hold that “the totality of the circumstances does not support a finding that Washington's felon disenfranchisement law results in discrimination ... on account of race.” Id. at *9. Explaining that discrimination in the criminal justice system is simply one factor to consider in the totality of the circumstances analysis (falling within the scope of Senate Factor 5), the district court concluded that the remaining Senate Factors FN6 weigh in Defendants' favor. Id. First, the district court determined that “the first Senate factor strongly favors” Defendants' position because Plaintiffs had not shown any history of official discrimination in Washington. Id. at *7. Next, the district court concluded that Plaintiffs “failed to present any substantial evidence regarding” Senate Factors 2, 3, 4, 6, 7, and 8. Id. at *8. The court acknowledged that “several of these factors are not relevant in a VRA vote denial claim,” but found that Factors 7 and 8‐“the extent to which minority group members have been elected to political office in Washington” and the “level of responsiveness elected officials have to the particularized needs of” minorities‐are “certainly relevant to Plaintiffs' VRA claim.” Id. Finally, the court concluded that Senate Factor 9‐whether the state's policy justifications are “tenuous”‐ “also favors Defendants' position.” Id. Although Defendants did “not explain why disenfranchisement of felons is ‘necessary’ to vindicate any identified state interest,” id., the district court concluded that, in light of the Constitution's explicit recognition of the states' power to disenfranchise felons,FN7 its “ability to examine the tenuousness of Washington's felon disenfranchisement law is extremely limited,” id. Thus, the district court concluded that “[a]lthough the evidence of racial bias in Washington's criminal justice system is compelling,” under the totality of the circumstances test, Plaintiffs had failed to establish a violation of VRA § 2. Id. at *9.

Subsequent to oral argument, and well after this case had been submitted for decision, Washington law regarding the voting rights of felons was amended. Washington law now provides that the voting rights of felons will be “provisionally restored,” at such time as those convicted under Washington state law are no longer under the authority of the Washington Department of Corrections, and, as to those convicted under federal law or in any other state, they are not in custody. See Wash. Laws of 2009, ch. 325, HB 1517. We requested supplemental briefing on what effect, if any, this new law might have on this case. Following our review of the parties' briefs, we conclude that the new law does not affect our analysis or resolution of any of the issues on this appeal, with one narrow exception: the claim of one of the Plaintiffs has been mooted because he is no longer under the authority of the Department of Corrections.FN8
*4 The dissent characterizes the amendment as a “significant legislative change” and would remand the case to the district court to allow it the opportunity to determine whether there are “meaningful analytical differences” between incarcerated and non‐incarcerated felons. Diss. at ‐‐‐‐. Neither party, however, has ever suggested to this court‐including in the supplemental briefing‐that there are any material differences between incarcerated and nonincarcerated felons that are relevant to the outcome of this case.FN9 In the absence of any contention, especially by the State, that such differences exist, there is neither reason nor need to remand to the district court for the purposes urged by the dissent.
Thus, we are not, contrary to the dissent's assertion, the first court to be “presented with the question whether [incarcerated and nonincarcerated felons] present a meaningful distinction under the VRA's totality of the circumstances inquiry.” Diss. at ‐‐‐‐ (footnote omitted). In fact, we are not presented with that question at all. Rather, what the State contends regarding the amended law is that the provisions modifying the period during which felons are deprived of the right to vote are sufficient, when taken in concert with the other relevant considerations, to require us to uphold the grant of summary judgment under the totality of the circumstances test that we ordinarily apply in voting rights cases. We consider that argument below, in Section III.E.
II. STANDARD OF REVIEW
[1] We review de novo the district court's conclusions of law regarding the application of § 2 of the VRA. Smith v. Salt River Project Improvement & Power Dist., 109 F.3d 586, 591 (9th Cir.1997) (“ Salt River ”); see also Thornburg, 478 U.S. at 79, 106 S.Ct. 2752 (stating that an appellate court reviewing a § 2 claim can “correct errors of law, including those that may infect a so‐called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law”) (internal citation and quotation marks omitted); Gomez v. City of Watsonville, 863 F.2d 1407, 1411 (9th Cir.1988) (stating in a § 2 case that “the district court's findings will be set aside to the extent that they rest upon an erroneous view of the law”). Except to note that we also review a district court's ruling on summary judgment de novo, Fin. Mgmt. Advisors, LLC v. Am. Int'l Specialty Lines Ins. Co., 506 F.3d 922, 925 (9th

Cir.2007), we defer a fuller discussion of the standard that governs our review of the district court's summary judgment rulings to Part III.D. 1, infra.
III. ANALYSIS
A. Statutory Background
Congress enacted the VRA of 1965, pursuant to its enforcement power under § 2 of the Fifteenth Amendment, for the “broad remedial purpose of ‘rid[ding] the country of racial discrimination in voting.’ ” Farrakhan I, 338 F.3d at 1014 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966)). As originally enacted, the VRA focused in large part on certain “covered” jurisdictions with a history of voting discrimination. FN10 The VRA required such jurisdictions to pre‐ clear any change in voting procedures with the Department of Justice; it also banned literacy tests FN11 and permitted the federal government to monitor elections in those jurisdictions. Voting Rights Act of 1965, Pub.L. No. 89‐110, tit. I, §§ 4, 5, 6(b), 7, 9, & 13(a), 79 Stat. 437 (1965), codified at 42 U.S.C. § 1973b et seq. (1965). Section 2 of the 1965 VRA, in contrast, was not restricted to “covered” jurisdictions. Mirroring the language of the Fifteenth Amendment, § 2 originally provided that “[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973 (1965).
*5 In 1980, a plurality of the Supreme Court concluded, in City of Mobile v. Bolden, 446 U.S. 55, 58, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), that § 2 “was intended to have an effect no different from that of the Fifteenth Amendment itself,” id. at 61, 100 S.Ct. 1490; consequently, that plaintiffs raising claims under VRA § 2 were required to show direct evidence of discriminatory intent, as is required for Fifteenth Amendment claims, id. at 62‐63, 100 S.Ct. 1490. In direct response to Bolden, Congress amended § 2 in 1982 “to make clear that proof of discriminatory intent is not required to establish a violation of Section 2.” S.Rep. No. 97‐417, at 2 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 179 (“Senate Report”). Section 2(a) now provides:
No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color....
42 U.S.C. § 1973(a) (emphasis added). Section 2(b) further explains that

A violation of subsection (a) ... is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class or citizens protected by subsection (a) ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
42 U.S.C. § 1973(b). Although the debate surrounding this amendment focused almost exclusively on vote dilution claims,FN12 the language of the amendment makes clear that the new “results test” applies both to vote dilution and vote denial claims.FN13 See Chisom v. Roemer, 501 U.S. 380, 394, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (“[P]laintiffs can prevail under § 2 by demonstrating that a challenged election practice has resulted in the denial or abridgment of the right to vote based on color or race.”); Salt River, 109 F.3d at 594‐95 (applying § 2 results test to a vote denial claim).
The Senate Report on the 1982 amendments listed “typical factors” that courts might consider in determining whether, under the totality of the circumstances, a challenged voting practice “results in” the denial or abridgement of the right to vote on account of race. These are:
(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;
(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti‐single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
*6 (4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle racial appeals;
(7) the extent to which members of the minority group have been elected to public office in the jurisdiction;
(8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;
(9) whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
S.Rep. No. 97‐417, at 28‐29.FN14 The Senate Report emphasized, however, that “there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other,” and that, “[w]hile these enumerated factors will often be the most relevant ones, in some cases other factors will be indicative of the alleged dilution.” Id. at 29.
B. Law of the Case As a preliminary matter, Defendants argue that the VRA does not apply to state felon disenfranchisement laws and that the district court's grant of summary judgment should be affirmed on that basis alone. In Farrakhan I, however, we clearly held that vote denial claims challenging felon disenfranchisement laws are cognizable under § 2 of the VRA. Farrakhan I, 338 F.3d at 1016. Defendants acknowledge that Farrakhan I is the law of the case, but argue that the exceptions to the law of the case doctrine permit this panel to “reexamine” Farrakhan I. We disagree because, as discussed below, none of the exceptions to the law of the case doctrine applies. Therefore, Farrakhan I remains binding on this panel.

[2] [3] “The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case.” Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.) (en banc) (internal quotation marks omitted) (quoting Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir.1996)), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997). Nevertheless, “a panel of this court has discretion to depart from the law of the case ... where: ‘(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial.’ ” Tahoe‐Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 216 F.3d 764, 787 (9th Cir.2000) (quoting Jeffries, 114 F.3d at 1489).
*7 [4] Defendants appear to invoke the first and second exceptions, arguing that “[t]he subsequent intervening authority of sister circuits reveals that this Court's conclusion was clearly erroneous and works a manifest injustice.” They rely on post‐ Farrakhan I cases from the Second and Eleventh Circuits, which held that the VRA does not apply to felon disenfranchisement laws. See Hayden v. Pataki, 449 F.3d 305 (2d Cir.2006) (en banc); Johnson v. Governor of the State of Fla., 405 F.3d 1214 (11th Cir.) (en banc), cert. denied, 546 U.S. 1015, 126 S.Ct. 650, 163 L.Ed.2d 526 (2005).FN15 To the extent Defendants suggest that these cases constitute “intervening controlling authority” that would make reconsideration appropriate, such argument is clearly incorrect. Out‐of‐circuit cases are not binding on this Court and therefore do not constitute “controlling authority.” Defendants have cited no case to the contrary.
[5] Moreover, although Hayden, Johnson, and Simmons created a circuit split with our decision in Farrakhan I, we do not agree that those decisions demonstrate that Farrakhan I was “clearly erroneous.” First, both Hayden and Johnson were rendered over vigorous dissents. See Hayden, 449 F.3d at 343‐62 (Parker, J., dissenting, joined by Calabresi, Pooler, and Sotomayor, JJ.); id. at 362‐67 (Calabresi, J., dissenting); id. at 367‐68 (Sotomayor, J., dissenting); id. at 368‐69 (Katzmann, J., dissenting); Johnson, 405 F.3d at 1239‐44 (Wilson, J., dissenting in relevant part); id. at 1247‐51 (Barkett, J., dissenting).FN16 Thus, even if we assume that Farrakhan I was erroneous, such error was hardly “clear,” given the vigorous dissenting opinions in the First, Second, and Eleventh Circuits. Second, Farrakhan I was called en banc but failed to attract a majority vote of the nonrecused active judges in favor of en banc rehearing. Farrakhan v. Washington, 359 F.3d 1116 (9th Cir.2004) (denying petition for rehearing en banc). That a majority of this Court's active judges did not consider Farrakhan I worthy of en banc rehearing also supports a conclusion that the decision was not “clearly erroneous.” Cf. Jeffries, 114 F.3d at 1493 (holding that a three‐judge panel “should not have exercised its discretion to depart from its prior decision” in part because “further appellate review of [that decision] was sought and denied prior to the panel's change of heart”). FN17 Finally, although it did not directly address the question whether challenges to felon disenfranchisement laws are cognizable under VRA § 2, the Sixth Circuit treated them as such when it decided a § 2 vote dilution challenge to Tennessee's felon disenfranchisement law. See Wesley v. Collins, 791 F.2d 1255, 1259‐62 (6th Cir.1986). Taking Wesley into account, there is a close

split among the circuits that have faced VRA challenges to felon disenfranchisement laws on whether such challenges are cognizable, lending further support to the conclusion that Farrakhan I cannot be considered “ clearly erroneous” for the purpose of departing from the law of the case.
*8 We thus conclude that Farrakhan I remains binding Circuit law.
C. Standing
[6] Defendants next argue that Plaintiffs “lack standing to claim that they were denied the right to vote on account of race” because they have not shown that their own felony convictions were the result of racial discrimination. Defendants misconstrue the requirements for Article III standing.
[7] To establish Article III standing, Plaintiffs must demonstrate: (1) that they have suffered an injury in fact that is both “concrete and particularized” and “actual and imminent,” (2) that the injury is fairly traceable to the challenged action, and (3) that a decision in Plaintiffs' favor would likely redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560‐61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). That test is easily satisfied here. Plaintiffs have suffered an injury in fact that is concrete, particularized, and actual: they have been denied the right to vote. That injury is directly traceable to the challenged action: Washington's felon disenfranchisement law. And a decision invalidating Washington's felon disenfranchisement provision would redress Plaintiffs' injury: it would restore their right to vote.
The State attempts to import a merits question‐that is, a question regarding whether plaintiffs can prove a violation‐into the standing inquiry. This is incorrect. See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“[S]tanding in no way depends on the merits of the plaintiff's contention that particular conduct is illegal.”). Standing is a threshold question, the purpose of which is to ensure that there is an actual “case or controversy” and that the plaintiff is the correct party to bring suit. See id. at 498‐99, 95 S.Ct. 2197. Whether Plaintiffs can succeed on their VRA claim is irrelevant to the question whether they are entitled to bring that claim in the first place.FN18
In any event, neither this Court nor the other circuits that have considered vote denial claims under § 2 have ever held that a plaintiff lacked standing because he or she did not allege that he/she had been personally discriminated against. See Hayden, 499 F.3d 305; Johnson, 405 F.3d 1214; Farrakhan I, 338 F.3d 1009; Salt River, 109 F.3d 586. Because Plaintiffs have alleged an injury in fact that is traceable to the Washington law and can be redressed by a favorable ruling, we reject Defendants' argument that Plaintiffs lack standing.

D. The cross‐motions for summary judgment
1. The summary judgment standard
“Summary judgment is appropriate where no genuine issue of material fact exists and a party is entitled to prevail in the case as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 56(c). Here, the parties agree that there are no disputed material facts. Indeed, “[a]lthough summary judgment rules provided [Defendants] with an opportunity to respond to[Plaintiffs'] materials, [Defendants] did not offer any fact‐based or expert‐ based refutation in the manner the rules provide.” See Beard v. Banks, 548 U.S. 521, 534, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) (plurality opinion) (citing Fed.R.Civ.P. 56(e)). Federal Civil Rule 56(e)(2) provides that “[w]hen a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must‐by affidavits or as otherwise provided in this rule‐set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.” Likewise, Rule 56.1(b) of the Local Rules of the Eastern District of Washington (“Local Rule”) provides that “[a]ny party opposing a motion for summary judgment must file with its responsive memorandum a statement ... setting forth the specific facts which the opposing party asserts establishes a genuine issue of material fact precluding summary judgment. Each fact must explicitly identify any fact(s) asserted by the moving party which the opposing party disputes or clarifies.” If the moving party's statement of facts are not controverted in this manner, “the Court may assume that the facts as claimed by the moving party are admitted to exist without controversy.” Local Rule 56.1(d); see also Beard, 548 U.S. at 527, 126 S.Ct. 2572.
*9 [8] Here, Defendants failed specifically to challenge the facts identified in Plaintiffs' statement of undisputed facts as required by the rules. Defendants did, in their Supplemental Statement of Material Facts, raise some questions about Plaintiffs' expert's reports, but those questions were not supported by affidavit or counter‐experts. Moreover, none of the questions raised by Defendants in their Supplemental Statement contradicts, or even suggests that there is some dispute about the ultimate conclusions of Plaintiffs' experts' reports. Therefore, “by failing specifically to challenge the facts identified in [Plaintiffs'] statement of undisputed facts, [Defendants are] deemed to have admitted the validity of the facts contained in the [Plaintiffs'] statement.” Beard, 548 U.S. at 527, 126 S.Ct. 2572.
In addition to failing to challenge any of Plaintiffs' facts in the manner required by Rule 56(e) and Local Rule 56.1, Defendants insisted before the district court that “[N]o question of material fact remains in this case; and therefore, this case is ready to be ruled upon at summary judgment.” Just as Defendants' counsel insisted before the district court that there were no disputes of material facts, Defendants' counsel at oral argument before this Court repeatedly insisted that there were no disputes of material

fact. Therefore, Defendants do not, and have not, disputed any of Plaintiffs' factual assertions, including the assertions put forth by Plaintiffs' experts, either in their briefing before this Court or during oral argument. Instead, Defendants have stated repeatedly both before the district court and this Court that no question of material fact exists and that this case is ready to be ruled upon at summary judgment.FN19 Defendants do argue that the district court erred in concluding there is discrimination in Washington's criminal justice system on account of race because, according to Defendants, Plaintiffs' evidence of racial bias in Washington's criminal justice system “is very limited,” and is inadequate to demonstrate that even Senate Factor 5 favors Plaintiffs' claims as a matter of law. In other words, Defendants argue that they are entitled to summary judgment because even accepting Plaintiffs' evidence as uncontroverted, it fails as a matter of law to demonstrate that the felon disenfranchisement law violates § 2.
When a moving party without the ultimate burden of persuasion at trial demonstrates that it is entitled to prevail as a matter of law by showing that the nonmoving party has not adduced sufficient evidence of an essential element to carry its ultimate burden of persuasion at trial, the moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000). Put differently, when the nonmoving party has the burden of proof at trial, as Plaintiffs do here, the party moving for summary judgment, in this case the State, need only point out that there is an absence of evidence to support the nonmoving party's case. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc). If, on the other hand, the State fails to demonstrate that there is an absence of evidence to support Plaintiffs' case, then the State's summary judgment motion must be denied.
*10 As the Supreme Court has noted, Defendants' litigation strategy is a perilous one. “It has always been perilous for the opposing party neither to proffer any countering evidentiary material nor file a 56(f) affidavit. And the peril rightly continues after the amendment to Rule 56(e).” See Adickes v. Kress & Co., 398 U.S. 144, 161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (internal citation, quotation marks, and brackets omitted). Declining to “offer any evidence opposing summary judgment ... is not the recommended approach when the opposing party feels that the movant has not met his burden.... [I]n most cases the better response to a summary‐judgment motion is not simply to test the sufficiency of the movant's case by challenging the legal sufficiency of the evidence presented on the motion, but to introduce contradictory evidence to establish that a question of material fact remains in dispute.” 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure Civil 3d § 2727, at 516 (1998). Nevertheless, that is the approach the Defendants have pursued, and we are charged with deciding this case in the procedural posture and on the record evidence as it is brought before us.
Plaintiffs, on the other hand, would be entitled to summary judgment based upon their motion if they make out a prima facie case that would entitle them to judgment as a matter of law if uncontroverted at trial. See UA Local 343 United Ass'n of Journeymen & Apprentices of Plumbing & Pipefitting Indus. of

U.S. & Canada, AFL‐CIO, 48 F.3d at 1471; see also 10A Wright et al., supra, § 2727, at 486. Given that Defendants have not adduced any evidence to show that there is a genuine issue for trial, Plaintiffs need only demonstrate that their uncontroverted evidence entitles them to judgment as a matter of law. See Ritchie v. United States, 451 F.3d 1019, 1023 (9th Cir.2006) ( “[J]udgment as a matter of law is appropriate only if no reasonable jury could find in favor of the non‐moving party.”).
Thus, because the parties agree that the facts are uncontroverted and agree further that the only question left for the court is to determine the legal significance of those facts and the reasonable inferences to be drawn from them, we conclude that summary judgment in this case is appropriate:
The fact that difficult questions of law exist or that parties differ on the legal conclusion to be drawn from the facts is not in and of itself a ground for denying summary judgment inasmuch as refusing to grant the motion does not obviate the court's obligation to make a difficult decision; a denial merely postpones coming to grips with the problem at the cost of engaging in a full‐dress trial that is unnecessary for a just adjudication of the dispute. Therefore, when the only question is what legal conclusions are to be drawn from an established set of facts, the entry of summary judgment usually should be directed.
10A Wright et al., supra § 2725, at 411‐12; see also Farrakhan, 359 F.3d at 1117 (Kozinski, J., dissenting from denial of rehearing en banc) (“[T]he record is settled.... No triable issues of fact remain.”); Smith v. Califano, 597 F.2d 152, 155 n. 4 (9th Cir.1979) (“The parties here have agreed on the material facts, the dispute involving the proper interpretation of relevant statutes and regulations. Because the case could thus be resolved as a matter of law, summary judgment was the proper procedural device.”); cf. Aramark Facility Servs. v. Serv. Employees Int'l Union, Local 1877, AFL‐CIO, 530 F.3d 817, 822 (9th Cir.2008) (“Here, the district court resolved the matter on the parties' cross‐motions for summary judgment, which necessarily present questions of law.”). Thus, the legal question presented to us, although difficult, is a straightforward one: Have Plaintiffs demonstrated a prima facie case that the felon disenfranchisement law violates § 2 of the VRA, i.e., that: (1) there are significant statistical racial disparities in the operation of the criminal justice system; (2) those disparities cannot be explained in race‐neutral ways; and (3) those non‐race‐neutral disparities in the criminal justice system lead to significant racial disparities in the qualification to vote, such that Plaintiffs would be entitled to judgment as a matter of law based upon the uncontroverted evidence?
2. The merits of the cross‐motions
*11 [9] Defendants' summary judgment motion is premised on Plaintiffs' having failed to produce sufficient evidence to establish a § 2 vote denial claim. The nub of Defendant's argument is that all of

the Senate Factors are relevant to Plaintiffs' vote denial claim; that the district court was correct to consider them in its totality‐of‐the‐circumstances analysis; and that, because Plaintiffs failed to produce probative evidence relating to Senate Factors other than 5, Plaintiffs failed to produce sufficient evidence to make out a § 2 vote denial claim. Thus, Defendants contend, they were entitled to summary judgment.
Plaintiffs, on the other hand, contend that, having concluded that racial discrimination exists in the Washington criminal justice system (Factor 5), the district erred in then requiring Plaintiffs to produce evidence regarding other Senate Factors not relevant to their vote denial claim. While those factors may be pertinent to a vote dilution claim, Plaintiffs contend that they “cast no light on Plaintiffs' vote denial challenge.”
We agree with Plaintiffs for the reason that, given the strength of their Factor 5 showing, the district court erred in requiring them to prove Factors that had little if any relevance to their particular vote denial claim. Although the district court was required to consider the “totality of the circumstances,” not all of the Senate Factors were equally relevant, or even necessary, to that analysis in this case. Some Senate Factors may be relevant as circumstantial evidence with respect to certain vote denial claims, but proof of those Factors was not required where, under Factor 5, Plaintiffs provided strong, indeed “compelling,” direct evidence of the alleged violation. There is indeed, as the Senate Report stressed, no requirement that any particular number of Factors support a particular claim. S.Rep. No. 97‐417, at 29. Even one may be enough in some instances.FN20
We first address the district court's treatment of the various Senate Factors to explain why that treatment was erroneous. We then consider whether the evidence produced by Plaintiffs was sufficient to preclude a grant of summary judgment to Defendants. Finally, we consider whether Plaintiffs were entitled to summary judgment.
a. The district court's treatment of the Senate Factors
i. Senate Factors 7 and 8
[10] In its listing of the Factors that typically may be relevant to a § 2 claim, the Senate Report made clear that “there is no requirement that any particular number of Factors be proved or that a majority of them point one way or the other.” S.Rep. No. 97‐417, at 29; see id. at 29 n. 118 (stating that the Factors were not intended “to be used[ ] as a mechanical ‘point‐counting’ device”); see also Gomez, 863 F.2d at 1412 (noting the Senate Report's emphasis that the “list of factors was not a mandatory seven‐pronged test” but “only meant as a guide to illustrate some of the variables that should be considered by the

court”). Thus, “while the basic 'totality of the circumstances' test remains the same, the range of factors that [are] relevant in any given case will vary depending upon the nature of the claim and the facts of the case.” Gomez, 863 F.2d at 1412. Where the evidence of one central Factor in a particular case is compelling, that Factor may be sufficient. Moreover, as the Supreme Court has recognized, the enumerated Factors are “particularly [pertinent] to vote dilution claims,” Thornburg, 478 U.S. at 45, 106 S.Ct. 2752, and, it follows, not as pertinent, generally, in vote denial cases. Thus, in vote denial cases, there is even more flexibility in determining whether, under the totality of the circumstances test, a single factor is controlling and whether any weight may or should be given to the presence or absence of others.
*12 [11] The district court acknowledged that it was “not bound by the list of Senate factors,” but found that several of the Factors were relevant to Plaintiffs' vote denial challenge. Farrakhan, 2006 WL 1889273, at *7. Specifically, the district court found that Factors 7 and 8‐the extent of minority representation among elected officials, and the level of responsiveness of elected officials to minorities' needs‐were “certainly relevant to Plaintiffs' VRA claim.” Id. at *8.FN21 We conclude, however, that, in light of its finding of “compelling evidence of racial discrimination and bias in Washington's criminal justice system,” the district court erred in according any weight to Plaintiffs' failure to introduce evidence regarding Factors 7 and 8. These factors are not essential to a § 2 vote denial claim and in this case, while their presence might be of some relevance, their absence is insufficient cause to justify in any respect the denial of Plaintiffs' claim.
[12] [13] To understand which Senate Factors might be relevant to deciding a vote denial claim, it is important to recognize the analytical distinction between vote denial and vote dilution theories. A vote dilution claim does not allege that minority voters are denied access to the polls; rather, the claim is that, although minority voters have the formal right to vote, the challenged voting scheme “operates to minimize or cancel out [the minority voters'] ability to elect their preferred candidates.” FN22 Thornburg, 478 U.S. at 48, 106 S.Ct. 2752. In other words, the focus of a vote dilution challenge is on the effectiveness of the minority plaintiffs' votes. Naturally then, the Factors most relevant to a vote dilution claim are those that examine whether minorities have the capacity to be politically influential as a group, and, if so, whether their political influence has been weakened‐for example, whether the minority group is politically cohesive, whether the white majority votes in a bloc, whether voting is racially polarized, whether minorities have succeeded in being elected to public office, and whether elected officials have been responsive to the particularized needs of the minority group. See Thornburg, 478 U.S. at 48 & n. 15, 106 S.Ct. 2752.
[14] [15] Vote denial claims, in contrast, challenge laws, as amici point out, “that directly exclude otherwise qualified voters from participating.” Whereas vote dilution claims “implicate the value of aggregation,” vote denial claims “implicate the value of participation.” Tokaji, supra, at 718 (emphasis

added). Thus, the primary question in such cases is not whether a “denial or abridgement” occurs, but whether such denial is “on account of race.” In vote denial claims brought under the “results test,” the “on account of” element is proved by showing that a “discriminatory impact ... is attributable to racial discrimination in the surrounding social and historical circumstances.” FN23 Farrakhan I, 338 F.3d at 1019. Consequently, factors that examine the political strength of minority voters in the jurisdiction are of lesser relevance.
*13 Given the analytical distinction between vote dilution and vote denial, it is clear that Senate Factors 7 and 8, while relevant to the former, FN24 are of lesser relevance to a vote denial claim. The “extent to which members of the minority group have been elected to public office in the jurisdiction” (Senate Factor 7) simply has no bearing on the question whether minorities are being denied the right to vote “on account of race.” Even if a majority of the elected officials in the jurisdiction were members of the minority group, it would still violate § 2 to deny minority citizens the right to vote on discriminatory grounds. The fact that minority candidates have had success in the state does not cure the discriminatory denial of the franchise to minority voters.FN25 Likewise, whether elected officials have been responsive to “the particularized needs of the members of the minority group” (Factor 8) may be probative of the minorities' ability to influence the political process, but generally does not indicate whether minorities are being denied access to the polls on account of their race. If minorities are disproportionately deprived of their right to vote, and if that disparity is caused by racial discrimination, then whether the elected officials have been responsive to minority issues is simply of little relevance.FN26
Accordingly, the district court erred in concluding that Plaintiffs' “failure to produce any evidence” as to Factors 7 and 8 provided any support for its grant of summary judgment to Defendants. Farrakhan, 2006 WL 1889273, at *8. Plaintiffs' failure to produce evidence regarding those factors is without legal significance because proof relating to them is not necessary to establish a vote denial claim. This is especially so in a case in which a “compelling” showing of discrimination has been made. Defendants, while contending that the district court was correct to rely on the absence of evidence regarding Factor 7 and Factor 8, do not even attempt to explain why such evidence is relevant to Plaintiffs' vote denial claim. Their unsupported assertion that all of the Senate Factors are “relevant” does not make them so.FN27
ii. Senate Factor 1
[16] Plaintiffs also argue that the district court erred in placing “near‐dispositive weight” on Senate Factor 1 (“extent of any history of official discrimination in the state” in the area of voting). We agree.

[17] [18] The district court misperceived the relationship between Factor 1 and § 2 vote denial claims. Although Factor 1 may be supportive of a § 2 vote denial claim FN28‐especially where the plaintiff alleges that the voting qualification itself is discriminatory‐proving Factor 1 is not necessary to succeed on such a challenge. Cf. Thornburg, 478 U.S. at 48 n. 15, 106 S.Ct. 2752 (distinguishing between factors that are “essential” to proving a vote dilution claim and factors that are “supportive of, but not essential to,” such a claim) (emphasis in original). Showing that a state has a history of discriminating against minority voters can strongly support an argument that the state voting qualification being challenged was enacted with a discriminatory purpose. The failure to show that a state has a history of discriminatory voting practices, however, does not negate a showing that the current voting practice at issue is discriminatory.
*14 Plaintiffs do not contend that Washington's felon disenfranchisement law was enacted with a discriminatory purpose; their claim, rather, is that the provision interacts with a racially discriminatory criminal justice system and, as a result, racial minorities are disproportionately denied the right to vote. If Plaintiffs adduce evidence that the disproportionate disenfranchisement in Washington is attributable to discrimination in the criminal justice system, they may show a violation of § 2 under the “results test” that was sufficient to survive summary judgment. Here, in fact, the district court found the evidence “compelling.” That Washington has not historically discriminated against minorities in voting does not negate a showing that this voting law has a discriminatory result. See Tokaji, supra, at 721 (“A court does not need to rely on ... circumstantial evidence ... when there is direct evidence that an electoral process has the result of disproportionately denying minority votes.” (emphasis in original)).
This conclusion draws support from our precedent. In Gomez, the district court denied a § 2 vote dilution challenge to the city's at‐large election scheme. After determining that the district court had erred in its application of the factors “essential” to such a claim, we assessed the district court's treatment of the “other factors,” including Factor 1. 863 F.2d at 1417‐19. Although we were “troubled” by the district court's conclusion that there had been no official discrimination against Hispanics, we did not believe “that the district court had committed clear error” in so concluding. Id. at 1418. Nevertheless, we concluded that “ even without such a showing, plaintiffs have clearly established a violation of Section 2.” Id. at 1419 (emphasis added). Once the factors “essential” to plaintiffs' vote dilution claim had been satisfied, it made no difference that they had not proved a history of official discrimination in voting.
As in Gomez, Plaintiffs here established a violation of § 2 by adducing evidence sufficient to establish a vote denial claim‐that “there is discrimination in Washington's criminal justice system on account of race,” Farrakhan, 2006 WL 1889273, at *6, and that such discrimination “clearly hinder[s] the ability of

racial minorities to participate effectively in the political process,” id. (quoting Farrakhan I, 338 F.3d at 1220 (internal quotation mark omitted) (alteration in original)). Plaintiffs' evidence of racial discrimination in the Washington justice system was, the district court states, “compelling.” Accordingly, Plaintiffs were not required to produce further circumstantial evidence, and the district court's conclusion that Plaintiffs' failure to prove Senate Factor 1 “strongly favors a finding that Washington's felon disenfranchisement law does not violate § 2 of the VRA” was erroneous.
iii. Senate Factor 9
*15 [19] Finally, Plaintiffs contend that the district court's conclusion that Senate Factor 9 favors Defendants was erroneous. Because, under the totality of the circumstances test, Plaintiffs established a § 2 violation based on the district court's finding of racial discrimination in Washington's criminal justice system, it does not matter whether, as Plaintiffs claim, the state's policy justification for felon disenfranchisement is tenuous.
Like Factor 1, Factor 9 is a factor that could support Plaintiffs' vote denial claim circumstantially but is not necessary to proving it. This conclusion draws direct support from the Senate Report's discussion of Factor 9, which explains that “even a consistently applied practice premised on a racially neutral policy would not negate a plaintiff's showing through other factors that the challenged practice denies minorities fair access to the process.” S.Rep. No. 97‐417, at 29 n. 117. It is also in line with Congress' express objective in amending § 2 of “broaden[ing] the protection afforded by the Voting Rights Act.” Chisom, 501 U.S. at 404, 111 S.Ct. 2354. Under this approach, the district court's finding that Factor 9 “favors the defendants' position” is erroneous. If Plaintiffs can prove that the denial of their right to vote was “on account of” race, it did not matter whether the state's policy reasons were tenuous‐a § 2 violation had been established. Accordingly, we hold that the district court erred in concluding that Plaintiffs' failure to demonstrate the tenuousness of the state's felon disenfranchisement policy weighed against finding a § 2 violation; to the contrary, in this case Factor 9 was simply neutral.
b. Plaintiffs' evidence that vote denial is “on account of race”
[20] Ultimately then, the plaintiff's burden in any § 2 case is to prove that the challenged voting qualification “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a). In the case of automatic felon disenfranchisement, there is no question that the challenged provision constitutes a denial of the right to vote. Consequently, the sole remaining issue is causation‐whether the denial of the right to vote is “on account of race or color.” As we explained in Farrakhan I, the “on account of” requirement may be met “where the discriminatory impact of a challenged voting practice is attributable to racial discrimination in the surrounding social

and historical circumstances,” which include the state's criminal justice system. Farrakhan I, 338 F.3d at 1019‐20.
Here, the district court repeatedly declared that Plaintiffs have presented “compelling” evidence of racial discrimination in Washington's criminal justice system. Indeed, after considering Plaintiffs' evidence, the district court concluded that it “has no doubt that members of racial minorities have experienced racial discrimination in Washington's criminal justice system.” FarrakHeadnote needs Key No. Topic is han, 2006 WL 1889273, at *9.
*16 Based on the uncontroverted facts, we reach the same conclusion as the district court. The expert reports, which were not refuted by the State, provide compelling circumstantial evidence of discrimination in Washington's criminal justice system. Dr. Crutchfield's report states that criminal justice practices disproportionately affect minorities beyond what can be explained by non‐racial means. For example, African Americans in Washington State were over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrest for violent offenses was only 3.72:1, suggesting that substantially more than one half of Washington State's racial disproportionality in its criminal justice system cannot be explained by higher levels of criminal involvement as measured by violent crime arrest statistics. A study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched. A study of the Vancouver, Washington Police Department (“VPD”) indicated that of those stopped for traffic violations by the VPD, African Americans are nearly twice as likely to be searched as Whites, and Latino were three times more likely to be searched. This, despite the fact that searches of Whites more frequently resulted in the seizure of contraband than searches of African Americans and Latinos. According to Dr. Crutchfield, these findings suggest that African Americans and Latinos are at greater risk for searches that could lead to felony charges, but because those searches are less fruitful then searches against Whites, it is likely that minorities are being placed at greater risk for no legitimate purpose.
Dr. Crutchfield also indicated that the significant racial disparities in arrest rates are not fully warranted by race or ethnic differences in illegal behavior. The Seattle Police Department (“SPD”) arrested African Americans and Latinos for drug possession at rates much higher than their proportion among users. Whites, on the other hand, were arrested for drug possession at rates much lower than their proportion among users. The most significant cause of the racial disparity in Seattle drug arrests resulted from the SPD's focus on crack cocaine, a focus that, according to Dr. Crutchfield, cannot be justified by drug use or distribution patterns.

Dr. Crutchfield also reported that charging and bail practices are infected with racial disparities. Whites are less likely to have charges filed than minorities, a significant disparity that persists even after a number of legally relevant characteristics, such as offense seriousness, offenders' criminal histories, and weapons charges, are taken into account. Minority defendants were less likely to be released on their own recognizance than others, even after adjusting for differences among defendants in the severity of their crimes, prior criminal records, ties to the community, and the prosecuting attorney's recommendation. Whether defendants are released on their own recognizance, as opposed to being required to post bail, is important because defendants released on their own recognizance are likely to receive more lenient treatment in both charging and sentencing. Thus, to the extent that minorities are disadvantaged in pre‐trial release, this has real potential for contributing to disparities in felony conviction rates.
*17 Likewise, Dr. Beckett reported that the disparity between whites and minorities (specifically, blacks and Latinos) in drug possession and delivery arrests is largely the result of three organizational practices‐ the police's focus on crack cocaine, on outdoor drug venues, and on the downtown area‐that are not “explicable in race‐neutral terms.” Beckett Report at 2. Dr. Beckett stated that the focus on crack cannot be explained by the frequency of its exchange, by the level of violence in the crack market, or by the health problems associated with crack as opposed to other serious drugs, such as cocaine. Id. at 10‐12. She also reported that the focus on outdoor drug activity cannot be explained by either greater citizen complaints or greater yield from such arrests, concluding that the outdoor focus is an “(ineffecient) policy choice” rather than “an organizational or legal necessity.” Id. at 13. Finally, Dr. Beckett explained that the concentration of law enforcement resources downtown is out of proportion to the level of drug crime there and is also not explainable vis‐a‐vis citizen complaints. Id. at 21‐23.
On this uncontroverted record, the district court found that “there is discrimination in Washington's criminal justice system on account of race,” Farrakhan, 2006 WL 1889273, at *6, and that such discrimination “clearly hinder[s] the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic,” id. (quoting Farrakhan I, 338 F.3d at 1020). Having so found, the district court should not have required Plaintiffs to produce additional circumstantial evidence; they had presented evidence that, if accepted by a finder of fact, would establish a § 2 violation under the totality of the circumstances. Thus, the district court erred in granting Defendants summary judgment.
c. Defendants' challenges to the district court's legal conclusions with respect to Plaintiffs' evidence

Defendants contend, however, that the district court erred in the conclusions it drew from the evidence adduced by Plaintiffs with respect to Factor 5. For that reason, they say, its result was correct, although its analysis was wrong. Defendants contend that the district court erred in finding that the Washington criminal justice system was racially discriminatory, and that, in the absence of such a determination, no basis whatsoever exists for challenging the felon disenfranchisement law. We agree that Plaintiffs' challenge is founded on the premise that Washington's criminal justice system is racially discriminatory and that, in the absence of evidence supporting that claim, Plaintiffs' § 2 challenge would fail. We disagree, however, with Defendants' contention that the district court erred in its conclusion that Plaintiffs introduced “compelling evidence of racial discrimination and bias in Washington's criminal justice system.”
Specifically, Defendants contend that the district court committed three distinct legal errors in analyzing Plaintiffs' evidence of racial discrimination. None of these arguments has merit.
*18 First, Defendants argue that the district court erred as a matter of law in extrapolating Dr. Beckett's Seattle‐specific findings to the whole of Washington state. However, it was not unreasonable to draw inferences from Dr. Beckett's Seattle‐specific findings. Dr. Crutchfield reported that “a large proportion of the minority population of Washington State resides in the City of Seattle or in the surrounding county, King County.” Crutchfield Report at 15; see also id. at 27 (stating that “King County has the largest minority population in the state and contains the state's most diverse city, Seattle, so it is an opportune location in which to complete a study of racial and ethnic disparities in the prosecution of criminal cases”). Given that much of the state's minority population resides in Seattle, it was reasonable for the district court to look to a Seattle‐focused study in assessing racial discrimination in the state as a whole. Indeed, as Dr. Crutchfield reported, counties “with smaller minority populations were likely to produce larger racial disparities” in imprisonment, which suggests that the district court's extrapolation from a Seattle‐based study actually underestimated the racial discrimination in the state as a whole. And, as we have noted, Defendants presented no evidence to counter either Dr. Crutchfield's or Dr. Beckett's findings. Thus, the district court did not err in extrapolating the Seattle findings to the state as a whole.
Second, Defendants contend that the district court erred in relying on statistical disparity alone, in contravention of Salt River. This is plainly incorrect. To be sure, Salt River made clear that “a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 ‘results' inquiry” because causation cannot be inferred from impact alone. 109 F.3d at 595. In Salt River, the plaintiffs challenged a voting qualification which required voters to own property in order to be eligible to vote. The Salt River plaintiffs, however, demonstrated only that “proportionately fewer African‐ Americans than non‐Hispanic whites residing in the[voting] District live in owner‐occupied homes.” 109 F.3d at 590. The plaintiffs “stipulated to the nonexistence of virtually every circumstance which might

indicate that landowner‐only voting results in racial discrimination,” id. at 595, and the district court concluded (and this Court agreed) that “the observed difference in rates of home ownership between non‐Hispanic whites and African‐Americans is not substantially explained by race but is better explained by other factors independent of race,” id. at 591. Thus, the Salt River plaintiffs' evidence of statistical disparity alone was insufficient to prove that the racial disparity in voting was “on account of race.” Id. at 591, 595‐96.
In this case, by contrast, Plaintiffs have introduced expert testimony demonstrating that the statistical disparity and disproportionality evident in Washington's criminal justice system arises from discrimination, and the State has failed to refute that showing. See Farrakhan, 2006 WL 1889273, at *6 n. 7. If Plaintiffs in this case demonstrated only that African Americans, Latinos, and Native Americans are disproportionately affected by Washington's disenfranchisement law, that clearly would not be enough under Salt River. Unlike in Salt River, however, Plaintiffs have produced evidence that Washington's criminal justice system is infected with racial bias. The experts' conclusions are not “statistical disparity alone,” but rather speak to a durable, sustained difference in treatment faced by minorities in Washington's criminal justice system‐systemic disparities which cannot be explained by “factors independent of race.” FN29
*19 Plaintiffs here have introduced evidence demonstrating what the Salt River plaintiffs could not. Plaintiffs have demonstrated that police practices, searches, arrests, detention practices, and plea bargaining practices lead to a greater burden on minorities that cannot be explained in race‐neutral ways. The emphasis on crack cocaine and street drug trafficking is not proportional to its harm to the community or its share of the drug trade. The proportion of African Americans and Latinos arrested for drug possession bears no correlation the proportion of users among the races. Searching African Americans and Latinos at higher rates than Whites even though searches of African Americans and Latinos yield less seizures makes little sense in non‐racial terms. Detaining minority defendants in disproportionate numbers to Whites even after accounting for differences among defendants in the severity of their crimes, prior criminal records, ties to the community, and the prosecuting attorney's recommendation, cannot be understood as race neutral.
Plaintiffs' evidence suggests not only that Washington's criminal justice system adversely affects minorities to a greater extent than non‐minorities, but also that this differential effect cannot be explained by factors other than racial discrimination. This method of proving racial discrimination is familiar in our antidiscrimination jurisprudence: The three‐step analysis required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), proves discriminatory intent through the same circumstantial inference from a lack of race‐neutral explanations. See, e.g., Green v. LaMarque, 532 F.3d 1028, 1029‐30 (9th Cir.2008). Nothing in Salt River undermines the use of such circumstantial evidence of racial discrimination.

Defendants also contend that Plaintiffs did not produce any evidence connecting asserted bias in the criminal justice system to the ability of protected minorities to participate effectively in the political process. According to Defendants, the district court's finding of such a connection lowered Plaintiffs' burden. The district court, however, relied directly on Farrakhan I's explanation that a finding of discrimination in the criminal justice system would establish the requisite connection, because, under Washington law, “disenfranchisement is automatic.” Farrakhan I, 338 F.3d at 1020.
Finally, Defendants argue that, apart from these three asserted errors, the district court erred in concluding that Plaintiffs' evidence demonstrates more than statistical disparity because, according to Defendants, “the evidence offered by Plaintiffs actually falls far short of any such showing.” As noted above, Plaintiffs' experts concluded that many of the racial disparities in Washington's criminal justice system cannot be accounted for by race‐neutral explanations and Defendants did not refute those conclusions with contrary evidence. Although Defendants criticized the experts' studies and the conclusions, the reports, when objectively viewed, support a finding of racial discrimination in Washington's criminal justice system, and the district court did not err in so concluding.
d. Defendants' arguments that even if Washington's criminal justice system is infected with racial bias, there is no § 2 violation
*20 [21] Defendants also argue that even if Plaintiffs have demonstrated that Washington's criminal justice system is infected with racial bias, Defendants are still entitled to summary judgment because Plaintiffs have failed to show a discriminatory intent or discriminatory motive. This, they plainly do not have to show under § 2, as amended. See S.Rep. No. 97‐417, at 2 (“[P]roof of discriminatory intent is not required to establish a violation of Section 2.”).
[22] Defendants next argue that even if Washington's criminal justice system is infected with racial bias and that such infection spreads to voting qualifications, Plaintiffs still have failed to show a § 2 violation because “[t]he simple fact is that the voter fully controls whether he or she will forfeit the right to vote under Washington's felon disenfranchisement law. The voter need only refrain from committing a felony to retain his or her right to participate fully in the electoral process.” However, Farrakhan I directly addressed and rejected this claim, holding that, “when felon disenfranchisement results in denial of the right to vote ... on account of race or color, Section 2 affords disenfranchised felons the means to seek redress.” 338 F.3d at 1016 (emphasis added). Cf. Hunter v. Underwood, 471 U.S. 222, 223‐24, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (holding, in a case brought by two individuals convicted of presenting worthless checks, that a provision of the Alabama Constitution disenfranchising those convicted of

crimes of moral turpitude violates the Equal Protection Clause because its enactment was motivated by racial bias).
If Farrakhan I and Hunter, inferentially, had not already decided this question, we would nonetheless reject Defendants' argument. Plaintiffs' evidence demonstrates that in the total population of potential “felons,” i.e., those who have committed crimes, minorities are more likely than Whites to be searched, arrested, detained, and ultimately prosecuted. And they have introduced evidence showing that these disparities cannot be explained in race‐neutral ways.
To be sure, one of the early (if not the first) decision points in the process of becoming a felon is the decision by the person to commit a crime. Plaintiffs have not attempted to demonstrate that that decision point is infected by racial bias. Before one who commits a criminal act becomes a felon, however, numerous other decisions must be made by State actors. Police departments decide where to spend resources, officers decide which individuals to search and arrest, prosecutors decide which individuals to charge (including whether to charge a felony or a misdemeanor), detain, and prosecute. If those decision points are infected with racial bias, resulting in some people becoming felons not just because they have committed a crime, but because of their race, then that felon status cannot, under § 2 of the VRA, disqualify felons from voting.
3. Plaintiffs are entitled to summary judgment
*21 Plaintiffs also contend that the district court erred in denying their motion for summary judgment.FN30 We agree. And, contrary to the dissent's suggestion, Diss. at ‐‐‐‐ ‐ ‐‐‐‐, we are mindful of our obligation, when considering a motion for summary judgment, that we view the evidence in the light most favorable to the nonmoving party, and draw “all justifiable inferences” in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “[o]n a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts.’ ” Ricci v. DeStefano, ‐‐‐ U.S. ‐‐‐‐, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)); see also Beard v. Banks, 548 U.S. 521, 529‐30, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) (noting that “we must distinguish between evidence of disputed facts and disputed matters of professional judgment”). Here, there is no such “genuine” dispute. Plaintiffs carried their burden of producing evidence of discrimination; defendants were then required to “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586‐87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Based on the substantial showing by Plaintiffs, Defendants had the burden “to set forth any specific facts showing that there is a genuine issue ... for trial.” Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 330, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999). This they did not do. The record is uncontroverted.

In its procedural posture, this case is also, in many respects, similar to the recent case of Ricci v. DeStefano, which also involved the resolution of cross‐motions for summary judgment, and in which the Court noted: “As the District Court noted, although ‘the parties strenuously dispute the relevance and legal import of, and inferences to be drawn from, many aspects of this case, the underlying facts are largely undisputed.’ ” 129 S.Ct. at 2665 (quoting Ricci v. DeStefano, 554 F.Supp.2d 142, 145 (D.Conn.2006)). The Court granted summary judgment to petitioners, because “there[was] no evidence‐ let alone the required strong basis in evidence” to support the respondent's position. Id. at 2681.
In any case, even viewing the evidence in the light most favorable to Defendants, Plaintiffs have demonstrated that racial minorities are over‐represented in the felon population based upon factors that cannot be explained by non‐racial reasons. Given that uncontroverted showing, in the words of the district court, there can be “no doubt that members of racial minorities have experienced discrimination in Washington's criminal justice system.” In the face of this showing, all Defendants did was question the credibility of Plaintiffs' experts without “rais[ing] a genuine issue of material fact regarding” the ultimate effect of Washington's felon disenfranchisement law. Dep't of Commerce, 525 U.S. at 331, 119 S.Ct. 765. They have “not offer[ed] any fact‐based or expert‐based refutation,” Beard, 548 U.S. at 534, 126 S.Ct. 2572, that challenges the conclusions reached by Plaintiffs' experts. Section 2 of the VRA demands that such racial discrimination not spread to the ballot box. Thus, based on the uncontroverted record, Plaintiffs are entitled to summary judgment.
E. Washington's Amended Felon Disenfranchisement Law
*22 [23] Defendants argue that Washington's recent amendment to its felon disenfranchisement law alters the totality of the circumstances analysis required by § 2 of the VRA. The amendment modified Washington's felon disenfranchisement scheme by providing for the provisional restoration of the voting rights of felons upon their release from prison or from community custody (a Washington program through which offenders live in the community, but are subject to restraints imposed by the Department of Corrections). See Wash. Laws of 2009, ch. 325, HB 1517; Wash. Rev.Code § 9.94A.030(5). A released felon's provisionally restored right to vote may be revoked for willful failure to fulfill all financial obligations imposed as part of his sentence. Id. at 2(a). Under the previous law, a felon was barred from voting until he had completed all the requirements of his criminal sentence, including any financial obligations imposed as part of that sentence and had obtained certificates of discharge restoring his civil rights. See Farrakhan I, 338 F.3d at 1012.
Defendants first contend that if felon disenfranchisement laws disproportionately affect minorities, then the amendment, which reduces the number of felons disenfranchised, disproportionately benefits

minorities, and in so doing provides evidence of positive action by the state with regard to minority voting rights that is relevant to Senate Factors 1, 3 and 8. However, a mere decrease in the length of time for which the State's discriminatory criminal justice system deprives minorities of the right to vote does not change our determination that those Factors have little relevance to this case.
In terms of Factor 5, the gravamen of defendants' argument is that the amendment decreases the total number of minorities who are without voting rights at any given time, and so diminishes the extent of the discriminatory effects of the State's felon disenfranchisement system.FN31 We hope that defendants are correct about the positive effects of the amendment: it appears that under the old law almost a quarter of otherwise qualified African American men in Washington were disenfranchised. See Jamie Fellner & Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 9‐10 (1998); see also Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 250 (2006) (over 17% of the entire adult black population of Washington disenfranchised). However, no matter how well the amended law functions to restore at an earlier time the voting rights of felons who have emerged from incarceration, it does not protect minorities from being denied the right to vote upon conviction by a criminal justice system that Plaintiffs have demonstrated is materially tainted by discrimination and bias. Accordingly, it does not alter our analysis as to Senate Factor 5 or as to the totality of the circumstances.
IV. CONCLUSION
*23 We are bound by Farrakhan I's holding that § 2 of the VRA applies to Washington's felon disenfranchisement law. Plaintiffs have demonstrated that the discriminatory impact of Washington's felon disenfranchisement is attributable to racial discrimination in Washington's criminal justice system; thus, that Washington's felon disenfranchisement law violates § 2 of the VRA. The judgment of the district court granting Defendants' motion for summary judgment and denying Plaintiffs' motion for summary judgment is REVERSED, and the case is REMANDED with instructions to GRANT summary judgment to Plaintiffs.
McKEOWN, Circuit Judge, dissenting:
*23 In granting summary judgment to plaintiffs, the majority has charted territory that none of our sister circuits has dared to explore. The First, Second, and Eleventh Circuits have determined that vote denial challenges to felon disenfranchisement laws are not cognizable under the Voting Rights Act. See Simmons v. Galvin, 575 F.3d 24 (1st Cir.2009); Hayden v. Pataki, 449 F.3d 305 (2d Cir.2006) (en banc); Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir.2005) (en banc). That preliminary question was settled by our circuit in Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003) ( “ Farrakhan I ”).

While I believe that the felon disenfranchisement challenge is not a comfortable fit within the Voting Rights Act, I do not dispute the continuing validity of Farrakhan I. The wisdom of Farrakhan I is not within the purview of the panel to reconsider here. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc) (holding that prior circuit authority is binding on three‐judge panels unless “clearly irreconcilable with the reasoning or theory of intervening higher authority”). However, in part because the holding of Farrakhan I places us in a crowd of one amongst the circuits, I believe we should be particularly mindful before reversing the district court and invalidating felon disenfranchisement in the State of Washington. The majority has failed to act with appropriate caution. I respectfully dissent.
I first note that the landscape of this case has changed from the time the district court dismissed the case and even since we heard oral argument. As of July 26, 2009, Washington law now provides that the State will provisionally restore voting rights to felons convicted in Washington state courts so long as the individual is no longer under the authority of the Department of Corrections, and to those convicted of federal felonies or felonies in other states as long as the person is no longer incarcerated. Washington Laws of 2009, chapter 325, HB 1517.
Following this significant legislative change, we are left to consider the Voting Rights Act challenge of only those felons still serving their prison terms. Interestingly, the case up to this point has never contemplated the two distinct sets of felons affected by the prior Washington law‐those still incarcerated and those already released. Both the parties and the courts have seemingly considered felons generally, as a single group; the bifurcation of classes of felons came about as a consequence of this new legislation. Thus, within this litigation, no court has addressed whether these two sets of individuals present meaningful analytical differences. This posture is not surprising because the statute did not make such a distinction before it was amended and, as the State notes in supplemental briefing, the case now presents “a substantially different controversy.” Although the majority concludes that the new law has limited effect on the case, see Maj. Op. at ‐‐‐‐ , the supplemental briefing suggests otherwise. Indeed, the State of Washington claims the entire case is moot because the statute at issue has substantially changed, that a significant part of the case involved the “continuing disenfranchisement of felons upon release from incarceration,”‐a point that is no longer at issue‐and that the new law “necessarily alters the totality of the circumstances” analysis. The State views the new law as a game changer supporting affirmance of the district court.
*24 It bears noting that none of the three recent felon disenfranchisement cases to percolate through the circuit courts has encompassed both classes of felons. In Simmons v. Galvin, the First Circuit considered a challenge brought solely by currently incarcerated felons to the Massachusetts law prohibiting incarcerated felons from voting. 575 F.3d at 26. Similarly, in Hayden v. Pataki, 449 F.3d 305 (2d Cir.2006) (en banc), the Second Circuit considered N.Y. Election Law § 5‐106, which “disenfranchises only currently incarcerated prisoners and parolees.” Id. at 314. That court remarked that “the statute

may not raise the same issues that are implicated by provisions disenfranchising for life those convicted of felonies, such as the ... provision of the ... Washington Constitution addressed in Farrakhan.” Id. (emphasis added). The court did not elaborate on the contours of any distinctions. The Eleventh Circuit, in Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir.2005) (en banc), considered the converse class of individuals‐“Florida citizens who have been convicted of a felony and have completed all terms of their incarceration, probation, and parole but who are barred from voting under the state's felon disenfranchisement law.” Id. at 1216‐17. Thus, the Eleventh Circuit, too, did not contemplate a bifurcated group of felons.
In an earlier case, Wesley v. Collins, 791 F.2d 1255 (6th Cir.1986), the Sixth Circuit considered a Voting Rights Act challenge to Tennessee's felon disenfranchisement law brought by a public interest group and an African‐American man convicted of a felony. Id. at 1257. Though Tennessee's law appears to have affected both currently incarcerated prisoners and felons already released, see id., the court did not focus on this distinction when it dismissed the plaintiffs' challenge. See id. at 1260‐62. Thus, even considering Wesley, because of the recent statutory change, ours is the only court clearly presented with the question whether the different groups of felons present a meaningful distinction under the VRA's totality of the circumstances inquiry.FN1
Thus, the enactment of HB 1517 is the first reason I would remand this case to the district court. It is not our job to consider, in the first instance, the effect this new law has on plaintiffs' case and whether the totality of the circumstances analysis under § 2 of the Voting Rights Act should be different now that plaintiffs' case remains viable only as to currently incarcerated felons.
Next, I take issue with the majority's conclusion that plaintiffs prevail by offering evidence regarding Senate Factor 5 alone. As detailed in the majority opinion, Maj. Op. at ‐‐‐‐ ‐ ‐‐‐‐, the Senate Report on the 1982 amendments to the Voting Rights Act listed “typical factors” that courts might consider in determining whether, under the totality of the circumstances, a challenged voting practice “results in” the denial or abridgement of the right to vote on account of race. Evidence of racial discrimination in the Washington criminal justice system falls primarily under Senate Factor 5‐“the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.” S.Rep. No. 97‐417, at 29. The majority concludes that having found discrimination in the Washington criminal justice system, “the district court should not have required Plaintiffs to produce additional circumstantial evidence” because the evidence of discrimination in the criminal justice system alone “would establish a § 2 violation under the totality of the circumstances.” Maj. Op. at ‐‐‐‐ ‐ ‐‐‐‐. As a result, the majority itself considers only evidence of Factor 5 in granting summary judgment to plaintiffs.

*25 I take issue with the majority's limitation. My view is largely driven by my disagreement with the majority's conclusion that there is a per se “analytical distinction” between vote denial and vote dilution cases in the circumstance presented here. See Maj. Op. at ‐‐‐‐. To be sure, there are differences between the two types of cases, but those differences should not force an absolute dichotomy in our analysis. As I have already noted, the felon disenfranchisement challenge is not a comfortable fit within the Voting Rights Act. That said, there is arguably a continuum of conduct that constitutes a denial or abridgement of the right to vote within the context of the Voting Rights Act, and this case need not be shoe‐horned into a single category.
Indeed, academic literature suggests that one of the driving concerns surrounding felon disenfranchisement laws‐advanced in this litigation through a vote denial claim‐is the effect the regulations have on the voting power of minority blocs, which is the thrust of a vote dilution inquiry. See e.g. Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement, 56 Stan. L.Rev. 1147, 1155‐64 (2004). “Virtually every contemporary discussion of criminal disenfranchisement in the United States begins by noting the sheer magnitude of the exclusion, and its racial salience.” Id. at 1156. This observation is not surprising, as “groups of voters elect representatives, individual voters do not.” Id. (quoting Davis v. Bandemer, 478 U.S. 109, 167, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (Powell, J., concurring in part and dissenting in part)).
Thus, taking away the right to vote of minority felons may very well have a significant effect on the voting power of minorities as a whole in any given jurisdiction. As a result, those urging the repeal of felon disenfranchisement laws are often driven not only by their concern for the rights of the individual felons, but also by their worries about the effect that such laws have on the voting power of minority voting blocs. Indeed, the concern for the effect on the voting power of minorities is evidenced by Wesley, in which the Sixth Circuit considered the plaintiffs' challenge to the Tennessee felon disenfranchisement law as a vote dilution claim. 791 F.2d at 1260‐62. Based on the interwoven concerns in vote denial and vote dilution cases, I am not comfortable dictating that a district court should not consider certain factors‐Senate Factors or otherwise‐in vote denial cases, nor do I agree with the majority's conclusion that the plaintiffs prevail solely by establishing evidence that falls within Senate Factor 5.
As to Senate Factor 5 itself, significant factual issues remain. The existence of these unresolved issues is another reason why I part company with the majority. The majority makes much of the district court's conclusion that plaintiffs have presented “compelling” evidence of racial discrimination in the criminal justice system. Maj. Op. at ‐‐‐‐. The district court made this conclusion, of course, while considering the State's motion for summary judgment, thereby viewing the evidence in the light most favorable to the plaintiffs. In determining whether to now grant summary judgment to plaintiffs, the majority should view the evidence in the light most favorable to the defendants. Thus, the district court's conclusion that

the evidence is “compelling” is of little use at this stage; the majority seriously errs in failing to acknowledge that conundrum.
*26 A review of the evidence reveals the risk the majority takes in viewing the evidence in the light most favorable to the plaintiffs while granting summary judgment to plaintiffs‐a complete reversal of the normal procedure on summary judgment. For example, in reviewing Professor Beckett's report, the district court “extrapolate[d]” her “drug‐arrest‐in‐Seattle‐specific findings to Washington felony arrests and convictions in general.” When put to the test, it is unclear whether the extrapolation would hold up, as Beckett's study does not consider non‐drug related arrests in Seattle or any arrests outside of Seattle. While Dr. Crutchfield's report does encompass the entire State, the studies he details do not paint a definitive picture of racial discrimination in the Washington criminal justice system. In making this observation, I do not deny the existence of discrimination, my point rests on the evidence presented. For example, Crutchfield discusses the Klement and Siggins (2001) study of drug enforcement patterns in Seattle. Crutchfield notes that within the drug‐crime category, the police department focuses most heavily on “observable street level drug markets,” which have much more of a “minority flavor” than the general population. Crutchfield goes on to explain that “[b]usiness owners and residents call the police when visible drug activity threatens their interests” and that drug sales in the “street markets” are more likely to affect those interests than other sorts of drug crimes. A reasonable factfinder may very well conclude that the police focus on street markets has little to do with racial discrimination, but instead relates much more strongly to the police department's desire to target crimes likely to affect the well‐being of the greatest majority of businesses and individuals. Alternatively, a factfinder may determine that the focus results from the fact that police are tasked with responding to citizens' calls; if people are more likely to call the authorities only when they can actually view a drug crime occurring out in the open, i.e. on the street, then of course it is more likely that police arrests will over represent street market drug sales, as compared to other types of drug crimes. Or finally, it may be that this approach to policing is race‐based. The point is that there are material factual questions as to cause and effect.
I stress these examples to emphasize my view that the majority errs in granting summary judgment to plaintiffs. The proper course at this stage is to remand to the district court for consideration of the plaintiffs' motion for summary judgment. On remand, a factfinder should be able to weigh the evidence concerning whether there is racial discrimination in the Washington criminal justice system, along with other factors (the Senate Factors and perhaps additional relevant considerations) to determine if plaintiffs have demonstrated a violation of the Voting Rights Act. This court overreaches when it bypasses that crucial exercise. And, considering the potential holes in the evidence, the majority is remiss in doing so.

FN1. Farrakhan, Shadeed, Price, and Schaaf are African American; Barrientes is Latino; and Briceno is Native American.
FN2. Article VI, § 3 provides: “All persons convicted of infamous crime unless restored to their civil rights ... are excluded from the elective franchise.” An “infamous crime” is defined as one that is “punishable by death in the state penitentiary or imprisonment in a state correctional facility.” Wash. Rev.Code § 29A.04.079. Plaintiffs' suit included a challenge to the state's civil rights restoration procedure, see Wash. Rev.Code § 9.94A.637, but that challenge was dismissed by this Court for lack of standing, see Farrakhan I, 338 F.3d at 1021‐23, and is not at issue on this appeal.
FN3. Defendants are the State of Washington, the Governor, the Secretary of the Department of Corrections, and the Secretary of State (collectively, “Defendants” or the “State”).
FN4. Plaintiffs also asserted a number of constitutional claims, all of which were dismissed pursuant to Rule 12(b)(6), see Farrakhan v. Locke, 987 F.Supp. at 1314, and are not at issue on this appeal.
FN5. For example, whereas national studies have shown that 80% of the racial disparity in imprisonment can be explained by differential rates of crime commission (while 20% of the disparity cannot be accounted for on this basis), studies focusing on Washington have shown that “substantially more than one half of Washington State's racial disproportionality cannot be explained by higher levels of criminal involvement.” Crutchfield Report at 9.
FN6. The Senate Factors are described and discussed in Part III.A, infra, at 13‐14.
FN7. Section 2 of the 14th Amendment acknowledges the practice of felon disenfranchisement by providing that disenfranchisement “for participation in rebellion, or other crime” will not result in the reduction of representatives to Congress that otherwise would occur when a state denies the right to vote to any male citizens over the age of 21. U.S. Const. amend. XIV, § 2.

FN8. Defendants argue that the amendment moots the case. However, with five of the original six Plaintiffs facing the same circumstance of disenfranchisement that they faced before the passage of the amendment, the case is not moot.
FN9. For example, the state has never argued that there are administrative difficulties in permitting incarcerated felons to vote that would justify applying a different rule to them than to non‐incarcerated felons.
FN10. “A jurisdiction was ‘covered’ for purposes of section 5 if it used a literacy or other test for registering or voting and if less than half of its voting age population voted in the 1964 election. The original covered jurisdictions were Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and large parts of North Carolina.” United States v. Blaine County, Mont., 363 F.3d 897, 901 n. 4 (9th Cir.2004).
FN11. Congress amended the VRA in 1970 to make the ban on literacy tests nationwide for a five‐year period. See Oregon v. Mitchell, 400 U.S. 112, 117, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). In 1975, Congress made the nationwide literacy test ban permanent. See Blaine County, 363 F.3d at 901.
FN12. The Senate hearings “focused on whether replacing the Bolden test with a results test would effectively mandate proportional representation‐that is, the election of racial minorities in numbers proportionate to their population.” Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L.Rev. 689, 705 (2006). Congress ultimately included a provision in the statute clarifying that “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 42 U.S.C. § 1973(b).
FN13. “Vote denial” refers to practices that prevent people from voting or having their votes counted. Historically, examples of practices resulting in vote denial include literacy tests, poll taxes, all‐white primaries, and English‐only ballots. “Vote dilution,” on the other hand, refers to practices that diminish minorities' political influence in places where they are allowed to vote. Chief examples of vote‐dilution practices include at‐large elections and redistricting plans that keep minorities' voting strength weak. Tokaji, supra, at 691. FN14. Hereinafter, the factors listed in the Senate Report will be referred to as the “Senate Factors.” Senate Factors 8 and 9 were not numbered in the Senate Report, but were provided as “additional

factors that in some cases have had probative value.” S.Rep. No. 97‐417, at 29. Farrakhan I, however, numbered these as Factors 8 and 9. We follow that practice.
FN15. Since this case was argued and submitted for decision, the First Circuit has also held that the VRA does not apply to felon disenfranchisement laws. See Simmons v. Galvin, 575 F.3d 24 (1st Cir.2009).
FN16. Simmons, too, was filed over a vigorous dissent. See 575 F.3d at 45 (Torruella, J., dissenting).
FN17. Like the panel decision at issue in Jeffries, see 114 F.3d at 1493, Farrakhan I was denied both en banc rehearing, Farrakhan, 359 F.3d 1116, and a writ of certiorari from the Supreme Court, 543 U.S. 984, 125 S.Ct. 477, 160 L.Ed.2d 365.
FN18. Moreover, as Plaintiffs correctly point out, they need not show that their own convictions were the result of racial discrimination to succeed on a § 2 vote denial claim. First, a § 2 claim focuses on the effect of the challenged practice on minority voters as a class, rather than on the discrimination faced by the plaintiff in a given case. See 42 U.S.C. § 1973(b) (“A violation of subsection (a) of this section is established if ... it is shown that the political process leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subdivision (a) ....” (emphasis added)). Second, in amending § 2, Congress expressly eliminated the requirement that plaintiffs raising § 2 claims prove intentional discrimination. See S.Rep. No. 97‐417, at 16 (“[P]roof of a discriminatory purpose should not be a prerequisite to establishing a violation of Section 2 of the Voting Rights Act.”); id. at 28 (“[T]he specific intent of this amendment is that the plaintiffs may choose to establish discriminatory results without proving any kind of discriminatory purpose.”).
FN19. For example, at oral argument, Defendants “disagree[d]” with the panel's suggestion that there may be a dispute about a material fact; insisted that there is no issue of material fact for trial because Defendants do not dispute the conclusions of Plaintiffs' expert reports, but instead challenge their legal adequacy; stated that either Defendants win on summary judgment or Plaintiffs win on summary judgment because Plaintiffs' evidence is “inadequate” to meet Plaintiffs' burden; and that “[t]here are no factual issues.”
FN20. Contrary to what the dissent contends, we do not “dictat[e] that a district court should not consider certain factors ... in vote denial cases.” See Diss. at ‐‐‐‐. We hold only that different factors will

be of relevance in different cases, depending on the circumstances of those cases; that courts should consider each factor in light of the circumstances of the case before them; and that where, as here, plaintiffs provide compelling evidence of a law or system of laws that, as implemented, necessarily results in the discriminatory deprivation of racial minorities' right to vote, that deprivation is sufficient, and the plaintiffs need not present additional evidence regarding other factors that are of less relevance to the plaintiffs' claim.
FN21. The district court also noted that Plaintiffs had “failed to present any substantial evidence regarding” Senate Factors 2, 3, 4, and 6. Id. However, it then “admitted[ ]” that “several of these factors are not relevant in a VRA vote denial claim.” Id. Because we interpret this to mean that the district court did not rely on these factors in its totality of the circumstances analysis, we do not address these factors. In any event, we agree with the district court that these factors are not relevant to Plaintiffs' vote denial claim. Therefore, to the extent the district court did weigh these factors in its analysis, we conclude that it erred.
FN22. “Chief examples of vote‐dilution practices include at‐large elections and redistricting plans to keep minorities' voting strength weak.” Tokaji, supra, at 691.
FN23. In the challenge under review, to felon disenfranchisement laws, the “social circumstance” is the operation of the criminal justice system. See Farrakhan I, 338 F.3d at 1012, 1019‐20. In Salt River, the social circumstance at issue was land ownership. See 109 F.3d at 589.
FN24. The Supreme Court has, in fact, stated that Senate Factor 7 is an essential factor in a vote dilution challenge‐that is, a factor that must be proved for the plaintiffs to succeed. See Thornburg, 478 U.S. at 48 n. 15, 106 S.Ct. 2752. As for Senate Factor 8, the Supreme Court explained that, while proving that factor “might be supportive of a[vote dilution] challenge,” it is “ ‘ not essential to’ such a claim.” Gomez, 863 F.3d at 1413 (quoting Thornburg, 478 U.S. at 48 n. 15, 106 S.Ct. 2752) (emphasis in original).
FN25. The Senate Report strongly indicates that the Senate Committee included Senate Factor 7 to help § 2 plaintiffs prove vote dilution claims. See S.Rep. No. 94‐417, at 29 n. 115. This lends further support to the conclusion that although it may help them do so, the plaintiffs in a vote denial case are not required to produce evidence supporting Factor 7, and may not be penalized for failing to do so.

FN26. Moreover, as with Senate Factor 7, Congress made clear that proving Factor 8 “is not an essential part of plaintiffs' case.” S.Rep. No. 94‐417, at 29 n. 116. Even “Defendants' proof of some responsiveness would not negate Plaintiffs' showing by other, more objective factors enumerated here that minority voters nevertheless were shut out of equal access to the political process.” Id. Thus, the Senate Report makes clear that Factor 8 cannot negate Plaintiffs' showing that the disproportionate disenfranchisement of minority voters in Washington is caused by racial discrimination in the state's criminal justice system.
FN27. Because “the ingenuity of such schemes” to deny minorities the right to vote “seems endless,” S.Rep. No. 97‐417, at 6, we do not imply that Senate Factors 7 and 8 are never relevant to establishing vote denial claims‐only that the absence of such evidence may not serve as a justification for denying them. As we have noted, in cases in which the evidence of discrimination in the surrounding social and historical circumstances is less “compelling,” these factors may provide circumstantial evidence that the disparate impact of a particular practice on minority voters is attributable to such discrimination. Here, we merely hold that, where plaintiffs provide direct evidence of racial discrimination under Factor 5, the absence of evidence regarding Factors 7 and 8 is irrelevant to the district court's totality of the circumstances analysis.
FN28. In this way, Factor 1 differs from Factors 7 and 8, which are primarily relevant to vote dilution claims and generally do not lend as high a level of support to a § 2 vote denial claim.
FN29. This, of course, stands in stark contrast to Salt River. In that case, the defendants presented an expert who analyzed the statistical disparity in home ownership using a multivariable analysis. Salt River, 109 F.3d at 590. The defendants' expert in that case “testified that multiple regression analysis did not indicate a strong correlation between race and home ownership” and posited that the strongest indicator of home ownership was “persons per dwelling unit.” Id. The district court relied heavily on this expert's testimony in concluding that the racial disparity in home ownership was “not substantially explained by race.” Id. at 591.
FN30. “Ordinarily, a denial of a motion for summary judgment is not a final order and thus not appealable. 28 U.S.C. § 1291. However, the district court's grant of summary judgment [to Defendants] was a final decision giving us jurisdiction to review its denial of plaintiff's motion for summary judgment.” Abend v. MCA, Inc., 863 F.2d 1465, 1482 n. 20 (9th Cir.1988).

FN31. Whether this is true remains to be seen. The amended Washington law only “provisionally” restores the voting rights of felons upon their release from custody. HB 1517 § 1.1. Permanent restoration of the voting rights requires additional action by the sentencing court, the indeterminate sentence review board or the governor. Id. at 5(f).
FN1. In addition, the Fourth Circuit has considered a challenge to a felon disenfranchisement law in the Commonwealth of Virginia. In an unpublished decision, Howard v. Gilmore, No. 99‐2285, 2000 WL 203984 (4th Cir. Feb.23, 2000), the court determined that the plaintiff failed “to plead any nexus between the disenfranchisement of felons and race.” Id. at *1. It is unclear from the decision whether the plaintiff was currently incarcerated or already released at the time of his suit. Regardless, the Fourth Circuit's decision makes no mention of any distinction between classes of felons.
‐‐‐ F.3d ‐‐‐‐, 2010 WL 10969 (C.A.9 (Wash.)), 10 Cal. Daily Op. Serv. 116, 2010 Daily Journal D.A.R. 161

 
 FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
OCT 07 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MUHAMMAD SHABAZZ FARRAKHAN, aka Ernest S. Walker; AL-KAREEM SHADEED; MARCUS X. PRICE; RAMON BARRIENTES; TIMOTHY SCHAAF; CLIFTON BRICENO,
Plaintiffs - Appellants,
v.
CHRISTINE O. GREGOIRE; SAM REED; HAROLD W. CLARKE; STATE OF WASHINGTON,
Defendants - Appellees.

No. 06-35669 D.C. No. CV-96-00076-RHW
OPINION

Before:

Appeal from the United States District Court for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted September 21, 2010 San Francisco, California
Filed
KOZINSKI, Chief Judge, SCHROEDER, O’SCANNLAIN, RYMER, KLEINFELD, THOMAS, GRABER, McKEOWN, WARDLAW, GOULD and CLIFTON, Circuit Judges.

PER CURIAM:

page 2

Washington’s constitution denies the right to vote to “[a]ll persons convicted

of infamous crime unless restored to their civil rights.” Wash. Const. art. VI, § 3.

An “infamous crime” is one that’s “punishable by death . . . or imprisonment in a

state correctional facility.” Wash. Rev. Code § 29A.04.079. Washington has

disenfranchised felons since 1866, four years before the Fifteenth Amendment was

ratified. Territorial Law of 1866, Rem. & Bal. Code § 4755.

Plaintiffs claim that the state’s felon disenfranchisement law violates section

2 of the Voting Rights Act (“VRA”) because the law “results in a denial or

abridgement of the right . . . to vote on account of race.” 42 U.S.C. § 1973(a).

Plaintiffs don’t claim that the law was enacted for the purpose of denying

minorities the right to vote. See Hunter v. Underwood, 471 U.S. 222, 233 (1985).

Nor do they present evidence that their convictions and resulting

disenfranchisement resulted from intentional racial discrimination in the operation

of the state’s criminal justice system. See McCleskey v. Kemp, 481 U.S. 279,

297–98 (1987). Instead, they present statistical evidence that there are racial

disparities in Washington’s criminal justice system.

When this case was last before our court, we held that felon

disenfranchisement laws can be challenged under section 2 by introducing such

page 3 evidence. Farrakhan v. Washington, 338 F.3d 1009, 1016, 1020 (9th Cir. 2003) (“Farrakhan I”). Based on the statistical evidence presented by plaintiffs, the district court on remand found that “there is discrimination in Washington’s criminal justice system on account of race.” But the court reasoned that this was only one relevant factor in section 2’s “totality of circumstances” balancing test. See 42 U.S.C. § 1973(b); S. Rep. No. 97-417, at 28–29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206–07; see also Thornburg v. Gingles, 478 U.S. 30, 46 (1986). It concluded that other factors counterbalanced plaintiffs’ evidence of racial disparities, and therefore granted summary judgment to defendants.
Three circuits—two sitting en banc—have disagreed with Farrakhan I and concluded that felon disenfranchisement laws are categorically exempt from challenges brought under section 2 of the VRA. See Johnson v. Governor of Fla., 405 F.3d 1214, 1234 (11th Cir. 2005) (en banc); Hayden v. Pataki, 449 F.3d 305, 323 (2d Cir. 2006) (en banc); Simmons v. Galvin, 575 F.3d 24, 41 (1st Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3461 (U.S. Feb. 1, 2010) (No. 09-920). In light of those opinions, we conclude that the rule announced in Farrakhan I sweeps too broadly. Felon disenfranchisement laws have a long history in the United States. See Green v. Bd. of Elections of N.Y.C., 380 F.2d 445, 450 & n.4 (2d Cir. 1967). These laws predate the Jim Crow era and, with a few notable exceptions,

page 4 see, e.g., Hunter, 471 U.S. at 229 (concluding that an Alabama constitutional provision “was enacted with the intent of disenfranchising blacks”), have not been adopted based on racial considerations. Many such laws were in effect when the Fourteenth and Fifteenth Amendments were ratified, see Hayden, 449 F.3d at 317 n.12 (listing twenty-nine state constitutional provisions); indeed, felon disenfranchisement has an affirmative sanction in the Fourteenth Amendment, Richardson v. Ramirez, 418 U.S. 24, 54 (1974). 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. Today, an overwhelming number of states—including all states in our circuit—disenfranchise felons. See The Sentencing Project, Felony Disenfranchisement Laws in the United States 3 (Mar. 2010), available at http://sentencingproject.org/doc/ publications/fd_bs_fdlawsinusMarch2010.pdf.
There is an additional reason to be skeptical that felon disenfranchisement laws can be challenged under section 2 of the VRA. By definition, felon disenfranchisement takes effect only after an individual has been found guilty of a crime. This determination is made by the criminal justice system, which has its own unique safeguards and remedies against arbitrary, invidious or mistaken

page 5 conviction. See, e.g., 28 U.S.C. § 2254; Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
In light of these considerations, we hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2.
Because plaintiffs presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained, we conclude that they didn’t meet their burden of showing a violation of the VRA. Accordingly, the district court didn’t err when it granted summary judgment against them.
AFFIRMED.

Counsel

page 6

Ryan P. Haygood (argued), John Payton, Theodore Shaw, Norman J. Chachkin, Debo P. Adegbile, Kristen Clarke and Dale E. Ho, NAACP Legal Defense & Educational Fund, Inc., New York, New York, Danielle C. Gray, New York, New York, and Lawrence A. Weiser, University Legal Assistance at Gonzaga Law School, Spokane, Washington, for plaintiffs-appellants.

Robert M. McKenna (argued), Attorney General, Daniel J. Judge, Senior Counsel, and Jeffrey T. Even, Carol Murphy and William B. Collins, Deputy Solicitors General, Olympia, Washington, for defendants-appellees.

Derek S. Tarson and Marianne Koh, Of Counsel, Debevoise & Plimpton LLP, New York, New York, for amici curiae Twenty-Three Leading Criminologists.

Sharon L. Browne and Ralph W. Kasarda, Pacific Legal Foundation, Sacramento, California, for amici curiae Pacific Legal Foundation and Center for Equal Opportunity.

Thomas C. Goldstein, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., and Pamela S. Karlan and Jeffrey L. Fisher, Stanford Law School Supreme Court Litigation Clinic, Stanford, California, for amici curiae Thirteen Law Professors.

Daniel F. Kolb and Edmund Polubinski III, Davis Polk & Wardwell LLP, New York, New York, for amicus curiae Brennan Center for Justice at New York University School of Law.

Juan Cartagena, Community Service Society, New York, New York, for amicus curiae Community Service Society.

Elizabeth B. Wydra, Douglas T. Kendall and David H. Gans, Constitutional Accountability Center, Washington, D.C., for amicus curiae Constitutional Accountability Center.

Whitty Somvichian, Kyle C. Wong, Kelly Cooke and Tyler Onitsuka, Cooley LLP, San Francisco, California, for amici curiae Lawyers’ Committee for Civil Rights,

page 7
Equal Justice Society, Legal Services for Prisoners with Children and American Parole and Probation Association.
Sarah A. Dunne and Nancy Talner, American Civil Liberties Union of Washington Foundation, Seattle, Washington, Peter A. Danelo, Seattle, Washington, Leonard J. Feldman, P.K. Runkles-Pearson and Daniel A. Swedlow, Stoel Rives LLP, Seattle, Washington, and Laughlin McDonald and Nancy G. Abudu, ACLU Voting Rights Project, Atlanta, Georgia, for amici curiae American Civil Liberties Union of Washington and American Civil Liberties Union.
Lawrence S. Lustberg and Jennifer B. Condon, Gibbons P.C., Newark, New Jersey, for amici curiae National Black Police Association, National Latino Officers Association, American Probation and Parole Association and Six Former Law Enforcement Officials.

 
 359 F.3d 1116 (2004)
Muhammad Shabazz FARRAKHAN, individually aka Ernest S. Walker; Marcus X. Price, individually; Ramon Barrientes, individually; Timothy Schaaf, individually; Clifton Briceno, individually; Al-Kareem Shaheed, individually, Plaintiffs-Appellants, v.
State of WASHINGTON, Gary Locke, in his official capacity as Governor of the State of Washington; Sam Reed, in his official capacity of Secretary of State and Chief Election Officer for the State of Washington; Joseph Lehman, in his official capacity as Secretary
of the Department of Corrections of the State of Washington, Defendants-Appellees.
No. 01-35032.
United States Court of Appeals, Ninth Circuit.
Filed February 24, 2004.
Lawrence A. Weiser, University Legal Assistance, Spokane, WA, Jason T. Vail, Northwest Justice Project, Seattle, WA, Dennis C. Cronin, Law Office of D.C. Cronin, Spokane, WA, for Plaintiffs-Appellants.
Jeffrey T. Even, Office of the Attorney General, Daniel J. Judge, AGWA-Office of the Washington Attorney General, Olympia, WA, for Defendants-Appellees.
Before Harlington WOOD, Jr.,[*] Dorothy W. NELSON, and Richard A. PAEZ, Circuit Judges.
Order: Dissent by Judge KOZINSKI.
ORDER
The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.
The petition for rehearing en banc is denied.
KOZINSKI, Circuit Judge, with whom Judges O'SCANNLAIN, KLEINFELD, TALLMAN, BYBEE, CALLAHAN and BEA, join, dissenting from denial of rehearing en banc:
1117 This is a dark day for the Voting Rights Act. In adopting a constitutionally questionable *1117 interpretation of the Act, the 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 pertaining to summary judgment, all in an effort to give felons the right to vote. The court should have taken this case en banc and brought order back into our caselaw. I dissent from the court's failure to do so.
1. Plaintiffs' case is based entirely on statistical disparities: They claim that disparities in the felony conviction rates of certain minority groups in relation to their presence in the general population lead to a disparity in the rate of disenfranchisement under Washington's felon disenfranchisement law. They argue that these disparities alone prove that under the "totality of the circumstances" they have less of an opportunity to participate in the electoral process, because these disparities interact with the felon disenfranchisement provision and result in denial of the right to vote on account of race.
Though the panel hints otherwise, plaintiffs never produced a shred of evidence of intentional discrimination in Washington's criminal justice system. The studies and expert testimony plaintiffs rely upon establish only

disparities. For example, the Washington State Minority and Justice Commission study of bail and pre-trial detention practices admits that "it would be inappropriate to conclude that racial and ethnic differences in pre-trial release necessarily reflect overt racial bias or discrimination in the decisions of Superior Court judges or staff." S.E.R. at 221. The same is true of charging and sentencing of felony drug offenders; the report plaintiffs rely upon attributes any disparities there to concerns about resources, not race: "charges are routinely changed between initial filing and conviction" but "these changes are, for the most part, not related to race." S.E.R. at 243.
Studies based on statistical disparities are notoriously unreliable. See McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Plaintiffs' own expert, Dr. Bridges, concedes that "[d]isparities have complex causes and among them are important qualitative differences among defendants in the types of crimes they have committed." S.E.R. at 221. The bottom line is plaintiffs have produced no evidence that Washington's criminal justice system is infected with racial bias.
This is significant because the record is settled. The panel admits that "[p]laintiffs did not dispute the State's statement of material facts." Slip op. at 10134. No triable issues of fact remain. The legal question presented is therefore quite simple: Can plaintiffs survive a summary judgment motion in a section 2 vote denial case if they have produced only evidence of statistical disparities in an area external to voting, which then result in statistical disparities in voting? Under Smith v. Salt River Project Agricultural Improvement and Power District, 109 F.3d 586 (9th Cir.1997), the answer is clearly "no." Yet the panel reverses the district court's grant of summary judgment. In so doing, it effectively holds that such disparities could be enough to establish vote denial on account of race, in violation of section 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973. This holding plainly contradicts the law of our circuit and four others. See Salt River, 109 F.3d at 595; Ortiz v. City of Philadelphia Office of the City Comm'rs, 28 F.3d 306, 314-15 (3d Cir.1994); Salas v. Southwest Texas Junior Coll. Dist., 964 F.2d 1542, 1556 (5th Cir.1992); Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1358-59 (4th Cir.1989); Wesley v. Collins, 791 F.2d 1255, 1262 (6th Cir.1986).
1118 *1118 In Salt River, we held that statistical disparities were not enough to establish vote denial under section 2. We explained that "a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 `results' inquiry" because causation cannot be inferred from impact alone. Id. at 595. We upheld a land-owner voting system against a section 2 challenge because it did not result in discrimination "on account of race or color," id. at 596, even though whites were more likely to have a vote under that system because their rate of home ownership was much higher than that of blacks, id. at 590. Evidence of racial disparities in the rate of land ownership, which were then mapped directly onto the voter registration rolls, could not support a violation of the VRA. Salt River therefore stands for the principle that plaintiffs cannot prove a section 2 violation without substantial evidence other than a statistical disparity in some area unrelated to voting. There is nothing in the record here beyond statistical disparities, and the facts are settled. Summary judgment for Washington is therefore the only possible outcome.
The Sixth Circuit rejected a section 2 challenge of Tennessee's felon disenfranchisement law that was based primarily on statistical differences between minority and white convictions. Wesley, 791 F.2d at 1262. The court upheld Tennessee's statute under the "totality of the circumstances" test, even as it recognized "the presence in Tennessee of certain factors enumerated in the legislative history of Section 2, such as a history of racial discrimination, the effects of which continue to the present day." Id. at 1261. The court held that "the disproportionate impact suffered by black Tennesseans does not `result' from the state's qualification of the right to vote on account of race or color." Id. at 1262. It concluded that section 2 was not violated because the denial of the right to vote was not on account of race but rather on account of the felon's decision to commit a crime. Id.
The Third Circuit has also made it clear that statistical disparities aren't enough to support a section 2 vote denial claim. Ortiz upheld a Pennsylvania statute that purged voters' names from the rolls if they failed to vote for two years, disparately impacting minority voters. 28 F.3d at 307. The court held that statistical disparities weren't enough; plaintiffs in section 2 vote denial cases must demonstrate a "causal connection between the challenged electoral practice and the alleged discrimination that results in a denial or abridgment of the right to vote." Id. at 310.
Section 2 vote denial claims based only on disparities are also dead on arrival in the Fourth Circuit. Irby upheld Virginia's system of appointing members of its school boards. 889 F.2d at 1358-59. Despite the existence of a

"significant disparity" between the percentage of blacks in the population and the percentage of blacks on the school board, id. at 1358, the court held that "[t]he evidence cast considerable doubt on the existence of a causal link between the appointive system and black underrepresentation in Buckingham and Halifax counties," id. at 1359. Rather, the disparity existed because, "although blacks comprise a large portion of the population, they are not seeking school board seats in numbers consistent with their percentage of the population." Id. at 1358 (internal quotation marks and citations omitted).
Salas also rejected a section 2 vote denial challenge because it was based entirely on statistical disparities. Plaintiffs challenged an at-large voting system based on the disparities in turnout rates of white and minority voters. 964 F.2d at 1556. The evidence revealed that minority voter turnout was about seven percentage points 1119 below white voter turnout, but the court held that "a protected class is not entitled *1119 to § 2 relief merely because it turns out in a lower percentage than whites to vote." Id. at 1556. Plaintiffs' section 2 claim failed because the cause of the disparity in turnout rates wasn't intentional race discrimination.
2. Under section 2, courts must evaluate the "totality of the circumstances" in which the challenged voting law operates to determine whether plaintiffs have been denied the right to vote based on their race. 42 U.S.C. § 1973 (b); Salt River, 109 F.3d at 594. The panel reverses summary judgment although plaintiffs haven't demonstrated that the "totality of the circumstances" point to vote denial on account of race. Plaintiffs have not produced any evidence relating to the nine Senate factors we must weigh under that test, S.Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07, beyond statistical disparities in the criminal justice system. They 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.
Plaintiffs in other cases have lost section 2 vote denial claims even though they produced much stronger evidence than the plaintiffs here. In Ortiz, the Third Circuit upheld under the "totality of the circumstances" Pennsylvania's voter purge statute though it disproportionately impacted minority voters. The Ortiz plaintiffs had evidence of racially polarized voting, racial appeals in elections, unresponsiveness by elected officials, lower minority voter turnout and disparities in employment and other non-voting areas. Id. at 312. Nonetheless, the fact that "there was no evidence of historical voting-related discrimination ... no evidence of discrimination in the candidate slating process that denied minority candidates equal access to the political process.... [and no] evidence that minorities experience difficulty in electing representatives of their choice," id., led the court to conclude that section 2 had not been violated, id. at 313. See also Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir.1999) (rejecting a section 2 challenge even in the face of past intentional discrimination).
The panel tries to pass off evidence of disparities as evidence of intentional discrimination, but the two have entirely different consequences for vote denial claims. Intentional discrimination in the criminal justice system, if it interacts with a standard, practice or procedure with respect to voting, could amount to illegal vote denial on account of race. See Johnson v. Governor of the State of Florida, 353 F.3d 1287 (11th Cir.2003). To the extent the district court's decision granting defendants' motion for summary judgment was based on its misunderstanding of section 2 and belief that evidence of intentional discrimination external to voting could never be taken into account, it was wrong. However, the result it reached was correct because, even under the correct standard, plaintiffs have not produced evidence of intentional discrimination to survive summary judgment.
3. Because the district court's decision granting summary judgment was correct, even if for the wrong reasons, it 1120 must be affirmed. The panel's decision to reverse and remand 0907 on a settled record containing *1120 nothing
more than evidence of disparities 0907 flies in the face of a solid wall of circuit precedent holding that "[i]f the decision below is correct, it must be affirmed, even if the district court relied on the wrong grounds or wrong reasoning." Jackson v. S. California Gas Co., 881 F.2d 638, 643 (9th Cir.1989) (emphasis added). Accord Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir.1998); Unigard Sec. Ins. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 367 (9th Cir.1992). Moreover, the panel's remand order is hopelessly

ambiguous, directing the district court to "make any requisite factual findings following an appropriate evidentiary hearing, if necessary, and assess the totality of the circumstances." Slip op. at 10147-48. There is no authority for such a sloppy remand order, which tells the district court it may reconsider summary judgment or make findings after an evidentiary hearing, without any instruction as to when such a hearing might be appropriate. The panel misunderstands its task at this stage. Under Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), a party is entitled to summary judgment if the opposing party has failed to present a genuine dispute of fact on a material issue. Id. at 322-23, 106 S.Ct. 2548. Because plaintiffs have failed to present evidence of intentional discrimination, summary judgment is the only option.
4. The panel's decision suffers from a more fundamental flaw: It ignores the fact that the VRA was never intended to reach felon disenfranchisement laws. When Congress enacted the VRA in 1965, it was careful to carve out an exception for felon disenfranchisement laws. The House and Senate Judiciary Committee Reports clearly bear this out. The Senate Report explains that the ban on "good moral character" tests contained in section 1973b(c) of the statute "would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony.... It applies where lack of good moral character is defined in terms of a conviction of lesser crimes." S.Rep. No. 89-162, reprinted in 1965 U.S.C.C.A.N. 2508, 2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, Tydings, Dirksen, Hruska, Fong, Scott and Javits). The House Report also explains that the Act does "not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony." H.R.Rep. No. 89-439, reprinted in 1965 U.S.C.C.A.N. 2437, 2457. This legislative history demonstrates that Congress recognized the long tradition of felon disenfranchisement laws when it enacted the VRA. Moreover, it distinguishes those provisions from other electoral qualifications that the VRA has been held to reach, such as literacy tests, which do not in and of themselves violate the Constitution. See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 645 n. 3 & 646-47, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (upholding ban on literacy tests targeted to deal with disenfranchisement of Puerto Ricans in New York even after upholding their constitutionality in Lassiter v. Northampton Elections Board, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959)); see also Baker v. Pataki, 85 F.3d 919, 928 (2d Cir.1996) (opinion of Mahoney, J.).
When Congress enacted the "results" test as part of the 1982 amendments to the VRA, it was primarily concerned with whether section 5 of the Act 0907 the provision placing special requirements on jurisdictions with a history of past discrimination 0907 was still necessary. The debate surrounding section 2 focused mainly on whether the results test would require proportional representation by race. See generally S.Rep. No. 97-417 (1982), 1121 reprinted *1121 in 1982 U.S.C.C.A.N. 177; Jennifer G. Presto, The 1982 Amendments to Section 2 of the Voting Rights Act: Constitutionality After City of Boerne, 59 N.Y.U. Ann. Surv. Am. L. (forthcoming 2004). There was no evidence that felon disenfranchisement laws were being used in a discriminatory manner, nor any discussion of felon disenfranchisement at all. There is thus no evidence that Congress had changed its mind about the legitimacy of felon disenfranchisement when it enacted section 2. See Johnson, 353 F.3d at 1316-18 (Kravitch, J., dissenting) (demonstrating that Congress never intended the VRA to reach felon disenfranchisement laws).
In fact, Congress has since enacted laws making it easier for states to keep felons off the voting roster. In 1993, Congress enacted the National Voter Registration Act (NVRA), Pub. L. No. 103-31, 107 Stat. 77 (1993), which clearly lists conviction of a felony as a justification for cancellation of a voters' registration. 42 U.S.C. § 1973gg-6 (a)(3)(B). Congress even instructed federal prosecutors, "[o]n the conviction of a person of a felony in a district court of the United States," to "give written notice of the conviction to the chief State election official." 42 U.S.C. § 1973gg-6(g). The NVRA also provides that "[o]n request of the chief State election official of a State or other State official with responsibility for determining the effect that a conviction may have on an offender's qualification to vote, the United States attorney shall provide such additional information as the United States may have concerning the offender and the offense of which the offender was convicted." 42 U.S.C. § 1973gg-6(g)(3).
Congress drafted federal prosecutors to help states disenfranchise felons even as it enacted the NVRA to extirpate certain registration practices that dampen minority participation in the political process. 42 U.S.C. § 1973gg(a)(3). It's thus crystal clear that felon disenfranchisement wasn't one of the practices about which Congress was concerned. We are bound to respect that legislative judgment 0907 not override it.

5. There is yet a more fundamental problem with extending the VRA to reach felon disenfranchisement laws: Doing so seriously jeopardizes its constitutionality.
"[A]ny attempt by Congress to subject felon disenfranchisement provisions to the `results' methodology of [the VRA] would pose a serious constitutional question concerning the scope of Congress's power to enforce the Fourteenth and Fifteenth Amendments," Baker, 85 F.3d at 930, because "felon disenfranchisement is a very widespread historical practice that has been accorded explicit constitutional recognition in § 2 of the Fourteenth Amendment," id. at 928; see also Richardson v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974).
Unlike any other voting qualification, felon disenfranchisement laws are explicitly endorsed by the text of the Fourteenth Amendment. Id.; see also Johnson, 353 F.3d at 1314-16 (Kravitch, J., dissenting); Baker, 85 F.3d at 930. They are presumptively constitutional. Only a narrow subset of them 0907 those enacted with an invidious, racially discriminatory purpose 0907 is unconstitutional. Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). If Congress had intended the VRA to reach felon disenfranchisement laws, the only constitutional violations it had authority to remedy are the type recognized in Hunter: the purposeful, invidious use of those laws to deprive minorities of the right to vote.
Hunter violations, however, are exceedingly rare. See Developments in the Law 0907 The Law of Prisons, 115 Harv. 1122 L. Rev. 1939, 1951-52 (2002). Hunter involved a provision of the Alabama Constitution *1122 of 1901 that denied
the right to vote to persons who had committed crimes of "moral turpitude." The 1901 Constitution was an egregious example of post-Reconstruction disenfranchising constitutions. Accordingly, plaintiffs were able to produce a mountain of evidence of discriminatory intent in its passage, together with evidence of a continuing discriminatory effect in its application, and the Court struck it down as a violation of the Fourteenth Amendment. Alabama's provision, with its dubious provenance, stands far apart from the legitimate, neutral provision of the Washington Constitution at issue in this case. Washington does not share Alabama's long history of race discrimination. It has never been a covered state under section 5 of the VRA. Its felon disenfranchisement provision dates back to 1866, see State v. Collins, 69 Wash. 268, 270-71, 124 P. 903 (1912), four years before the Fifteenth Amendment extended the right to vote to blacks. Therefore Washington's felon disenfranchisement provision couldn't have been enacted with the intent of depriving minorities of the vote. In fact, plaintiffs' constitutional claim was so weak that it was dropped shortly after it was made.
In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court warned that legislation enforcing constitutional rights 0907 such as the VRA 0907 can do no more than remedy or prevent actual constitutional violations, as defined by the Supreme Court. Id. at 519, 117 S.Ct. 2157. Congress cannot alter the substantive constitutional right in an attempt to enforce it. Id. To ensure that Congress is merely enforcing0907not altering 0907 the substantive right, courts must police the "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520, 117 S.Ct. 2157.
Time and again, the Supreme Court has insisted that section 5 enforcement legislation be supported by a record of constitutional violations. In Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), the Court invalidated an amendment to the VRA which would have extended the vote to 18-year-olds in state and local elections. Justice Black, who announced the judgment of a fractured Court, explained: "Congress had before it a long history of the discriminatory use of literacy tests to disenfranchise voters on account of their race," id. at 132, 91 S.Ct. 260, but "Congress made no legislative findings that the 21-year-old vote requirement was used by the States to disenfranchise voters on account of race," id. at 130, 91 S.Ct. 260. Securing the right to vote for 18year-olds required passage of the Twenty-Sixth Amendment in 1971.
More recently, in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 374, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), the Court held that the Americans with Disabilities Act was an invalid attempt to enforce the Fourteenth Amendment against the states because Congress did not make findings establishing a pattern of unconstitutional irrational job discrimination by the states. Likewise, Kimel v. Florida Board of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), held that Congress failed to amass sufficient evidence of widespread irrational age discrimination in violation of the Fourteenth Amendment to justify application of the Age Discrimination in Employment Act to the states. See also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll.

Savs. Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999). The Court has demonstrated that it's serious about policing the limits on Congress's enforcement powers, and we should be, too.
1123 *1123 Congress could legitimately remedy Hunter-type violations, but it would have to have evidence that states were using felon disenfranchisement in a purposeful, invidious manner. However, "not only has Congress failed ever to make a legislative finding that felon disenfranchisement is a pretext ... for racial discrimination[,] it has effectively determined that it is not." Baker, 85 F.3d at 929. This sharply distinguishes felon disenfranchisement provisions from literacy tests because "[t]he legislative history of the 1970 Amendments [banning literacy tests] contains substantial information upon which Congress could have based a finding that the use of literacy tests ... deny[] the vote to racial minorities." Oregon v. Mitchell, 400 U.S. at 234, 91 S.Ct. 260 (Brennan, J., concurring).
Here, there is no "pattern of unconstitutional discrimination on which § 5 [enforcement] legislation must be based." Garrett, 531 U.S. at 370, 121 S.Ct. 955; cf. Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 1981, 155 L.Ed.2d 953 (2003) (upholding the FMLA because Congress had a sufficient evidentiary basis for that legislation). Congress was apparently confident enough in the legitimacy of state laws disenfranchising felons to expressly sanction cancellation of a voter's registration based on conviction of a felony and direct federal prosecutors to help states in that endeavor in the 1993 National Voter Registration Act. See p. 1122 supra. Without a record proving that most of the state felon disenfranchisement laws prohibited by section 2 would be unconstitutional on their own, the vast overinclusiveness of section 2 as interpreted by the panel dooms it. See Boerne, 521 U.S. at 532, 117 S.Ct. 2157. The theoretical, undocumented threat of unconstitutional felon disenfranchisement laws simply doesn't justify such a broad remedy.
In contrast to the expansive reading of section 2 adopted by the panel today, our parsimonious interpretation of that provision in Salt River preserved its constitutionality. A state whose criminal justice system is infected with actual intentional race discrimination might be more likely to have an unconstitutional felon disenfranchisement law. "[P]urposeful governmental discrimination outside the electoral system might play out within the electoral system, where it would be observed in the disparate impact of otherwise acceptable policies.... Congress could ... remedy the effects of that impermissible prior discrimination." Pamela S. Karlan, Two Section Twos and Two Section Fives: Voting Rights and Remedies After Flores, 39 Wm. & Mary L. Rev. 725, 728-29 (1998) (emphasis added). Section 2 is therefore a more congruent and proportional remedy if plaintiffs are required to produce evidence of intentional discrimination in an area external to voting which interacts with a voting practice to result in the denial of the right to vote on account of race. By allowing plaintiffs to survive summary judgment on a settled record containing nothing but disparities in the criminal justice system, and absolutely no evidence of intentional discrimination, the panel destroys section 2's congruence and proportionality as a remedy for the kind of constitutional violations recognized in Hunter.
Section 2 might also be on firmer constitutional footing if it were tailored to areas with a history of discriminatory voting practices. For example, its congruence and proportionality might be stronger if plaintiffs had to produce evidence of a history of discrimination, not just the panel's requirement of a simple disparate impact. States with a long history of discrimination in voting might be more likely to use felon disenfranchisement laws to deprive minorities of the vote.
1124 *1124 The Supreme Court has emphasized that enforcement legislation should be geographically targeted when the threat of violations varies from place to place. In United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the Court struck down the Violence Against Women Act, noting that it "applies uniformly throughout the Nation. Congress's findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the § 5 remedy upheld in Katzenbach v. Morgan[, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)] ... was directed only to the States where the evil found by Congress existed, and in South Carolina v. Katzenbach[, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966)] ... the remedy was directed only to those States in which Congress found that there had been discrimination." Morrison, 529 U.S. at 626-27, 120 S.Ct. 1740. Boerne also cited the special-coverage provisions of section 5 of the VRA as an example of a constitutional enforcement measure required by the threat of purposeful discrimination and emphasized its "confine[ment] to those regions of the country where voting discrimination had been most flagrant." 521 U.S. at 532-33, 117 S.Ct. 2157. In applying section 2 to felon disenfranchisement laws, the panel has handed us a sweeping remedy of its own creation that, like the statute

invalidated in Boerne, "is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections." Boerne, 521 U.S. at 532, 117 S.Ct. 2157.
It is unlikely that Congress could have reached felon disenfranchisement even if it wanted to, at least not without a substantial evidentiary record and a more tailored remedy. In interpreting the VRA to reach felon disenfranchisement in a state without a history of race discrimination like Washington, the panel has created a constitutional problem that Congress itself avoided.
The panel's decision seriously compromises the constitutionality of section 2. Despite a 1984 case summarily affirming a district court decision upholding its constitutionality, see Mississippi Republican Executive Comm. v. Brooks, 469 U.S. 1002, 105 S.Ct. 416, 83 L.Ed.2d 343 (1984), section 2's constitutionality remains an open question. See, e.g., Bush v. Vera, 517 U.S. 952, 990, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (O'Connor, J., concurring); Johnson v. De Grandy, 512 U.S. 997, 1028-29, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (Kennedy, J., concurring); Chisom v. Roemer, 501 U.S. 380, 418, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (Kennedy, J., dissenting). See generally Holder v. Hall, 512 U.S. 874, 891, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994) (Thomas, J., concurring in judgment, joined by Scalia, J.).
In recent years, the Court has repeatedly rejected broad interpretations of the VRA, obviously troubled by the constitutional implications. Reno v. Bossier Parish School Board, 528 U.S. 320, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000), refused to adopt a possible interpretation of section 5 of the VRA because "[s]uch a reading would also exacerbate the `substantial' federalism costs that the preclearance procedure already exacts" and raise concerns about the constitutionality of that provision. Id. at 336, 120 S.Ct. 866. In Vera, the Court held that the VRA does not require excessive reliance on race in districting because that would offend equal protection. 517 U.S. at 979-81, 116 S.Ct. 1941. Likewise, Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995), 1125 rejected the Justice Department's interpretation of section 5 of the VRA and *1125 held that "[t]here is no indication Congress intended such a far-reaching application of § 5, so we reject the [proposed] interpretation of the statute and avoid the constitutional problems that interpretation raises." Id. at 927, 115 S.Ct. 2475. See generally Holder, 512 U.S. at 885, 114 S.Ct. 2581 (O'Connor, J., concurring in part and concurring in the judgment); Presley v. Etowah County Comm'n, 502 U.S. 491, 112 S.Ct. 820, 117 L.Ed.2d 51 (1992). Jurists and commentators alike recognize the constitutional pitfalls of interpreting section 2 too broadly. See, e.g., Johnson, 353 F.3d at 1314 (Kravitch, J., dissenting); Goosby v. Town of Hempstead, 180 F.3d 476, 502 n. 4 (2d Cir.1999) (Leval, J. concurring) ("Requiring discriminatory intent to prove vote dilution [claims under section 2] reduces the otherwise serious tension between section 2 and constitutional principles."); Theane Evangelis, The Constitutionality of Compensating for Low Minority Voter Turnout in Districting, 77 N.Y.U. L. Rev. 796, 798 (2002); Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 Harv. L. Rev. 1663, 1737 (2001); Karlan, supra, at 725-26; Douglas Laycock, Conceptual Gulfs in City of Boerne v. Flores, 39 Wm. & Mary L. Rev. 743, 749-52 (1998). See also Samuel Issacharoff, Richard H. Pildes & Pamela S. Karlan, The Law of Democracy: Legal Structure of the Political Process 741-42, 859-66 (2001). It is our job to side-step those pitfalls whenever possible.
We have a duty to recognize limitations on congressional power and avoid interpreting statutes in a way that would extend these powers beyond constitutional limits. "[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States ex rel. Attorney General v. Del. & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909); see also Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 356, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) (Scalia, J., concurring in judgment). My colleagues fail in their duty not to adopt a constitutionally deficient interpretation of the VRA.
6. The panel's decision has far-reaching consequences. As long as there are statistical disparities by race in the criminal justice system and consequently in the rate of felony conviction, the panel's interpretation of the VRA will require states to erect voting booths in prisons. This result is inevitable, as there is no stopping point to the panel's rationale. If states can't exclude felons formerly incarcerated from the franchise, then they surely can't exclude felons currently behind bars. Once felons have a right to vote, someone will bring suit to require the states to bring the polls to them, since they can't go to the polls themselves.

Yet every state in our circuit 0907 indeed, every state in the country save Maine and Vermont 0907 does not allow imprisoned felons to vote. Human Rights Watch, The Sentencing Project, Felony Disenfranchisement Laws in the United States, available at http://www.sentencing project.org/pdfs/1046.pdf. Arizona, Nevada and Washington do not allow ex-felons to vote. Alaska and California also prohibit paroled felons from voting, and Alaska extends that prohibition to those on probation. Moreover, race-based statistical disparities in the rate of felon disenfranchisement exist in every state in our circuit. Human Rights Watch, The Sentencing Project, Losing the Vote, at 9, available at http://sentencingproject. org/pdfs/9080.pdf.
The panel's decision also has widespread implications for other legitimate state electoral practices. All sorts of 1126 state and local *1126 decisions about the time, place and manner of elections will be subject to attack by anyone
who can show a disparate impact in an area external to voting that translates into a disparate impact on voting.
For example, according to the 2000 census, minorities have lower incomes than whites. Carmen DeNavas-Walt et al., Money Income in the United States: 2000, at 2 tbl.A, available at http://ict.cas.psu.edu/resources/Census/ PDF/C2K_Income_in_USA.pdf. People with lower incomes are less likely to participate in the political process. See R. Michael Alvarez & Jonathan Nagler, The Likely Consequences of Internet Voting for Political Representation, 34 Loy. L.A.L. Rev. 1115, 1121 (2001). Evidence of socioeconomic disparities could be the source of countless lawsuits. Plaintiffs will doubtless claim that those disparities lead to disparities in turnout, which lead to a disparate impact on minority voters, if states choose to purge their voter registration lists of the names of voters who have not recently participated in order to combat voting fraud. This is precisely the claim rejected by the Third Circuit in Ortiz, but the panel's decision would make it possible in our circuit.
After the panel's decision, plaintiffs could bring a section 2 challenge based on statistical disparities if states adopt Internet voting, which Arizona already tested in the 2000 Democratic presidential primary. See Stephen B. Pershing, The Voting Rights Act in the Internet Age: An Equal Access Theory for Interesting Times, 34 Loy. L.A. L. Rev. 1171, 1172 (2001); see also Eben Moglen & Pamela S. Karlan, The Soul of a New Political Machine: The Online, the Color Line and Electronic Democracy, 34 Loy. L.A. L. Rev. 1089, 1089 (2001) ("The digital divide means that minority citizens have less access to web-based sources of political information and may be less able to use voting techniques, such as online voting, that require a computer."); Alvarez & Nagler, supra, at 1135. Plaintiffs could show disparities in wealth, leading to disparities in computer ownership and Internet access, leading to disparities in participation on election day. The authors of a study of Arizona's test-drive of Internet voting concluded that "non-white voters did not vote on the Internet as often as whites, so the Internet voting option seems unlikely to improve the voting rights of minorities. Instead, Internet voting seems likely to weaken the voting rights of minorities, as in this particular case minority turnout dropped substantially more than did white turnout." Alvarez & Nagler, supra, at 1147.
Holding elections on a Tuesday could be a thing of the past if a plaintiff somewhere can show that minority voters are disproportionately more likely to be hourly wage earners, who are disproportionately less likely to vote because they can't take time off from work. See Nat'l Comm'n on Fed. Election Reform, To Assure Pride and Confidence in the Electoral Process 40-42 (2001), available at http://www.reformelections.org/data/ reports/99_full_report.pdf. Under the panel's rationale, elections would have to be held on weekends or holidays.
The permutations are endless. The bottom line is that virtually every decision by a state as to voting practices will be vulnerable, no matter how unrelated to race. The fallout from the panel's decision will be felt for a long time to come.
* * *
Every state in our 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 1127 so without so much as acknowledging congressional *1127 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 Honorable Harlington Wood, Jr., Senior United States Circuit Judge for the Seventh Circuit, sitting by designation.
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 338 F.3d 1009 (2003)
Muhammad Shabazz FARRAKHAN, individually aka Ernest S. Walker; Marcus X. Price, individually; Ramon Barrientes, individually; Timothy Schaaf, individually; Clifton Briceno, individually; Al-Kareem Shadeed,
individually, Plaintiffs-Appellants, v.
State of WASHINGTON; Gary Locke, in his official capacity as Governor of the State of Washington; Sam Reed, in his official capacity of Secretary of State and Chief Election Officer for the State of
Washington; Joseph Lehman, in his official capacity as Secretary of the Department of Corrections of the State of Washington, DefendantsAppellees.
No. 01-35032.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 4, 2002. Filed July 25, 2003.
1010*1010 Lawrence A. Weiser, University Legal Assistance, Gonzaga Law School, Spokane, 1011*1011 Washington, argued the case for the plaintiffs-appellants. D.C. Cronin and Jason T. Vail, Spokane, Washington, assisted on the briefs.
Nancy L. Talner for the American Civil Liberties Union of Washington, Seattle, Washington, amicus in support of Plaintiffs-Appellants.
Nancy Northup, Jessie Allen, Gillian E. Metzger, and Glenn J. Moramarco, for the Brennan Center for Justice, New York, New York, and Anita Hodgkiss and Lori Outzs Borgen, for the Lawyers' Committee for Civil Rights Under Law, Washington, D.C., amici in support of Plaintiffs-Appellants.
Jeffrey Even, Assistant Attorney General, Olympia, Washington, argued the case for the defendants-appellees. Christine O. Gregoire, Attorney General, and Daniel Judge, Assistant Attorney General, Olympia, Washington, assisted on the briefs.
Before: Harlington WOOD,[*] Dorothy W. NELSON and Richard A. PAEZ, Circuit Judges.
Argued and Submitted April 4, 2002 — Seattle, Washington.
OPINION
PAEZ, Circuit Judge:

Plaintiffs appeal the district court's grant of summary judgment dismissing their claim that Washington state's felon disenfranchisement scheme constitutes improper race-based vote denial in violation of Section 2 of the Voting Rights Act ("Section 2"), 42 U.S.C. § 1973. Upon conviction of an infamous crime in the state of Washington, each plaintiff was disenfranchised, and none has had his voting rights restored.
The district court determined that although Washington's felon disenfranchisement scheme disenfranchises a disproportionate number of African-American, Hispanic-American, and Native-American minorities, the cause of this disparate impact on their right to vote was external to the felon disenfranchisement provision itself and therefore could not provide the requisite causal link between the voting qualification and the prohibited discriminatory result.
Notably, the district court attributed the cause of this discriminatory effect on minority voting power to "discriminatory activity" in Washington's criminal justice system. Although it determined that "Plaintiffs' evidence of discrimination in the criminal justice system, and the resulting disproportionate impact on minority voting power, is compelling," the district court held that evidence of discrimination in the criminal justice system was not significant for purposes of the "totality of the circumstances" analysis used in determining whether a challenged voting practice results in a denial of minority voting rights under Section 2. Instead, focusing on the disenfranchisement scheme itself, the court concluded that there was no evidence that the enactment of Washington's disenfranchisement provision "was motivated by racial animus, or that its operation by itself has a discriminatory effect," and therefore determined that Plaintiffs had failed to establish a Section 2 violation.
We disagree with the district court's analysis, because it conflicts with our well-established understanding of Section 2. As recognized by both the Supreme Court and our circuit, a Section 2 "totality of the circumstances" inquiry requires courts to consider how a challenged voting practice 1012*1012 interacts with external factors such as "social and historical conditions" to result in denial of the right to vote on account of race or color. Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); see also Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595-96 (9th Cir.1997). Because a Section 2 analysis clearly requires that we consider factors external to the challenged voting mechanism itself, we hold that evidence of discrimination within the criminal justice system can be relevant to a Section 2 analysis. In light of the district court's having improperly disregarded this evidence, combined with its assessment that Plaintiffs' evidence of discrimination in Washington's criminal justice system was "compelling," we reverse and remand for further proceedings.
BACKGROUND
Felon disenfranchisement is a voting restriction that denies citizens who are convicted of felonies the right to vote. Article VI, Section 3 of the Washington State Constitution provides that "[a]ll persons convicted of an infamous crime ... are excluded from the elective franchise."[1] Disenfranchised felons in Washington remain ineligible to vote until they have completed all the requirements of their sentences and have obtained certificates of discharge under Section 9.94A.637 of the Revised Code of Washington ("RCW"). A discharge under Section 9.94A.637 has "the effect of restoring all civil rights lost by operation of law upon conviction." RCW § 9.94A.637(4).

Plaintiffs Muhammad Shabazz Farrakhan, Marcus Price, Ramon Barrientes, Tim Schaaf, Clifton Briceno, and Al-Kareem Shadeed[2] are citizens who were convicted of felonies in Washington state and consequently disenfranchised under Article VI, Section 3 of the Washington State Constitution. None of the plaintiffs has had his civil rights restored under RCW § 9.94A.637.
When Plaintiffs initially filed their complaint, they challenged Washington's disenfranchisement scheme on federal constitutional grounds and as violative of the Voting Rights Act ("VRA").[3] They sought both declaratory and injunctive relief to enjoin Defendants[4] from applying the voting restriction and related statutory provisions against all felons. In allowing Plaintiffs to proceed on their vote denial claim under Section 2, the district court rejected the State's argument that the VRA could not apply to felon disenfranchisement laws. Farrakhan v. Locke, 987 F.Supp. 1304, 1311 (E.D.Wa.1997). However, the court 1013*1013 dismissed Plaintiffs' constitutional and vote dilution claims and denied Plaintiff Farrakhan's request for leave to file a due process challenge to Washington's statutory scheme governing the restoration of felons' civil rights. Id. at 1315.
In their Fourth Amended Complaint, Plaintiffs alleged that Article VI, Section 3 of the Washington Constitution, along with the process set forth for restoration of disenfranchised felons' civil rights, result in the denial of their right to vote on account of race in violation of Section 2. This was the operative complaint upon which the parties relied when they filed cross-motions for summary judgment.
In support of its motion, the State filed a statement of material facts as required by Rule 56.1(a) of the Local Rules for the Eastern District of Washington. In this statement, the State set forth facts that it contended were not disputed regarding (1) Plaintiffs' criminal histories and the fact that none had completed all the requirements of his sentence, (2) the background and history of Washington's felon disenfranchisement law and statistics regarding citizens who had been affected by it, (3) the statutory procedure for restoration of civil rights and reinstatement of the right to vote, (4) the history of Washington's AfricanAmerican population, (5) the racial and ethnic make-up of Washington's population, (6) the composition of Washington's felony population, (7) the background and work of the Washington State Minority and Justice Commission, ("WSMJC") and (8) the history of and changes to Washington's voting laws and practices. With the exception of three issues relating to the operation of Washington's disenfranchisement scheme and its history of discrimination against Native Americans, Plaintiffs did not dispute the State's statement of material facts.
To substantiate their vote denial claim, however, Plaintiffs presented statistical evidence of the disparities in arrest, bail and pre-trial release rates, charging decisions, and sentencing outcomes in certain aspects of Washington's criminal justice system.[5] They also submitted expert declarations and relied on the same reports and studies that the State had submitted to show the extent to which these disparities could be attributed to racial bias and discrimination.[6] In addition to this evidence regarding racial bias in Washington's criminal justice system, Plaintiffs offered evidence of the tenuous policy justifications for Washington's felon disenfranchisement law, and presented evidence of the discriminatory intent that guided the enactment of these laws in several states, discussing the similarities between other states' statutes and the one enacted in Washington.

As noted, the district court ultimately granted the State's motion for summary judgment. Despite the fact that there was little dispute over the State's separate statement of material facts,[7] the district 1014*1014 court nonetheless characterized Plaintiffs' evidence of discrimination in Washington's criminal justice system and the resulting disproportionate impact on minority voting power as "compelling."[8] However, the district court ultimately concluded that such evidence was insignificant to its inquiry regarding a possible causal connection between the disenfranchisement provision and the disproportionate impact on the number of minorities ineligible to vote.[9] As we explain, the district court's analysis and conclusion misunderstand Section 2's "totality of the circumstances" test, which requires the court to consider the way in which the disenfranchisement law interacts with racial bias in Washington's criminal justice system to deny minorities an equal opportunity to participate in the state's political process.
DISCUSSION
I.
Congress enacted the VRA for the broad remedial purpose of "rid[ding] the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Initially responding "to the increasing sophistication with which the states were denying racial minorities the right to vote," Farrakhan, 987 F.Supp. at 1308, Congress amended Section 2 of the VRA in 1982 to relieve plaintiffs of the burden of proving discriminatory intent.[10] Chisom v. Roemer, 501 U.S. 380, 394, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991); Ruiz v. City of Santa Maria, 160 F.3d 543, 557 (9th Cir.1998) (noting Congress's statement that the "intent test" was "unnecessarily divisive in that it involved charges of racism on the part of individual officials or entire communities [and] placed an inordinately difficult burden of proof on plaintiffs and [] asked the wrong question." (internal alteration and quotation marks omitted)). As amended, Section 2 provides:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account 1015*1015 of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C. § 1973. Thus, a plaintiff may establish a Section 2 violation by showing that, based on of the totality of the circumstances, the challenged voting practice results in discrimination on account of race.[11]
The Senate Report accompanying the 1982 amendments identified "typical factors" that may be relevant in analyzing whether Section 2 has been violated:
(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;
(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
(4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle racial appeals;
(7) the extent to which members of the minority group have been elected to public office in the jurisdiction;
(8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;
(9) whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
See S.Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07 ("Senate Report"). Congress did not intend this list to be comprehensive or exclusive, nor did it intend that "any particular number of factors be proved, or that a majority of them point one way or the other." Id. at 29. Rather, as explained 1016*1016 by the Supreme Court, in examining the totality of the circumstances to determine whether a challenged voting practice results in vote denial or vote dilution on account of race, courts must consider how the challenged practice "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S.Ct. 2752.
II.

As a preliminary matter, we agree with the district court that Plaintiffs' claim of vote denial is cognizable under Section 2 of the VRA. Felon disenfranchisement is a voting qualification, and Section 2 is clear that any voting qualification that denies citizens the right to vote in a discriminatory manner violates the VRA. 42 U.S.C. § 1973. Indeed, the Supreme Court has made clear that states cannot use felon disenfranchisement as a tool to discriminate on the basis of race, see Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (holding that where racial bias motivated its original enactment, a facially neutral felon disenfranchisement law violated the Equal Protection Clause), and Congress specifically amended the VRA to ensure that, "in the context of all the circumstances in the jurisdiction in question," any disparate racial impact of facially neutral voting requirements did not result from racial discrimination, Senate Report at 27; see also Chisom v. Roemer, 501 U.S. at 394 & n. 21, 111 S.Ct. 2354.
Permitting a citizen, even a convicted felon, to challenge felon disenfranchisement laws that result in either the denial of the right to vote or vote dilution on account of race animates the right that every citizen has of protection against racially discriminatory voting practices. Although states may deprive felons of the right to vote without violating the Fourteenth Amendment, Richardson v. Ramirez, 418 U.S. 24, 54-55, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), when felon disenfranchisement results in denial of the right to vote or vote dilution on account of race or color, Section 2 affords disenfranchised felons the means to seek redress.[12]
III.
Next, we consider whether the district court erred in failing to consider evidence of racial bias in Washington's criminal justice system in determining whether Washington's felon disenfranchisement laws result in denial of the right to vote on account of race. We hold that it did, as the district court misconstrued the causation requirement of a Section 2 analysis.
A.
Relying extensively on our decision in Salt River, 109 F.3d at 594-96, the district court concluded that Plaintiffs had failed to demonstrate that Washington's felon disenfranchisement provision was either "motivated by racial animus, or that its operation by itself has a discriminatory effect."[13] 1017*1017 Although it determined that the disenfranchisement statute resulted in the under-representation of minorities in Washington's political process, the district court found that Plaintiffs had failed to satisfy their causal burden because the cause of the underrepresentation "is not the voting qualification; instead, the cause is bias external to the voting qualification," i.e., discrimination in the criminal justice system.[14] In so ruling, the district court applied a causal standard at odds with the Salt River decision (which "compelled" its understanding of the Section 2 analysis), the plain language of the VRA, its legislative history, and other wellestablished judicial precedent.
Section 2 plainly provides that a voting practice or procedure violates the VRA when a plaintiff is able to show, based on the totality of the circumstances, that the challenged voting practice results in discrimination on account of race. 42 U.S.C. § 1973. The Supreme

Court has interpreted "[t]he essence of a [Section] 2 claim" to be "that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S.Ct. 2752 (emphasis added). Thus, it is clear that whether a particular practice results in vote denial or vote dilution in violation of Section 2 always depends on the "totality of the circumstances" in which the practice operates.
In fact, in Salt River, we applied the totality of the circumstances test to determine whether an agricultural improvement and power district's land ownership voting qualification violated Section 2. 109 F.3d at 594-95. The plaintiffs were African-American, non-landowning residents of the district who claimed that the land ownership requirement was a racially discriminatory voting qualification because a disproportionate percentage of landowners in the district were white. Id. at 588.
In assessing their claim, we considered both the interaction of the challenged landownership requirement with the surrounding social and historical circumstances in the district and expert testimony "regarding the relationship, or lack thereof, between race and home ownership" in the district. Id. at 590. Deferring to the district court's factual findings, we focused on its conclusion that "the observed difference in rates of home ownership between non-Hispanic whites and African-Americans is not substantially explained by race but is better explained by other factors independent of race" which "adequately rebutted any inference of racial bias that the [disparate impact] statistics might suggest." Id. at 591 (emphasis added) (internal citations omitted). Because the land ownership rates did not reflect racial discrimination, we concluded that the land ownership requirement 1018*1018 did not violate Section 2. Id. at 594-96.
In so concluding, the Salt River court did not focus solely on the land ownership requirement and exclude external factors that helped determine the qualification's disparate racial impact. Instead, we considered the external factors, but ultimately concluded that the statistics evidencing the disproportionate percentage of white landownership did not reflect racial discrimination and so failed to satisfy the "on account of race" requirement of the results test. As we noted, this conclusion was dictated by the Salt River plaintiffs' admission that there was no evidence of discrimination as measured by the Senate Report factors, id. at 595-96, and their stipulation to "the nonexistence of virtually every circumstance which might indicate that landowner-only voting results in racial discrimination," id. at 595, leaving only a bare statistical showing of disparate impact to support their Section 2 claim.
In light of these constraints, the Salt River court's statement regarding the need for evidence of "a causal connection between the challenged voting practice and [a] prohibited discriminatory result," id. (internal quotation marks omitted) (alteration in original), simply does not stand for the proposition that the practice must, "by itself," cause the discriminatory result. Indeed, if it did, there would have been no need for the court to consider whether land ownership rates reflected racial discrimination or to assess other totality of the circumstances factors.
Further, demanding "by itself" causation would defeat the interactive and contextual totality of the circumstances analysis repeatedly applied by our sister circuits in Section 2 cases, as

they also require a broad, functionally-focused review of the evidence to determine whether a challenged voting practice interacts with surrounding racial discrimination in a meaningful way or whether the practice's disparate impact "is better explained by other factors independent of race." Salt River, 109 F.3d at 591 (internal quotation marks omitted); see, e.g., Ortiz v. City of Philadelphia Office of the City Comm'rs, 28 F.3d 306, 310-16 (3d Cir.1994) (acknowledging that Section 2 violations occur when challenged voting practices interact with social and historical conditions to deny minorities equal access to the political process, but ultimately upholding Pennsylvania's voter purge law because there was no evidence that discrimination or societal disadvantages had contributed to low minority voter turnout); Salas v. S.W. Tex. Junior Coll. Dist., 964 F.2d 1542, 1555-56 (5th Cir.1992) (noting that "practical impediments to voting" are relevant in assessing a Section 2 challenge but finding no credible evidence that the effects of prior discrimination — including unemployment, illiteracy, and low income — had contributed to the low voter turnout that caused Hispanics' lack of electoral success, the court held that the real cause of this lack of success was not the challenged voting practice); Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1358-59 (4th Cir.1989) (upholding an appointive rather than an elective scheme for selecting county school boards because (1) in the few counties in which blacks were significantly underrepresented the disparity was due to the fact that fewer blacks sought appointment, and (2) the composition of the officials responsible for making appointments either manifested no discrimination or should have been addressed through a challenge to the selection procedures for those officials); United States v. Marengo County Comm'n, 731 F.2d 1546, 1574 (11th Cir. 1984) (finding that the evidence demonstrated that blacks' lack of success at 1019*1019 the polls was not due to "apathy" but rather due to social and historical factors including "a history of pervasive racial discrimination," and holding that an at-large election system therefore resulted in a Section 2 violation).
Moreover, the district court's "by itself" causation standard would effectively read an intent requirement back into the VRA, in direct contradiction of the clear command of the 1982 Amendments to Section 2. A facially neutral voting qualification, even one that results in substantial discriminatory effects, would only be discriminatory "by itself" if its purpose was to achieve those discriminatory effects. Instead, courts must be able to consider whether voting practices "accommodate or amplify the effect that ... discrimination has on the voting process," Salt River, 109 F.3d at 595 n. 7 (internal quotation marks omitted); absent proof that the challenged practice was adopted or maintained out of overt, intentional racial animus, its disproportionate effect on minority voters could only ever be "on account of race" through its interaction with racial discrimination "outside of the challenged voting mechanism."
In sum, although Salt River made clear that "a bare statistical showing of disproportionate impact on a racial minority does not satisfy the [Section] 2 `results' inquiry" because causation cannot be inferred from impact alone, 109 F.3d at 595, the legislative history of the VRA along with the consistent judicial interpretation of Section 2 clarify that "[e]ven a consistently applied practice premised on a racially neutral policy would not negate a plaintiff's showing through other factors that the challenged practice denies minorities fair access to the process." Senate Report at 29 n.117. Certainly, plaintiffs must prove that the challenged voter qualification denies or abridges their right to vote on account of race, but the 1982 Amendments and subsequent case law make clear that factors outside the election system can contribute to a particular voting practice's disparate impact when those

factors involve race discrimination. Therefore, under Salt River and consistent with both Congressional intent and well-established judicial precedent, a causal connection may be shown where the discriminatory impact of a challenged voting practice is attributable to racial discrimination in the surrounding social and historical circumstances. In light of this determination, we turn to the question of whether evidence of racial discrimination in the criminal justice system qualifies as such evidence.
B.
As noted above, the Senate Report accompanying the 1982 Amendments identified "typical factors" that may be relevant in analyzing whether a particular voting practice violates Section 2, but Congress did not intend the listed factors to be exhaustive. The legislative history accompanying the 1982 Amendments acknowledged that "while these enumerated factors will often be the most relevant ones, in some cases other factors will be indicative" of a Section 2 violation. Senate Report at 29. Further, the Supreme Court has emphasized the importance of maintaining a practical perspective when evaluating the effects or lawfulness of a challenged voting practice, Gingles, 478 U.S. at 46, 106 S.Ct. 2752, and courts have followed this directive in considering the lower socio-economic status of American Indians, see Old Person v. Brown, 312 F.3d 1036, 1042 (9th Cir.2002), the disproportionate number of blacks living in poverty and inadequate housing, see Johnson v. Halifax County, 594 F.Supp. 161, 169-70 (E.D.N.C.1984), a Board of Education's opposition 1020*1020 to school desegregation, see Marengo, 731 F.2d at 1568, and the past and continuing unemployment, illiteracy, and low income that Hispanic citizens face, see Salas, 964 F.2d at 1556.
Thus, simply because Congress did not specifically identify racial bias in the criminal justice system as a relevant factor in identifying a Section 2 violation does not mean that it should be excluded from a totality of the circumstances analysis. In fact, this kind of evidence is encompassed within the scope of factor (5), directing courts to consider "the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment, and health." Senate Report at 29.
This factor underscores Congress's intent to provide courts with a means of identifying voting practices that have the effect of shifting racial inequality from the surrounding social circumstances into the political process. To the extent that racial bias and discrimination in the criminal justice system contribute to the conviction of minorities for "infamous crimes," such discrimination would clearly hinder the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic. Thus, racial bias in the criminal justice system may very well interact with voter disqualifications to create the kinds of barriers to political participation on account of race that are prohibited by Section 2, rendering it simply another relevant social and historical condition to be considered where appropriate.
C.
Indeed, had the district court properly interpreted the causation requirement under the totality of the circumstances test instead of applying its novel "by itself" causation standard,

the court might have reached a different conclusion.[15] Although we conduct a de novo review of the record, in light of the district court's assessment that Plaintiffs' evidence was compelling and its determination that such evidence was insignificant for its analysis of the totality of the circumstances surrounding Plaintiffs' Section 2 claim, we believe that it is appropriate to remand this claim to the district court for further proceedings. On remand, the district court should make any requisite factual findings following an appropriate evidentiary hearing, if necessary, and assess the totality of the circumstances, including Plaintiffs' evidence of racial bias in Washington's criminal justice system.
We recognize that this is a difficult issue and that it requires a searching inquiry into all factors that bear on Plaintiffs' claim. We, however, express no opinion on the merits of Plaintiffs' claim and leave that determination to the district court in the first instance.
1021*1021 IV.
Plaintiffs also argue that Washington's statute for the restoration of civil rights, RCW § 9.94A.220, and the process that the State has adopted to implement the statute, violate Section 2.[16] The statute provides:
(1) When an offender has completed the requirements of the sentence, the secretary of the department [of Corrections] or the secretary's designee shall notify the sentencing court, which shall discharge the offender and provide the offender with a certificate of discharge.
(2) The discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state.
RCW § 9.94A.220. Plaintiffs contend that Washington's scheme for restoration of civil rights is "cumbersome, excessively complex, and places difficult burdens on offenders seeking restoration of voting rights."[17] Plaintiffs further argue that the statutory eligibility requirements violate the VRA by causing a disproportionately minority population to be prohibited from registering and voting.
With regard to the challenge to the eligibility statute itself, Plaintiffs have produced no evidence that minorities are less able to meet the requirements for restoration.[18] At a minimum, Section 2 requires evidence that the challenged provision results in discrimination. The evidence submitted by Plaintiffs, however, demonstrates only that the disenfranchisement scheme may be discriminatory; Plaintiffs' evidence does not support a similar conclusion with respect to the restoration scheme, except insofar as it reflects any discrimination caused by the disenfranchisement scheme. Without evidence that 1022*1022 minorities are less able to complete the eligibility requirements, Plaintiffs' challenge to these requirements must fail.[19]
As to Plaintiffs' challenge to the restoration procedures, the district court held that Plaintiffs lacked standing to challenge the restoration scheme because they presented no evidence of their eligibility, much less even allege that they were eligible for restoration, and had not attempted to have their civil rights restored. We conduct a de novo review of the standing question, Hartman v. Summers, 120 F.3d 157, 159 (9th Cir.1997), and we agree with the district court that Plaintiffs lack standing to assert this claim.

Standing generally requires a plaintiff to establish the following: (1) injury in fact, (2) a causal connection between the injury and the conduct in question, and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because Plaintiffs cannot meet the requirement of injury in fact, they lack standing to pursue this claim.
Plaintiffs argue that because Section 9.94A.220 prohibited them from registering and voting, they have suffered an injury in fact. However, proof of this element requires "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted). Plaintiffs' argument glosses over the fact that they have not been denied the right to vote because of the restoration process, but rather due to the disenfranchisement provision discussed at length above, and because they have not satisfied all the requirements of their sentences to become statutorily eligible for discharge of their convictions. The right to a discharge of conviction arises only upon the completion of all the requirements of the judgment and sentence.
To the extent that the basis for Plaintiffs' asserted injury in fact is the statutory process "as applied," their allegations of harm are conjectural or hypothetical — Plaintiffs speculate that the process would be "cumbersome, excessively complex, and place[] a difficult burden on them" should they ever qualify for restoration of their civil rights under Section 9.94A.220.[20] Accordingly, we agree with the district court that Plaintiffs lack standing to challenge the process for obtaining restoration of their civil rights under RCW § 9.94A.220 as a violation of Section 2.[21]
1023*1023 AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
[*] The Honorable Harlington Wood, Jr., Senior United States Circuit Judge for the Seventh Circuit, sitting by designation.
[1] Under Washington law, an "infamous crime" is a crime punishable by death in the state penitentiary or imprisonment in a state correctional facility. RCW § 29.01.080.
[2] Plaintiffs Farrakhan, Price, Shadeed, and Schaaf are African-American. Plaintiff Briceno is Native American. Plaintiff Barrientes is Hispanic-American. Section 2 protects "any citizen who is a member of a protected class of racial minorities." Gingles, 478 U.S. at 43, 106 S.Ct. 2752.
[3] Plaintiffs challenged both Washington's disenfranchisement law, set out in Article VI, Section 3 of the Washington State Constitution, and its process for restoring voting rights to those felons who have completed all requirements of their sentence, as provided under former RCW Section 9.94A.220. In 2002, Section 9.94A.220 was amended and recodified as Section 9.94A.637. Unless otherwise noted, all further references are to the version of the statute challenged by Plaintiffs — RCW § 9.94A.220.
[4] The defendants are the State of Washington, Washington Governor Gary Locke, Washington Secretary of State Sam Reed, and Secretary of the Washington State Department of Corrections Joseph Lehman (collectively the "State").
[5] One such statistic showed that although African-Americans constituted 3% of Washington's overall population, they accounted for 37% of the "persistent offender" sentences handed down by Washington courts.

[6] These reports included the WSMJC 1999 study entitled The Impact of Race and Ethnicity on Charging and Sentencing Processes for Drug Offenders in Three Counties of Washington State and the Final Report of Dr. George Bridges, Ph.D., also commissioned by the WSMJC, entitled A Study on Racial and Ethnic Disparities in Superior Court Bail and Pretrial Detention Practices in Washington.
[7] Although the Local Rules for the Eastern District of Washington require the party opposing a motion of summary judgment to submit a separate document setting forth any disputes it has with the moving party's statement of uncontroverted facts, the Local Rules leave to the court's discretion whether to assume that certain facts have been admitted without controversy. See E.D. Wash. R. 56.1(d) ("In determining any motion for summary judgment, the Court may assume that the facts as claimed by the moving party are admitted to exist without controversy except as and to the extent that such facts are controverted by the record set forth in [the opposing party's responsive memorandum]." (emphasis added)). Here, the district court did not indicate whether it assumed that some or all of the state's undisputed facts were "admitted to exist without controversy." The district court's characterization of Plaintiffs' evidence as "compelling" suggests that, at least with respect to some of the State's material facts, it did not assume that they were "admitted to exist without controversy."
[8] Because the district court did not explicitly point to any particular aspect of Plaintiffs' evidence of discrimination in Washington's criminal justice system, its assessment of the strength of Plaintiffs' evidence must refer to both its statistical evidence and the expert studies that analyzed the racial bias evidenced by those statistics.
[9] The court further concluded that Plaintiffs lacked standing to challenge the process for restoration of civil rights under Section 9.94A.220, because no Plaintiff had yet qualified for such relief or had even attempted to regain his civil rights.
[10] Congress amended the VRA with the express purpose of clarifying that discriminatory intent was not required to establish a Section 2 violation after a plurality of the Supreme Court held that the pre-1982 VRA, like the Fifteenth Amendment, required proof of discriminatory intent. See City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980).
[11] We have held that the totality of the circumstances approach applies to both vote dilution and vote denial claims. Salt River, 109 F.3d at 596 n. 8.
[12] In so holding, we note that the Sixth Circuit proceeded to engage in a Section 2 analysis to evaluate a challenge to Tennessee's felon disenfranchisement statute, see Wesley v. Collins, 791 F.2d 1255 (6th Cir.1986) (ultimately holding that the Tennessee statute did not violate the VRA), and that the Second Circuit, sitting en banc, split five-tofive on the question of whether disenfranchised felons could state a claim under the VRA. Baker v. Pataki, 85 F.3d 919 (2d Cir.1996).
[13] The district court also relied on the Eleventh Circuit's decision in Burton v. City of Belle Glade, 178 F.3d 1175, 1198 (11th Cir. 1999), in "weighing the significance of Plaintiffs' evidence." In Burton, tenants of a predominantly black housing project claimed that the housing authority's refusal to petition and the City's failure to annex the project violated Section 2. Id. at 1186. In the view of the district court, the Burton decision "acknowledged that historical patterns of housing discrimination had segregated the African-American community ..., but held that this evidence was insufficient to establish a VRA violation because `[a]lthough Appellants have presented evidence of housing segregation in Belle Glade and in the two centers, we can find no evidence of any discrimination with respect to voting. Id. at 1198.'"
[14] Significantly, the district court concluded that "evidence of discrimination in the criminal justice system is only useful for establishing a generalized climate of discrimination which hinders minority opportunity to participate in the political process," but found that "such evidence, by itself" was not sufficient to establish a causal link between Washington's disenfranchisement provision and minority underrepresentation in Washington's political process.
[15] Plaintiffs also presented evidence regarding the tenuous policy justifications for Washington's felon disenfranchisement law. In its order denying the State's motion to dismiss Plaintiffs' vote denial claim, the district court noted our criticism of the underlying policy justifications for Washington's law in Dillenburg v. Kramer, 469 F.2d 1222 (9th Cir.1972). Although recognizing that "Dillenburg is not good law to the extent that it suggests that the disenfranchisement of felons, on its face, cannot pass constitutional muster," the district court opined that "Dillenburg remains applicable ... to the extent that the decision discusses the alleged justifications for felon disenfranchisement statutes." 987 F.Supp. at 1312. The district court also noted that Dillenburg was especially critical of "Washington's

law in particular, since it denies felons the right to vote based on the possible penalty for their offense, rather than their actual penalty or conduct." Id.
[16] As noted, Section 9.94A.220 was amended and recodified as Section 9.94.637. We further note that, along with several revisions to the existing subsections, Section 9.94A.637 contains a new subsection that provides
(2) The court shall send a copy of every signed certificate of discharge to the auditor for the county in which the court resides and to the department. The department shall create and maintain a data base containing the names of all felons who have been issued certificates of discharge, the date of discharge, and the date of conviction and offense.
However, we analyze Plaintiffs' challenge to Washington's scheme for restoration of civil rights as the statute existed when the Fourth Amended Complaint was filed.
[17] Plaintiffs state that felony offenders are typically unaware that their voting rights have been revoked upon conviction, and that upon release from incarceration, they are generally uninformed as to their voting status. Additionally, according to Plaintiffs, Washington's Secretary of State has no policy of either providing information to released felons about their status or ensuring that election officials are trained to answer questions regarding the voter eligibility of those convicted of an infamous crime under Washington law. The revised and recodified statute attempts to address some of the alleged deficiencies, as the legislative history accompanying the 2002 Amendments states:
The legislature recognizes that an individual's right to vote is a hallmark of a free and inclusive society and that it is in the best interests of society to provide reasonable opportunities and processes for an offender to regain the right to vote after completion of all the requirements of his or her sentence. The legislature intends to clarify the method by which the court may fulfill its already existing direction to provide discharged offenders with their certificates of discharge.
2002 Wash. Legis. Serv. 16 § 1 (West).
[18] Although the district court rejected Plaintiff Farrakhan's standing argument, we hold that he has standing to challenge the statutory eligibility requirements because Farrakhan has completed all terms of his judgment and sentence aside from his monetary restitution obligation.
[19] Plaintiffs also argue that the statutory requirement that they repay their monetary obligations in order to be eligible for restoration amounts to a de facto poll tax. Although this argument might be cognizable as an equal protection claim, see Bynum v. Conn. Comm'n of Forfeited Rights, 410 F.2d 173, 176-77 (2d Cir.1969), we do not consider it here because Plaintiffs have not asserted any equal protection claims.
[20] Because we hold that Plaintiffs have not established an injury in fact, it is not necessary to address whether they satisfy the other standing requirements.
[21] As noted, the district court denied Plaintiff Farrakhan's request for leave to file a due process challenge to Washington's statutory scheme governing the restoration of felons' civil rights. Farrakhan, 987 F.Supp. at 1315. The district court concluded that Farrakhan lacked standing to pursue this claim. Because the above standing analysis is equally applicable to a putative due process claim, we find no error in the district court's ruling. Indeed, because they are not statutorily eligible for restoration, Plaintiffs no more have standing to challenge the restoration procedures on due process grounds than on Section 2 grounds.

 
 Locke v. Farrakhan, 543 U.S. 984 (2004) 125 S.Ct. 477
Supreme Court of the United States Gary LOCKE, Governor of Washington, et al., petitioners,
v. Muhammad Shabazz FARRAKHAN, et al.
No. 03-1597. | Nov. 8, 2004. Case below, 338 F.3d 1009. Opinion Motion of Thomas Johnson, et al. for leave to file a brief as amici curiae granted. Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied. Parallel Citations 125 S.Ct. 477 (Mem), 160 L.Ed.2d 365, 72 USLW 3741, 73 USLW 3284, 73 USLW 3286
1