Farrakhan v. Gregoire ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUHAMMAD SHABAZZ FARRAKHAN, 
aka Ernest S. Walker; AL-KAREEM
SHADEED; MARCUS X. PRICE;
RAMON BARRIENTES; TIMOTHY
No. 06-35669
SCHAAF; CLIFTON BRICENO,
Plaintiffs-Appellants,
 D.C. No.
CV-96-0076-RHW
v.
OPINION
CHRISTINE O. GREGOIRE; SAM REED;
HAROLD W. CLARKE; STATE OF
WASHINGTON,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
April 8, 2008—Seattle, Washington
Filed January 5, 2010
Before: Stephen Reinhardt, A. Wallace Tashima, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Tashima
Dissent by Judge McKeown
107
FARRAKHAN v. GREGOIRE 113
COUNSEL
Lawrence A. Weiser, Esq., University Legal Assistance at
Gonzaga Law School, Spokane, Washington, for the
plaintiffs-appellants.
Ryan P. Haygood, NAACP Legal Defense & Educational
Fund, Inc., New York, New York, for the plaintiffs-
appellants.
Carol Murphy, Deputy Solicitor General, Olympia, Washing-
ton, for the defendants-appellees.
Peter A. Danelo, Heller Ehrman, Seattle, Washington, for the
amici curiae American Civil Liberties Union and ACLU of
Washington.
Juan Cartagena, New York, New York, 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, New
York, for the amici curiae Alfred Blumstein, et al., 23 leading
criminologists.
OPINION
TASHIMA, Circuit Judge:
Plaintiffs, minority citizens of Washington state who have
lost their right to vote pursuant to the state’s felon disenfran-
114 FARRAKHAN v. GREGOIRE
chisement 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 disenfran-
chisement 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 dis-
trict 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 (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 citi-
zens1 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 disenfran-
chisement law as set forth in Article VI, § 3 of the Washing-
ton Constitution.2
Plaintiffs alleged that “minorities are disproportionately
prosecuted and sentenced, resulting in their disproportionate
representation among the persons disenfranchised under the
1
Farrakhan, Shadeed, Price, and Schaaf are African American; Barri-
entes is Latino; and Briceno is Native American.
2
Article VI, § 3 provides: “All persons convicted of infamous crime
unless restored to their civil rights . . . are excluded from the elective fran-
chise.” 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.
FARRAKHAN v. GREGOIRE 115
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’3 motion to dis-
miss as to Plaintiffs’ vote dilution claim, but permitted Plain-
tiffs’ vote denial claim to proceed.4 Id. at 1315.
On subsequent cross-motions for summary judgment, the
district court granted Defendants’ motion and denied Plain-
tiffs’ 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 Wash-
ington’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 “miscon-
strued 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
3
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”).
4
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.
116 FARRAKHAN v. GREGOIRE
practice interacts with external factors such as ‘social and his-
torical 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 (1986)). Consequently, “evidence of
discrimination can be relevant to a Section 2 analysis.” Id.
Following remand, the parties conducted additional discov-
ery and ultimately filed new cross-motions for summary judg-
ment. 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 “con-
ducted extensive research on racial disparity in the Washing-
ton State criminal justice system,” Crutchfield Report at 9,
and Dr. Katherine Beckett, an Associate Professor of Sociol-
ogy 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 lit-
erature review of the empirical research that has been con-
ducted on racial disparities in the various levels of
Washington’s criminal justice system (policing and investiga-
tion, prosecution, and sentencing). He described studies show-
ing, 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 crim-
inal activity,5 Crutchfield Report at 4-9; evidence of “unwar-
ranted” racial disparities in the rates of vehicle searches, id.
at 18, 21; and “observable racial differences” in the process-
ing of criminal cases (e.g., charging and bail recommenda-
5
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.
FARRAKHAN v. GREGOIRE 117
tions, 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 down-
town area — “are not explicable in race neutral terms.” Id. at
3.
The district court again granted the State’s motion for sum-
mary 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 Plain-
tiffs’ 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 statisti-
cal 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’ con-
clusions.” Id. Thus, the district court concluded that it was
“compelled to find that there is discrimination in Washing-
ton’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) (alter-
ation in original).
118 FARRAKHAN v. GREGOIRE
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 dis-
crimination . . . 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 Factors6 weigh in Defen-
dants’ 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 dis-
crimination in Washington. Id. at *7. Next, the district court
concluded that Plaintiffs “failed to present any substantial evi-
dence 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 Fac-
tor 9 — whether the state’s policy justifications are “tenuous”
— “also favors Defendants’ position.” Id. Although Defen-
dants 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 fel-
ons,7 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
6
The Senate Factors are described and discussed in Part III.A, infra, at
13-14.
7
Section 2 of the 14th Amendment acknowledges the practice of felon
disenfranchisement by providing that disenfranchisement “for participa-
tion in rebellion, or other crime” will not result in the reduction of repre-
sentatives 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.
FARRAKHAN v. GREGOIRE 119
racial bias in Washington’s criminal justice system is compel-
ling,” 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 sup-
plemental 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.8
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 157. Neither party, how-
ever, has ever suggested to this court — including in the sup-
plemental briefing — that there are any material differences
between incarcerated and nonincarcerated felons that are rele-
vant to the outcome of this case.9 In the absence of any con-
8
Defendants argue that the amendment moots the case. However, with
five of the original six Plaintiffs facing the same circumstance of disen-
franchisement that they faced before the passage of the amendment, the
case is not moot.
9
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.
120 FARRAKHAN v. GREGOIRE
tention, 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 [incar-
cerated and nonincarcerated felons] present a meaningful dis-
tinction under the VRA’s totality of the circumstances
inquiry.” Diss. at 158 (footnote omitted). In fact, we are not
presented with that question at all. Rather, what the State con-
tends regarding the amended law is that the provisions modi-
fying the period during which felons are deprived of the right
to vote are sufficient, when taken in concert with the other rel-
evant considerations, to require us to uphold the grant of sum-
mary 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
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 (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 sum-
mary judgment rulings to Part III.D.1, infra.
FARRAKHAN v. GREGOIRE 121
III. ANALYSIS
A. Statutory Background
[1] 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 (1966)). As originally enacted, the VRA focused in large
part on certain “covered” jurisdictions with a history of voting
discrimination.10 The VRA required such jurisdictions to pre-
clear any change in voting procedures with the Department of
Justice; it also banned literacy tests11 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 con-
trast, was not restricted to “covered” jurisdictions. Mirroring
the language of the Fifteenth Amendment, § 2 originally pro-
vided 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).
[2] In 1980, a plurality of the Supreme Court concluded, in
City of Mobile v. Bolden, 446 U.S. 55, 58 (1980), that § 2
10
“A jurisdiction was ‘covered’ for purposes of section 5 if it used a lit-
eracy or other test for registering or voting and if less than half of its vot-
ing age population voted in the 1964 election. The original covered
jurisdictions were Alabama, Georgia, Louisiana, Mississippi, South Caro-
lina, Virginia, and large parts of North Carolina.” United States v. Blaine
County, Mont., 363 F.3d 897, 901 n.4 (9th Cir. 2004).
11
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 (1970). In 1975, Congress made the nationwide literacy test ban per-
manent. See Blaine County, 363 F.3d at 901.
122 FARRAKHAN v. GREGOIRE
“was intended to have an effect no different from that of the
Fifteenth Amendment itself,” id. at 61; consequently, that
plaintiffs raising claims under VRA § 2 were required to show
direct evidence of discriminatory intent, as is required for Fif-
teenth Amendment claims, id. at 62-63. 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 nomina-
tion 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 politi-
cal 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,12 the language of the amendment makes clear that the
12
The Senate hearings “focused on whether replacing the Bolden test
with a results test would effectively mandate proportional representation—
FARRAKHAN v. GREGOIRE 123
new “results test” applies both to vote dilution and vote denial
claims.13 See Chisom v. Roemer, 501 U.S. 380, 394 (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 discrimina-
tion 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;
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).
13
“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 influ-
ence 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.
124 FARRAKHAN v. GREGOIRE
(3) the extent to which the state or political subdivi-
sion has used unusually large election districts,
majority vote requirements, anti-single shot provi-
sions, 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 character-
ized by overt or subtle racial appeals;
(7) the extent to which members of the minority
group have been elected to public office in the juris-
diction;
(8) whether there is a significant lack of responsive-
ness on the part of elected officials to the particular-
ized needs of the members of the minority group;
(9) whether the policy underlying the state or politi-
cal subdivision’s use of such voting qualification,
prerequisite to voting, or standard, practice or proce-
dure is tenuous.
S. Rep. No. 97-417, at 28-29.14 The Senate Report empha-
14
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, how-
ever, numbered these as Factors 8 and 9. We follow that practice.
FARRAKHAN v. GREGOIRE 125
sized, however, that “there is no requirement that any particu-
lar number of factors be proved, or that a majority of them
point one way or the other,” and that, “[w]hile these enumer-
ated 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
[3] 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, how-
ever, 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 acknowl-
edge 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.
[4] “The law of the case doctrine states that the decision of
an appellate court on a legal issue must be followed in all sub-
sequent 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
(1997), cert. denied, 522 U.S. 1008 (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 subse-
quent trial.’ ” Tahoe-Sierra Preservation Council, Inc. v.
126 FARRAKHAN v. GREGOIRE
Tahoe Reg’l Planning Agency, 216 F.3d 764, 787 (9th Cir.
2000) (quoting Jeffries, 114 F.3d at 1489).
[5] Defendants appear to invoke the first and second excep-
tions, 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 disenfran-
chisement 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
(2005)).15 To the extent Defendants suggest that these cases
constitute “intervening controlling authority” that would make
reconsideration appropriate, such argument is clearly incor-
rect. 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.
[6] 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 (Katz-
mann, J., dissenting); Johnson, 405 F.3d at 1239-44 (Wilson,
J., dissenting in relevant part); id. at 1247-51 (Barkett, J., dis-
senting).16 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 Cir-
15
Since this case was argued and submitted for decision, the First Cir-
cuit has also held that the VRA does not apply to felon disenfranchisement
laws. See Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009).
16
Simmons, too, was filed over a vigorous dissent. See 575 F.3d at 45
(Torruella, J., dissenting).
FARRAKHAN v. GREGOIRE 127
cuits. 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 sup-
ports a conclusion that the decision was not “clearly errone-
ous.” 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”).17 Finally, although it did not directly
address the question whether challenges to felon disenfran-
chisement laws are cognizable under VRA § 2, the Sixth Cir-
cuit 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 disenfran-
chisement 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.
[7] We thus conclude that Farrakhan I remains binding
Circuit law.
C. Standing
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 con-
victions were the result of racial discrimination. Defendants
misconstrue the requirements for Article III standing.
17
Like the panel decision at issue in Jeffries, see 114 F.3d at 1493, Far-
rakhan 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.
128 FARRAKHAN v. GREGOIRE
[8] To establish Article III standing, Plaintiffs must demon-
strate: (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
(1992). That test is easily satisfied here. Plaintiffs have suf-
fered 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 (1975) (“[S]tanding in no way
depends on the merits of the plaintiff’s contention that partic-
ular 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. Whether Plaintiffs can succeed on their
VRA claim is irrelevant to the question whether they are enti-
tled to bring that claim in the first place.18
18
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 dis-
crimination 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 mem-
bers 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 discrimina-
tion. 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.”).
FARRAKHAN v. GREGOIRE 129
[9] 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; Farrak-
han 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
[10] “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 (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 (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 East-
ern 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 estab-
lishes a genuine issue of material fact precluding summary
130 FARRAKHAN v. GREGOIRE
judgment. Each fact must explicitly identify any fact(s)
asserted by the moving party which the opposing party dis-
putes 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.
[11] 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 Plain-
tiffs’ expert’s reports, but those questions were not supported
by affidavit or counter-experts. Moreover, none of the ques-
tions raised by Defendants in their Supplemental Statement
contradicts, or even suggests that there is some dispute about
the ultimate conclusions of Plaintiffs’ experts’ reports. There-
fore, “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.
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 ques-
tion 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 asser-
tions, including the assertions put forth by Plaintiffs’ experts,
either in their briefing before this Court or during oral argu-
ment. Instead, Defendants have stated repeatedly both before
the district court and this Court that no question of material
FARRAKHAN v. GREGOIRE 131
fact exists and that this case is ready to be ruled upon at sum-
mary judgment.19
Defendants do argue that the district court erred in conclud-
ing 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 demon-
strate 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 Plain-
tiffs’ 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 per-
suasion 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 sum-
mary 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
19
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 sum-
mary judgment or Plaintiffs win on summary judgment because Plaintiffs’
evidence is “inadequate” to meet Plaintiffs’ burden; and that “[t]here are
no factual issues.”
132 FARRAKHAN v. GREGOIRE
Plaintiffs’ case, then the State’s summary judgment motion
must be denied.
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 contin-
ues after the amendment to Rule 56(e).” See Adickes v. Kress
& Co., 398 U.S. 144, 161 (1970) (internal citation, quotation
marks, and brackets omitted). Declining to “offer any evi-
dence opposing summary judgment . . . is not the recom-
mended 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
et al., 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.
[12] Plaintiffs, on the other hand, would be entitled to sum-
mary judgment based upon their motion if they make out a
prima facie case that would entitle them to judgment as a mat-
ter of law if uncontroverted at trial. See UA Local 134 United
Ass’n of Journeymen & Apprentices of Plumbing & Pipefit-
ting 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.”).
FARRAKHAN v. GREGOIRE 133
[13] 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 appropri-
ate:
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 obliga-
tion 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 unneces-
sary 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 Farrak-
han, 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 straightfor-
ward 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 dis-
134 FARRAKHAN v. GREGOIRE
parities 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 jus-
tice system lead to significant racial disparities in the qualifi-
cation 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
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 Plain-
tiffs’ 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 evi-
dence 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 sum-
mary judgment.
Plaintiffs, on the other hand, contend that, having con-
cluded that racial discrimination exists in the Washington
criminal justice system (Factor 5), the district erred in then
requiring Plaintiffs to produce evidence regarding other Sen-
ate 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 chal-
lenge.”
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 circum-
stances,” not all of the Senate Factors were equally relevant,
or even necessary, to that analysis in this case. Some Senate
FARRAKHAN v. GREGOIRE 135
Factors may be relevant as circumstantial evidence with
respect to certain vote denial claims, but proof of those Fac-
tors was not required where, under Factor 5, Plaintiffs pro-
vided 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.20
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 enti-
tled to summary judgment.
a. The district court’s treatment of the Senate Factors
i. Senate Factors 7 and 8
[14] In its listing of the Factors that typically may be rele-
vant 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
20
Contrary to what the dissent contends, we do not “dictat[e] that a dis-
trict court should not consider certain factors . . . in vote denial cases.” See
Diss. at 160. We hold only that different factors will be of relevance in dif-
ferent 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 depriva-
tion is sufficient, and the plaintiffs need not present additional evidence
regarding other factors that are of less relevance to the plaintiffs’ claim.
136 FARRAKHAN v. GREGOIRE
was not a mandatory seven-pronged test” but “only meant as
a guide to illustrate some of the variables that should be con-
sidered 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.3d 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 enumer-
ated Factors are “particularly [pertinent] to vote dilution
claims,” Thornburg, 478 U.S. at 45, 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.
The district court acknowledged that it was “not bound by
the list of Senate factors,” but found that several of the Fac-
tors were relevant to Plaintiffs’ vote denial challenge. Farrak-
han, 2006 WL 1889273, at *7. Specifically, the district court
found that Factors 7 and 8 — the extent of minority represen-
tation among elected officials, and the level of responsiveness
of elected officials to minorities’ needs — were “certainly rel-
evant to Plaintiffs’ VRA claim.” Id. at *8.21 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
21
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 circum-
stances 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 fac-
tors in its analysis, we conclude that it erred.
FARRAKHAN v. GREGOIRE 137
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.
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 candi-
dates.”22 Thornburg, 478 U.S. at 48. In other words, the focus
of a vote dilution challenge is on the effectiveness of the
minority plaintiffs’ votes. Naturally then, the Factors most rel-
evant 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.
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
22
“Chief examples of vote-dilution practices include at-large elections
and redistricting plans to keep minorities’ voting strength weak.” Tokaji,
supra, at 691.
138 FARRAKHAN v. GREGOIRE
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 histori-
cal circumstances.”23 Farrakhan I, 338 F.3d at 1019. Conse-
quently, factors that examine the political strength of minority
voters in the jurisdiction are of lesser relevance.
Given the analytical distinction between vote dilution and
vote denial, it is clear that Senate Factors 7 and 8, while rele-
vant to the former,24 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 juris-
diction were members of the minority group, it would still
violate § 2 to deny minority citizens the right to vote on dis-
criminatory grounds. The fact that minority candidates have
had success in the state does not cure the discriminatory
denial of the franchise to minority voters.25 Likewise, whether
elected officials have been responsive to “the particularized
23
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 circum-
stance at issue was land ownership. See 109 F.3d at 589.
24
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. 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) (emphasis in original).
25
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 con-
clusion 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.
FARRAKHAN v. GREGOIRE 139
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.26
[15] 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. Plain-
tiffs’ 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 espe-
cially so in a case in which a “compelling” showing of dis-
crimination has been made. Defendants, while contending that
the district court was correct to rely on the absence of evi-
dence 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 Sen-
ate Factors are “relevant” does not make them so.27
26
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 disenfranchise-
ment of minority voters in Washington is caused by racial discrimination
in the state’s criminal justice system.
27
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 justi-
fication for denying them. As we have noted, in cases in which the evi-
dence of discrimination in the surrounding social and historical
140 FARRAKHAN v. GREGOIRE
ii. Senate Factor 1
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.
[16] 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 claim28 — especially
where the plaintiff alleges that the voting qualification itself
is discriminatory — proving Factor 1 is not necessary to suc-
ceed on such a challenge. Cf. Thornburg, 478 U.S. at 48 n.15
(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). Show-
ing 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 discrimina-
tory 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 discrimina-
tory.
[17] Plaintiffs do not contend that Washington’s felon dis-
enfranchisement law was enacted with a discriminatory pur-
pose; their claim, rather, is that the provision interacts with a
racially discriminatory criminal justice system and, as a result,
circumstances is less “compelling,” these factors may provide circumstan-
tial 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.
28
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.
FARRAKHAN v. GREGOIRE 141
racial minorities are disproportionately denied the right to
vote. If Plaintiffs adduce evidence that the disproportionate
disenfranchisement in Washington is attributable to discrimi-
nation in the criminal justice system, they may show a viola-
tion 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 dispropor-
tionately 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 “es-
sential” to such a claim, we assessed the district court’s treat-
ment 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. Nev-
ertheless, 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 dis-
crimination in voting.
[18] 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 crimi-
nal 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 effec-
tively in the political process,” id. (quoting Farrakhan I, 338
142 FARRAKHAN v. GREGOIRE
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 Fac-
tor 1 “strongly favors a finding that Washington’s felon disen-
franchisement law does not violate § 2 of the VRA” was
erroneous.
iii. Senate Factor 9
Finally, Plaintiffs contend that the district court’s conclu-
sion 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 sys-
tem, it does not matter whether, as Plaintiffs claim, the state’s
policy justification for felon disenfranchisement is tenuous.
[19] Like Factor 1, Factor 9 is a factor that could support
Plaintiffs’ vote denial claim circumstantially but is not neces-
sary 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. 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’ fail-
ure to demonstrate the tenuousness of the state’s felon disen-
FARRAKHAN v. GREGOIRE 143
franchisement 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 dis-
criminatory impact of a challenged voting practice is attribut-
able 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 consid-
ering Plaintiffs’ evidence, the district court concluded that it
“has no doubt that members of racial minorities have experi-
enced racial discrimination in Washington’s criminal justice
system.” Farrakhan, 2006 WL 1889273, at *9.
[21] 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 circumstan-
tial evidence of discrimination in Washington’s criminal jus-
tice 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
144 FARRAKHAN v. GREGOIRE
of Black to White arrest for violent offenses was only 3.72:1,
suggesting that substantially more than one half of Washing-
ton State’s racial disproportionality in its criminal justice sys-
tem 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 Amer-
icans 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 per-
cent 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 dis-
parities 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 pos-
session 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 prac-
tices are infected with racial disparities. Whites are less likely
to have charges filed than minorities, a significant disparity
FARRAKHAN v. GREGOIRE 145
that persists even after a number of legally relevant character-
istics, such as offense seriousness, offenders’ criminal histo-
ries, and weapons charges, are taken into account. Minority
defendants were less likely to be released on their own recog-
nizance than others, even after adjusting for differences
among defendants in the severity of their crimes, prior crimi-
nal records, ties to the community, and the prosecuting attor-
ney’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 minori-
ties are disadvantaged in pre-trial release, this has real poten-
tial for contributing to disparities in felony conviction rates.
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 asso-
ciated with crack as opposed to other serious drugs, such as
cocaine. Id. at 10-12. She also reported that the focus on out-
door drug activity cannot be explained by either greater citi-
zen 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.
[22] 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,
146 FARRAKHAN v. GREGOIRE
at *6, and that such discrimination “clearly hinder[s] the abil-
ity 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. Defen-
dants contend that the district court erred in finding that the
Washington criminal justice system was racially discrimina-
tory, and that, in the absence of such a determination, no basis
whatsoever exists for challenging the felon disenfranchise-
ment 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 dis-
trict 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.
[23] 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
FARRAKHAN v. GREGOIRE 147
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 pop-
ulation 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 pop-
ulation resides in Seattle, it was reasonable for the district
court to look to a Seattle-focused study in assessing racial dis-
crimination 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 dis-
crimination 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, how-
ever, 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 cir-
cumstance which might indicate that landowner-only voting
results in racial discrimination,” id. at 595, and the district
148 FARRAKHAN v. GREGOIRE
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 dis-
proportionality evident in Washington’s criminal justice sys-
tem 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 disproportion-
ately 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 Wash-
ington’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.”29
Plaintiffs here have introduced evidence demonstrating
what the Salt River plaintiffs could not. Plaintiffs have dem-
onstrated that police practices, searches, arrests, detention
29
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 own-
ership” 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 owner-
ship was “not substantially explained by race.” Id. at 591.
 FARRAKHAN v. GREGOIRE 149
practices, and plea bargaining practices lead to a greater bur-
den on minorities that cannot be explained in race-neutral
ways. The emphasis on crack cocaine and street drug traffick-
ing 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.
[24] Plaintiffs’ evidence suggests not only that Washing-
ton’s criminal justice system adversely affects minorities to a
greater extent than non-minorities, but also that this differen-
tial effect cannot be explained by factors other than racial dis-
crimination. 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
(1989), proves discriminatory intent through the same circum-
stantial 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 sys-
tem to the ability of protected minorities to participate effec-
tively in the political process. According to Defendants, the
district court’s finding of such a connection lowered Plain-
tiffs’ 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 con-
150 FARRAKHAN v. GREGOIRE
nection, because, under Washington law, “disenfranchisement
is automatic.” Farrakhan I, 338 F.3d at 1020.
[25] Finally, Defendants argue that, apart from these three
asserted errors, the district court erred in concluding that
Plaintiffs’ evidence demonstrates more than statistical dispar-
ity 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 can-
not be accounted for by race-neutral explanations and Defen-
dants 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 jus-
tice 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
Defendants also argue that even if Plaintiffs have demon-
strated that Washington’s criminal justice system is infected
with racial bias, Defendants are still entitled to summary judg-
ment 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.”).
Defendants next argue that even if Washington’s criminal
justice system is infected with racial bias and that such infec-
tion 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.” How-
FARRAKHAN v. GREGOIRE 151
ever, 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 (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 Defen-
dants’ 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 dispar-
ities cannot be explained in race-neutral ways. Plaintiffs have
demonstrated that in a total mass of potential “felons,” i.e.,
those that have committed crimes, minorities are more likely
than Whites to be searched, arrested, detained, and ultimately
prosecuted. And they have shown that these disparities cannot
be explained away 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 per-
son to commit a crime. Plaintiffs have not attempted to dem-
onstrate 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, prose-
cutors 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
152 FARRAKHAN v. GREGOIRE
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
Plaintiffs also contend that the district court erred in deny-
ing their motion for summary judgment.30 We agree. And,
contrary to the dissent’s suggestion, Diss. at 160-61, 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 justifi-
able inferences” in that party’s favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (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,
129 S. Ct. 2658, 2677 (2009) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)); see also Beard v. Banks, 548 U.S. 521,
529-30 (2006) (noting that “we must distinguish between evi-
dence of disputed facts and disputed matters of professional
judgment”). Here, there is no such “genuine” dispute. Plain-
tiffs carried their burden of producing evidence of discrimina-
tion; 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 (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 (1999). This they did not do. The record is uncontro-
verted.
30
“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 sum-
mary judgment.” Abend v. MCA, Inc., 863 F.2d 1465, 1482 n.20 (9th Cir.
1988).
FARRAKHAN v. GREGOIRE 153
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 judg-
ment, 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 undisput-
ed.’ ” 129 S. Ct. at 2665 (quoting Ricci v. DeStefano, 554 F.
Supp. 2d 142, 145 (D. Conn. 2006)). The Court granted sum-
mary judgment to petitioners, because “there [was] no evi-
dence — let alone the required strong basis in evidence” to
support the respondent’s position. Id. at 2681.
[26] In any case, even viewing the evidence in the light
most favorable to Defendants, Plaintiffs have demonstrated
that racial minorities are overrepresented in the felon popula-
tion 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 Washing-
ton’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 disen-
franchisement law. Dep’t of Commerce, 525 U.S. at 331.
They have “not offer[ed] any fact-based or expert-based refu-
tation,” Beard, 548 U.S. at 534, that challenges the conclu-
sions reached by Plaintiffs’ experts. Section 2 of the VRA
demands that such racial discrimination not spread to the bal-
lot box. Thus, based on the uncontroverted record, Plaintiffs
are entitled to summary judgment.
E. Washington’s Amended Felon Disenfranchisement
Law
Defendants argue that Washington’s recent amendment to
its felon disenfranchisement law alters the totality of the cir-
cumstances analysis required by § 2 of the VRA. The amend-
154 FARRAKHAN v. GREGOIRE
ment modified Washington’s felon disenfranchisement
scheme by providing for the provisional restoration of the vot-
ing 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 previ-
ous law, a felon was barred from voting until he had com-
pleted 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 amend-
ment, which reduces the number of felons disenfranchised,
disproportionately benefits minorities, and in so doing pro-
vides 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.
[27] 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.31 We hope that
31
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 sen-
tence review board or the governor. Id. at 5(f).
 FARRAKHAN v. GREGOIRE 155
defendants are correct about the positive effects of the amend-
ment: it appears that under the old law almost a quarter of oth-
erwise 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 cir-
cumstances.
IV. CONCLUSION
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:
In granting summary judgment to plaintiffs, the majority
has charted territory that none of our sister circuits has dared
156 FARRAKHAN v. GREGOIRE
to explore. The First, Second, and Eleventh Circuits have
determined that vote denial challenges to felon disenfran-
chisement 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 dis-
enfranchisement 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. Gam-
mie, 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 inter-
vening higher authority”). However, in part because the hold-
ing 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 disenfran-
chisement 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 fel-
FARRAKHAN v. GREGOIRE 157
ons affected by the prior Washington law—those still incar-
cerated 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 litiga-
tion, no court has addressed whether these two sets of individ-
uals present meaningful analytical differences. This posture is
not surprising because the statute did not make such a distinc-
tion before it was amended and, as the State notes in supple-
mental 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
119, 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 dis-
trict court.
It bears noting that none of the three recent felon disenfran-
chisement 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 cur-
rently incarcerated felons to the Massachusetts law prohibit-
ing 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 provi-
sions 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 Elev-
enth Circuit, in Johnson v. Governor of State of Fla., 405 F.3d
158 FARRAKHAN v. GREGOIRE
1214 (11th Cir. 2005) (en banc), considered the converse
class of individuals—“Florida citizens who have been con-
victed of a felony and have completed all terms of their incar-
ceration, 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 pris-
oners and felons already released, see id., the court did not
focus on this distinction when it dismissed the plaintiffs’ chal-
lenge. 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.1
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 con-
sider, 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 differ-
ent now that plaintiffs’ case remains viable only as to cur-
rently incarcerated felons.
1
In addition, the Fourth Circuit has considered a challenge to a felon
disenfranchisement law in the Commonwealth of Virginia. In an unpub-
lished 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 incarcer-
ated or already released at the time of his suit. Regardless, the Fourth Cir-
cuit’s decision makes no mention of any distinction between classes of
felons.
FARRAKHAN v. GREGOIRE 159
Next, I take issue with the majority’s conclusion that plain-
tiffs prevail by offering evidence regarding Senate Factor 5
alone. As detailed in the majority opinion, Maj. Op. at
123-24, 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 cir-
cumstances, 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 sys-
tem, “the district court should not have required Plaintiffs to
produce additional circumstantial evidence” because the evi-
dence of discrimination in the criminal justice system alone
“would establish a § 2 violation under the totality of the cir-
cumstances.” Maj. Op. at 145-46. As a result, the majority
itself considers only evidence of Factor 5 in granting sum-
mary judgment to plaintiffs.
I take issue with the majority’s limitation. My view is
largely driven by my disagreement with the majority’s con-
clusion that there is a per se “analytical distinction” between
vote denial and vote dilution cases in the circumstance pre-
sented here. See Maj. Op. at 137. To be sure, there are differ-
ences 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.
160 FARRAKHAN v. GREGOIRE
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, Rep-
resentation, and the Debate Over Felon Disenfranchisement,
56 Stan. L. Rev. 1147, 1155-64 (2004). “Virtually every con-
temporary 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 observa-
tion is not surprising, as “groups of voters elect representa-
tives, individual voters do not.” Id. (quoting Davis v.
Bandemer, 478 U.S. 109, 167 (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 Cir-
cuit 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
FARRAKHAN v. GREGOIRE 161
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 143. 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 deter-
mining whether to now grant summary judgment to plaintiffs,
the majority should view the evidence in the light most favor-
able 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.
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 judg-
ment. 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 con-
sider 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 pic-
ture of racial discrimination in the Washington criminal jus-
tice 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 “mi-
nority 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
162 FARRAKHAN v. GREGOIRE
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 Wash-
ington 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.