Farrakhan v. Gregoire , 590 F.3d 989 ( 2010 )

McKEOWN, Circuit Judge,

dissenting:

In granting summary judgment to plaintiffs, the majority has charted territory that none of our sister circuits has dared to explore. The First, Second, and Eleventh Circuits have determined that vote denial challenges to felon disenfranchisement laws are not cognizable under the Voting Rights Act. See Simmons v. Galvin, 575 F.3d 24 (1st Cir.2009); Hayden v. Pataki, 449 F.3d 305 (2d Cir.2006) (en banc); Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir.2005) (en banc). That preliminary question was settled by our circuit in Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003) (“Farrakhan I ”). While I believe that the felon disenfranchisement challenge is not a comfortable fit within the Voting Rights Act, I do not dispute the continuing validity of Farrakhan I. The wisdom of Farrakhan I is not within the purview of the panel to reconsider here. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc) (holding that prior circuit authority is binding on three-judge panels unless “clearly irreconcilable with the reasoning or theory of intervening higher authority”). However, in part because the holding of Farrakhan I places us in a crowd of one amongst the circuits, I believe we should be particularly mindful before reversing the district court and invalidating felon disenfranchisement in the State of Washington. The majority has failed to act with appropriate caution. I respectfully dissent.

I first note that the landscape of this case has changed from the time the district court dismissed the case and even since we heard oral argument. As of July 26, 2009, Washington law now provides that the State will provisionally restore voting rights to felons convicted in Washington state courts so long as the individual is no longer under the authority of the Department of Corrections, and to those convicted of federal felonies or felonies in other states as long as the person is no longer incarcerated. Washington Laws of 2009, chapter 825, HB 1517.

Following this significant legislative change, we are left to consider the Voting Rights Act challenge of only those felons still serving their prison terms. Interestingly, the case up to this point has never contemplated the two distinct sets of felons affected by the prior Washington law— those still incarcerated and those already released. Both the parties and the courts have seemingly considered felons generally, as a single group; the bifurcation of classes of felons came about as a consequence of this new legislation. Thus, within this litigation, no court has addressed whether these two sets of individuals present meaningful analytical differences. This posture is not surprising because the statute did not make such a distinction before it was amended and, as the State notes in supplemental briefing, the case now presents “a substantially different controversy.” Although the majority concludes that the new law has limited effect on the case, see Maj. Op. at 996, the supplemental briefing suggests otherwise. Indeed, the State of Washington claims the entire case is moot because the statute at issue has substantially changed, that a significant part of the case involved the “continuing disenfranchisement of felons upon release from incarceration,” — a point that is no longer at issue — and that the new law “necessarily alters the totality of the circumstances” analysis. The State views the new law as a game changer supporting affirmance of the district court.

It bears noting that none of the three recent felon disenfranchisement eases to percolate through the circuit courts has encompassed both classes of felons. In Simmons v. Galvin, the First Circuit considered a challenge brought solely by currently incarcerated felons to the Massachusetts law prohibiting incarcerated felons from voting. 575 F.3d at 26. Similarly, in Hayden v. Pataki, 449 F.3d 305 (2d Cir.2006) (en banc), the Second Circuit considered N.Y. Election Law § 5-106, which “disenfranchises only currently incarcerated prisoners and parolees.” Id. at 314. That court remarked that “the statute may not raise the same issues that are implicated by provisions disenfranchising for life those convicted of felonies, such as the ... provision of the ... Washington Constitution addressed in Farrakhan.” Id. (emphasis added). The court did not elaborate on the contours of any distinctions. The Eleventh Circuit, in Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir.2005) (en banc), considered the converse class of individuals — “Florida citizens who have been convicted of a felony and have completed all terms of their incarceration, probation, and parole but who are barred from voting under the state’s felon disenfranchisement law.” Id. at 1216-17. Thus, the Eleventh Circuit, too, did not contemplate a bifurcated group of felons.

In an earlier case, Wesley v. Collins, 791 F.2d 1255 (6th Cir.1986), the Sixth Circuit considered a Voting Rights Act challenge to Tennessee’s felon disenfranchisement law brought by a public interest group and an African-American man convicted of a felony. Id. at 1257. Though Tennessee’s law appears to have affected both currently incarcerated prisoners and felons already released, see id., the court did not focus on this distinction when it dismissed the plaintiffs’ challenge. See id. at 1260-62. Thus, even considering Wesley, because of the recent statutory change, ours is the only court clearly presented with the question whether the different groups of felons present a meaningful distinction under the VRA’s totality of the circumstances inquiry.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 consider, in the first instance, the effect this new law has on plaintiffs’ case and whether the totality of the circumstances analysis under § 2 of the Voting Rights Act should be different now that plaintiffs’ case remains viable only as to currently incarcerated felons.

Next, I take issue with the majority’s conclusion that plaintiffs prevail by offering evidence regarding Senate Factor 5 alone. As detailed in the majority opinion, Maj. Op. at 998-99, the Senate Report on the 1982 amendments to the Voting Rights Act listed “typical factors” that courts might consider in determining whether, under the totality of the circumstances, a challenged voting practice “results in” the denial or abridgement of the right to vote on account of race. Evidence of racial discrimination in the Washington criminal justice system falls primarily under Senate Factor 5 — “the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.” S.Rep. No. 97-417, at 29. The majority concludes that having found discrimination in the Washington criminal justice system, “the district court should not have required Plaintiffs to produce additional circumstantial evidence” because the evidence of discrimination in the criminal justice system alone “would establish a § 2 violation under the totality of the circumstances.” Maj. Op. at 1011. As a result, the majority itself considers only evidence of Factor 5 in granting summary judgment to plaintiffs.

I take issue with the majority’s limitation. My view is largely driven by my disagreement with the majority’s conclusion that there is a per se “analytical distinction” between vote denial and vote dilution cases in the circumstance presented here. See Maj. Op. at 1006. To be sure, there are differences between the two types of cases, but those differences should not force an absolute dichotomy in our analysis. As I have already noted, the felon disenfranchisement challenge is not a comfortable fit within the Voting Rights Act. That said, there is arguably a continuum of conduct that constitutes a denial or abridgement of the right to vote within the context of the Voting Rights Act, and this case need not be shoe-horned into a single category.

Indeed, academic literature suggests that one of the driving concerns surrounding felon disenfranchisement laws — advanced in this litigation through a vote denial claim — is the effect the regulations have on the voting power of minority blocs, which is the thrust of a vote dilution inquiry. See e.g. Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement, 56 Stan. L.Rev. 1147, 1155-64 (2004). “Virtually every contemporary discussion of criminal disenfranchisement in the United States begins by noting the sheer magnitude of the exclusion, and its racial salience.” Id. at 1156. This observation is not surprising, as “groups of voters elect representatives, individual voters do not.” Id. (quoting Davis v. Bandemer, 478 U.S. 109, 167, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (Powell, J., concurring in part and dissenting in part)).

Thus, taking away the right to vote of minority felons may very well have a significant effect on the voting power of minorities as a whole in any given jurisdiction. As a result, those urging the repeal of felon disenfranchisement laws are often driven not only by their concern for the rights of the individual felons, but also by their worries about the effect that such laws have on the voting power of minority voting blocs. Indeed, the concern for the effect on the voting power of minorities is evidenced by Wesley, in which the Sixth Circuit considered the plaintiffs’ challenge to the Tennessee felon disenfranchisement law as a vote dilution claim. 791 F.2d at 1260-62. Based on the interwoven concerns in vote denial and vote dilution cases, I am not comfortable dictating that a district court should not consider certain factors — Senate Factors or otherwise — in vote denial cases, nor do I agree with the majority’s conclusion that the plaintiffs prevail solely by establishing evidence that falls within Senate Factor 5.

As to Senate Factor 5 itself, significant factual issues remain. The existence of these unresolved issues is another reason why I part company with the majority. The majority makes much of the district court’s conclusion that plaintiffs have presented “compelling” evidence of racial discrimination in the criminal justice system. Maj. Op. at 1009. The district court made this conclusion, of course, while considering the State’s motion for summary judgment, thereby viewing the evidence in the light most favorable to the plaintiffs. In determining whether to now grant summary judgment to plaintiffs, the majority should view the evidence in the light most favorable to the defendants. Thus, the district court’s conclusion that the evidence is “compelling” is of little use at this stage; the majority seriously errs in failing to acknowledge that conundrum.

A review of the evidence reveals the risk the majority takes in viewing the evidence in the light most favorable to the plaintiffs while granting summary judgment to plaintiffs — a complete reversal of the normal procedure on summary judgment. For example, in reviewing Professor Beckett’s report, the district court “extrapólatele!]” her “drug-arrest-in-Seattle-specific findings to Washington felony arrests and convictions in general.” When put to the test, it is unclear whether the extrapolation would hold up, as Beckett’s study does not consider non-drug related arrests in Seattle or any arrests outside of Seattle. While Dr. Crutchfield’s report does encompass the entire State, the studies he details do not paint a definitive picture of racial discrimination in the Washington criminal justice system. In making this observation, I do not deny the existence of discrimination, my point rests on the evidence presented. For example, Crutchfield discusses the Element and Siggins (2001) study of drug enforcement patterns in Seattle. Crutchfield notes that within the drug-crime category, the police department focuses most heavily on “observable street level drug markets,” which have much more of a “minority flavor” than the general population. Crutchfield goes on to explain that “[b]usiness owners and residents call the police when visible drug activity threatens their interests” and that drug sales in the “street markets” are more likely to affect those interests than other sorts of drug crimes. A reasonable factfinder may very well conclude that the police focus on street markets has little to do with racial discrimination, but instead relates much more strongly to the police department’s desire to target crimes likely to affect the well-being of the greatest majority of businesses and individuals. Alternatively, a factfinder may determine that the focus results from the fact that police are tasked with responding to citizens’ calls; if people are more likely to call the authorities only when they can actually view a drug crime occurring out in the open, i.e. on the street, then of course it is more likely that police arrests will over represent street market drug sales, as compared to other types of drug crimes. Or finally, it may be that this approach to policing is race-based. The point is that there are material factual questions as to cause and effect.

I stress these examples to emphasize my view that the majority errs in granting summary judgment to plaintiffs. The proper course at this stage is to remand to the district court for consideration of the plaintiffs’ motion for summary judgment. On remand, a factfinder should be able to weigh the evidence concerning whether there is racial discrimination in the Washington criminal justice system, along with other factors (the Senate Factors and perhaps additional relevant considerations) to determine if plaintiffs have demonstrated a violation of the Voting Rights Act. This court overreaches when it bypasses that crucial exercise. And, considering the potential holes in the evidence, the majority is remiss in doing so.

1 . In addition, the Fourth Circuit has considered a challenge to a felon disenfranchisement law in the Commonwealth of Virginia. In an unpublished decision, Howard v. Gilmore, No. 99-2285, 2000 WL 203984 (4th Cir. Feb.23, 2000), the court determined that the plaintiff failed "to plead any nexus between the disenfranchisement of felons and race.” Id. at *1. It is unclear from the decision whether the plaintiff was currently incarcerated or already released at the time of his suit. Regardless, the Fourth Circuit's decision makes no mention of any distinction between classes of felons.