Farrakhan, et al v. Gregoire, et al

Filing

FILED PER CURIAM OPINION (ALEX KOZINSKI, MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, SUSAN P. GRABER, M. MARGARET MCKEOWN, KIM MCLANE WARDLAW, RONALD M. GOULD and RICHARD R. CLIFTON) (concurrences by Judges Thomas and Graber) AFFIRMED. FILED AND ENTERED JUDGMENT. [7501126]

Farrakhan, et al v. Gregoire, et al

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F IL E D
OCT 07 2010

Farrakhan v. Gregoire, No. 06-35669

MOLLY C. DWYER, CLERK
U . S . C O U R T OF APPE A L S

T H O M A S , Circuit Judge, with whom SCHROEDER, MCKEOWN, and W A R D L A W , Circuit Judges, join, concurring: I agree that the judgment of the district court should be affirmed, but on d if fe re n t grounds. I would hold that the claims for prospective injunctive relief are m o o t, and that the district court should be affirmed on the remainder of the claims fo r the reasons provided by the district court. On this record, we need go no f u r th e r . I "A s a general rule, if a challenged law is repealed or expires, the case b e c o m e s moot." Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th C ir. 1994); see also Bunker Ltd. Partnership v. United States, 820 F.2d 308, 312 ( 9 th Cir. 1987) (holding that new legislation superseding prior law rendered ch allen g e to prior statute moot). In this case, after the district court issued its decision on remand, W a sh in g to n repealed its felon disenfranchisement statute and enacted a new p ro v isio n . Among other changes, Washington law now provides that the voting r ig h ts of felons will be "provisionally restored," at such time as those convicted u n d er Washington state law are no longer under the authority of the Washington D ep artm en t of Corrections. An Act Relating to the Restoration of the Right to Vote

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fo r People Who Were Convicted of Felonies, ch. 325, 2009 Wash. Sess. Laws 1 6 4 9 (codified at Wash. Rev. Code §§ 9.92.066, 9.94A.637, 9.94A.885, 9.96.050, 1 0 .6 4 .1 4 0 , 29A.08.520). The plaintiffs posit that the new law actually increases disenfranchisement; th e State disputes this contention. Regardless, the legal landscape has materially c h a n g e d . Plaintiffs sought to enjoin operation of the prior statute. That p ro sp ectiv e relief is no longer available. Plaintiffs now request that we enjoin o p eratio n of the new statute. However, the district court has not had the o p p o rtu n ity to address that issue in the first instance, and the empirical analysis th at formed the basis of the claim has changed. Therefore, I would either dismiss th e portion of the appeal that relates to prospective injunctive relief as moot or, as Ju d g e McKeown suggested in her dissent to the panel opinion, remand the case to th e district court for re-examination in light of the new legislation. Farrakhan v. G reg o ire, 590 F.3d 989, 1016-18 (9th Cir. 2010) (McKeown, J., dissenting). II A s to the claims that are not moot,1 I would affirm the judgment of the Plaintiffs' challenge to Wash. Const. art. VI, § 3, and plaintiffs' damage claim s were not rendered moot by passage of the new statute. Additionally, p lain tiffs' claims for declaratory relief are arguably not moot to the extent that the p r o v is io n s of the new and the old statutes are coextensive and the plaintiffs are su b ject to the same harm. Jacobus v. State of Alaska, 338 F.3d 1095, 1102-05 (9th C ir . 2003). -2 1

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d istrict court as entered on remand. Farrakhan v. Gregoire, No. C V - 9 6 - 0 7 6 - R H W , 2006 WL 1889273 (E.D. Wash. July 7, 2006). The district c o u r t thoroughly considered and weighed the traditional § 2(b) factors, often referred to as "the Senate Factors." S. Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177; Thornburg v. Gingles, 478 U.S. 30, 47 (1986). The d istrict court properly concluded that, considering the totality of the circumstances, W ash in g to n 's felon disenfranchisement law does not violate the Voting Rights Act. Therefore, I agree that the judgment should be affirmed. A s I understand the majority opinion, it does not disturb the holding in F a rra kh a n v. Washington, 338 F.3d 1009, 1019 (9th Cir. 2003) that a § 2 analysis req u ires consideration of factors external to the challenged voting mechanism itself. Nor does the majority opinion categorically prohibit a § 2 challenge to a felo n disenfranchisement statute. With that understanding, I concur in the majority o p in io n . Congress enacted the Voting Rights Act of 1965 for the broad remedial p u rp o se of eliminating racial discrimination in voting. South Carolina v. K a tz en b a c h , 383 U.S. 301, 315 (1966). In enacting § 2, Congress noted that it was im p o ssib le to predict the variety of means that would be used to infringe on the rig h t to vote and that the voting rights landscape was marked by innovation and

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d iscrim in atio n .2 Congress's express objective in amending § 2 was to "broaden the p r o te ctio n afforded by the Voting Rights Act." Chisom v. Roemer, 501 U.S. 380, 4 0 4 (1991). Thus, examination of factors external to the challenged voting m ech an ism is a required part of a § 2 analysis. S e ctio n 2 provides, without limitation, that any voting qualification that d en ies citizens the right to vote in a discriminatory manner violates the Voting R ig h ts Act. 42 U.S.C. § 1973; see also Allen v. State Bd. of Elections, 393 US. 5 4 4 , 566-67 (1969) (noting that Congress intentionally chose the expansive lan g u ag e "voting qualifications or prerequisite to voting, or standard, practice, or p ro ced u re" for § 2 so as to be "all-inclusive of any kind of practice" that might be u s e d by states to deny citizens the right to vote (internal quotation marks omitted)). There is no categorical exclusion for felon disenfranchisement laws in the text of th e statute. If Congress had intended categorically to exclude certain laws from the reach of § 2, it could have easily done so explicitly. It may still do so, if it chooses. T h at being said, in my view, establishing that a particular felon

S. Rep. No. 89-162, at 5 (1965), reprinted in 1965 U.S.C.C.A.N. 2508, 2 5 6 2 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, T yd in g s, Dirksen, Hruska, Fong, Scott, and Javits); H.R. Rep. No. 89-439, at 10 (1 9 6 5 ), reprinted in 1965 U.S.C.C.A.N. 2437, 2441 (describing how "even after a p p a r e n t defeat resisters s[ought] new ways and means of discriminating," and, as a result, rejecting the case by case approach that "too often ha[d] caused no change in result, only in methods.") -4 -

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d isen fran cem en t law violates § 2 because it discriminates on the basis of race will b e very difficult. As we know, felon disenfranchisement provisions are p resu m p tiv ely constitutional. Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974). A state's criminal justice system is a complex organization, with many factors c o n tr ib u tin g to the ultimate incarceration of a particular person. Of course, in d iv id u al decisions can, in the aggregate, result in a prison population that is r ac ia lly disproportionate. That is the thrust of the plaintiffs' argument in this case: th at a multitude of small discriminatory decisions (whether intentional or not) have led to incarceration of minorities in percentages that cannot be explained by nonracial factors. However, that result alone does not, in my judgment, compel the c o n c lu s io n that the felon disenfranchisement law violates § 2. If it did, then e n f o r c ea b ility of felon disenfranchisement laws simply would depend on whether p riso n populations mirrored general population demographics. Using that logic, if th e prison population deviated from the norm in a statistically significant way, then felo n disenfranchisement would be enjoined; if the prison population returned to n o r m a l distributions, the injunction would be lifted. That is not the foundation of a § 2 violation. Indeed, Congress rejected this reasoning when it provided elsewhere in the statute that "nothing in this section establishes a right to have members of a p ro tected class elected in numbers equal to their proportion in the population." 42

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U .S .C . § 1973(b) (emphasis added). We have also noted that "a bare statistical s h o w in g of disproportionate impact on a racial minority does not satisfy the § 2 `r es u lts ' inquiry." Smith v. Salt River Project Agric. Improvement & Power Dist., 1 0 9 F.3d 586, 595 (9th Cir. 1997) (emphasis in original). Thus, in my view, the d istrict court properly analyzed the data presented by the plaintiffs in the context of th e totality of the circumstances and in consideration of the Senate Factors. On the other hand, one can conceive of circumstances in which felon d isen fran ch isem en t laws could operate to violate § 2, whether by the structure or in ten t of the law itself, or by other means. Indeed, the Supreme Court has made it clear that states cannot use felon disenfranchisement as a tool to discriminate on th e basis of race, even if the laws are facially race-neutral. Hunter v. Underwood, 4 7 1 U.S. 222, 233 (1985). Thus, in my view, a categorical exclusion of felon d is en f r an c h is em e n t laws from the reach of § 2 is inappropriate, either as a matter o f judicial construct or statutory interpretation. III I respectfully part company with the majority to the extent that it suggests th at proof of discriminatory intent is required to establish a § 2 violation. Congress am en d ed § 2 in 1982 "to make clear that proof of discriminatory intent is not r eq u ir ed to establish a violation of Section 2." S. Rep. No. 97-417, at 2 (1982),

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rep rin ted in 1982 U.S.C.C.A.N. 177, 179; see also Ruiz v. City of Santa Maria, 1 6 0 F.3d 543, 557 (9th Cir. 1998) (noting Congress's statement that the "intent test" was "unnecessarily divisive [in that] it involve[d] charges of racism on the p art of individual officials or entire communities," it "placed an inordinately d if fic u lt burden of proof on plaintiffs," and it "asked the wrong question" (internal q u o ta tio n marks omitted, alterations in the original)). This is a question we need n o t decide on this record or in this case. W ith these observations, I concur.

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