Farrakhan v. Gregoire Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgement and in Opposition to Defendants' Motion for Summary Judgement
Public Court Documents
January 27, 2006
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Brief Collection, LDF Court Filings. Farrakhan v. Gregoire Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgement and in Opposition to Defendants' Motion for Summary Judgement, 2006. b2effb71-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3f7f9ea2-16aa-499f-a3c5-14bd0418fde5/farrakhan-v-gregoire-memorandum-of-points-and-authorities-in-support-of-plaintiffs-motion-for-summary-judgement-and-in-opposition-to-defendants-motion-for-summary-judgement. Accessed November 23, 2025.
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
UNIVERSITY LEGAL
ASSISTANCE
Larry A. Weiser, Attorney at Law
Jacob White, Legal Intern
Kristine Olmstead, Legal Intern
721 North Cincinnati Street
P.O. Box 3528
Spokane, Washington 99220
(Tel.) 509.323.5791
(Fax) 509.323.5805
Attorneys for Plaintiffs
Ryan P. Haygood, Pro Hac Vice
Theodore M. Shaw
Director-Counsel
Norman J. Chachkin
Debo P. Adegbile
NAACP Legal Defense
& Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, NY 10013-2897
(Tel.) 212.965.2235
(Fax) 212.226.7592
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
MUHAMMAD SHABAZZ
FARRAKHAN, et al.,
Plaintiffs,
7HRISTINE O. GREGOIRE, et al.,
Defendants.
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No. CV-96-076-RHW
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY
JUDGMENT AND IN
OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
I- INTRODUCTION AND PRELIMINARY STATEMENT
This case raises fundamental legal questions about the integrity of
Vashington State’s democratic processes generally, and their discriminatory
mpact on its racial minority citizens in particular. Plaintiffs, who are Black,
.atino and Native American, argue that Article 6 § 3 of the Washington State
institution and the statute implementing it, constitute improper race-based vote
enial in violation of Section 2 of the Voting Rights Act. Specifically, the
’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 1
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
interaction of Article 6 § 3 of the Washington State Constitution with the criminal
justice system, which is infected with racial discrimination, results in a
disproportionate number of racial minorities being disfranchised following a felony
conviction. As a result, racial minorities in Washington State cannot participate on
equal terms in the State’s political process.
Against the weight of Supreme Court precedent, Defendants attempt to
heighten the Voting Rights Act standard by suggesting that Article 6 § 3 of the
Washington State Constitution is not violative of Section 2 because “there is no
evidence of racial motive in Washington’s felon disenfranchisement law.”
Defendants’ Memorandum of Authorities in Support of Motion for Summary
ludgment and Dismissal ( Defs. Br. ), at 18. The Defendants pursue this
neritless argument despite Section 2 s plain language, which does not require a
ihowing of intent.
Of equal importance, Defendants attempt to achieve a favorable disposition
>y omitting from their papers many important facts. Defendants have failed to
iroffer any expert testimony to rebut the findings of Plaintiffs’ experts and the
>ther evidence Plaintiffs have put on the record. In this case, Plaintiffs in fact have
lengthened their previously developed record showing racial discrimination in
Vashington State s criminal justice system, which this Court recognized as
compelling.” Farrakhan v. Locke, No. CS-96-076-RHW, Order Granting
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 2
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
Defendants’ Motion for Summary Judgment, slip. op. at 8 (E.D. Wash. Dec. 1,
2000)[hereinafter Summ. Judg. Order]. Plaintiffs’ evidence shows, first, that the
existing racial disparities at every stage of Washington State’s criminal justice
system, from arrest through charging and incarceration, are not warranted by the
2Xtent to which racial minorities actually participate in crimes most likely to lead
.o prison sentences. Thus, while Blacks in Washington State are three times more
ikely than Whites to be arrested for violent crimes, they are nine times more likely
o be incarcerated. Moreover, Plaintiffs’ evidence shows that Blacks and Latinos
ire over-represented, and Whites are under-represented, among Seattle’s drug
irrestees, notwithstanding the fact that the majority of those in Seattle who use and
leliver serious drugs are White.1 Significantly, Plaintiffs’ evidence demonstrates
hat these striking racial disparities are not explicable in race neutral terms.
See infra at 18-21 for a discussion of the unwarranted over-representation of
Slacks and Latinos among drug arrestees in Seattle. Seattle, which has the largest
oncentration of racial minorities, is Washington State’s most racially diverse city.
Slacks in Seattle (47,541 people) comprise 24.7% of Washington State’s entire
Jlack population, and Blacks in King County (93,875 people) represent 49.3% of
rae State’s total Black population (190,267 people). U.S. Census Bureau,
Geographic Comparison Table, available at
ttpL//factfinder.census.gov/servlet/GCTTable.html. In Seattle, Blacks comprise
.4% of the population; Latinos represent 5.3% of the city’s population (29,859
eople); and Native Americans make up 1% of Seattle’s population (5,634 people).
I.S. Census Bureau, State and County Quick Facts, available at
ttp://quickfacts.census.gov/qfd/states/53/5363QOO.html. Together, Blacks,
atinos and Native Americans comprise 14.7% percent of Seattle’s population
32,816 people of the total population of 569,101). Id.
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
Plaintiffs evidence further shows that the history of discrimination in
Washington State in employment, housing and education places racial minority
citizens at a considerable disadvantage in educational attainment and economic
well being. For inmates generally, and racial minority inmates in particular, these
disadvantages make it profoundly difficult to navigate Washington State’s
decentralized and intricate procedures for regaining the vote. Finally, Plaintiffs’
evidence shows that any policy reasons (Defendants have failed to proffer any such
on the record) underlying Article 6 § 3 of the Washington State
Constitution are tenuous.
Thus, Plaintiffs evidence shows that the interaction of racial discrimination
n the criminal justice system with Washington State’s “disenfranchisement
provision clearly has a disproportionate impact on racial minorities,” and serves to
lisfranchise “racial minorities . . . in numbers disproportionate to that of their
vhite fellow citizens.” Summary Judg. Order, at 3, 6. Plaintiffs’ evidence
lemonstrates that the disproportionate denial of the right to vote to racial
ninorities on account of race is caused by that interaction, which has resulted in
he disfranchisement of nearly one-quarter — an incredible 24% — of all Black
aen in Washington State, and nearly 15% of the entire Black population in the
tate. This result, as Plaintiffs’ evidence makes clear, is precisely what Section 2
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 4
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
of the Voting Rights Act was enacted to proscribe. For these reasons, and those set
forth below, Defendants’ Motion for Summary Judgment should be denied, and
Plaintiffs’ Motion for Summary Judgment should be granted.2
II. STATEMENT OF THE CASE
Plaintiffs Muhammad Shabazz Farrakhan, Al-Kareem Shadeed, Marcus
Price, Ramon Barrientes, Timothy Schaaf and Clifton Briceno are citizens who are
otherwise qualified to register to vote in Washington State but for the racially
Jiscriminatory operation of Article 6 § 3 of the Washington State Constitution and
*CW § 9.94A.220, the law implementing it. Plaintiffs Farrakhan, Price, Shadeed
md Schaaf are Black; Plaintiff Barrientes is Latino; and Plaintiff Briceno is Native
American. Section 2 of the Voting Rights Act of 1965 protects “any citizen who is
t member of a protected class of racial minorities.” Thornburg v. Gingles, 478
J.S. 30, 43 (1986).
Plaintiffs filed the instant action pro se on February 2, 1996, arguing that
Article 6 § 3 of the Washington State Constitution (“Article 6 § 3 of the
Vashington State Constitution” or “Washington State’s felon disfranchisement
cheme”) and the laws implementing Article 6 violate the Voting Rights Act of
965, codified at 42 U.S.C. § 1973 (“Voting Rights Act” or “VRA”) and the
Plaintiffs’ Motion for Summary Judgment includes all exhibits, reports, and
eclarations previously filed with this Court on July 31, 2000, in addition to those
iled with this Motion.
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 5
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
United States Constitution. This Court dismissed Plaintiffs’ vote dilution and
constitutional claims, but preserved Plaintiffs’ claim that Washington State’s felon
disfranchisement scheme results in vote denial on the basis of race in violation of
the Voting Rights Act. Farrakhan v. Locke, 987 F. Supp. 1304, 1312- 1313 (E.D.
Wash. 1997). This Court concluded that the plain language of the VRA applies to
felon disfranchisement, and granted Plaintiffs the opportunity to show, through an
inquiry into historical and social conditions, that Washington State’s felon
disfranchisement scheme denies them the right to vote in violation of the Voting
Rights Act. Id. The operative complaint before this Court is Plaintiffs’ Fourth
Amended Complaint, which alleges vote denial on account of race in violation of
Voting Rights Act of 1965 and also challenges Washington State’s procedures
restoring voting rights to people with felony convictions. Pis.’ Fourth Am.
7ompl at HU 31-37.
Although this Court,
ecognized that Plaintiffs’ “
ruling on cross-motions for summary judgment,
evidence of discrimination in the criminal justice
isystem, and the resulting disproportionate impact on minority voting power, i
ompelling, it nevertheless held that evidence of discrimination in the criminal
jstice system was not relevant to Section 2’s totality of circumstances analysis,
umm. Judg. Order, at 8-9. Instead, focusing on Washington State’s
isfranchisement scheme itself this Court concluded that there was no evidence
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 6
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
that the enactment of the disfranchisement provision was “motivated by racial
animus, or that its operation by itself has a discriminatory effect,” and, therefore,
determined that Plaintiffs failed to establish a Section 2 violation. Id. at 6-8.
In reversing this Court, the Ninth Circuit in Farrakhan v. Washington, 338 F.3d
1009, 1011-12 (9th Cir. 2003), held that because a Section 2 totality of the
circumstances analysis requires courts to consider factors external to the
challenged voting mechanism itself, evidence of discrimination within a criminal
justice system can be relevant to a Section 2 analysis, and that a Section 2 violation
may be established by showing that, based on the totality of the circumstances, the
challenged voting practice results in discrimination “on account o f ’ race. Id.
Because the Ninth Circuit determined that Plaintiffs’ compelling evidence racial
discrimination in Washington State s criminal justice system was improperly
disregarded, this matter was remanded back to this Court to evaluate the totality of
:he circumstances, including evidence of racial discrimination in Washington
state’s criminal justice system. Id. at 1020.
HI. STATEMENT OF THE ISSIJF
Whether, Based on the Totality of Circumstances, Article 6 § 3 of the
Washington State Constitution and RCW § 9.94A.220, Which Interact
with Racial Bias in Washington State’s Criminal Justice System to
Disproportionately Deny the Right to Vote to Plaintiffs, Results in
Discrimination Against Plaintiffs on Account of Race in Violation of
Section 2 of the Voting Rights Act of 1965?
'LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 7
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
IV. SUMMARY JUDGMENT STANDARD
In a motion for summary judgment, the burden is on the moving party to
demonstrate by a properly supported motion there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). Under Rules 56(a) and (b), both plaintiffs and defendants may
move for summary judgment. Under such cross-motions, the court must consider
;ach party’s motion individually to determine if that party has met the summary
udgment standard. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay
<iane, Federal Practice and Procedure § 2720 (3d ed. 1998).
Thus, in considering Plaintiffs’ Motion for Summary Judgment, this Court
)egins with the recognition that on their Motion, Plaintiffs’ have the initial
esponsibility of informing the Court of the basis for the belief summary judgment
s warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This is
ccomplished through the presentation of facts whose materiality is determined
hrough substantive law. T.W. Elec. S e n I n c . v. Pacific Elec. Contractors Ass ’n,
09 F.2d 626, 630 (9th Cir. 1987). If Defendants dispute facts established by
’lamtiffs’ evidence only through conclusory assertions or if the facts are clearly
ncontroverted by Defendants, summary judgment is properly granted for
laintiffs, even in complex cases. Carroll v. United Steelworkers o f America, 498
. Supp. 976 (D. Mass. 1980).
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 8
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
In the case at bar, Plaintiffs submit that there is no dispute on this record as
to the facts material to Plaintiffs’ Motion, and, therefore, summary judgment is
appropriate for the following reasons. Fed.R.Civ.P. 56(c). First, Defendants have
failed to designate any rebuttal experts to controvert the opinions in the reports of
Plaintiffs’ expert witnesses or the Plaintiffs’ evidence more broadly. Thus,
Defendants’ attempt to identify material facts that they claim support their Motion
for Summary Judgment and that are not in dispute fails. In addition to failing to
present record evidence of facts that would support their Motion, Defendants have
also based their Motion solely upon an erroneous legal theory, that Section 2 of the
Voting Rights Act requires a showing of intentional discrimination.
V. ARGUMENT
Plaintiffs Establish A Violation of Section 2 of the Voting Rights Act
of 1965 By Showing That, Based on the Totality of Circumstances,
Article 6 § 3 of the Washington State Constitution and RCW §
9.94A.220 Result in Discrimination on Account of Race
Congress enacted the VRA for the broad remedial purpose of “ridfding] the
:ounty of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U.S.
301, 315 (1966). For this reason, the VRA should be interpreted in a manner that
provides “the broadest possible scope in combating racial discrimination.” Allen v.
State Bd. o f Elections, 393 U.S. 544, 567 (1969). In 1982, in response “to the
ncreasing sophistication with which the states were denying racial minorities the
to vote,” Farrakhan, 987 F. Supp. at 1308, and in response to the Supreme
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
Court’s ruling in City o f Mobile v. Bolden, 446 U.S. 55 (1980), which inserted an
intent requirement into the VRA, Congress amended Section 2 of the VRA to
relieve plaintiffs of the burden of proving discriminatory intent. Chisom v.
Roemer, 501 U.S. 380, 394 (1991); Ruiz v. City’ o f Santa Maria, 160 F.3d 543, 557
'9th Cir. 1998)(noting Congress’s statement that the “intent test” was
‘unnecessarily divisive in that it involved charges of racism on the part of
ndividual officials or entire communities [and] placed an inordinately difficult
)urden of proof on the plaintiffs” and “asked the wrong question.”). As amended,
section 2 of the VRA 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, or in
contravention of the guarantees set forth in section 1973b(f)(2) of this title
as provided in subsection (b) of this section.
A violation of subsection (a) of this section is established if, based on the
totality of the circumstances, it is shown that the political processes leading
to nomination or election in the State or political subdivision are not equally
open to participation by members of a class of citizens protected by
subsection (a) of this section in that its members have less opportunity than
other members of the electorate to participate in the political process and to
elect representatives of their choice. The extent to which members of a
protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered: provided, that
nothing in this section establishes a right to have members of a protected
class elected in numbers equal to their proportion in the population.
“ U.S.C. § 1973. Plaintiffs can prevail under the amended Section 2 “by
;monstrating that a challenged election practice has resulted in the denial or
-AINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 10
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
abridgment of the right to vote based on color or race.” Chisom, 501 U.S. at 394.
As Supreme Court explained, “[t]he essence of a Section 2 claim is that a certain
electoral law, practice or structure interacts with social and historical conditions to
cause an inequality” in the voting of various racial minority groups. Thornburg,
478 U.S. at 47.
The Senate Report accompanying the 1982 amendments to the VRA
dentified typical factors” (“Senate Factors”) that are relevant in analyzing
vhether Section 2 has been violated.3 Congress did not intend this list to be
comprehensive or exclusive, nor did Congress intend that “any particular number
)f factors be proved, or that a majority of them point one way or the other.” Id. at
•9- Rather, in examining the totality of the circumstances to determine whether a
:hallenged voting practice results in vote denial or vote dilution on account of race,
ourts must consider how the challenged practice “interacts with social and
listorical conditions to cause an inequality in the opportunities enjoyed by black
nd white voters to elect their preferred representatives.” Id. at 47. Thus, whether
particular practice results in a violation of Section 2 depends on the totality of
ircumstances in which the practice operates.
The flexible totality of circumstances test allows the Senate Factors to be
onsidered factor by factor, applying only those factors that are relevant to a
The entire list of Senate Factors as contained in the Senate Report is set out
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 11
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particular case. See Mississippi State Chapter, Operation Push v. Allain, 674 F.
Supp. 1245 (N.D. Miss. 1987)(holding that Mississippi’s dual registration
requirement constituted vote denial in violation of Section 2 of the Voting Rights
Act after discarding as irrelevant five Senate Factors and finding that plaintiffs’
evidence about the remaining four Senate Factors weighed in plaintiffs’ favor
under the totality of circumstances test).
In this case, because the issue here is vote denial, only Senate Factors 5 and
9 are relevant. In analyzing whether, under the totality of circumstances, Section 2
has been violated. Senate Factors 5 and 9 direct the Court to inquire into:
(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; and
(9) Whether the policy underlying the state or political subdivision’s use
)f such voting qualification, prerequisite to voting, or standard, practice or
irocedure is tenuous.
In looking at Senate Factors 5 and 9, this Court will find that Plaintiffs’
evidence about each weighs in favor of Plaintiffs in the totality of the
ircumstances analysis.
ifra in Appendix A.
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES Page 12
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
1. Article 6 § 3 of the Washington State Constitution and RCW §
9.94A.220 Interact With Racial Discrimination in Washington
State’s Criminal Justice System to Disproportionately Deny
Plaintiffs, Who Are Black, Latino and Native American, an Equal
Opportunity to Participate in the State’s Political Process on
Account of Race, in Violation of Section 2 of the Voting Rights
Act of 1965 (Senate Factor 5).
Finding that evidence of racial discrimination in Washington State’s
criminal justice system is relevant to a Section 2 analysis, the Ninth Circuit held
that, “[i]n fact, this kind of evidence is encompassed within the scope of factor (5),
directing courts to consider 'the extent to which members of the minority group in
the state or political subdivision bear the effects of discrimination in such areas as
education, employment, and health.’” Farrakhan, 338 F.3d at 1020. Senate Factor
5 “underscores Congress’s intent to provide courts with a means of identifying
practices that have the effect of shifting racial inequality from the surrounding
circumstances into the political process.” Id. To the extent that racial
discrimination in Washington State’s criminal justice system “contribute[s] to the
conviction of minorities for ‘infamous crimes,’ such discrimination would clearly
hinder the ability of racial minorities to participate effectively in the political
orocess, as disenfranchisement is automatic.” Id. “Thus, racial bias in Washington
State’s criminal justice system may very well interact with voter disqualifications
o create the kinds of barriers to political participation on account of race that are
JLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 13
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
prohibited by Section 2, rendering it simply another relevant social and historical
condition to be considered where appropriate.” Id.
In this case, this Court recognized with respect to their previously developed
evidentiary record, that Plaintiffs’ “evidence of discrimination in the criminal
ustice system, and the resulting disproportionate impact on minority voting power,
s compelling.” Summ. Judg. Order, at 8. Plaintiffs have, in fact, strengthened
heir previously developed record of racial discrimination in Washington State’s
riminal justice system. Incredibly, Defendants have failed to proffer even one
hred of evidence to rebut the testimony of Plaintiffs’ five expert witnesses or of
he Plaintiffs record more generally. Defendants have failed to update the
ssearch and/or testimony of the previously retained experts, whom they shared
/ith Plaintiffs in 2000, and have failed to retain additional experts, with the
xception of Hugh Spitzer, whose testimony is irrelevant, since it focuses solely on
question not at issue in this case.4 See Plaintiffs’ LR 56.1 Statement of Material
acts (filed July 31, 2000), at No. 10 (Recognizing that “Washington’s criminal
isenfranchisement law was not designed to disenfranchise blacks specifically in
ie state at the time of its enactment in 1889.”). As a result, the findings of
Hugh Spitzer’s report concludes that “there is no evidence that the drafters
Washington’s constitution in 1889 had any racially discriminatory intent when
ey included language barring voting rights from ‘[a] 11 persons convicted of
famous crimes unless restored to their civil rights.’” Report Concerning Voting
ights of Felons in Washington’s 1889 Constitution, at 1.
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Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006
Plaintiffs’ expert witnesses have not been disputed or refuted, and should be, at a
minimum, construed in the light most favorable to Plaintiffs.
Defendants attempt to minimize Plaintiffs’ unrefuted evidence by asserting
that Plaintiffs still have brought forward no evidence of discrimination ‘on
account of race’ in Washington’s criminal justice system,” and that “Plaintiffs
continue to rely only on statistical racial disparity.” Defs.’ Br. at 13. Defendants’
argument, however, neither comports with the earlier findings of this Court, nor
rebuts Plaintiffs’ compelling evidence, making plain that the disproportionate
disfranchisement of racial minorities in Washington State cannot be explained on
the basis of race-neutral factors. Accordingly, Plaintiffs’ evidence under Senate
Factor 5 weighs in favor in Plaintiffs in the totality of circumstances test.
Plaintiffs’ Evidence Demonstrates that the Existence of
Significant Racial Disparities in Washington State’s
Criminal Justice System Are Not Warranted By Racial
Differences in Illegal Behavior. (Expert Report by Professor
Robert Crutchfield, Ph.D.)
“People of color are over-represented at every stage of Washington’s
:riminal justice system, from arrest through sentencing and incarceration.”
Washington State Sentencing Guidelines Commission, Disproportionality and
Disparity in Adult Felony Sentencing (2003), available at
Ittp;//www.sgc.wa.gov/PUBS/Disnronortionalitv/Adult Disproportionalit Report2
lQ3-.pdf.; see also Anne L. Fiala Deposition (Exhibit 1). Indeed, for every year
’LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES - Page 15
http://www.sgc.wa.gov/PUBS/Disnronortionalitv/Adult
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between 1996 and 2005, 19% to 22.9% of the incarcerated population in
Washington State was Black, even though Blacks only comprise 3% of the general
population. Id. Latinos comprise 11% of the prison population, but just 7% of the
State s general population. Id. Native Americans, who constitute only 2% of the
State’s population, represent nearly 4% of the prison population. Id. Collectively,
though Blacks. Latinos, and Native Americans constitute only 12% of Washington
State’s general population, they represent an incredible 36% of the State’s prison
aopulation. Id. On the other hand, Whites, who comprise 81% of Washington
State s general population, are underrepresented in prison, where they make up
31% of that population. Id.
Significantly, the over-representation of racial minorities at every stage of
Washington State’s criminal justice system is not warranted by the extent to which
acial minorities are involved in illegal behavior. Expert Report by Robert D.
.rutchfield, Ph.D. (Exhibit 2), at 236. Plaintiffs’ evidence demonstrates that
native Americans, Blacks and Latinos are subjected to racial profiling in
Washington State at rates that cannot be justified by differential involvement in
rimes that are likely to lead to arrests. Id. at 244, 269. Even after legally relevant
anables, such as offense seriousness and the number of violations, are taken into
ccount, racial minority drivers are significantly more likely to be searched by
/ashington State Police than White drivers during a routine traffic stop. Id. at
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265. Specifically, Native Americans are more than twice as likely to be searched
as Whites, Blacks are more than seventy percent more likely, and Latinos are more
than fifty percent more likely to be searched than Whites. Id. at 263. Plaintiffs’
evidence of racial profiling is significant because disparate police searches lead to
the racially disparate filing of felony charges, which lead to disproportionately
subjecting racial minorities to Washington State’s felon disfranchisement scheme.
Id. at 262.
In addition to being subjected to racial profiling by Washington State Police,
prosecutors subject racial minorities to discriminatory treatment, even where well-
developed statutory standards are in place. Id. at 244, 270-274. For example, in
King County, see supra note 1, Whites are less likely to have charges filed against
them than racial minorities (60% of White cases filed compared to 65% of racial
minority cases). Id. at 271. These significant charging disparities persist even
after legally relevant characteristics, such as offense seriousness, offenders’
:riminal histories, and weapons charges, are taken into account. Id.
Moreover, bail is recommended for Blacks more often than Whites, who are
-eleased on their own recognizance more often than Blacks. Id. Racial disparities
ilso exist in the recommended length of confinement even after legal factors have
)een considered. Id. at 272. Specifically, prosecutors recommend that Blacks
;pend approximately one half o f a day more for each day a White defendant is
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recommended to be confined to prison. Id. In addition, Blacks are 75% less likely
than Whites to be recommended for an alternative sentence. Id. at 272-273.
Thus, in spite of the presence of statutory standards designed to limit
discretion by prosecutors, and even after accounting for legally relevant
characteristics, Black defendants are more likely than Whites to have charges filed
against them, less likely than Whites to be released on their own recognizance,
more likely than Whites to receive higher rates of confinement, less likely than
Whites to have their sentence converted to an alternative sentence, and more likely
han Whites to receive longer sentences. Id.
Finally, significant racial disparities in the sentencing outcomes of felony
:ases in the Washington State criminal justice system persist, even after legally
elevant factors, such as the seriousness of the offense, the criminal histories of
Tfenders, and legislatively established aggravating factors, such as the presence of
weapon in the commission of a crime, were taken into account. Id. at 245, 288-
89. Racial disproportionality in Washington State prisons is 9.28 to 1. Id. at 253.
'hat is, a Black person in Washington State is more than nine times more likely to
e in prison than a White person in the State. Id. However, the ratio of Black to
/hite arrests for violent offenses (which require the least amount of police
iscretion) is only 3.72 to 1. Id. Thus, “substantially more than one half of
/ashington State’s racial disproportionality cannot be explained by higher levels
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of criminal involvement as measured by violent crime arrest statistics.” Id. In
sum, Washington State cannot justify the disproportionate incarceration of Blacks
compared to that of Whites on the basis of higher violent crime involvement by the
former. Id.
ii. Plaintiffs’ Evidence Demonstrates that Blacks and Latinos
are Over-Represented, and are Whites Under-Represented,
Among Seattle’s Drug Arrestees as Compared with the Best
Available Evidence Regarding the Actual Offender
Population. (Expert Report of Professor Katherine Beckett,
Ph.D.)
Racial discrimination in the criminal justice system in Washington State’s
racially diverse city, Seattle, which has the largest concentration of racial
is
of
no less pervasive than it is in the State more broadly. In Seattle, the
users of marijuana and serious drugs,5 such as heroin,
nethamphetamine, powder cocaine, crack cocaine, and ecstasy, are White. Expert
leport by Katherine Beckett (Exhibit 3), at 313, 319-320.6 In addition, the
najority of those who deliver serious drugs in Seattle, with the possible exception
crack cocaine, are White. Id. Notwithstanding these facts, 52.2% of those
rrested by the Seattle Police Department (SPD) for possessing serious drugs, and
Serious drugs are the following controlled substances, which are classified
y the state legislature at Level 8 or higher of Washington State’s felony
entencing grid: heroin, powder cocaine, crack cocaine, methamphetamine, and
cstasy. Exhibit 3, at 326-327.
The evidence indicates that only crack cocaine may be used predominantly
y Blacks. Exhibit 3, at 313, 319-321.
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64.2% of those arrested for delivery> of serious drugs in Seattle from January 1999
through April 2001 were Black. Id. at 313, 319-322, 328-329. As a result, Blacks
are over-represented among drug possession and drug delivery arrestees as
compared with the actual offender population. Id. at 313. Latinos are also over
represented among those arrested for drug possession, while Whites are under
represented among both drug possession and drug delivery arrestees. Id.
The over-representation of Blacks and Latinos among drug possession
arrestees and of Blacks among drug delivery arrestees is largely the result of the
following three factors: (1) Law enforcement’s concentration on those entangled
in the crack cocaine market (as opposed to those involved in the powder cocaine,
methamphetamine, and heroin markets); (2) Law enforcement’s concentration on
outdoor drug venues (although this practice was not as important in numerical
terms as the focus on crack users and dealers); and (3) The geographic focus on
outdoor drug venues in the downtown area is an important cause of the over
representation of Blacks among drug delivery arrestees. Id. at 314-315.
Significantly, none of these three organizational practices are explicable in race-
oeutral terms. Id.
First, the SPD s focus on crack offenders is not explicable in terms of the
egal status of serious drugs, since each of these substances is classified by the
5tate legislature at Level 8 of Washington State’s felony sentencing grid. Id.
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Neither is the SPD s focus on the crack market a consequence of the frequency
with which crack is exchanged or the degree to which the various drug markets are
associated with violence or public health problems. Id. Second, the SPD’s focus
on outdoor drug venues is not explained by citizen complaints, organizational/
personnel constraints or volume productivity (i.e. the amount of drugs or cash
yielded per officer hour invested). Id. Finally, the SPD’s geographic focus on the
downtown area is not explicable in terms of crime rates or complaints by citizens.
In sum, Plaintiffs’ evidence demonstrates that Black and Latinos are over
represented, and Whites under-represented, among Seattle’s drug arrestees as
compared with the best available evidence regarding the actual offender
population. Id. Plaintiffs’ evidence also demonstrates that the organizational
practices that produce these disparities are not explicable in race neutral terms. Id.
rhese findings have critical implications, since approximately 30% of all state
prisoners, 70% of all federal prisoners, and an unknown but likely significant
proportion of jail inmates, are incarcerated for drug offenses. Id. Moreover,
Seattle felony drug arrests constitute approximately 63% of all King County felony
Irug arrests. Id. Plaintiffs evidence that racial minorities are over-represented
imong drug possession and drug delivery arrestees, and Whites are under-
epresented, as compared with the actual offender population, is significant
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because disparate arrests logically lead to the racially disparate filing of felony
charges, which lead to the disparate disfranchisement of racial minorities in
Washington State.
iii. Plaintiffs’ Evidence Demonstrates that Washington State’s
History of Racial Discrimination in the Areas of Education,
Employment and Housing Negatively Impacts Racial
Minorities in the Modern Day, and Makes Navigating the
State’s Cumbersome Voting Restoration Process Difficult,
If Not Impossible. (Expert Report of Professor J. Morgan
Kousser, Ph.D.)
In addition to the racial bias that has infected Washington State’s criminal
justice system, there is a history of discrimination against racial minorities in the
State in the areas of employment, housing and education, which continues in the
modem day not only to negatively impact the opportunities of racial minorities, but
also makes navigating the State’s voting rights restoration process especially
difficult, and, in some cases, impossible. Expert Report of J. Morgan Kousser
’Exhibit 4), at 347-348, 356-361.
In Washington State, the process of regaining suffrage is particularly
complicated, requiring considerable skills in negotiating two separate
jureaucracies, and the financial resources to retain an attorney who specializes in
uch matters. Id. at 347. Since racial minorities, as discussed above, are
lisproportionately convicted of felonies, and are also more likely than Whites to be
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disadvantaged in education and economic well-being, then racial minorities are at
a distinct disadvantage in restoring their voting rights following a felony
conviction. Id. at 347-350, 353-355; see also ACLU of Washington, Voting Rights
Restoration Statistics For Washington State, available at http://www.aclu-
wa.org/librarv files/Voting%20Rights%20Stats.ndf /Noting that fewer than 70,000
Certificates of Discharge have been issued to individuals released from prison
since 1988, notwithstanding that, since that time, nearly 300,000 individuals have
9een released from DOC supervision without a Certificate of Discharge).
In sum, the educational disadvantages of inmates in general, and racial
ninority inmates in particular, coupled with the comparative poverty of racial
ninorities in Washington State, make it especially difficult for racial minority
elons to navigate Washington State’s decentralized and intricate voting rights
estorations procedures. Id.
All five indices of well-being show that, compared to Whites, racial
linorities are at a considerable disadvantage in Washington State. See Exhibit 4,
t 353. Whites have much higher average incomes and are much less likely to be
oor, their houses are worth more, and they are much more likely than racial
linorities to own, rather than rent, their homes. Id. Moreover, virtually all Whites
ave access to automobiles, while more than one in six Blacks does not. Id.
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http://www.aclu-wa.org/librarv_files/Voting%20Rights%20Stats.ndf
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iv. Plaintiffs’ Record Demonstrates that “Implicit Racial Bias”
May Provide An Explanation for the Existence of Racial
Discrimination in Washington State’s Criminal Justice
System.
Racial differences in legal outcomes and other institutional processes may
not always reflect intentional, purposeful, conscious and willful racial
discrimination. “Understanding the Role of Race in the Criminal Justice System:
Structure, Discrimination, and ‘Implicit bias,’” Exhibit 3, at 340. However, this
should not lead to the conclusion that the processes by which racial differences are
produced are race-neutral, for two reasons. Id. First, “structural” factors are
sometimes better understood as policy choices, some of which are known to
produce racially unequal outcomes. Id. Some analysts have conceptualized
organizational practices that conform to this description as “institutional racism.”
Id. Second, a number of studies have found that many people who do not harbor
overt racial animus and do not intend to discriminate are nonetheless influenced by
unconscious and widespread racial stereotypes. Id. Studies have found that this
dnd of “implicit bias” shapes both perceptions of the severity of social problems
>uch as drug use, crime, and disorder and fuels support for more punitive responses
:o those problems. Id.
In sum, this Court can find that Plaintiffs’ evidence under Senate Factor 5
veighs in favor of Plaintiffs in the totality of the circumstances analysis, and this
3ourt should grant Plaintiffs’ Motion for Summary Judgment and deny
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Defendant’s Motion for Summary Judgment. Plaintiffs’ unrefuted evidence
convincingly demonstrates that the existing racial disparities at every stage of
Washington State’s criminal justice system are not warranted by the extent to
which racial minorities actually participate in crime. Moreover, Plaintiffs’
evidence shows that Blacks and Latinos are over-represented, and Whites are
under-represented, among Seattle’s drug arrestees, notwithstanding the fact that the
majority of those in Seattle who use and deliver serious drugs are White.
Significantly, Plaintiffs’ evidence demonstrates that these striking racial disparities
in Washington State are not explicable in race neutral terms. Further, Plaintiffs’
evidence shows that Washington State’s history of racial discrimination in
employment, housing and education hinders the ability of racial minorities in
particular to navigate the State’s complex voter restoration process, and can
effectively serve to disfranchise citizens permanently. The interaction of Article 6
§ 3 of the Washington State Constitution with the racial discrimination in the
eriminal justice system results in a disproportionate number of racial minorities
aeing disfranchised on account of race following a felony conviction. As a result,
■acial minorities in Washington State are under-represented in the State’s political
process, in violation of Section 2 of the Voting Rights Act.
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2. Defendants’ Policy Reasons (or Absence of Such Reasons)
Underlying Article 6 § 3 of the Washington State Constitution and
RCW § 9.94A.220, which Disproportionately Deny Plaintiffs an
Equal Opportunity to Participate in the State’s Political Process
on Account of Race, is Tenuous. (Senate Factor 9)
The final Senate factor is “whether the policy underlying the state or
political subdivision’s use of such voting qualification, prerequisite to voting, or
standard, practice or procedure is tenuous.” Senate Report No. 97-417, at 28-29
(1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-207. Defendants suggest that the
policy reasons (Defendants fail utterly to articulate any such policy reasons)
underlying Article 6 § 3 of the Washington State Constitution are not tenuous
aecause “there is no evidence of racial motive in Washington’s felon
disenfranchisement law,” Defs.’ Br. at 18, and because “racial bias played no part”
n its enactment. Id. Instead, Defendants assert that the “constitutional framers
ind state Legislature merely decided as a matter of policy to limit participation in
he political process by those who have proven that they are unwilling to abide by
he laws created by that process.” Id. Defendants’ argument is without merit, and
Maintiffs’ evidence shows that the policy reasons (or Defendants’ failure to
;rticulate such policy reasons) underlying Washington State’s felon
lisfranchisement scheme are, in fact, tenuous, in violation of Section 2 of the
Noting Rights Act.
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i. Defendants Have Failed to Articulate Any Policy Reason
Underlying Article 6 § 3 of the Washington State
Constitution. (Expert Report of Alec Ewald, Ph.D.)
To begin, Defendants failure to articulate any policy reasons underlying
Article 6 § 3 of the Washington State Constitution suggests that the
disfranchisement scheme is violative of Section 2. Expert Report by Alec Ewald
(Exhibit 6), at 413. An inquiry into whether the policy reasons underlying
Washington State’s felon disfranchisement scheme are tenuous requires a
;onsideration of the following types of questions: “Does the policy aim to improve
Dr correct a specific social problem? Does it plausibly link means and ends? Does
he state clearly articulate the policy’s aim and purpose?” Id. Elere, Defendants’
:onclusory statement that the constitutional framers and state Legislature “merely
lecided as a matter of policy to limit participation in the political process by those
vho have proven that they are unwilling to abide by the laws created by that
irocess, Defs. Br. at 18, fails to articulate how, if at all, Washington State’s felon
lisfranchisement scheme bears any rational relationship to a legitimate state
nterest. Id. Defendants merely restate the policy itself, but fail to identify which
nterests, if any, it purports to serve.8 Id. The phrase “limit participation in the
Plaintiffs’ attempt to secure a meaningful answer to this question through
iscovery was similarly unsuccessful. When asked whether “your office
iaintain[s] that an important governmental interest is served by disqualifying from
oting those individuals convicted of felony offenses,” Defendants gave this
jsponse:
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political process” is another way of saying “disfranchise.” Id. And the phrase
“those who have proven that they are unwilling to abide by the laws created by that
process” is another way of describing “felons.” Id. Defendants’ response is not a
conclusion based on premises, and is certainly not a clear statement of
governmental interest, rational or otherwise. Id. Indeed:
The State of Washington does not identify any specific problem its
disenfranchisement policy is designed to address or rectify. In fact,
evaluating how good the state’s interest is — that is, whether the state’s
interest is rational, legitimate, important, or compelling — actually appears
to be a secondary question. For I do not believe the state has yet identified
any interest at all that it seeks to achieve with this policy. This strongly
suggests that the policy is indeed tenuous.
Id. at 413.
Defendants’ failure to proffer any policy reasons underlying Washington
State s felon disfranchisement scheme is particularly fatal to their argument in
view of the Ninth Circuit’s ruling in Dillenburg v. Kramer, 469 F.2d 1222, 1224
'9th Cir. 1972), in which the Court viewed critically the alleged justifications for
felon disfranchisement statutes, finding that “Courts have been hard pressed to
The legislature has determined that the disenfranchisement of felons who
have not completed all terms and conditions of their judgments and
sentences limits the participation in the political process by those who have
proven themselves unwilling to abide by the laws that result from that
process.
defendant Sam Reed’s Answers to Plaintiffs’ Interrogatories and Requests for
froduction.
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define the state interest served by laws disfranchising persons convicted of
crimes.” 9 In Dillenburg, the Ninth Circuit noted that the “[sjearch for modem
reasons to sustain the old governmental disenfranchisement prerogative has usually
ended with a general pronouncement that the state has an interest in preventing
persons who have been convicted of serious crimes from participating in the
electoral process” or “a quasi-metaphysical invocation that the interest is
preservation of the ‘purity of the ballot box.’” Id. But “[f]ew decisions have
penetrated the disenfranchisement classification to ascertain whether the offenses
that restrict or destroy voting rights have anything to do with the integrity of the
2lectoral process or whether there is any valid distinction between the class of
Dffenses that disenfranchise and the class of offenses that do not.” Id. “When the
facade of the classification has been pierced,” the Court concluded, “the
disenfranchising laws have fared ill.” Id. at 1224-25.
On the basis of Dillenburg, and in light of Defendants’ failure to proffer any
liscussion of policy reasons underlying Washington State’s felon disfranchisement
;cheme or the classifications contained therein, Article 6 § 3 of the Washington
>tate Constitution is violative of Section 2.
Although recognizing that “Dillenburg is not good law to the extent that it
uggests that the disenfranchisement of felons, on its face, cannot pass
onstitutional muster, this Court opined that “Dillenburg remains applicable to
be extent that the decision discusses the alleged justifications for felon
^enfranchisement statutes.” Farrakhan, 987 F. Supp. at 1312.
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In addition to the foregoing, the policy reasons (or Defendants’ failure to
articulate such policy reasons) underlying Article 6 § 3 of the Washington State
Constitution are tenuous for the following, additional reasons:
ii. Striking Evidence of Article 6 § 3 of Washington State
Constitution’s Disproportionate Racial Impact Intensifies
the Need for Defendants to Identify Which, If Any,
Practical Objectives the Felon Disfranchisement Scheme
Pursues.
In this case, this Court previously recognized that Washington State’s
disenfranchisement provision clearly has a disproportionate impact on racial
ninorities,” and that “racial minorities are clearly being disfranchised in numbers
lisproportionate to that of their white fellow citizens.” Summ. Judg. Order, at 6.
specifically, as of 1998, nearly one-quarter of black men in Washington State —
>r 24% — were disfranchised. Exhibit 6, at 427-428. While 3.64% of Washington
state’s total voting-age population was disfranchised as of 2000, 14.33% of its
African American population was disfranchised. Id. While Latinos comprise only
.85% of Washington State’s citizen voting age population, they constitute 9.89%
f the disfranchised population. Id.
Moreover, Washington State s Sentencing Guidelines Commission recently
Dund that the over-representation of people of color is a system-wide problem
'ithin the criminal justice system.” Id. at 427. The Commission found that
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although African Americans made up just 3% of the state’s adult population in
2002, they accounted for an incredible 21.3% of the state prison population. Id.
Latinos only accounted for 7% of Washington State’s general population, but
comprised 11% of the prison population. Id. Native Americans were also over
represented in the prison population, sentenced at 1 lA times their proportion in the
population. Id.
The compelling evidence of the felon disfranchisement policy’s
disproportionate racial impact in Washington State intensifies the critical need for
Defendants to identify which, if any, goals the scheme pursues. Id. Defendants
have failed to demonstrate that Washington State’s felon disfranchisement scheme
fulfills any specific governmental purpose. Id. Neither have Defendants shown
:hat Washington State’s felon disfranchisement scheme is applied in a
londiscriminatory manner, or that it strengthens the character of Washington
5tate s democracy. Id. Accordingly, the policy reasons (or absence of such
easons) underlying Washington State’s felon disfranchisement scheme are
enuous, in violation of Section 2 of the VRA. Id.
iii. Washington State’s Felon Disfranchisement Scheme Fails to
Achieve Any of the Four Standard Purposes of Punishment:
Incapacitation, Deterrence, Retribution and Rehabilitation.
It has long been established that punishment is or should be justified by
ome combination of the following four penological goals: incapacitation,
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deterrence, retribution and rehabilitation. See, e.g., Ewing v. California, 538 U.S.
11 (2003). Washington State’s felon disfranchisement scheme fails to meet each of
these goals. Exhibit 6, at 417.
Incapacitation, which is guided by the notion that “society may protect itself
from persons deemed dangerous because of their past criminal conduct by isolating
these persons from society,” 1 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law § 1.5 (2d ed. 2003), is not a plausible justification for
Washington State’s felon disfranchisement scheme, since the overwhelming
majority of disfranchised offenders in Washington State were not convicted of
breaking election laws. Exhibit 6, at 417.
Deterrence, as a practical matter, also fails as a justification for stripping
offenders in Washington State of the right to vote, since it depends upon a
punishment being widely known to those it aims to deter, and felon
hsfranchisement is widely regarded as an “invisible punishment.” Jeremy Travis,
nvisible Punishment: An Instrument o f Social Exclusion in Invisible Punishment:
rhe Collateral Consequences o f Mass Imprisonment 15-16 (Marc Mauer & Meda
rhesey-Lind eds., 2002). Even after criminal conviction, most offenders are not
ikely aware of their disfranchised status since disfranchisement statutes are
carcely publicized. See Howard Itzkowitz & Lauren Oldak, Note: Restoring the
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Ex-Offender’s Right To Vote: Background and Developments, 11 Am. Crim. L.
Rev. 721, 735 (1993).
Empirical data also shows that felon disfranchisement has no value as a
deterrent to crime. States with disfranchisement provisions have a greater per
:apita crime rate than nearby states that do not disfranchise their convicted
offenders. Itzkowitz & Oldak, supra, 11 Am. Crim. L. Rev. at 734 & n.96; see
dso Fed. Bureau of Investigation, Crime in the United States, tbl. 5 (2003)
Reflecting, inter alia, the per capita crime rate of New Jersey, disfranchising
larolees and probationers, at 2910.2 per 100,000 inhabitants, that of Pennsylvania,
lisfranchising only inmates, at only 2829.3 per 100,000, and that of Delaware,
lisfranchising all felons as well as ex-felons for five years following completion of
heir sentences, at a staggering 4042.4 per 100,000), available at
4tp:/Avww.fbi.gov/ucr/cius 03/xl/Q3thl05.xls. If lengthy prison sentences do not
eter crime, then collateral consequences of conviction, such as felon
isfranchisement, are also likely to be poor deterrents. Exhibit 6, at 417.
Retribution, which involves the imposition of punishment “because it is
itting and just that one who has caused harm to others should himself suffer for
, see LaFave & Scott, Substantive Criminal Law, supra, at § 1.5, also fails as a
istification for Washington State’s felon disfranchisement scheme. Exhibit 6, at
18. Washington State s blanket application of its felon disfranchisement scheme
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is vulnerable to proportionality criticisms, since it is imposed on such a broad
range of offenders, bears no relationship to the security needs of the prison, and
may not have any retributive effect at all on the many members of the offender
population already estranged from political life. Id. The automatic, invisible way
in which Washington State imposes disfranchisement adds to these criticisms. Id.
Most importantly, Washington State’s felon disfranchisement scheme serves
no rehabilitative ends. Id. The American Bar Association, along with numerous
social scientists and criminologists, have expressed their belief that
disfranchisement, rather than serving a rehabilitative purpose, actually undermines
.he goals of rehabilitation by dissociating offenders from the rights and
■esponsibilities of citizenship and places a barrier to their reintegration into a
iemocratic society. See ABA Criminal Justice Standards on Collateral Sanctions
ind Discretionary Disqualification o f Convicted Persons, available at
ittp:/Avww•.abanet.org/leadership/2003/ioumal/10 la. pdf.
Voting, however, is consistent with the goal of rehabilitation, which is “to
etum [the offender] to society so reformed that he will not desire or need to
ommit further crimes. LaFave & Scott, Substantive Criminal Law, supra, at §
.5. The restoration of the right to vote has both the psychological and
aciological effect of weaving an offender back into the community — the very
oal of rehabilitation. Exhibit 6, at 417.
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iv. The Mere Antiquity of Washington State’s Felon
Disfranchisement Practice Does Not Exempt It From
Violating Section 2 of the VRA.
Defendants’ suggestion that Article 6 § 3 of the Washington State
Constitution is not violative of Section 2 of the Voting Rights Act because,
throughout its history, the [SJtate of Washington has maintained laws that have
disenfranchised convicted felons,” Defs.’ Br. at 10, is without merit. The mere
antiquity of Washington State’s felon disfranchisement practice cannot exempt it
from running afoul of Section 2. Like poll taxes, see Breedlove v. Suttles, 302 U.S.
277 (1937), and literacy tests, see Lassiter v. Northampton County Bd. o f Elections,
360 U.S. 45 (1959), longstanding voting qualifications that were once widely
accepted can be abrogated either by the Constitution or statutory' enforcement of it.
See generally Harper v. Virginia State Bd. o f Elections, 383 U.S. 663, 669
;i966)(Court’s are “not shackled to the political theory of a particular era” and are
aot “confined to histone notions of equality” or “what was at a given time deemed
o be the limits of fundamental rights.”); Atkins v. Virginia, 536 U.S. 304, 311
2002) (overruling pnor precedent and prohibiting mentally handicapped offenders
'rom receiving the death penalty by noting that “[a] claim that punishment is
:xcessive is judged not by the standards that prevailed . . . when the Bill of Rights
vas adopted, but rather by those that currently prevail.”). In this case, Washington
>tate s long historical tradition of disfranchisement for crime alone does not render
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the policy sound today. Exhibit 6, at 414. Instead, when assessing whether
Washington State’s felon disfranchisement scheme is sound or tenuous,
Defendants should consider what problem, if any, the felon disfranchisement
scheme is intended to address. Id. Defendants do not do that here, and their
arguments are unpersuasive.
v. Difficulties in Accurately Administering Washington State’s
Felon Disfranchise Scheme Underscore the Tenuous Policy
Justification Underlying the Law.
Difficulties of elections officials in administering Washington State’s felon
disfranchisement scheme underscores the tenuous nature of the (as yet
unidentified) policy reasons underlying the scheme. Exhibit 6, at 422. The 2004-
2005 Washington State gubernatorial recount made clear that the State’s felon
disfranchisement policy was not properly administered in that election, as
neligible felons were alleged to have voted in, and influenced the outcome of, the
election. Id. The inconsistency with which Washington State’s felon
lisfranchisement scheme has been enforced raises serious questions about the
>olicy’s purpose. Id.
In addition, state and local officials also poorly understand the restoration
irocess in Washington State. In fact, the present system intended to restore voting
lghts to those eligible while preventing illegal votes is “so bewildering that almost
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nobody negotiates it well” and “requir[es] a degree in government” to understand
the process. Id. at 422.
To compound the problem, Washington State does not currently maintain
lists of voters ineligible because of felony convictions. Id.; see also Deposition of
Pamela Floyd, Nov. 17, 2005, (Exhibit 7) at 466, Ins. 19-20 (Stating that the
Secretary of State cannot identify the number of people in Washington State who
are disqualified from voting because of a felony conviction, since the State does
not maintain such information). Even after implementing HAVA-mandated
reforms beginning in 2006, Washington State will have no way of knowing about
whether new arrivals to the state have felony convictions in their former state(s) of
■esidence. Id. HAVA-mandated changes in administration constitute a tacit
icknowledgment that the current procedures for administering the policy are
lawed. Id.
In the absence of a national criminal database, Washington State cannot
mforce its disfranchisement law consistently, no matter how well it trains state and
ocal elections officials and administers its new statewide voter database. Id. at
•23. Current gaps in enforcement undercut the state’s argument for the sanction.
d. If this policy were actually directed at rectifying any specific social problem,
Vashington would have devoted more resources to administering this voting
2Striction accurately, evenly, and comprehensively. Id.
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vi. Numerous Other Countries Have Determined That Felon
Disfranchisement Laws Undermine the Basis of Democratic
Legitimacy.
The New> York Times recently editorialized that “[t]he United States has the
worst record in the democratic world when it comes to stripping convicted felons
of their voting rights.” “Voting Rights, Human Rights,” New York Times, Oct. 14,
2005, p. 24. Disfranchisement for a criminal conviction is not, however, the
democratic norm abroad, where many democracies refuse to strip voting rights
even from incarcerated offenders after concluding that such policies actually serve
to undermine the democratic goals. Exhibit 6, at 424.
For example, prisoners retain the right to vote without any restrictions in at
least eighteen European countries, and Courts in Canada, Israel, South Africa and
the European Court of Human Rights, have each struck down disfranchisement
laws. Id. In a decision that affirmed the right of all citizens of its democracy to
3articipate in the political process, the Supreme Court of Canada in Suave v.
- anada, 2002 SCC 68 (2002), explained that:
Denying felons the right to vote misrepresents the nature of our rights and
obligations under the law and consequently undermines them . . . . In sum
the legitimacy of the law and the obligation to obey the law flow directly
from the right of every citizen to vote . . . . The government gets this
connection exactly backwards when it attempts to argue that depriving
people of a voice in government teaches them to obey the law. The
educative message that the government purports to send by
disenfranchising inmates is both anti-democratic and internally self
contradictory. Denying a citizen the right to vote denies the basis of
democratic legitimacy.
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Id. at 31-32.
These decisions support the conclusion that the policies underlying felon
disfranchisement are tenuous, since they are neither aimed at nor likely to
accomplish any specific objective, and actually serve to undermine the basis of
democratic legitimacy. Exhibit 6, at 424. Where, however, democratic countries
abroad disfranchise people convicted of an offense, they do so in narrow, targeted,
and public way. Id. at 425-426. In Germany, for example, disfranchisement never
occurs automatically, may only be applied by the sentencing judge for certain
serious infractions, and can last for only a limited time. Id. By contrast,
Washington State’s disfranchisement policy is invisible, general, and automatic.
In sum, Plaintiffs evidence under Senate Factor 9, like its evidence under
' Factor 5, weighs in favor of Plaintiffs in the totality of circumstances test.
\ccordin£
Maintiffs’
Jy, Defendants Motion for Summary Judgment should be
Motion for Summary Judgment should be granted.
denied, and
VI. CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully request that this Court
Plaintiffs’ Motion for Summary Judgment and deny Defendants’ Motion for
Nummary Judgment.
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Dated: January 27, 2006.
UNIVERSITY LEGAL ASSISTANCE
s/ Larry A. Weiser, WSBA#: 6865________
Larry A. Weiser, WSBA#: 6865
Jacob B. White WSBA# 92162, Legal Intern
Kristine K. Olmstead WSBA # 90888688
Legal Intern
Tamerton Vemon-Grandos, Law Clerk
Attorney for Plaintiffs
University Legal Assistance
721 North Cincinnati Street
P.O. Box 3528
Spokane, Washington 99220-3528
Telephone: (509)323-5791
Fax: (509) 323-5805
Email: lweisenoMawschool.uonzaga.edu
s/ Ryan P. Haygood_________
Ryan P. Haygood,
Pro Hac Vice
Theodore M. Shaw
Director-Counsel
Norman J. Chachkin
Debo P. Adegbile
NAACP Legal Defense
& Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, NY 10013-2897
Telephone: (212) 965-2235
Fax: (212) 226-7592
Email: rhavgood'anaacpldf.orp
Attorneys for Plaintiffs
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APPENDIX A
The Senate Report accompanying the 1982 amendments to the Voting
Rights Act identified the following Senate Factors that are relevant in analyzing
whether Section 2 has been violated:
(1) The extent of any history of official discrimination in the state or
political subdivision that touched the right of the members of the minority group to
register, to vote, or otherwise to participate in the democratic process;
(2) The extent to which voting in the elections of the state or political
subdivision is racially polarized;
(3) The extent to which the state or political subdivision has used
unusually large election districts, majority vote requirements, anti-single shot
provisions, or other voting practices or procedures that may enhance the
upportunity for discrimination against the minority group;
(4) If there is a candidate slating process, whether the members of the
ninority 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,
imployment and health, which hinder their ability to participate effectively in the
>olitical process;
(6) Whether political campaigns have been characterized by overt or
ubtle racial appeals;
(7) The extent to which members of the minority group have been elected
a public office in the jurisdiction;
(8) Whether there is a significant lack of responsiveness on the part of
lected officials to the particularized needs of the members of the minority group;
(9) Whether the policy underlying the state or political subdivision’s use
f such voting qualification, prerequisite to voting, or standard, practice or
rocedure is tenuous.
ee S. Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177,
06-207.
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