The State of Washington v. Muhammad Shabazz Farrakhan Brief in Opposition to Certiorari

    No. 03-1597

In  THE

#upm n£ Court of tlje Untied s ta te s
Gary D. Locke, governor of the

STATE OF WASHINGTON, S AM REED, SECRETARY OF 
STATE OF THE STATE OF WASHINGTON, AND

The State of Washington,

Muhammad ShabazzFarrakhan,
Al Kareem Shadeed, Ramon Barrjentes, 

Clifton Briceno, Marcus Price, and Timothy Schaaf,

BRIEF IN OPPOSITION TO CERTIORARI

721 North Cincinnati Street NAACP Legal Defense 
Spokane, WA 99220-3528 And Educational Fund,

Respondents.

On Petition for a Writ of Certiorari to 
the United States Court of Appeals 

for the Ninth Circuit

^Lawrence A. Weiser 
University Legal.

Assistance 
Gonzaga University 

School of Law 
P.O. Box 3528

Theodore M. Shaw 
Director-Counsel

Norman J. Chachkin 
Janai S. Nelson 
Ryan P. Haygood

Dennis C. Cronin 
Law Office of D.C. 

Cronin
1708 West Mission Avenue

(509) 323-5791 Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(212) 965-2200

Spokane, WA 99201 
(509) 328-5600

Jason T. Vail 
401 Second Avenue South, 

Suite 407
Seattle, WA 98104 
(206) 464-1519

* Counsel o f Record

Attorneys fo r  Respondents



COUNTER-STATEMENT OF THE 
QUESTION PRESENTED

Whether § 2 of the Voting Rights Act of 1965, which 
prohibits any voting qualification or prerequisite to voting that 
results in the denial of voting rights on account of race, can be 
applied to the Washington state laws that deny the right to vote 
to persons convicted of a felony.



PARTIES TO THE PROCEEDING

The Petition for a Writ of Certiorari (“Pet.”) correctly 
identifies the parties to the proceeding below. Respondents 
wish to inform the Court that, while Respondent Muhammad 
Shabazz Farrakhan has been referred to by that name 
consistently throughout the course of these proceedings, his 
name was not changed to Muhammad Shabazz Farrakhan 
through formal legal proceedings. Mr. Farrakhan’s legal name 
is Ernest Walker.

ii



Counter-Statement of the Question Presented...................... i

Parties to the Proceeding......................................................... ii

Table of Authorities..................................................................v

Counter-Statement of the Case ............   1

A. Felon Disfranchisement In Washington S ta te .........1

B. Procedural H isto ry ....................................................... 1

REASONS FOR DENYING THE WRIT 6

Introduction ............................................................................ 6

I Certiorari Should Be Denied Because Petitioners
Failed To Raise Their Plain Statement 
Argument At The Appellate Level 7

II Petitioners Overstate The Extent Of Any Circuit
Conflict; This Court Has Denied Certiorari 
Where The Alleged Conflict Was More 
Developed Than That Presented H e re ................... 9

III The Judgment Below Is Interlocutory And 
Review At This Stage Would Be Premature . . .  11

iii

TABLE OF CONTENTS

Page



IV

IV The Court Below Decided Correctly That The 
VRA Applies To Felon Disfranchisement Laws 
And Further Review Is Unnecessary . . . . . . . . .  12

A. The Plain Meaning Of § 2 Is
Unambiguous On Its Face ...................... 13

B. Even Assuming The Plain Statement
Rule Applies, The Ninth Circuit Was 
Correct In Holding That § 2 Covers 
W ash in gton ’s Felon D isfran­
chisement Laws ....................................   16

1. Covering Felon Disfranchisement
Under § 2 Does Not A lter
Impermissibly The Balance Between 
Federal And State Pow ers..........................16

2. The Legislative History Of §§ 2 And 
4 Demonstrates Congress’ Clear 
Intent Not To Exclude Felon 
Disfranchisement From The Reach
Of § 2 ..................................................... . . . . 1 8

C. Application Of § 2 Of The Voting Rights 
Act To Washington’s Felon Disfran­
chisement Scheme Is Entirely Consistent 
With This Court's Ruling In Richardson
v. Ramirez .......................     20

Conclusion...............    23

TABLE OF CONTENTS (continued)

Page



TABLE OF AUTHORITIES

Page

Cases:

Adams v. Robertson,
520 U.S. 83 (1997)...................................................  8n-9n

Adickes v. S.H. Kress & Co.,
398 U.S. 144(1970)...................................................  7 ,8

Allen v. State Board o f Elections,
393 U.S. 544 (1969).......................................................  18

Baker v. Pataki,
85 F.3d 919 (2d Cir. 1996)............................................. 9n

Brotherhood o f Locomotive Firemen & Enginemen 
v. Bangor & Aroostook R.R. Co.,

389 U.S. 327(1967).................................................  11-12

Bunting v. Mellen,
124 S. Ct. 1750(2004)...................................................  11

California v. Taylor,
353 U.S. 553 (1957)........................................................... 7

Caminetti v. United States,
242 U.S. 470(1917).......................................................  14

Campos v. City o f  Houston,
113 F.3d 544 (5th Cir. 1997) 14



VI

Chisom v. Roemer,
501 U.S. 380 (1991)................. ............ 16, 17, 18, 19, 21

Circuit City Stores, Inc. v. Adams,
532 U.S. 105 (2001).......................................... .. 18-19

City o f  Rome v. United States,
446 U.S. 156(1980)..................... .................................  16

City o f  Springfield v. Kibbe,
480 U.S. 257 (1987)........................................................... 7

Connecticut National Bank v. Germain,
503 U.S. 249(1992)..............................................   14

Demarest v. Manspeaker,
498 U.S. 184(1991)............................................    14

Durden v. California,
531 U.S. 1184(2001).....................................................  11

Farrakhan v. Locke,
No. CS-96-76-RHW, 2000 U.S. Dist. LEXIS 
22212 (E.D. Wash. Dec. 1, 2000), a ff  d in part and 
rev’d in part sub nom. Farrakhan v. Washington,
338 F.3d 1009 (9th Cir. 2 0 0 3 )....................... .. ..............3

Farrakhan v. Locke,
987 F. Supp. 1304 (E.D. Wash. 1997) ............. .. 2, 7n, 22

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):



Cases (continued):

Farrakhan v. Washington,
359 F.3d 1116 (9th Cir. 2 0 0 4 )........................................ 6

Farrakhan v. Washington,
338 F.3d 1009 (9th Cir. 2003) . . 3, 4, 5, 9, 10, 11, 12, 22 

France v. Pataki,
71 F.Supp. 2d 1317 (S.D.N.Y. 1999).....................  14-15

Gregory v. Ashcroft,
501 U.S. 452 (1991)............................................... 15, 17n

Hilton v. South Carolina Public Railways Commission,
502 U.S. 197(1991).......................................................  15

Holley v. City o f  Roanoke,
162 F. Supp. 2d 1335 (M.D. Ala. 2001) .....................  14

Hunter v. Underwood,
471 U.S. 222 (1985)...................................    20

Husty v. United States,
282 U.S. 694(1931) ....................................   8

International Brotherhood o f Teamsters v. United States,
431 U.S. 324(1977)................................................. 19-20

vii

TABLE OF AUTHORITIES (continued)

Page



Johnson v.Bush,
353 F.3d 1287 (11th Cir. 2003), vacated, 2004 WL 
1609101 (11th Cir. July 20, 2004) (No. 02-14469) . . .  10

Johnson v. DeSoto County Board o f  Commissioners,
72 F.3d 1556 (11th Cir. 1 9 9 6 )..................... ................  14

Lackey v. Texas,
514 U.S. 1045 (1995)...................................................... 11

Lawn v. United States,
335 U.S. 339(1958)........................................   7

Lee v. Bankers Trust Co.,
166 F.3d 540 (2d Cir. 1999)..........................................  15

McCray v. New York,
461 U.S. 961 (1983)...................................... ................  11

McNeil v. Legislative Apportionment Commission 
o f New Jersey,

124 S. Ct. 1068 (2004)...................................................  10

Moskal v. United States,
498 U.S. 103 (1990)...................................................  18

Muntaqim v. Coombe,
366 F.3d 102 (2d Cir. 2004)............. .............. .. 9, 10

viii

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):



IX

Cases (continued):

New Rochelle Voter Defense Fund v. City o f  
New Rochelle,

308 F. Supp. 2d 152 (S.D.N.Y. 2 0 0 3 ) .......................... 14

Nixon v. Kent County,
76 F.3d 1381 (6th Cir. 1996) .........................................  14

Pennsylvania Department o f Corrections v. Yeskey,
524 U.S. 206 (1998)...................................................  8, 18

Ratzlaf v. United States,
510 U.S. 135 (1994).......................................................  15

Reno v. Bossier Parish School Board,
520 U.S. 471 (1997)...............................................  17,20n

Richardson v. Ramirez,
418 U.S. 24 (1974).............................................  20,21,22

Russello v. United States,
464 U.S. 16(1983).........................................................  20

Salinas v. United States,
522 U.S. 52(1997).........................................................  15

Schick v. Schmutz (In re Venture Mortgage Fund, L.P.),
282 F.3d 185 (2d Cir. 2002).................................... .. • • 14

TABLE OF AUTHORITIES (continued)

Page



X

Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479 (1985)........................................................ 18

United States v. Ron Pair Enterprises, Inc.,
489 U.S. 235 (1989)............................................... .. 14

VMIv. United States,
508 U.S. 946(1993)........................................................ 12

Wesley v. Collins,
791 F.2d 1255 (6th Cir. 1 9 8 6 )............. ................... . 9, 22

Williams v. State Board o f Elections,
696 F. Supp. 1563 (N.D. 111. 1988) .......................... .. . 15

Constitutions, Statutes, and Rules:

U.S. Const, amend. XIV ............................................. 21

Wash. Const. Article VI, § 3 ................... ....................... .. 1

§ 2, Voting Rights Act of 1965,
42 U.S.C. § 1973 ........................................ .. passim

§ 4, Voting Rights Act of 1965,
42 U.S.C. § 1 9 7 3 b .......... ........................... ............ 18, 19

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):



XI

Constitutions, Statutes, and Rules (continued):

§ 5, Voting rights Act of 1965,
42U.S.C. § 1973c ...................  19n

42U.S.C. § 1973gg-6(g) ..........................................................1

Wash. Rev. Code § 9.94A.637 ................................................. 1

Wash. Rev. Code § 9.94A.875 ................................................. 1

Wash. Rev. Code § 9.96.050 ................................................... 1

Wash. Rev. Code § 10.64.021 ................................................. 1

Fed. R. Civ. P. 12(b)(6)......................................................... 2

Other Authorities'.

Brief for Appellees, Farrakhan v. Washington,
338 F.3d 1009 (9th Cir. 2003) (No. 01-35032).............5

Petition for a Writ of Certiorari, McNeil v. Legislative 
Apportionment Commission o f  New Jersey,
124 S. Ct. 1068 (2004) (No. 03-652)............................ 10

Petition for Rehearing and Petition for Rehearing 
En Banc, Farrakhan v. Washington, 338 F.3d 
1009 (9th Cir. 2003) (No. 01-35032).....................  7n-8n

TABLE OF AUTHORITIES (continued)

Page



xii

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Webster’s Ninth New Collegiate Dictionary (1 9 9 0 )___ 13n

Webster’s Third New International Dictionary (2002) . . 13n



1

This case concerns the scope of § 2 of the Voting Rights 
Act of 1965 (“VRA” or “Voting Rights Act”), and whether § 
2 provides a basis for Respondents to challenge Washington’s 
felon disfranchisement scheme, which denies suffrage to 
persons upon conviction of a felony.

A. Felon Disfranchisement In Washington State

Washington’s statutory scheme for felon disfranchisement 
is rooted in Article VI, § 3 of the Washington Constitution, 
App. 93a.1 The process for revocation of the offender’s right 
to vote is administrative in nature; it is a collateral consequence 
of “convicted felon” status, not a part of the adjudication of 
guilt and sentencing of the offender. Upon the offender’s 
conviction, notice is sent to the county auditor who revokes the 
offender’s voter registration, if  any. See Wash. Rev. Code § 
10.64.021, App. 99a (convictions in state court); 42 U.S.C. § 
1973gg-6(g) (convictions in federal court). Because loss of the 
right to vote is based entirely upon the offender’s status as a 
felon, the specific type or degree of the crime for which the 
offender was convicted plays no role in the automatic 
revocation of the right to vote. The offender may later seek to 
reinstate the right to vote through a statutory process. See 
Wash. Rev. Code § 9.94A.637, App. 94a (determinate 
sentences); id. § 9.96.050, App. 97a (indeterminate sentences); 
id. § 9.94A.875 (clemency and pardons board).

B. Procedural History

Respondents in this case are currently denied the right to 
vote in Washington because they each were convicted of a 
felony. Muhammad Shabazz Farrakhan (also known as Ernest 
Walker, see supra p. ii), A1 Kareem Shadeed, and Marcus Price

COUNTER-STATEMENT OF THE CASE

1 Citations in this format are to the Appendix to the Petition for 
a Writ of Certiorari.



2

are African-American; Clifton Briceno and Timothy Schaaf are 
Native-American; and Ramon Barrientes is Hispanic- 
American. None of the Respondents is currently eligible for 
restoration of voting rights under Washington’s statutory 
restoration procedure.

Respondents filed this action in the United States District 
Court for the Eastern District of Washington, challenging 
Washington’s felon disfranchisement scheme under the Voting 
Rights Act and the First, Fourth, Fifth, Sixth, Ninth, 
Fourteenth, and Fifteenth Amendments to the United States 
Constitution. Respondents argued that felon disfranchisement 
denies racial minorities the right to vote on the basis of race and 
has the effect of diluting racial minority voting strength.

Appellants moved to dismiss Respondents’ claims pursuant 
to Fed. R. Civ. P. 12(b)(6). The district court sustained 
Respondents’ claims of vote denial under the Voting Rights 
Act but dismissed their vote dilution claim under the Act and 
their Constitutional claims. Farrakhan v. Locke, 987 F. Supp. 
1304, 1315 (E.D. Wash. 1997), App. 67a, 90a.

Respondents subsequently filed a motion for summary 
judgment. Respondents presented evidence to support a 
“totality o f circumstances” argument, as required by § 2 of the 
Voting Rights Act when challenging the racial effects of a 
voting practice, including the following: evidence of
disparities in the treatment of minorities in the criminal justice 
system; a history of race discrimination in the state of 
Washington; and the tenuous public policy rationale for felon 
disfranchisement. Petitioners responded with a cross-motion 
for summary judgment, arguing that felon disfranchisement is 
constitutionally permissible, that the VRA was not intended to 
prohibit felon disfranchisement, and that, even if the VRA 
applied to felon disfranchisement, Respondents did not present 
sufficient evidence to satisfy the totality of circumstances 
analysis.



3

In its ruling on the cross-motions for summary judgment, 
the district court found that “the [felon] disenfranchisement 
provision clearly has a disproportionate impact on racial 
minorities . . . Farrakhan v. Locke, No. CS-96-76-RHW, 
2000 U.S. Dist. LEXIS 22212, at *9 (E.D. Wash. Dec. 1, 
2000), App. 54a, 59a, a ff’d in part and rev ’d in part sub nom. 
Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), and 
that Respondents’ “evidence of discrimination within the 
criminal justice system.. .  is compelling,” id. at *14, App. 62a. 
Despite these findings, the district court found that this 
evidence could not be considered within the VRA’s totality of 
circumstances analysis because such evidence creates a “causal 
chain [that] runs, if  at all, to a factor outside of the challenged 
voting mechanism.” Id. at *10, App. 59a. After disregarding 
evidence of disparities within the criminal justice system, the 
district court held that Respondents failed to provide evidence 
satisfying the totality of circumstances analysis and granted 
summary judgment in favor of Petitioners. Id. at *18, App. 
64a.

Respondents appealed to the United States Court of 
Appeals for the Ninth Circuit, arguing that the district court 
erred in failing to consider disparities in Washington’s criminal 
justice system in the context of the VRA’s totality of 
circumstances analysis. The court of appeals agreed, holding 
that the totality of circumstances analysis “requires the court to 
consider the way in which the disenfranchisement law interacts 
with racial bias in Washington’s criminal justice system to deny 
minorities an equal opportunity to participate in the state’s 
political process,” Farrakhan v. Washington, 338 F.3d 1009, 
1014 (9th Cir. 2003), App. la, 9a. The court of appeals further 
held that in determining whether Washington’s felon 
disfranchisement provisions produce a discriminatory result, a 
court must consider factors external to the challenged voting 
mechanism as well as voting practices themselves. To do 
otherwise, the court stated, would “effectively read an intent



4

requirement back into the VRA, in direct contradiction of the 
clear command of the 1982 Amendments to Section 2 [of the 
VRA].” Id., 338 F.3d at 1019, App. 19a. Because the district 
court found that the Respondents’ evidence was “compelling,” 
the court o f appeals posited that, “had the district court properly 
interpreted the causation requirement under the totality of the 
circumstances test instead of applying its novel ‘by itself 
causation standard, the court might have reached a different 
conclusion.” Id., 338 F.3d at 1020, App. 22a (footnote 
omitted). Accordingly, the court of appeals reversed and 
remanded the case to the district court to evaluate the record 
evidence in light o f the correct analysis. Id., 338 F.3d at 1020, 
App. 23a.

The court of appeals panel explicitly agreed with the district 
court that the VRA covered felon disfranchisement laws:

As a preliminary matter, we agree with the district court 
that Plaintiffs’ claim of vote denial is cognizable under 
Section 2 o f the VRA. Felon disenfranchisement is a 
voting qualification, and Section 2 is clear that any voting 
qualification that denies citizens the right to vote in a 
discriminatory manner violates the VRA. 42 U.S.C. § 
1973. Indeed, the Supreme Court has made clear that states 
cannot use felon disenfranchisement as a tool to 
discriminate on the basis of race, see Hunter v. Underwood, 
471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d222 (1985) 
(holding that where racial bias motivated its original 
enactment, a facially neutral felon disenfranchisement law 
violated the Equal Protection Clause), and Congress 
specifically amended the VRA to ensure that, “in the 
context of all the circumstances in the jurisdiction in 
question,” any disparate racial impact of facially neutral 
voting requirements did not result from racial 
discrimination, Senate Report at 27; see also Chisom v. 
Roemer, 501 U.S. at 394 & n. 21, 111 S.Ct. 2354.



5

Permitting a citizen, even a convicted felon, to 
challenge felon disenfranchisement laws that result in either 
the denial of the right to vote or vote dilution on account of 
race animates the right that every citizen has of protection 
against racially discriminatory voting practices. Although 
states may deprive felons of the right to vote without 
violating the Fourteenth Amendment, Richardson v. 
Ramirez, 418 U.S. 24, 54-55, 94 S.Ct. 2655, 41 L.Ed.2d 
551 (1974), when felon disenfranchisement results in denial 
o f the right to vote or vote dilution on account o f race or 
color. Section 2 affords disenfranchised felons the means to 
seek redress.

338 F.3d at 1016, App. 13a-14a (footnote omitted).

The panel did not discuss the “plain statement” rule because 
Petitioners did not rely upon it in their brief to the court of 
appeals. The brief discussed the legislative history of the VRA, 
which Petitioners said “clearly demonstrates that [the statute] 
was never intended to extend the voting rights of convicted 
felons.” Brief for Appellees, Farrakhan v. Washington, 338 
F.3d 1009 (9th Cir. 2003) (No. 01-35032), at 13. Petitioners 
added in a footnote that “[t]he same conclusion would follow 
from the application of the ‘plain statement rule.’ Federal 
courts apply the ‘plain statement rule’ as a rule of statutory 
construction to limit the involvement of the federal courts in 
traditional state matters absent clear Congressional intent to the
contrary___” Id. at 13 n.3. Petitioners did not discuss, in the
balance of that short footnote, the circumstances in which this 
Court has applied the “plain statement rule,” i.e., when a statute 
is ambiguous and unclear, see infra § IV.A., much less ask the 
court of appeals to affirm the district court’s judgment in their 
favor on these alternate grounds.

The court of appeals rejected Petitioners’ subsequent 
petition for rehearing and rehearing en banc. Dissenting from 
that action, Judge Kozinski wrote that “the district court’s



6

decision granting summary judgment was correct, even if  for 
the wrong reasons,” Farrakhan v. Washington, 359 F.3d 1116, 
1119 (9th Cir. 2004), App. 37a. He argued that the 
interpretation of the VRA supported by the majority conflicted 
with recent decisions of this Court and the United States 
Constitution. 359 F.3d at 1124, App. 46a-47a.

REASONS FOR DENYING THE WRIT 

Introduction

The conflict between the decision below and a single 
contrary appellate ruling with precedential weight does not 
warrant this Court’s exercise of its discretionary certiorari 
jurisdiction. Given the benefits of further litigation in the lower 
courts and the absence of need for immediate review 
(especially where the decision below correctly applies a 
provision of federal law), this Court should deny the petition 
and permit the case to be litigated to final judgment, at which 
time both the necessity, if  any, of deciding the federal question 
and the full factual context for doing so will be clear. Because 
the “plain statement” issue on which Petitioners centrally rely 
before this Court, see Pet. at 17-20, was neither raised nor 
discussed below, Petitioners’ claim of conflict among the 
circuits is overstated.

Moreover, whatever conflict may exist is, at best, one of 
theory because the decisions that have addressed the question 
of the VRA’s application to felon disfranchisement laws have 
not yet had any practical effect upon state law since they have 
not yet resulted in final judgments. Thus, Petitioners now seek 
interlocutory review of a federal question that might be 
unnecessary if the case were permitted to proceed to final 
judgment. Finally, the Ninth Circuit correctly decided that the 
VRA applies to felon disenfranchisement laws — a decision



7

supported by the text, legislative history, and even the “plain 
statement” analysis of the Voting Rights Act.

I

Certiorari Should Be Denied Because Petitioners
Failed To Raise Their Plain Statement Argument At
The Appellate Level.

This Court has ruled that it “will not decide questions not 
raised or litigated in the lower courts.” City o f  Springfield v. 
Kibbe, 480 U.S 257, 259 (1987) (citing California v. Taylor, 
353 U.S. 553, 556 n.2 (1957)); see also Adickes v. S.H. Kress 
& Co., 398 U.S. 144,147 n.2 (1970) (“Where issues are neither 
raised before nor considered by the Court of Appeals, this 
Court will not ordinarily consider them.”); Lawn v. United 
States, 355 U.S. 339, 362-63 n.16 (1958) (noting that “[o]nly 
in exceptional cases will this Court review a question not raised 
in the court below”).

Petitioners did not raise the “plain statement” argument 
before the Ninth Circuit,2 3 either on direct appeal, see supra p. 
5, or in their request for rehearing and rehearing en banc?

2 Petitioners raised the “plain statement” argument before the 
district court, which held that the plain statement rule does not apply 
to the VRA. Farrakhan v. Locke, 987 F. Supp. at 1308-09, App. 
73a-74a.

3The issues Petitioners raised for en banc review were stated as 
follows:

(1) “The panel decision conflicts with Salt River by allowing 
this Voting Rights Act challenge to proceed on a record 
demonstrating nothing more that statistical disparity^]” and



Consequently, as stated in the Petition, “the Ninth Circuit did 
not discuss the application of the plain statement rule to the 
Voting Rights Act.” Pet. at 9. Petitioners failed to inform this 
Court, however, that they had not urged the court below to 
uphold the grant of summary judgment in their favor on the 
basis of the plain statement rule.

Where, as here, an issue has not been decided by the court 
of appeals, certiorari review of that issue is routinely denied. 
See, e.g., Pa. D ep’t o f  Corrs. v. Yes key, 524 U.S. 206, 212 
(1998) (declining to address whether application o f the ADA to 
state prisons is a constitutional exercise of Congress’ power 
under the Commerce Clause or § 5 of the Fourteenth 
Amendment because the issue was not addressed by the lower 
courts); Adickes, 398 U.S. at 147 n.2 (1970) (declining to hear 
petitioner’s challenge to the Civil Rights Cases because an 
“examination of the record showfed] that petitioner never 
raised any issue concerning the 1875 statute before the Court of 
Appeals”); Hasty v. United States, 282 U.S. at 701-02 (“[W]e 
do not consider [the rulings on the evidence], since they were 
not assigned as error on the appeal to the Court of Appeals, and 
it does not appear that they were presented or passed upon 
there.”). The absence of any mention of the plain statement 
rule in the issues on appeal and Petitioners’ failure to avail 
themselves of every opportunity to raise this issue in the court 
of appeals as a basis for affirmance militate strongly in favor of 
denying certiorari.4

(2) “The panel decision similarly conflicts with the decision of 
the Sixth Circuit in Wesley v. Collins, which concluded that 
statistical disparity in felon disfranchisement does not establish a 
violation of the Voting Rights Act.”

Petition for Rehearing and Petition for Rehearing En Banc, 
Farrakhan v. Washington, 338 F.3d 1009 (No. 01-35032), at 3.

4 This Court used similar reasoning in Adams v. Robertson, 520 
U.S. 83 (1997) in dismissing the case, holding that certiorari was



9

Petitioners Overstate The Extent Of Any Circuit 
Conflict; This Court Has Denied Certiorari Where 
The Alleged Conflict Was More Developed Than 
That Presented Here.

Only three courts of appeals have issued opinions of 
precedential effect concerning the VRA’s application to felon 
disfranchisement laws.5 See Farrakhan v. Washington, 338 
F.3d 1009 (9th Cir. 2003), App. la; Muntaqim v. Coomhe, 366 
F.3d 102 (2d Cir. 2004); Wesley v. Collins, 791 F.2d 1255 (6th 
Cir. 1986). Only two of those opinions squarely confront the 
question whether the Voting Rights Act applies to felon 
disfranchisement: Muntaqim, 366 F.3d at 115 (holding that the 
VRA does not apply to felon disfranchisement); Farrakhan, 
338 F.3d at 1016, App. 13a-14a (holding the reverse). As the 
Second Circuit observed in Muntaqim, the Sixth and Eleventh 
Circuits have assumed without expressly deciding that the 
Voting Rights Act applies to felon disfranchisement. 
Muntaqim, 366 F.3d at 112 & n.12 {citing Wesley, 791 F.2d at

II

improvidently granted since the federal constitutional argument was 
never presented to the state supreme court. Id. at 85. (The Court 
explicitly noted that it would reach this result whether it considered 
the requirement that the argument be fairly presented to the state 
court to be jurisdictional or to be prudential in nature. Id. at 90.) 
Although the petitioners in Adams devoted two pages of their brief 
in the state court to the discussion of a case relevant to the 
constitutional argument, this Court found the discussion “unrelated” 
and “insufficient” to meet the requirement. Id. at 88.

5 “Because the ten members of the Court who decided Baker 
split evenly on its disposition, the opinions in that case have no 
precedential effect, and the decision of the District Court was left 
undisturbed.” Muntaqim v. Coombe, 366 F.3d 102, 107-08 (2d Cir. 
2004) (discussing Baker v. Pataki, 85 F.3d 919, 921 n.2 (2d Cir. 
1996)).



10

1259-61; Johnson v. Bush, 353 F.3d 1287, 1303-04 (11th Cir. 
2003)). The Eleventh Circuit panel opinion has since been 
vacated by the grant of rehearing en banc, Johnson v. Bush, 
2004 WL 1609101 (11th Cir. July 20, 2004) (No. 02-14469).

Further, of the two courts of appeals that have squarely 
decided whether the VRA applies to felon disfranchisement 
laws, only the Second Circuit in Muntaqim has applied the 
“plain statement” rule, 366 F.3d at 104 (applying “plain 
statement” rule on the grounds that construing the Voting 
Rights Act to cover felon disfranchisement would alter the 
balance of power between the federal and state governments), 
making it the only court of appeals to adopt this approach. The 
Ninth Circuit below, in deciding this question, referred to the 
plain language of the VRA, holding that “[f]elon 
disfranchisement is a voting qualification, and Section 2 is 
clear that any voting qualification that denies citizens the right 
to vote in a discriminatory manner violates the VRA.” 
Farrakhan, 338 F.3d at 1016, App. 13a (citation omitted) 
(emphasis in original). Thus, while the Second Circuit and the 
court below ultimately reached different results, their rationales 
are not directly in conflict to an extent that warrants this 
Court’s intervention in this developing area of the law.

This Court has denied petitions for writs of certiorari in 
similar situations, even where the conflict among the courts 
was more fully developed. Recently, for example, in McNeil v. 
Legislative Apportionment Comm’n ofN .J., 124 S. Ct. 1068 
(2004), this Court denied certiorari despite the existence of a 
split between the Sixth, Seventh, Ninth, and Eleventh Circuits, 
and a panel of the Fifth Circuit, all of which had held that 
influence-dilution claims were not cognizable under the Voting 
Rights Act, and the First Circuit and a different panel of the 
Fifth Circuit, which held that such claims were viable. See 
Petition for a Writ of Certiorari, McNeil v. Legislative 
Apportionment Comm ’n ofN.J. (No. 03-652), at 9-10.



11

Denying certiorari in this context allows this Court to delay 
its review of an important matter of statutory interpretation 
until the issue matures through study and is further developed 
by lower courts. E.g., Durden v. California, 531 U.S. 1184 
(2001) (Souter, J., dissenting from denial of certiorari) 
(“[R]ulings by other courts . . .  would be valuable to us in any 
examination of the issue we might ultimately give it.”); Lackey 
v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial 
of certiorari) (observing that denial of certiorari gives state and 
federal courts the opportunity to study the issue further); see 
also McCray v. New York, 461 U.S. 961, 963 (1983) (Opinion 
of Stevens, J., joined by Blackmun & Powell, JJ., respecting 
the denial of certiorari) (“In my judgment it is a sound exercise 
of discretion for the Court to allow the various States to serve 
as laboratories in which the issue receives further study before 
it is addressed by this Court.”); cf. Bunting v. Mellen, 124 S. Ct. 
1750,1752 (2004) (opinion of Stevens, Ginsburg & Breyer, JJ.) 
(suggesting that certiorari was properly denied where apparent 
conflict could be explained by factual differences between the 
case at bar and facts in “conflicting” cases).

For these reasons, the instant case is not “certworthy” and 
Petitioners’ request for review should be denied.

I ll

The Judgment Below Is Interlocutory And Review
At This Stage Would Be Premature.

The Ninth Circuit Court of Appeals “remand[ed] this claim 
. . .  for further proceedings [and] any requisite factual findings 
following an appropriate evidentiary hearing.” Farrakhan v. 
Washington, 338 F.3d at 1020, App. 23a. The interlocutory 
nature of the court of appeals’ ruling weighs against present 
review by this court. Bhd. o f  Locomotive Firemen & 
Enginemen v. Bangor & Aroostook R.R. Co., 389 U.S. 327,328



12

(1967) (per curiam) (“[B]ecause the Court of Appeals 
remanded the case, it is not yet ripe for review by this Court.”); 
see also VMI v. United States, 508 U.S. 946 (1993) (Scalia, I., 
concurring) (“We generally await final judgment in the lower 
courts before exercising our certiorari jurisdiction.”).

As stated above, the Ninth Circuit never addressed the 
merits of the § 2 claim in this case; it merely held that the 
district court erred in excluding evidence of discrimination in 
Washington’s criminal process from consideration in the 
“totality of the circumstances” inquiry on summary judgment: 
“We recognize [that Plaintiffs’ § 2 claim] is a difficult issue 
and that it requires a searching inquiry into all factors that bear 
on Plaintiffs’ claim. We, however, express no opinion on the 
merits of Plaintiffs’ claim and leave that determination to the 
district court in the first instance.” Farrakhan v. Washington, 
338 F.3d at 1020, App. 23a. Whether the VRA can apply at all 
to felon disfranchisement statutes should not be decided on a 
limited record that does not reflect the ultimate practical effect 
its application in Washington. Given the limited record before 
this Court, and the limited number of decisions on point, this 
Court should decline review of this issue in order to allow it to 
develop fully through further lower court consideration.

IV

The Court Below Decided Correctly That The VRA 
Applies To Felon Disfranchisement Laws And 
Further Review Is Unnecessary.

The Ninth Circuit’s holding that a felon disfranchisement 
challenge is cognizable under § 2 of the VRA is legally sound 
and comports with the rules of statutory construction articulated 
by this Court.



13

A. The Plain Meaning Of § 2 Is Unambiguous On Its 
Face.

Section 2 of the Voting Rights Act expressly prohibits any 
“voting qualification or prerequisite to voting” that is applied 
“in a manner which results in a denial or abridgement of the 
right . . .  to vote on account of race or color . . .  .” 42 U.S.C. 
§ 1973(a). As a matter of strict textual interpretation, it is 
indisputable that felon disfranchisement laws fall within the 
purview of § 2 as a voting “qualification” or “prerequisite.” Id. 
The ordinary meaning of the key terms in the provision — 
“voting qualification or prerequisite,” “any citizen” and “on 
account of race or color” —  supports this reading of the 
statute.6 None of these terms or phrases is elusive or confusing

6 For example, the dictionary definition of “qualification” is “a 
condition or standard that must be complied with (as for the 
attainment of a privilege).” See WEBSTER’S NINTH NEW 
Collegiate Dictionary 963 (1990). Felon disfranchisement laws, 
which condition voting on being free of a felony conviction, are a 
“qualification” to voting as that term is defined. Similarly, the 
dictionary definition of “prerequisite” is “something that is 
necessary to an end or to the carrying out of a function.” Id. at 929. 
The requirement that a person not be convicted of or under state 
custody for a felony in order to vote is clearly a “prerequisite” to 
voting. Moreover, as citizens of the United States, Respondents 
clearly have standing under § 2, which prohibits the abridgement of 
“the right of any citizen . . .  to vote on account of race or color,” 42 
U.S.C. § 1973(a) (emphasis added). Indeed, persons with felony 
convictions fall under the definition “any citizen” within the 
meaning of the statute as they never cease to be citizens during any 
stages of state custody, including incarceration. Finally, felon 
disfranchisement laws, like any other voting qualification or 
prerequisite, might result in the denial of the right to vote “on 
account,” for the sake, by reason, or because of race or color. See 
Webster’s Third New International Dictionary 13 (2002) 
(defining the term “on account o f’).



14

in their meaning; nor are they subject to multiple reasonable 
interpretations.

As is well articulated by this Court, in interpreting the 
scope of a statute, courts must first discern the statute’s plain 
meaning. See, e.g., Conn. N a t’l Bank v. Germain, 503 U.S. 
249, 253-54 (1992); Demarest v. Manspeaker, 498 U.S. 184, 
187 (1991). If the statute’s meaning is unambiguous, as is the 
language o f § 2, the court should apply the law according to its 
terms. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 
241 (1989) (holding that where “the statute's language is plain, 
‘the sole function of the courts is to enforce it according to its 
terms.’”) (quoting Caminetti v. United States, 242 U.S. 470, 
485 (1917)). Indeed, federal courts routinely interpret § 2 on 
the basis of its plain meaning. See, e.g., Campos v. City o f  
Houston, 113 F.3d 544, 548 (5th Cir. 1997) (relying on the 
“plain language of Section 2 of the Voting Rights Act” to 
demonstrate that the provision applies only to citizens); Nixon 
v. Kent County, 76 F.3d 1381,1386-87 (6th Cir. 1996) (finding 
that “[njothing in the clear, unambiguous language of § 2 
allows or even recognizes the application of the Voting Rights 
Act to coalitions . . . .”); Johnson v. DeSoto County Bd. o f  
Comm’rs, 72 F.3d 1556, 1563 (11th Cir. 1996) (holding that 
the “plain language of § 2 . . . requires a showing of 
discriminatory results” even where there is discriminatory 
intent); New Rochelle Voter Def. Fund v. City o f  New Rochelle, 
308 F. Supp. 2d 152, 158 (S.D.N.Y. 2003) (“Our discussion 
begins, as it must, with the consideration of the plain meaning 
of [Section 2 of the VRA].”); Holley v. City o f  Roanoke, 162 F. 
Supp. 2d 1335, 1340 (M.D. Ala. 2001) (“A plain reading of 
[Section 2 of the VRA] clearly demonstrates its applicability 
only to those systems in which officials are chosen through an 
election.”); France v. Pataki, 71 F. Supp. 2d 317, 326 
(S.D.N.Y. 1999) (“The plain language of the Voting Rights Act 
makes it clear that it is only concerned with the voting practices



15

of citizens.”); Williams v. State Bd. o f Elections, 696 F. Supp. 
1563, 1568-69 (N.D. 111. 1988) (holding that “[b]y its very 
terms, the [Voting Rights] Act extends only to mechanisms 
involved in the election of representatives” and not the 
appointment of judges).

The legislative history of an unambiguous statute is not 
considered by the court for purposes of interpreting the 
meaning of the statute. SeeRatzlafv. United States, 510 U.S. 
135,147-48(1994) (courts will “not resort to legislative history 
to cloud a statutory text that is clear.”); Schick v. Schmutz (In re 
Venture Mortgage Fund, L.P.), 282 F.3d 185, 188 (2d Cir. 
2002) (‘“Legislative history and other tools of interpretation 
may be relied upon only if  the terms of the statute are 
ambiguous.’”) (quoting Lee v. Bankers Trust Co., 166 F.3d 
540, 544 (2d Cir. 1999)).

Moreover, even if a statute is subject to a construction that 
alters the balance between federal and state powers, only where 
the statute is ambiguous must courts find a plain statement 
from Congress that this result was specifically intended before 
adopting that construction. See, e.g., Salinas v. United States, 
522 U.S. 52,60(1997); Gregory v. Ashcroft, 501 U.S. 452,470 
(1991); see also Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 
197, 206 (1991) (the plain statement rule applies only to 
ambiguous statutes).

Petitioners ignore entirely the plain meaning of § 2, which 
on its face clearly encompasses any voting disqualification, 
including one based on a felony conviction. Instead, the State 
asks this Court to disregard well-settled canons of statutory 
interpretation, which require an analysis of § 2 ’ s plain meaning, 
and to apply the plain statement rule, which the court below 
appropriately did not reach. The State relies on general 
principles o f federalism and the legislative history of the VRA 
as a whole — avoiding the specific text and legislative history 
of §2 — to argue that the plain statement rule applies. Id.



16

This blatant misapplication of the clear tenets o f statutory 
construction should not be countenanced by this Court. Indeed, 
not only has this Court never elected to apply the plain 
statement rule to the VRA, it affirmatively declined to apply it 
to Section 2, prior to the 1982 amendments to the statute. See 
City o f  Rome v. United States, 446 U.S. 156, 178-80 (1980); 
see also Chisom v. Roemer, 501 U.S. 380, 412 (1991) (Scalia, 
J., dissenting) (“[W]e tacitly rejected a ‘plain statement’ rule as 
applied to the unamended § 2 in City o f  Rome v. United States
---- ”) . And, as Petitioners concede, “Congress did not change
the scope of the coverage of the VRA in 1982. Chisom v. 
Roemer, 501 U.S. 380, 384 (1980 [sic: 1991]).” Pet. at 20.

B. Even Assuming The Plain Statement Rule Applies, 
The Ninth Circuit Was Correct In Holding That § 2 
Covers Washington’s Felon Disfranchisement Laws.

Following its own well-settled precedent of applying the 
plain meaning of statutes where it is evident, this Court cannot 
reach the plain statement rule in this case. However, assuming 
that the plain statement rule applies,7 the Ninth Circuit was 
correct in applying § 2 to Washington’s felon disfranchisement 
statutes.

1. Covering Felon Disfranchisement Under 
§ 2 Does Not Alter Impermissibly The 
Balance Between Federal And State 
Powers.

As noted above, if  a statute is ambiguous and the proffered 
statutory interpretation alters the balance of federal and state 
powers, the Court must find a plain statement from Congress

7 Should this Court determine that the plain statement rule 
applies, it should permit the court below to conduct the analysis in 
the first instance.



17

that it intended this result. Assuming, arguendo, that § 2 is 
ambiguous, reading § 2 to cover felon disfranchisement statutes 
does not impermissibly alter the balance between state and 
federal powers and, indeed, requires no further shift in the 
balance of state and federal powers than that already sanctioned 
by Congress and this Court.

Congress and this Court have made clear that the VRA was 
enacted specifically for the purpose of enforcing and extending 
the protections of the Reconstruction Amendments. See, e.g., 
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 482 (1997). 
Furthermore, it is well settled that these Reconstruction 
Amendments permissibly shift the balance o f federal and state 
powers to remedy racial discrimination. By extension, the 
Voting Rights Act enjoys the same latitude shared by these 
amendments.

In Chisom v. Roemer, which was handed down the same 
day that the Court applied the plain statement rule in 
determining the application of the Age Discrimination and 
Employment Act to mandatory retirement laws enacted under 
the Commerce Clause,8 this Court did not apply the plain 
statement rule. The omission of the plain statement rule from 
the Court’s analysis in Chisom, a § 2 case, implies that the 
plain statement rule does not apply to legislation enforcing the 
Civil War Amendments despite their interference with state 
powers. Indeed, in his dissent in Chisom, Justice Scalia 
acknowledged that the plain statement rule should not apply in 
Section 2 cases. Chisom, 501 U.S. at 412 (“I am content to 
dispense with the ‘plain statement’ rule in the present 
cases . . . .”) (citation omitted).

Gregory v. Ashcroft, 501 U.S. at 470.



18

2. The Legislative History Of §§ 2 And 4 
Demonstrates Congress’ Clear Intent Not 
To Exclude Felon Disfranchisement 
From The Reach Of § 2.

There is simply no evidence to suggest that Congress 
intended to exclude felon disfranchisement from § 2’s reach. 
Nothing in the text or legislative history of § 2 provides an 
exception for felon disfranchisement (or any other voting 
practices that may result in discrimination on account of race). 
See Chisom, 501 U.S. at 392 (“Section 2 protects] the right to 
vote, and it d[oes] so without making any distinctions . . . .”). 
For the same reason that § 2’s plain meaning precludes 
application o f the plain statement rule, see supra pp. 13-16, 
Respondents submit that the text of the statute itself is evidence 
of Congress’ intent that § 2 extend to all voting practices, 
including voting qualifications based on a felony conviction. 
Indeed, Congress intended § 2 to have nationwide coverage and 
to be construed broadly to include all qualifications, 
prerequisites, standards, practices or procedures that had the 
purpose or the effect of discriminating on account of race. See, 
e.g., Allen v. State Bd. o f  Elections, 393 U.S. 544, 565-66 
(1969) ( “The [Voting Rights] Act gives a broad interpretation 
to the right to vote . . . .”).

Moreover, rules of statutory construction do not require 
Congress to provide a “laundry list” o f statutory application. 
Moskal v. United States, 498 U.S. 103, 111 (1990) (applying 
plain meaning of statute, rejecting the contention that “every 
permissible application of a statute [must] be expressly referred 
to in its legislative history”); see also Pa. Dept, o f Corrs. v. 
Yeskey, 524 U.S. at 212 (1998) (“[T]he fact that a statute can be 
‘applied in situations not expressly anticipated by Congress 
does not demonstrate ambiguity. It demonstrates breadth.’”) 
(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 
(1985)); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119



19

(2001); see also Chisom, 501 U.S. at 396 (breadth of statutory 
language [“elect representatives of their choice”], absence of 
statutory language expressly excluding judges from coverage of 
section, and lack of any statements in legislative history 
regarding exclusion of judicial elections, together foreclose any 
interpretation of statute as not applying to judicial elections) 
(emphasis added).

To the extent that Congress expressly refers to felon 
disfranchisement in the text and legislative history of the VRA 
at all, the statutory language and legislative history demonstrate 
that when Congress intends to exclude felon disfranchisement 
from the coverage of the Act, it does so plainly. Specifically, 
§ 4 of the Voting Rights Act,9 in which Congress explicitly 
excluded felon disenfranchisement laws from the definition of 
“tests or devices,” cannot be read also to exclude felon 
disfranchisement from the reach of § 2. The exclusion of felon 
disenfranchisement under § 4 does not authorize states to use 
felon disfranchisement as a mechanism to discriminate in 
voting. Such a result would be antithetical to the purposes of 
the Voting Rights Act that have been identified both in its 
legislative history and by this Court. Rather, the exception 
under § 4 allows states to adopt and implement felon 
disfranchisement laws only so long as these laws are not 
applied in a manner that is intentionally discriminatory or that 
results in discrimination, in which case the laws would fall 
within the purview of §2.

There is no canon of statutory construction that would 
support exporting the legislative intent behind one statutory 
provision to another. See, e.g., In t’l Bhd. o f  Teamsters v.

9 Section 4(a) and 4(b) of the VRA, 42 U.S.C. §§ 1973b(a), (b), 
establish criteria to identify jurisdictions within which literacy tests 
and other devices that had been used as prerequisites to voting may 
be suspended, and that also are subject to the preclearance 
requirements of § 5 of the Act, 42 U.S.C. § 1973c.



20

United States, 431 U.S. 324, 354n.39 (1977) (holding that the 
legislative history of a statutory provision not at bar is “entitled 
to little if  any weight”); see also Russello v. United States, 464 
U.S. 16, 23 (1983) (“We refrain from concluding here that the 
differing language in the two subsections has the same meaning 
in each. We would not presume to ascribe this difference to a 
simple mistake in draftsmanship.”). Sections 2 and 4 are each 
substantively unique and neither their texts nor their legislative 
histories are interchangeable.10

C. Application Of § 2 Of The Voting Rights Act To 
Washington State's Felon Disfranchisement Scheme 
Is Entirely Consistent With This Court's Ruling In 
Richardson v. Ramirez.

Respondents’ VRA challenge to Washington’s felon 
disfranchisement scheme is neither precluded by, nor 
inconsistent with, this Court’s decision in Richardson v. 
Ramirez, 418 U.S. 24 (1974). Richardson did not hold that 
felon disfranchisement laws could not be challenged under 
other provisions of federal and state law that do not directly 
conflict with § 2 of the Fourteenth Amendment o f the United 
States Constitution. Instead, this Court left open the possibility 
for alternative challenges to felon disfranchisement, especially 
where there is evidence of discrimination. See generally 
Hunter v. Underwood, 471 U.S. 222 (1985).

10As noted supra note 9, § 4 establishes criteria for identifying 
jurisdictions subject to the preclearance requirement of § 5. Those 
criteria have nothing to do with § 2. This Court has “consistently 
understood these sections [§§ 2 and 5] to combat different evils and, 
accordingly, to impose very different duties upon the States, see 
Holder v. Hall, 512 U.S. 874, 883 (1994) (plurality opinion) (noting 
how the two sections ‘differ in structure, purpose, and 
application’) . ” Reno v. Bossier Parish Sch. Bd., 520 U.S. at
477.



21

In Richardson, this Court examined the particular question 
of whether the Equal Protection Clause of § 1 of the Fourteenth 
Amendment prohibited California’s felon disfranchisement 
scheme in light of § 2 of the same Amendment, which appeared 
to sanction such laws. Richardson, 418 U.S. at 27. This Court 
held that § 2 of the Fourteenth Amendment permits states to 
exclude convicted felons from the franchise, notwithstanding 
§ l ’s requirement that “[n]o state shall. . .  deny to any person 
within its jurisdiction the equal protection of the laws.” U.S. 
Const, amend. XIV, § 1. See Richardson, 418 U.S. at 54. 
However, in Hunter, nearly a decade after deciding Richardson, 
this Court found that Alabama enacted its felon 
disfranchisement provision with discriminatory intent and, 
therefore, in violation of the Equal Protection Clause. The 
Court held that § 2’s authorization of state disfranchisement 
laws did not permit purposeful discrimination. Hunter, 471 
U.S. at 233. Thus, Richardson is not the last word on 
constitutional challenges to felon disfranchisement provisions.

Moreover, Richardson did not address the issue raised in 
this case: whether the Voting Rights Act can be used to 
challenge a state’s felon disfranchisement laws that result in the 
denial o f the right to vote on account of race or color. 
Accordingly, Richardson does not and, as a matter of stare 
decisis, cannot close the door on Respondents’ challenge to 
Washington’s felon disfranchisement laws.

Indeed, the VRA challenge to felon disfranchisement laws 
is substantively different than the challenge brought in 
Richardson because it seeks to address racially discriminatory 
criminal disfranchisement. Although in Richardson this Court 
held that states may deprive felons of the right to vote without 
necessarily violating the Fourteenth Amendment, Richardson, 
418 U.S. at 54-55, “when felon disenfranchisement results in 
denial o f the right to vote or vote dilution on account o f race or 
color, Section 2 affords disenfranchised felons the means to



22

seek redress.” Farrakhan v. Washington, 338 F.3d at 1016, 
App. 14a; see also Wesley v. Collins, 791 F.2d at 1259-61 
(assuming without deciding that § 2 applied to Tennessee’s 
felon disfranchisement statute before holding that the statute 
did not violate the VRA).

This is precisely what Respondents here seek to 
demonstrate— that Washington State ’ s felon disfranchisement 
scheme constitutes an improper race-based vote denial in 
violation of § 2. This claim is simply not inconsistent with nor 
foreclosed by Richardson.



23

Conclusion

For the foregoing reasons, the petition for a writ of 
certiorari should be denied.

Respectfully submitted,

* Lawrence A. Weiser 
University Legal

Assistance 
Gonzaga University 
School of Law 
P.O. Box 3528 
721 North Cincinnati Street 
Spokane, WA 99220-3528 
(509) 323-5791

Dennis C. Cronin 
Law Office of D.C. 

Cronin
1708 West Mission Avenue 
Spokane, WA 99201 
(509) 328-5600

* Counsel o f Record

Theodore M. Shaw 
Director-Counsel

Norman J. Chachkin 
Janai S. Nelson 
Ryan P. Haygood 
NAACP Legal Defense 

And Educational Fund, 
Inc.

99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(212) 965-2200

Jason T. Vail 
401 Second Avenue South, 

Suite 407
Seattle, WA 98104 
(206) 464-1519

Attorneys fo r  Respondents