Correspondence from Himmelstein to Clerk Re Filing Appendix

    1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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.

)
)
)
)
)
)
)
)
)
)

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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.

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 3



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



]

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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
[TIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 9



10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



]

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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.
AINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 14



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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


8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

-AINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 16



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 17



]

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

-AINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 18



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 19



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

’LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 20



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 21



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

LArNTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 22



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 23

http://www.aclu-wa.org/librarv_files/Voting%20Rights%20Stats.ndf
http://www.aclu-wa.org/librarv_files/Voting%20Rights%20Stats.ndf


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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
’LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 24



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

’LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 25



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 26



]

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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:
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 27



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.
’LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 28



I

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.
LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 29



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

-AINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 30



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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,

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 31



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 32



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

Z.AINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 33



10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

-AINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 34



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 35



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 36



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 37



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

flFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 38



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 39



1

2

3

4

5

6

7

8

9

10

1 I

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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

LAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 40



10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:96-cv-00076-RHW Document 234 Filed 01/27/2006

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.

-AINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES -  Page 41