Farrakhan v. Gregoire Reply Brief of Plaintiffs-Appellants

    No. 06-35669

Umtrb States Court ot SUppealb 
for tfje Mint)) Circuit

MUHAMMAD SHABAZZ FARRAKHAN, A/K/A ERNEST S, WALKER-BEY; 
AL-KAREEM SHADEED; MARCUS PRICE; RAMON BARRIENTES; 

TIMOTHY SCHAAF; AND CLIFTON BRICENO,

— v.
Plaintiffs-Appellants,

CHRISTINE O. GREGOIRE, GOVERNOR OF THE STATE OF 
WASHINGTON; SAM REED, SECRETARY OF STATE FOR THE STATE OF 

WASHINGTON; HAROLD W. CLARKE, DIRECTOR OF THE 
WASHINGTON DEPARTMENT OF CORRECTIONS;

AND THE STATE OF WASHINGTON,

Defendants-Appellees.

APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF WASHINGTON, NO. CV-96-076-RHW 

THE HONORABLE ROBERT H. WHALEY, JUDGE PRESIDING

REPLY BRIEF OF PLAINTIFFS-APPELLANTS

Lawrence A. W eiser, Esq .
Ian W hitney , Law  Clerk 
University Legal Assistance 

at Gonzaga Law  School 
721 North Cincinnati Street 
Spokane, WA 99220-3528 
509.323.5791

Danielle C. Gray , Esq .
Four Times Square 
New York, NY 10036 
212.735.3925

Theodore Shaw , Esq .
D irector-Counsel 

N orman J. Chachkin , Esq. 
Debo P. Adegbile, E sq. 
Ryan  P. Haygood , Esq . 
NAACP Legal Defense 

& Educational Fund , In c . 
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
212.965.2235

Counsel for Plaintiffs-Appellants



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..................................................................................... ii

INTRODUCTION AND PRELIMINARY STATEMENT................................   1

ARGUMENT.............................................................................................................. 3

I. A Three-Judge Panel Has No Authority To Reexamine
Farrakhan I ......................................................   3

II. Plaintiffs Have Standing to Claim Race-Based Vote Denial
Under Section 2 of the Voting Rights Act............................................ 7

III. The District Court’s Totality of the Circumstances Analysis
Cannot Stand........................................................................................10

CONCLUSION........................................................................................................ 19

CERTIFICATION OF COMPLIANCE TO FED. R. APP. P. 32(a)(7)(C)
AND CIRCUIT RULE 32-1 FOR CASE NUMBER 06-35669 .................. 21

i



TABLE OF AUTHORITIES

CASES

Page

Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977)......................................................................................17, 18

Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996)..............................................................6

Batson v. Kentucky, 476 U.S. 79 (1986)..................................................................18

Celotex Corp. v. Catrett, A l l  U.S. 317 (1986)..................................... ................. 14

Farrakhan v. Gregoire, No. CV-96-076-RHW,
2006 WL 1889273 (E.D. Wash. July 7, 2006).........................................2, 12, 13

Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003)..............................passim

Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004)................................. 6, 16

General Construction Co. v. Castro, 401 F.3d 963 (9th Cir. 2005).........................4

Gomez v. City o f Watsonville, 863 F.2d 1407 (9th Cir. 1988)................................ 11

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)...............................................3, 4

Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006).................................................. ..4, 6

International Chemical Workers Union Council o f the United Food &
Commercial Workers International v. National Labor Relations Board,
467 F.3d 742 (9th Cir. 2006)................................................................................ 6

Irons v. Carey,__F.3d__ , 2007 WL 656345 (9th Cir. Mar. 6, 2007).....................3

Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997)....................................................... 5

Johnson v. Governor o f State o f Florida,
405 F.3d 1214 (11th Cir. 2005)........................................................................4, 6

ii



Kimball v. Callahan, 590 F.2d 768 (9th Cir. 1979).................................................. 4

League o f United Latin American Citizens v. North East Indep. Sch. Dist.,
126 S.Ct. 2594 (2006).........................................................................................18

Lujan v. Defenders o f Wildlife, 504 U.S. 555 (1992)................................................ 8

McCleskey v. Kemp, 481 U.S. 279 (1987).................................................................9

Mendenhall v. National Transport Safety Board,
213 F.3d 464 (9th Cir. 2000)................................................................................ 5

Miller v. Gammie, 335 F.3d 889 (9th Cir. 1993)...................................................... 3

Moore v. Jas. H. Matthews & Co., 682 F.2d 830 (9th Cir. 1982)............................ 4

Ruiz v. City ofSaiita Maria, 160 F.3d 543 (9th Cir. 1998).....................................14

Santamaria v. Horsley, 110 F.3d 1352 (9th Cir. 1997).............................................3

Smith v. Salt River Project Agr. Importation & Power District,
109 F.3d 586 (9th Cir. 1997)....................................................................2, 14, 15

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency,
216 F.3d 764 (9th Cir. 2000)................................................................................ 5

Thornburg v. Gingles, 478 U.S. 30 (1986)..............................................................11

United States v. Gay, 967 F.2d 322 (9th Cir. 1992)..................................................3

United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990)......................................... 3

United States v. Washington, 872 F.2d 874 (9th Cir. 1989)................................. 1, 4

Washington v. Davis, 426 U.S. 229 (1976).............................................................16

iii



INTRODUCTION AND PRELIMINARY STATEMENT

Defendants’ brief is not a response to this appeal; it is a petition for

rehearing of this Court’s 2003 decision in this case. Notwithstanding that a 

unanimous panel of this Court concluded, in this very litigation, that a challenge to 

Washington’s felon disfranchisement scheme is cognizable under Section 2 of the 

Voting Rights Act and that Plaintiffs accordingly have standing to pursue their 

vote denial claim — a ruling that a majority of the active judges in this Circuit 

declined to reconsider, and which the United States Supreme Court decided not to 

rev}ew — Defendants nonetheless devote nearly two-thirds of their brief to arguing 

that Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003) (Farrakhan I), was 

wrongly decided and that this panel should “reexamine” that ruling. Of course, as 

Defendants undoubtedly are aware, three-judge panels “are bound by decisions of 

prior panels, unless an en banc decision, Supreme Court decision, or subsequent 

legislation undermines those decisions.” United States v. Washington, 872 F.2d 

874, 880 (9th Cir. 1989). Because not one of those limited circumstances is 

applicable here, Defendants’ invitation for this panel to overturn the settled law of 

this Circuit is wholly without merit.

The portion of Defendants’ brief that is arguably responsive to the issues 

presented in this appeal fares no better. Rather than offering any explanation as to 

why the factors considered by the District Court are relevant to a claim of vote



denial or how such factors can overcome a finding of “compelling evidence of 

racial discrimination . . .  in Washington’s criminal justice system” that “clearly 

hinder[s] the ability of racial minorities to participate effectively in the political 

process,” Farrakhan v. Gregoire, No. CV-96-076-RHW, 2006 WL 1889273, at *6 

(E.D. Wash. July 7, 2006), Defendants argue that affirmance is appropriate 

because the District Court’s conclusion that the fifth Senate Factor favored 

Plaintiffs was wrong. Defendants do not dispute that the District Court, ruling on a 

summary judgment motion, had before it a substantial body of undisputed expert 

evidence (as well as a report from Washington’s own Sentencing Guidelines 

Commission) detailing the stark, unwarranted racial disparities in Washington’s 

criminal justice system — disparities that Plaintiffs’ experts concluded were not 

“better explained by other factors independent of race” that might “adequately 

rebu[t] any inference of racial bias that the [disparate impact] statistics might 

suggest.” Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 

586, 591 (9th Cir. 1997). Defendants’ attempt on this appeal to offer a rebuttal to 

those expert conclusions — for the first time in this decade-long litigation — 

should not be countenanced.

2



ARGUMENT

I. A Three-Judge Panel Has No Authority to Reexamine Farrakhan I

The conclusion that this Court reached in Farrakhan I  — that, among other

things, the Voting Rights Act applies to felon disfranchisement laws and that 

Plaintiffs could proceed with their suit — is binding upon this panel. As this Court 

has ruled, “[ojnce a panel resolves an issue in a precedential opinion, the matter is 

deemed resolved, unless overruled by the court itself sitting en banc, or by the 

Supreme Court.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). 

Accordingly, “a later three-judge panel considering a case that is controlled by the 

rule announced in an earlier panel’s opinion has no choice but to apply the earlier- 

adopted rule; it may not any more disregard the earlier panel’s opinion than it may 

disregard a ruling of the Supreme Court.” Id. (emphasis added). This well-settled 

rule, which is essential to the sound administration of justice, has been repeatedly 

reaffirmed in this Circuit. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.

2003) (en banc); Irons v. Carey,__F.3d__ , 2007 WL 656345, at *6 n.5 (9th Cir.

Mar. 6, 2007); Santamaria v. Horsley, 110 F.3d 1352, 1355 (9th Cir. 1997); United 

States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992); United States v. Mandel, 914 

F,2d 1215, 1221 (9th Cir. 1990).

There are only three intervening events that justify departing from this rule: 

(1) an intervening Supreme Court decision that is closely on point; (2) an

3



intervening decision by an en banc panel of this Circuit; and (3) intervening 

legislation. Hart, 266 F.3d at 1171 & n.28; Washington, 872 F.2d at 880. None of 

those exceptions are applicable here. Instead, Defendants, in an argument entirely 

without merit, invite this Court to “reexamine its [previous] conclusion” in light of 

the decisions from the Second Circuit in Hayden v. Pataki, 449 F.3d 305 (2d Cir. 

2006) and the Eleventh Circuit in Johnson v. Governor o f the State o f Florida, 405 

F.3d 1214 (11th Cir. 2005). (Defs.’ Br. 10.) The decisions of those courts, 

however, neither are binding on this panel nor reflect the type of intervening 

higher authority that would permit this panel to simply disregard, as Defendants 

suggest, Farrakhan I. See Gen. Constr. Co. v. Castro, 401 F.3d 963, 975-76 (9th 

Cir. 2005) (rejecting argument that prior panel decision should be reconsidered in 

light of its “inconsistency] with the law in other circuits”), cert, denied, 126 S. Ct. 

1023 (2006).

Defendants claim that their novel request is supported by exceptions to the 

law of the case doctrine, a doctrine that “ordinarily precludes a court from re­

examining an issue previously decided by the same court, or a higher appellate 

court, in the same case.” Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833 

(9th Cir. 1982); see Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir. 1979) 

(“[U]nder the ‘law of the case’ doctrine one panel of an appellate court will not as 

a general rule reconsider questions which another panel has decided on a prior

4



appeal in the same case.”). Relying on Tahoe-Sierra Preservation Council, Inc. v. 

Tahoe Regional Planning Agency, 216 F.3d 764, 787 (9th Cir. 2000), Defendants 

argue that this panel has discretion to reconsider Farrakhan I  because “subsequent 

intervening authority of sister circuits reveals that this Court’s conclusion was 

clearly erroneous and works a manifest injustice.” (Defs.’ Br. 11.) This argument, 

once again, is fundamentally misplaced.

First, Tahoe-Sierra does not hold that any “intervening authority,” much less 

out-of-circuit authority, provides grounds for departing from the law of the case. 

Indeed, it clearly states that the relevant authority must be “intervening controlling

1 Defendants, citing Mendenhall v. National Transportation Safety Board, 213 
F.3d 464, 469 (9th Cir. 2000), suggest that appellate panels have limitless 
discretion to revisit their prior decisions. (Defs.’ Br. 11.) As this Court, sitting 
en banc, explained, they do not:

Certainly, law of the case is a discretionary doctrine. “The doctrine 
‘merely expresses the practice of courts generally to refuse to reopen 
what has been decided, not a limit to their power.’” That discretion, 
however, is not unfettered. “While courts have some discretion not to 
apply the doctrine of law of the case, that discretion is limited.” The 
prior decision should be followed unless: “‘(1) the decision is clearly 
erroneous and its enforcement would work a manifest injustice, (2) 
intervening controlling authority makes reconsideration appropriate, 
or (3) substantially different evidence was adduced at a subsequent 
trial.’”

Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc) (internal citations 
omitted); see also Tahoe-Sierra, 216 F.3d at 787, aff’d on other grounds, 535 U.S. 
302 (2002) (noting that court may depart from the law of the case only in 
“appropriate circumstances”).

5



authority.” 216 F.3d at 787 (emphasis added); see Int’l Chem. Workers Union 

Council o f the United Food & Commercial Workers In t’l v. NLRB, 467 F.3d 742, 

748 n.3 (9th Cir. 2006) (noting that decisions from other Courts of Appeals are 

“out-of-circuit authority, which are not binding on us”).

Second, the unanimous panel decision in this case cannot be characterized as 

“clearly erroneous.” While Defendants may vigorously disagree with its 

conclusion, it is one that three judges of this Court reached after careful 

deliberation and which a majority of the active judges of this Circuit did not deem 

worthy of reconsidering three years ago. See Farrakhan v. Washington, 359 F.3d 

1116 (9th Cir. 2004). Moreover, the issue of whether the Voting Rights Act 

applies to felon disfranchisement has led to split decisions among every en banc 

panel to have considered the question. See Hayden v. Pataki, 449 F.3d 305 (2d Cir. 

2006) (en banc); Johnson v. Governor o f Fla., 405 F.3d 1214 (11th Cir. 2005) (en 

banc), cert, denied sub nom. Johnson v. Bush, 126 S. Ct. 650; Baker v. Pataki, 85 

F.3d 919 (2d Cir. 1996) (en banc) (equally divided). Defendants’ contention that 

this Court committed clear error in Farrakhan I  is absurd.

Finally, Defendants’ suggestion that this Court’s recognition of a cognizable 

claim under the Voting Rights Act in these circumstances “works a manifest 

injustice,” see Defs.’ Br. 11, is also plainly overwrought. Defendants, not 

surprisingly, do not cite a single case where a court departed from the law of the

6



case doctrine in such circumstances — i.e., where a court arguably erred in 

recognizing a cause of action or permitted a lawsuit to continue. No such case 

exists.

For these reasons, Defendants’ defense of the judgment below on the ground 

that the Voting Rights Act does not apply to felon disfranchisement, see Defs,’ Br. 

10-27, must fail.2

II. Plaintiffs Have Standing to Claim Race-Based Vote Denial Under 
Section 2 of the Voting Rights Act

Defendants argue that Plaintiffs lack standing to litigate this suit because 

“[n]o evidence was presented that showed racial bias in any aspect of the felony 

convictions that caused Plaintiffs here to be disenfranchised.” (Defs.’ Br. 27.) 

This argument is merely a variant of Defendants’ primary argument for affirmance 

of the District Court’s decision below: that people with felony convictions can 

never challenge felon disfranchisement laws under the Voting Rights Act. 

Defendants’ argument fails because it was conclusively resolved in Farrakhan I  

and because it is plainly incorrect.

2 This reply, accordingly, does not respond to the merits of Defendants’ argument, 
but rather incorporates by reference the briefs that Plaintiffs and their amici 
filed in this litigation in 2003. Because of the page limitations in this reply 
brief, Plaintiffs cannot fully respond to Defendants’ lengthy argument in this 
filing.

7



As Defendants recognize, the question of standing is jurisdictional. (Defs.’ 

Br. 28.) Because this Court must assure itself of jurisdiction in every case, the 

Farrakhan I  decision thus stands for the proposition that Article III poses no bar to 

Plaintiffs’ assertion of vote denial claims. Accordingly, for the same reason that

Farrakhan I  is binding as to the question of the applicability of the Voting Rights
1

Act, see supra Part I, it is similarly binding on the issue of Plaintiffs’ standing.

In any event, it is clear that the requirements for Article III standing are 

satisfied in this case. Vote denial constitutes an injury in fact; that injury is 

traceable to Washington State’s felon disfranchisement law; and invalidation of 

that law will redress that injury. The “irreducible constitutional minimum” of 

Article III requires no more, and Defendants’ suggestion to the contrary is 

erroneous. See Lujan v. Defenders o f Wildlife, 504 U.S. 555, 560 (1992). The 

essence of Defendants’ argument, then, is not that Article III is not satisfied (which 

is perhaps why Defendants cite Article III cases without explaining why they are 3

3 Defendants argued in Farrakhan I, as they do here, that Plaintiffs could not 
state a claim under the VRA because “[tjhey do not, and could not at this stage, 
claim that their own convictions are the product of race. None of Plaintiffs ever 
alleged in their individual cases that any of them were arrested, tried, convicted, 
or sentenced as a result of race or in a racially discriminatory manner.” Brief of 
Appellees, Farrakhan v. Locke, No. 01-35032, available at 2001 WL 34128004, 
at *16-17 (June 7, 2001). Accordingly, if the Farrakhan I  panel believed that 
only people with felony convictions alleging discrimination in their convictions

(cont'd)

8



implicated, see Defs.’ Br. 28). Rather, Defendants seek to require people with 

felony convictions to prove intentional discrimination in order to state a claim 

under the Voting Rights Act — an approach that was expressly rejected by this 

Court in Farrakhan I  and by decades of Supreme Court case law. Defendants, in 

support of their meritless position, cite to McCleskey v. Kemp, 481 U.S. 279 (1987), 

as the sole authority for their argument. The citation to McCleskey, however, 

serves only to expose the weakness of Defendants’ argument.

In McCleskey, the Supreme Court considered the defendant’s constitutional 

claim that Georgia’s death penalty statute violated the Equal Protection clause — a 

claim that was ultimately rejected by the Court because the defendant did not 

satisfy his “burden of proving ‘the existence of purposeful discrimination.’” Id. at 

292 (emphasis added). McCleskey did not, however, involve a claim under the 

Voting Rights Act, which does not require a showing of intentional discrimination. 

McCleskey is thus inapposite.

In this case, Plaintiffs have not alleged racial discrimination in their own 

convictions for the simple reason that their claim is not one of purposeful 

discrimination under the Constitution, but one of discriminatory impact under the 

Voting Rights Act. By definition, such a claim does not involve an allegation of

(cont'd from previous page)
could raise a VRA challenge to Washington’s law, it would not have held that 
Plaintiffs could proceed with this litigation.

9



discrimination in the individual plaintiffs case. Instead, it requires an allegation 

that “the discriminatory impact of a challenged voting practice is attributable to 

racial discrimination in the surrounding social and historical circumstances.” 

Farrakhan I, 338 F.3d at 1019 (emphasis added).

As this Court previously recognized, “[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.” Id. 

at 1016. Nothing in Farrakhan /, or in Supreme Court jurisprudence more broadly, 

suggests that Plaintiffs’ ability to challenge Washington State’s felon 

disfranchisement law under the Voting Rights Act is in any way dependent on a 

showing of intentional discrimination in their individual felony convictions. 

Plaintiffs clearly have Article III standing to mount such a challenge.

III. The District Court’s Totality of the Circumstances Analysis Cannot
Stand

In their opening brief, Plaintiffs demonstrated that the District Court placed 

near-dispositive weight on those Senate Factors that have extremely limited — if 

any — relevance to Plaintiffs’ vote denial claim. In particular, Plaintiffs have 

explained in great detail why the District Court erred in concluding that certain 

factors — particularly, the history of official discrimination in areas of voting —- 

could overcome the court’s own finding of “compelling” evidence that racial

10



discrimination in Washington’s criminal justice system “hinder[s] the ability of 

racial minorities to participate effectively in the political process.” (See Plaintiffs’ 

Br. 23-30, 37-46.) In response, Defendants argue that the evidence on the other 

Senate Factors favors them, but they fail to proffer any explanation as to why 

evidence of racially polarized voting, candidate slating processes, overt racial 

appeals in political campaigns, the electoral success of minority politicians, and 

responsiveness of non-minority politicians are in fact relevant to a claim of a denial 

of a racial minority group’s right to vote. (Cf Defs.’ Br. 39-40.) Instead, 

Defendants simply conclude, without citing to any authority for their position, that 

these Senate Factors are relevant here because all of the factors listed in the Senate 

Report are always relevant, regardless of the nature of the claim at issue. As 

Plaintiffs have explained, however, such an approach to the totality of the 

circumstances analysis is at odds with the plain language, purpose and spirit of the 

Voting Rights Act, Congress’s intent, see Senate Report at 28-30, and decades of 

Supreme Court and Ninth Circuit precedent, see Thornburg v. Gingles, 478 U.S. 30, 

75 (1986); Gomez v. City o f Watsonville, 863 F.2d 1407, 1412 (9th Cir. 1988).

Rather than offering a theory of how such evidence is relevant, if at all, to 

Plaintiffs’ vote denial claim, Defendants attempt to (1) recharacterize Plaintiffs’ 

evidence of racial discrimination in Washington State’s criminal justice system, 

recognized by the District Court to be “compelling,” as “limited evidence,” and (2)

11



argue that the District Court erred in finding that Senate Factor Five favored 

Plaintiffs.

As to the first argument, the District Court did not, in fact, conclude that 

Plaintiffs’ evidence was “limited.” Rather, adopting a mechanical point-counting 

approach to the “totality of the circumstances” test, the District Court concluded 

that other Senate Factors that did not favor Plaintiffs outweighed the “compelling” 

evidence underlying the District Court’s finding that Senate Factor Five favored 

Plaintiffs.

Defendants’ second argument is equally unavailing. Defendants claim that 

the District Court committed “fatal error” by “disregarding well-established law 

that statistical disparity alone is inadequate to prove a claim under the VRA.” 

(Defs.’ Br. 33.) In fact, the District Court, in reaching its determination that 

Plaintiffs presented “compelling evidence of racial discrimination . . .  in [the] 

criminal justice system” that “clearly hinder[s] the ability of racial minorities to 

participate in the political process,” Farrakhan v. Gregoire, No. CV-96-076-RHW, 

2006 WL 1889273, at *6 (E.D. Wash. July 7, 2006), did not merely rely upon bare 

evidence of statistical disparities. Rather, Plaintiffs offered undisputed expert 

evidence that the staggering racial disparities in Washington State’s criminal 

justice system could not be explained by race-neutral factors: (1) the over­

representation of racial minorities at every stage of Washington’s criminal justice

12



system is not warranted by the extent to which racial minorities actually participate 

in crime; (2) racial profiling and racial disparity in charging and sentencing 

decisions persist even after race-neutral characteristics (offense seriousness, 

offenders’ criminal histories, aggravating factors, etc.) are taken into account; and 

(3) the over-representation of Blacks and Latinos among drug-related arrests in 

Washington’s most racially diverse city is not explicable by law enforcement 

organizational practices or the legal status of crack cocaine (as opposed to powder 

cocaine) in Washington. (See Pis.’ Br. 9-16 (summarizing record of substantial 

and undisputed evidence before the District Court).) The District Court was thus 

correct to conclude that Plaintiffs’ undisputed expert reports demonstrate that such 

disparities “are not explicable in race neutral terms.”4

The District Court’s conclusion was driven by the fact that “Plaintiffs 
vigorously assert[ed that] the statistical disparity and disproportionality evident 
in Washington’s criminal justice system arise from and result in discrimination, 
and they submitted] expert reports that substantiate this assertion” — expert 
reports that were never disputed by Defendants. See Farrakhan, 2006 WL 
1889273, at *6 (emphasis added). “As was the case in 2000, the facts in this 
matter are not in dispute.” Id. at *2; id. at *6 (“Significantly, Defendants do not 
present any evidence to refute Plaintiffs’ experts’ conclusions.”). Indeed, not 
only did Defendants fail to offer any expert opinions to rebut the findings of 
Plaintiffs’ experts, but they also failed to set forth the specific facts that they 
believed would have established a genuine dispute on an issue of material fact 
precluding summary judgment for Plaintiffs, as is expressly required by Local 
Rule 56.1(b). Accordingly, the District Court did not inappropriately weigh 
evidence or make credibility determinations; it simply accepted the truth of

(cont'd)

13



For this reason, the District Court’s analysis, which distinguished Plaintiffs’ 

evidence from that provided by the plaintiffs in Smith v. Salt River Project 

Agricultural Improvement & Power District, 109 F.3d 586 (9th Cir. 1997), is 

entirely consistent with this Court’s ruling in that case. In Salt River, the plaintiffs 

challenging a district’s land ownership voting qualification offered a single type of 

evidence: statistical evidence that a disproportionate percentage of landowners in 

the district were White. All other potentially relevant facts to their Section 2 

challenge were stipulated, such that the sole question for trial was the legal 

significance of that disparity. 109 F.3d at 590-91.

As this Court emphasized in Farrakhan I, that joint stipulation of facts 

included “plaintiffs’ admission that there was no evidence of discrimination as 

measured by the Senate report factors and their stipulation to ‘the nonexistence of 

virtually every circumstance which might indicate that landowner-only voting 

results in racial discrimination,’ leaving only a bare statistical showing of disparate

(cont'd from previous page)
Plaintiffs’ undisputed evidence, as it is entitled to do on summary judgment. 
See Celotex Corp. v. Catrett, A ll U.S. 317, 323 (1986).

To oppose summary judgment, “Plaintiffs, of course, are not required to prove” 
that Section 2 has been violated; “they need only show a genuine dispute of 
material fact.” Ruiz v. City o f Santa Maria, 160 F.3d 543, 559 (9th Cir. 1998). 
Accordingly, at best, the conclusory rebuttal that Defendants offer now (for the 
first time) to show that racial disparities in Washington’s criminal justice 
system “are not attributable to race discrimination” (Defs.’ Br. 37) does not

(cont'd)

14



impact to support their Section 2 claim.” 338 F.3d at 1018 (quoting Salt River, 109 

F.3d at 595). In other words, Salt River was a case in which “the observed 

difference[s] in rates of home ownership between non-Hispanic whites and 

African-Americans . . . [were] better explained by other factors independent of 

race” which “adequately rebutted any inference of racial bias that the [disparate 

impact] statistics might suggest.” Id. at 1017 (quoting Salt River, 109 F.3d at 

591).* 5

The record in this case, as the District Court recognized, is dramatically 

different. Unlike in Salt River, Plaintiffs here introduced substantial and 

undisputed evidence of the type that this Court in Salt River and Farrakhan I  held 

would suffice to demonstrate causation.6 Specifically, Plaintiffs demonstrated not 

only marked racial disparity in Washington State’s criminal justice system, but 

also racial disparity that could not be explained by race-neutral factors. Professor

(cont'd from previous page)
demonstrate that summary judgment is proper; rather, it simply creates a 
genuine issue of material fact that warrants a trial.

5 As Farrakhan I  emphasized, the conclusion that the disparity was not the result 
of racial discrimination was “dictated” by the joint stipulation in that case, 
particularly Plaintiffs’ concessions. Farrakhan I, 338 F.3d at 1018.

6 Indeed, if Defendants’ view of Plaintiffs’ evidence as insufficient as a matter of 
law was correct — a view expressed by Judge Kozinski in his dissent from the 
denial of rehearing en banc in Farrakhan I  — then the appropriate course for 
the Farrakhan I  Court would have been to affirm the denial of summary

(cont'd)

15



Robert Crutchfield’s expert report, for example, concluded that “there is credible 

evidence that there are significant racial disparities that are not fully warranted by 

racial or ethnic differences in illegal behavior.” (E.R. 182.) Moreover, Professor 

Katherine Beckett’s expert report, which found that the striking racial disparities in 

drug arrests in Seattle are difficult to explain “in race neutral terms,” concluded 

that there is no race-neutral explanation for law enforcement’s focus on crack 

cocaine, outdoor venues, and downtown drug areas. (E.R. 258-59, 266-70.) Thus, 

the District Court, “[vjiewing the evidence in a light most favorable to the non­

movants” for summary judgment, correctly concluded that such discrimination 

“clearly hinder[s] the ability of racial minorities to participate effectively in the 

political process, as disenfranchisement is automatic.” Farrakhan /, 338 F.3d at 

1020.

For their part, Defendants fundamentally misunderstand the type of evidence 

required to sustain a Section 2 challenge to felon disfranchisement laws. 

Defendants ignore that while evidence of disparate impact is not necessarily 

determinative of racial bias in Washington’s criminal justice system, it is 

nevertheless relevant and important evidence that at a minimum raises an inference 

of racial discrimination. See Washington v. Davis, 426 U.S. 229, 242 (1976)

(cont'd from previous page)
judgment in that case. See 359 F.3d at 1117-18 (Kozinski, J., dissent from
denial of rehearing and rehearing en banc).

16



(“Necessarily, an invidious discriminatory purpose may often be inferred from the 

totality of the relevant facts, including the fact, if it is true, that the law bears more 

heavily on one race than another.”); Arlington Heights v. Metro. Hous. Dev. Corp., 

429 U.S. 252, 266 (1977) (“The impact of the official action . . . may provide an 

important starting point. Sometimes a clear pattern, unexplainable on grounds 

other than race, emerges from the effect of the state action even when the 

governing legislation appears neutral on its face.”). In noting Plaintiffs’ 

undisputed evidence of disparate impact and the absence of race-neutral 

explanations, the District Court did not adopt “the burden-shifting framework of 

disparate impact employment discrimination suits.” (Defs.’ Br. 33.)7 Instead, it 

followed decades of settled law by undertaking “a sensitive inquiry into such

7 Defendants are wrong to claim that Plaintiffs’ experts “had not undertaken to 
identify and examine other variables that may have contributed to the 
disparity.” (Defs.’ Br. 35.) Professor Robert Crutchfield and Katherine Beckett 
both expressly considered the conceivable race-neutral causes of the stark 
disparities in Washington’s criminal justice system — and rejected all of them 
in their reports. The District Court did not in any way require Defendants to 
offer a race-neutral explanation for the disparity, as would be expected under a 
traditional burden-shifting analysis. To the contrary, it simply found that 
Plaintiffs’ evidence of a complete absence of such explanations was an 
undisputed fact. At the summary judgment stage, again, Plaintiffs were not 
required to prove discrimination in Washington’s criminal justice system; they 
were simply expected to demonstrate the existence of a genuine issue of fact for 
trial. That the District Court concluded that there was no genuine issue because 
the evidence clearly favored Plaintiffs does not demonstrate an impermissible

(cont'd)

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circumstantial and direct evidence of intent as may be available,” Arlington 

Heights, 429 U.S. at 266, including “proof of disproportionate impact,” Batson v. 

Kentucky, 476 U.S. 79, 93 (1986). The importance and relevance of such evidence 

reflects “that under some circumstances proof of discriminatory impact ‘may for 

all practical purposes demonstrate unconstitutionality because in various 

circumstances the discrimination is very difficult to explain on nonracial 

grounds.”’ Id. (citation omitted).

Finally, it is Defendants, not the District Court, that have attempted to shift 

the burden of proof for Section 2 claims. The fifth Senate Factor calls for 

evaluation of uthe extent to which members of the minority group bear the effects 

of discrimination” in the surrounding socio-economic environment, Senate Report 

at 28 (emphasis added); it does not call for an assessment of whether 

discriminatory social circumstances rise to the level of an equal protection 

violation. Cf League o f United Latin American Citizens v. North East Indep. Sch. 

Dist., 126 S.Ct. 2594, 2622 (2006) (holding that redistricting plan violated Section 

2 and factoring into totality of the circumstances analysis evidence of “intentional 

discrimination that could give rise to an equal protection violation” without 

deciding whether such evidence in fact constituted a constitutional violation)

(cont'd from previous page)
shift in the burden to demonstrate discriminatory intent, but an appropriate
application of summary judgment principles.

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(emphasis added). At bottom, Defendants’ characterization of Plaintiffs’ evidence 

as legally insufficient, once again, betrays an attempt to reintroduce a 

discriminatory intent requirement into Section 2 of the Voting Rights Act. That 

attempt was rejected in Farrakhan I  and this Court should do so again.

Accordingly, the District Court did not err in concluding that Plaintiffs’ 

undisputed evidence of stark racial disparities in Washington State’s criminal 

justice system and the complete absence of race-neutral explanations for such 

disparities was compelling evidence of racial bias in Washington that clearly 

hinders the ability of racial minorities in Washington State to participate in the 

political process.

CONCLUSION

For the foregoing reasons, the judgment of the District Court should be 

reversed and judgment should be entered in favor of Plaintiffs’ claim that 

Washington State’s felon disfranchisement scheme violates Section 2 of the Voting 

Rights Act.

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Dated this 16th day of March, 2007.

J^WRENCEA. WEISER, WSBA#: 6865 
Angela Gianoli, Legal Intern 
Ian Whitney, Law Clerk 
University Legal Assistance 
721 North Cincinnati Street 
P.O.Box 3528
Spokane, Washington 99220-3528 
509.323.5791

Norman J. Chachkin, Esq.
Debo P. Adegbile, Esq.
NAACP Legal Defense 

& Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013-2897 
212.965.2235
rhaygood@jiaacpIdf.org

dapgrav@probonolaw.com

Attorneys for Plaintiffs-Appellants

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mailto:rhaygood@jiaacpIdf.org
mailto:dapgrav@probonolaw.com


CERTIFICATION OF COMPLIANCE TO FED. R. APP. P. 32(a)(7)(C) AND 
CIRCUIT RULE 32-1 FOR CASE NUMBER 06-35669

I CERTIFY THAT:

Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the 
attached reply brief is proportionately spaced, has a typeface of 14 points, and 
contains 4,556 words.

DATED this 16th day of March, 2007

Law rence  A. W e ise r , WSBA#6865 
Univ er sity  Legal  A ssistance

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