Farrakhan v. Gregoire Brief of Plaintiffs-Appellants

    FO U R T IM E S  SQ U A RE

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December 1,2006

Via courier

Ryan Paul Haygood 
Assistant Counsel
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013

RE: Case no. 06-35669 in the Ninth Circuit Court of
Appeals: Farrakhan v. Gregoire

Dear Ryan:

Enclosed in this delivery please find thirty-four bound copies of the 
opening appeal brief which you, your colleagues at the Legal Defense & Educational 
Fund, and the diligent students and counsel at Gonzaga University School of Law 
drafted along with Danielle Gray.

It was certainly a pleasure to work with you and Danielle to assist in 
preparing this brief for filing with the Ninth Circuit Court of Appeals. As I will 
likely still be available for the reply brief, I do hope to be of future assistance.



Ryan Paul Haygood 
December 1,2006 
Page 2

Please feel free to contact me at any time by phone at (212) 735-7848, 
by fax at (917) 777-7848, by e-mail to tczebini@probonolaw.com, or by mail to 
1460 Broadway, Room 8-25A, New York, NY 10036.

aras M. Czebiniak 
egal Assistant

Enclosure

cc: Danielle Gray, w/o enclosure, via e-mail

mailto:tczebini@probonolaw.com


No. 06-35669

fUnitrb States; Court of Appeals; 
for tile Circuit

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

TIMOTHY SCHAAF; AND CLIFTON BRICENO,

Plaintiffs-Appellants,
— v. —

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

BRIEF OF PLAINTIFFS-APPELLANTS

Lawrence A. W eiser, Esq . 
Angela Gianoli, Legal Intern 
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

Ryan  P. Haygood , Esq . 
Theodore Shaw , Esq .

D irector-Counsel 
N orman J. Chachkin , Esq . 
Debo  P. Adegbile, 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



CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, the University Legal Assistance at 

Gonzaga Law School and the NAACP Legal Defense & Educational Fund, Inc., by 

and through the undersigned counsel, make the following disclosures:

Counsel for Plaintiffs-Appellants are neither subsidiaries nor affiliates of a 

publicly owned corporation.

1



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................   iv

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

STATEMENT OF JURISDICTION..............................................................   3

CONSTITUTION AL AND STATUTORY PROVISIONS INVOLVED............... 4

STATEMENT OF THE ISSUES...............................................................................4

STANDARD OF REVIEW....................................................................................... 5

STATEMENT OF FACTS........................................................................................ 5

A. Procedural History................................................................................. 5

B. Plaintiffs’ Evidence of Racial Bias and Discrimination in
Washington State’s Criminal Justice System....................................... 9

SUMMARY OF ARGUMENT............................................................................... 16

ARGUMENT............................................................................................................ 21

I. THE DISTRICT COURT ERRED BY PLACING EXCESSIVE
WEIGHT ON THE ABSENCE OF A HISTORY OF 
DISCRIMINATION IN THE AREA OF VOTING IN 
WASHINGTON............................................................................................ 22

A. Senate Factor One Has Limited Relevance to Plaintiffs’ Vote
Denial Claim........................................................................................ 23

B. Courts Have Found Section 2 Violations in Cases Involving No
History of Official Electoral Discrimination...................................... 30

II. THE DISTRICT COURT ERRED BY CONSIDERING
IRRELEVANT SENATE FACTORS AND DISREGARDING 
RELEVANT SENATE FACTORS............................................................... 37

ii



A. The District Court Erroneously Considered Irrelevant Senate
Factors................................................................................................. 40

B. The District Court’s Disregard of the Tenuous Justifications
Offered in Support of the Policy Was Clear Error............................. 47

III. THE DISTRICT COURT ERRED BY HOLDING THAT SECTION
2 DOES NOT PROTECT INDIVIDUAL VOTERS.................................... 57

CONCLUSION.................   59

CERTIFICATION OF COMPLIANCE TO FED. R. APP. P. 32(a)(7)(C)
AND CIRCUIT RULE 32-1 FOR CASE NUMBER 06-35669 .................. 62

iii



TABLE OF AUTHORITIES 

CASES

Page

Black Political Task Force v. Galvin, 300 F. Supp. 2d 291 (D. Mass.
2004)...............................................................................................31,34,35, 36

Bryant v. Lawrence County, 814 F. Supp. 1346 (S.D. Miss. 1993)....................... 31

Buckanaga v. Sisseton Independent School District, 804 F.2d 469 (8th Cir.
1986)..................................................................................................................25

Carrington v. Rash, 380 U.S. 89 (1965)..................................................................55

Clark v. Calhoun County, 88 F.3d 1393 (5th Cir. 1996)......................31, 33, 34, 44

Corbett v. Sullivan, 202 F. Supp. 2d 972 (E.D. Mo. 2002).....................................31

Dillenburg v. Kramer, 469 F.2d 1222 (9th Cir. 1972)............................................48

Dunn v. Blumenstein, 405 U.S. 330 (1972)...................................................... 49, 55

East Jefferson Coalition for Leadership and Development v. Parish o f
Jefferson, 926 F.2d 487 (5th Cir. 1991).............................................................. 31

Ewing v. Monroe County, 740 F. Supp. 417 (N.D. Miss. 1990)................................31

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

Farrakhan v. Locke, 987 F. Supp. 1304 (E.D. Wash. 1997).............................. 6, 52

Farrakhan v. Locke, No. CS-96-76-RHW, 2000 U.S. Dist. LEXIS 22212
(E.D. Wash. Dec. 1, 2000) (“2000 Order”) .............................................. 6, 7, 28

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

IV



Farrakhan v. Washington, 359 F.3d 1116 (9th Cir.), cert, denied sub nom.
Locke v. Farrakhan, 543 U.S. 984 (2004)...........................................................7

Garza v. County o f Los Angeles, 918 F.2d 763 (9th Cir. 1990)............................. 25

Georgia v. Ashcroft, 539 U.S. 461 (2003)...............................................................24

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

Goodloe v. Madison County Board o f Election Commissioners, 610 F. Supp.
240 (S.D. Miss. 1985)..................................................................................31, 36

Goosby v. Town Board, 180 F.3d 476 (2d Cir. 1999)............................................. 26

Gunn v. Chickasaw County, 705 F. Supp. 315 (N.D. Miss. 1989)...................31, 45

Harper v. City o f Chicago Heights, Nos. 87 C 5112, 88 C 9800, 1997 WL
102543 (N.D. 111. Mar. 5, 1997)........................................................................ 31

Harper v. Virginia Board o f Elections, 383 U.S. 663 (1966)..................................50

Harvell v. Blytheville School District #5, 71 F.3d 1382 (8th Cir. 1995)............... 43

Houston v. Lafayette County, 20 F. Supp. 2d 996 (N.D. Miss. 1998)....................31

Hunter v. Underwood, 471 U.S. 222 (1985)........................................................... 49

Johnson v. Bush, 405 F.3d 1214 (11th Cir.), cert, denied, 126 S. Ct. 650
(2005).................................................................................................................49

Johnson v. DeGrandy, 512 U.S. 997 (1994).................................................... passim

League o f United Latin American Citizens v. North East Independent School
District, 903 F. Supp. 1071 (W.D. Tex. 1995)................................................. 31

League o f United Latin American Citizens v. Perry, 126 S. Ct. 2594 (2006)........ 54

Marks v. Stinson, No. Civ. A. 93-6157, 1994 WL 146113 (E.D. Pa. Apr. 26,
1994)............................................................................................................31,36

v



Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245 
(N.D. Miss. 1987), aff’d sub nom. Mississippi State Chapter, Operation 
Push, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991).............................. ............ 46

Mobile v. Bolden, 446 U.S. 55 (1980)...............................................................29, 56

Old Person v. Cooney, 230 F.3d 1113 (9th Cir. 2000)................................ 5, 42, 43

Reno v. Bossier Parish School Board, 520 U.S. 471 (1997).................................. 24

Reynolds v. Sims, 377 U.S. 533 (1964)........................................................ ..........21

Richardson v. Ramirez, 418 U.S. 24 (1974)............................................................49

Rybicki v. State Board o f Elections o f Illinois, 574 F. Supp. 1147 (N.D. 111.
1983) , supplemented by 574 F. Supp. 1161 (N.D. 111. 1983)..................32, 33

Shawv. Hunt, 517 U.S. 899 (1996)......................................................................... 57

South Carolina v. Katzenbach, 383 U.S. 301 (1966)..............................................23

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

United States v. Blaine County, Montana, 363 F.3d 897 (9th Cir.
2004)..................................................................................................... 25, 29, 30

United States v. Marengo County Commission, 731 F.2d 1546 (11th Cir.
1984) ...........................................................................................................24,25

Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1985)................................................... 52

Westwego Citizens for Better Government v. City o f Westwego, 872 F.2d
1201 (5th Cir. 1989)........................................................................................... 43

White v. Regester, 412 U.S. 755 (1973)............................................................26, 56

Zimmer v. McKeithen, 485 F.2d 1297 (1973).......................................................... 56

vi



STATUTES

42 U.S.C. § 1973............................................................. ............................1,3,4, 57

42U.S.C. § 1973(a)...........................................................................................57, 58

42 U.S.C. § 1973(b)..............................................................................  18, 22, 26, 29

28 U.S.C. § 1291....................................................................................................... 3

28 U.S.C. § 1331....................................................................  3

28 U.S.C. § 1391(b).................................................................................................. 3

28 U.S.C. §2201..................................................     3

28 U.S.C. § 2202.......................................................................................................3

Fed. R. Civ. P. 57.......................................................................................................3

Fed. R. Civ. P. 65.......................................................................................................3

Revised Code of Washington § 9.94A.637..... ......................................................4, 6

S. Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177
(“Senate Report”)......................................................................................passim

OTHER

Armand Derfner, Vote Dilution and the Voting Rights Act Amendments o f
1982, in Minority Vote Dilution 145 (Chandler Davidson ed,, 1984)..............56

Developments in the Law, One Person, No Vote: The Laws o f Felon
Disenfranchisement, 115 Harv. L. Rev. 1939 (2002).......................................51

Erik Eckholm, States Are Growing More Lenient in Allowing Felons to Vote,
N.Y. Times, Oct. 12, 2006, at A18.................................................................... 52

Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114
Harv. L. Rev. 1663, 1671-72 (2001).................................................................42

vii



Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, 
and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147 
(2004).................................................................................................................53

Ellen D. Katz et al., Documenting Discrimination in Voting: Judicial 
Findings Under Section 2 o f the Voting Rights Act Since 1982, Final 
Report o f the Voting Rights Initiative, 39 U. Mich. J.L. Reform 644 
(2006) available at
http://sitemaker.umich.edu/votingrights/files/fmalreport.pdf (last visited 
Nov. 29, 2006).............................................................................................30, 44

Alexander Keyssar, The Right to Vote: The Contested History o f Democracy
in the United States 303 (2000)........................................................................... 54

The Sentencing Project, Felony Disenfranchisement,
http://www.sentencingproject.org/pubs_05.cfm (last visited Nov. 26,
2006).................................................................................................................. 51

Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the
Voting Rights Act, 57 S.C. L. Rev. 689 (2006)................................................... 26

Washington State Constitution, Article VI, § 3 .................................................... 4, 6

Washington State Sentencing Guidelines Commission, Disproportionality and 
Disparity in Adult Felony Sentencing (2003), available at 
http://www.sgc.wa.gov/PUBS/Disproportionality/Adult_Disproportionality 
_Report2003 .pdf...................................................................................................9

viii

http://sitemaker.umich.edu/votingrights/files/fmalreport.pdf
http://www.sentencingproject.org/pubs_05.cfm
http://www.sgc.wa.gov/PUBS/Disproportionality/Adult_Disproportionality


INTRODUCTION AND PRELIMINARY STATEMENT

For the second time, the District Court in this action issued a ruling

fundamentally at odds with the plain language, history and purpose of Section 2 of 

the Voting Rights Act, 42 U.S.C. § 1973 (“VRA”). Notwithstanding its finding of 

“compelling evidence of racial discrimination and bias 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 *11 (E.D. Wash. July 7, 2006) (quoting Farrakhan v. 

Washington, 338 F.3d 1009, 1020 (9th Cir. 2003)) (alteration in original), the 

District Court concluded that Washington’s felon disfranchisement scheme does 

not violate Section 2. In so ruling, the District Court performed a contorted 

application of the totality of the circumstances inquiry that is unsupported by 

Section 2’s text, legislative history and decades of case law (including this Court’s 

decision in Farrakhan 1) interpreting that provision.

In reaching its conclusion, the District Court found that other Senate Factors 

— principally, the absence in Washington of an official history of discrimination 

against racial minorities in the area of voting — trumped Plaintiffs’ compelling 

evidence of present day official racial discrimination in the criminal justice system 

(and other areas). Not only did the District Court misjudge the relevancy of these 

factors to a claim of vote denial (as opposed to vote dilution), but it also failed to



recognize that this Court’s remand would have been entirely unnecessary if such 

factors could overcome a finding that racial bias in the criminal justice system 

“clearly hinder[s] the ability of racial minorities” in Washington to vote. 

Farrakhan v. Washington, 338 F.3d 1009, 1020 (9th Cir. 2003) (Farrakhan I).

As the District Court found, Plaintiffs have shown that existing racial 

disparities at every stage of Washington State’s criminal justice system, from arrest 

to charging to incarceration, are not reflective of or warranted by the extent to 

which racial minorities actually participate in crime. As a result of the interaction 

of racial discrimination in the criminal justice system with Washington State’s 

felon disfranchisement scheme, Blacks, Latinos and Native Americans are 

disproportionately denied access to the one fundamental right that is preservative 

of all others. Plaintiffs’ evidence demonstrates that the disproportionate denial of 

the right to vote to racial minorities is caused by that interaction, resulting in the 

disfranchisement of nearly one-quarter — an incredible 24% — of all Black men 

in Washington, and nearly 15% of the entire Black population in the State.

This result is precisely what Section 2 proscribes. Simply put, the District 

Court’s totality of the circumstances analysis appears, from top to bottom, to rest 

on the fundamental misconception that, no matter how compelling, a Section 2 

challenge against a felon disfranchisement law can never succeed. This Court 

rejected that reading of Section 2 in Farrakhan I  and it should do so again. For

2



these reasons, and those set forth below, the District Court’s ruling should be 

reversed.

STATEMENT OF JURISDICTION

The District Court has subject matter jurisdiction over this action under 42 

U.S.C. § 1973 and 28 U.S.C. § 1331. Plaintiffs’ claim for declaratory and 

injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of 

the Federal Rules of Civil Procedure, and the general legal and equitable powers of 

the Court.

Venue is proper under 28 U.S.C. § 1391(b), as a substantial part of the 

events giving rise to the claim occurred in the Eastern District of Washington. 

Jurisdiction is conferred on this Court by 28 U.S.C. § 1291.

The United States District Court for the Eastern District of Washington 

entered an order denying Plaintiffs’ Motion for Summary Judgment on July 7, 

2006. Farrakhan, 2006 WL 1889273. This final judgment disposed of all claims 

with respect to all parties. Plaintiffs filed a timely notice of appeal on August 4, 

2006. Pis.’ Notice of Appeal (Appellants’ Excerpts of the Record [hereinafter 

“E.R.”] (E.R. 653).

3



CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Washington State Constitution Article VI, § 3, Revised Code of Washington

§ 9.94A.637, and 42 U.S.C. § 1973 are the constitutional and statutory provisions 

relevant to this case.

STATEMENT OF THE ISSUES

(1) Did the District Court err in concluding that Washington’s felon 

disfranchisement law does not violate Section 2, notwithstanding its 

finding of racial bias in Washington’s criminal justice system and its 

conclusion that such discrimination clearly hinders the ability of racial 

minorities to participate in the political process?

(2) Did the District Court err, in conducting its totality of the circumstances 

analysis, by placing excessive weight on its finding that Washington does 

not have an official history of racial discrimination in the area of voting?

(3) Did the District Court err, in conducting its totality of the circumstances 

analysis, by considering irrelevant factors, such as the extent to which 

minority candidates have been elected in Washington and the level of 

responsiveness of Washington’s officials to racial minority citizens?

(4) Did the District Court err, in conducting its totality of the circumstances 

analysis, by disregarding Plaintiffs’ evidence concerning the tenuous

4



justifications for felon disfranchisement, and in finding that this factor 

favored the State?

(5) Did the District Court err in concluding that Section 2 does not protect 

individual voters?

STANDARD OF REVIEW

This Court reviews a district court’s findings of fact, including its ultimate 

finding of whether racial minorities have an equal opportunity to participate in the 

political process, for clear error. Old Person v. Cooney, 230 F.3d 1113, 1119 (9th 

Cir. 2000). This Court “retain[s] the power, however, ‘to correct errors of law, 

including those that may infect a so-called mixed finding of law and fact, or a 

finding of fact that is predicated on a misunderstanding of the governing rule of 

law.”’ Id. (quoting Thornburg v. Gingles, 478 U.S. 30, 79 (1986)). Accordingly, 

where a district court’s ultimate finding concerning Section 2 liability is based on 

“a misreading of the governing law,” there is reversible error. Johnson v. 

DeGrandy, 512 U.S. 997, 1022 (1994).

STATEMENT OF FACTS

A. Procedural History

Plaintiffs Muhammad Shabazz Farrakhan (also known as Ernest Walker- 

Bey), Al-Kareem Shadeed, Marcus Price, Ramon Barrientes, Timothy Schaaf and

5



Clifton Briceno are citizens who are otherwise qualified to register to vote but for 

the operation of Article VI, § 3 of the Washington State Constitution and the 

Revised Code of Washington § 9.94A.637, the law implementing it. Plaintiffs 

Farrakhan, Price, Shadeed and Schaaf are Black; Plaintiff Barrientes is Latino; and 

Plaintiff Briceno is Native American. Plaintiffs filed this action pro se on 

February 2, 1996 in the Eastern District of Washington, challenging Washington’s 

felon disfranchisement scheme under Section 2 of the Voting Rights Act and the 

United States Constitution and seeking both declaratory and injunctive relief. The 

District Court entertained Plaintiffs’ claims of vote denial under the VRA, but 

dismissed their vote dilution claim and constitutional claims. Farrakhan v. Locke, 

987 F. Supp. 1304, 1315 (E.D. Wash. 1997).

Although the District Court, in its 2000 ruling on cross-motions for 

summary judgment, recognized that “Plaintiffs’ evidence of discrimination in the 

criminal justice system, and the resulting disproportionate impact on minority 

voting power, is compelling,” it nevertheless held that evidence of discrimination 

in the criminal justice system was not relevant to Section 2’s totality of the 

circumstances analysis. Farrakhan v. Locke, No. CS-96-76-RHW, 2000 U.S. Dist. 

LEXIS 22212, at *14 (E.D. Wash. Dec. 1, 2000) (“2000 Order”). Instead, focusing 

on Washington State’s disfranchisement scheme by itself, the District Court 

concluded that there was no evidence that the enactment of the disfranchisement

6



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 *9-10.

This Court reversed and remanded to the District Court, holding that the 

totality of the circumstances inquiry “requires the court to consider the way in 

which the disenfranchisement law interacts with racial bias in Washington’s 

criminal justice system to deny minorities an equal opportunity to participate in the 

state’s political process.” Farrakhan /, 338 F.3d at 1014. In light of the District 

Court’s finding that Plaintiffs’ evidence was “compelling,” the Court posited that, 

“had the district court properly interpreted the causation requirement under the 

totality of the circumstances test instead of applying its novel ‘by itself causation 

standard, the court might have reached a different conclusion.” Id. at 1020. In 

addition to evidence of racial bias in Washington’s criminal justice system, this 

Court noted that evidence that the State’s policy justifications for the 

disfranchisement law were tenuous would be relevant in the totality of the 

circumstances inquiry. Id. at 1020 n,15. Accordingly, the Court reversed and 

remanded the case to the District Court to evaluate the record evidence in light of 

the proper analysis. Id. at 1012. The State’s petitions for rehearing and rehearing 

en banc were denied. Farrakhan v. Washington, 359 F.3d 1116 (9th Cir.), cert, 

denied sub nom. Locke v. Farrakhan, 543 U.S. 984 (2004).

7



On remand, the District Court again found that Plaintiffs had set forth 

“compelling evidence of racial discrimination and bias in Washington’s criminal 

justice system.” Farrakhan, 2006 WL 1889273, at *6 (crediting conclusions 

drawn by Plaintiffs’ experts as “admissible, relevant, and persuasive”). The 

District Court further found that “this discrimination ‘clearly hinder[s] the ability 

of racial minorities to participate effectively in the political process, as 

disenfranchisement is automatic.’” Id. at 646 (alteration in original) (quoting 

Farrakhan /, 338 F.3d at 1020).

Notwithstanding this finding, however, the District Court concluded that, 

under the totality of the circumstances, Plaintiffs failed to demonstrate a Section 2 

violation. Though the District Court stated that it “ha[d] no doubt that members of 

racial minorities have experienced discrimination in Washington’s criminal justice 

system,” it held that “[ojther factors, particularly Washington’s history, or lack 

thereof, of racial bias in its electoral process and in its decision to enact the felon 

disenfranchisement provisions, counterbalance the contemporary discriminatory 

effects that result from the day-to-day functioning of Washington’s criminal justice 

system.” Id. at 650. Among those “other factors” apparently relied on by the 

District Court were several that it conceded were irrelevant to Plaintiffs’ vote 

denial claim. Id. at 649. With respect to Plaintiffs’ claim that the justifications for 

the policy were tenuous, the District Court concluded that this particular factor

8



favored the State, notwithstanding the absence of any articulated justification (by 

the State or the District Court) for the law. Id. at 650.

The District Court concluded by noting that, “[i]f the denial or abridgment of 

one citizen’s right to vote ‘on account of race or color’ established a violation of 

Section 2 of the VRA, this Court would find for Plaintiffs in this matter.” Id. It 

declined to do so, however, because it viewed the “statutory language of 

subsection (a) of Section 2 of the VRA” as “limit[ing] its application to those 

circumstances the totality of which establish the existence of discrimination in 

voting on a broader scale.” Id.

B. Plaintiffs’ Evidence of Racial Bias and Discrimination in 
Washington State’s Criminal Justice System

In this litigation, Plaintiffs have produced a record of substantial — and 

undisputed — evidence regarding racial discrimination in Washington State’s 

criminal justice system. As the State’s own sentencing commission found, 

“fpjeople of color are over-represented at every stage of Washington’s criminal 

justice system, from arrest through sentencing and incarceration.” Washington 

State Sentencing Guidelines Commission, Disproportionality and Disparity in 

Adult Felony Sentencing (2003), available at

http://www.sgc.wa.gov/PUBS/Disproportionality/Adult_Disproportionality_Report

2003.pdf, E.R. 498. Indeed, for every year between 1996 and 2005, 19% to 22.9%

9

http://www.sgc.wa.gov/PUBS/Disproportionality/Adult_Disproportionality_Report


of the incarcerated population in Washington State was Black, even though Blacks 

comprise only 3% of the general population. Id. Native Americans, who 

constitute only 2% of the State 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 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 

racial minorities actually participate in illegal behavior. Expert Report by Robert 

D. Crutchfield, Ph.D. (E.R. 179-255). Plaintiffs’ evidence demonstrates that 

Blacks, Latinos and Native Americans are subjected to racial profiling in 

Washington State at rates that cannot be justified by differential involvement in 

crimes that are likely to lead to arrests. Id. at 182. Even after legally relevant 

variables such as offense seriousness and the number of violations are taken into 

account, racial minority drivers are significantly more likely to be searched by 

Washington State Police than White drivers during a routine traffic stop. Id. at 209. 

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 204. Plaintiffs’ 

evidence of racial profiling is significant because disparate police searches lead to

10



the racially disparate filing of felony charges, which in turn subjects racial 

minorities to Washington State’s felon disfranchisement scheme at 

disproportionate rates. Id. at 213.

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 216-220. For example, in King 

County, 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 213. These significant charging disparities persist even after legally relevant 

characteristics (such as offense seriousness, offenders’ criminal histories, and 

weapons charges) are taken into account. Id.

Moreover, bail is recommended for Blacks more often than Whites, who are 

released on their own recognizance more often than Blacks. Id. Racial disparities 

also exist in the recommended length of confinement even after legal factors have 

been considered. Id. at 214. Specifically, prosecutors recommend that, for the 

same crime, Blacks spend approximately one half o f a day more for each day a 

White defendant is recommended to be confined to prison. Id. In addition, Blacks 

are 75% less likely than Whites to be recommended for an alternative sentence. Id.

Significant racial disparities also persist in the sentencing outcomes of 

felony cases in Washington’s criminal justice system, even after legally relevant

11



factors — such as the seriousness of the offense, the criminal histories of offenders, 

and legislatively established aggravating factors (e.g., the presence of a weapon in 

the commission of a crime) — are taken into account. Id. at 230. The statistical 

disparity between Blacks and Whites in Washington State prisons is 9.28 to 1. Id. 

at 194-195. That is, a Black person in Washington State is more than nine times 

more likely to be in prison than a White person in the State. Id. at 195. However, 

the ratio of Black to White arrests for violent offenses (requiring the least amount 

of police discretion) is only 3.72 to 1. Id. Thus, “substantially more than one half 

of Washington State’s racial disproportionality cannot be explained by higher 

levels of criminal involvement as measured by violent crime arrest statistics.” Id. 

(emphasis added). In sum, Washington cannot justify the disproportionate 

incarceration of Blacks compared to that of Whites “on the basis of higher violent 

crime involvement by the former.” Id.

Racial discrimination in the criminal justice system in Washington’s most 

racially diverse city, Seattle, is no less pervasive than it is in the State more broadly. 

In Seattle, the majority of users of marijuana and serious drugs such as heroin, 

methamphetamine, powder cocaine, crack cocaine and ecstasy are White. Expert 

Report by Katherine Beckett (E.R. 258, 264-65). In addition, the majority of those 

who deliver serious drugs in Seattle are White. Id. at 258. However, 52.2% of 

those arrested by the Seattle Police Department (SPD) for possessing serious drugs

12



and 64.2% of those arrested for delivery of serious drugs in Seattle from January 

1999 through April 2001 were Black. Id.\ see also id. at 265-66, 273-74.

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 enmeshed 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. Id. at 258. None of these 

organizational practices are explicable in race-neutral terms. Id. at 258-59.

First, the SPD’s focus on crack offenders is not explicable in terms of the 

legal status of serious drugs, since each of these substances is classified by the 

State legislature at Level 8 of Washington State’s felony sentencing grid. Id. at 

259. Nor 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 (/. e., the amount of 

drugs or cash yielded per officer hour invested). Id. Finally, the SPD’s geographic

13



focus on the downtown area is not explicable in terms of crime rates or complaints 

by citizens. Id.

In sum, Plaintiffs’ evidence demonstrates that Blacks 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. at 258.

In addition to the racial discrimination that has infected every stage of 

Washington’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. Plaintiffs submitted a report by Professor J. 

Morgan Kousser (E.R. 288-306), a renowned voting rights expert, who noted that 

substantial “anti-black employment discrimination” occurred even before 1940, a 

finding he found “shocking” in light of the “minuscule percentages of African- 

Americans in the state before the defense-related employment boom.” Id. at 302 

U 24. He further examined discrimination in Washington’s housing markets, and 

he chronicled various acts that have resulted in a discriminatory pattern: weak 

enforcement powers in the State agency charged with investigating housing and 

employment discrimination complaints; the refusal of a major newspaper to run 

ads for real estate brokers who sold homes to Blacks in “White” neighborhoods; a

14



state Supreme Court decision striking down a 1957 law against housing 

discrimination; the defeat of an open housing ordinance in Seattle; and the 

enforcement of racially restrictive covenants. Id. at 304-05 U 28. “In 1960, 75 

percent of Seattle’s blacks lived in four census tracts in the Central District . . . .” 

Id. That disparity persists today, and in a manner that results in substantial school 

segregation. See id. Thus, Plaintiffs produced substantial evidence of 

discrimination in Washington State in areas other than the criminal justice system, 

which has contributed to existing socioeconomic disparities in Washington in the 

modem day. See generally id. at 301-06 22-31. Not only does this history

negatively impact the opportunities of racial minorities to participate in the 

political process, but it also makes navigating the State’s voting rights restoration 

process especially difficult and, in some cases, impossible. See id. at 292-95 HH 4- 

13.

Finally, Plaintiffs produced expert evidence concerning unconscious bias, 

which explains that “structural” factors that cause racial differences in legal 

outcomes are sometimes better understood as policy choices, some of which are 

known to produce racially unequal outcomes. Beckett Report (E.R. 282-86). 

Plaintiffs also produced studies demonstrating 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. at 286. These studies have

15



found that “implicit bias” shapes both perceptions of the severity of social 

problems such as drug use, crime and disorder and fuels support for more punitive 

responses to those problems. Id.

In sum, Plaintiffs presented substantial and undisputed evidence 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 participate in 

crime. As the District Court noted, the State has failed to “present any evidence to 

refute Plaintiffs’ experts’ conclusions” on the substantial evidence of racial 

discrimination in Washington’s criminal justice system. Farrakhan, 2006 WL 

1889273, at *6.

SUMMARY OF ARGUMENT

The Senate Report accompanying the 1982 amendments to the Voting 

Rights Act contains a non-exhaustive list of “typical factors” that courts may find 

relevant in analyzing whether, under the “totality of the circumstances,” Section 2 

has been violated. See S. Rep. No. 97-417, at 21, 28 (1982), reprinted in 1982 

U.S.C.C.A.N. 177 (“Senate Report”). As this Court made clear in Farrakhan /, 

“Congress did not intend this list to be comprehensive or exclusive, nor did it 

intend that ‘any particular number of factors be proved, or that a majority of them 

point one way or the other.’” 338 F.3d at 1015 (quoting Senate Report at 29).

16



Rather, Section 2 demands an “interactive and contextual totality of the 

circumstances analysis” that takes account of factors that are pertinent to the 

particular claim at hand. Farrakhan /, 338 F.3d at 1018; see Thornburg v. Gingles, 

478 U.S. 30, 45 (1986).

The District Court’s analysis in this case flouts these basic principles of 

adjudicating Section 2 claims. The District Court found “compelling” evidence of 

racial discrimination and bias in Washington’s criminal justice system; that such 

discrimination could not be explained by race-neutral factors; and that “this 

discrimination ‘clearly hinder[s] the ability of racial minorities to participate 

effectively in the political process, as disenfranchisement is automatic.’” 

Farrakhan, 2006 WL 1889273, at *6 (quoting Farrakhan /, 338 F.3d at 1020) 

(alteration in original) (emphasis added). Notwithstanding these findings, the 

District Court rejected Plaintiffs’ claim based on its conclusion that other Senate 

Factors predominated in the totality of the circumstances inquiry. In reaching this 

conclusion, the District Court suggested that Section 2 requires Plaintiffs to 

demonstrate that a majority of the Senate Factors point in their favor. The text, 

legislative history, and decades of case law from the Supreme Court and this Court, 

however, make clear that such an interpretation of Section 2 is erroneous.

Indeed, not one of the circumstances identified by the District Court in its 

assessment of the Senate Factors diminishes the impact of Washington’s felon

17



disfranchisement law on the State’s racial minority citizens — i.e., those 

circumstances do not alter the fact that Washington’s law clearly denies those 

citizens the ability “to participate in the political process and to elect 

representatives of their choice.” 42 U.S.C. § 1973(b). Because the particular 

Factors relied on by the District Court have little to no relevance to Plaintiffs’ 

claim, the decision below is rife with legal errors that reflect the District Court’s 

fundamental misconception about how to evaluate the totality of the circumstances 

in a vote denial, as opposed to vote dilution, case.

First, the District Court erred by attaching far too much weight to the first 

Senate Factor, which concerns evidence that a challenged jurisdiction has a history 

of official discrimination in the area of voting. That Factor is typically relied upon 

in vote dilution cases as circumstantial evidence of the challenged practice’s 

discriminatory effect. In vote denial cases, like this one, its relevance is far more 

limited, as the discriminatory impact of the challenged practice is ordinarily 

manifest. Moreover, even if the first Senate Factor does have some relevance to 

Plaintiffs’ vote denial claim, the absence of official electoral discrimination in 

Washington does not diminish Plaintiffs’ compelling evidence that the State has 

violated Section 2. Under the District Court’s view, because the State of 

Washington does not have a history of official discrimination in voting, it is

18



effectively immune from Section 2 liability. That interpretation of Section 2 is 

patently incorrect.

Second, the District Court erred by considering plainly inapposite Senate 

Factors. The District Court conceded that several of the Factors should not apply 

to Plaintiffs’ claim, but apparently proceeded to consider them. Specifically, the 

District Court faulted Plaintiffs for not producing evidence concerning minority 

candidate electoral success and the level of responsiveness of the State to the needs 

of minority citizens. But the District Court failed to explain why either Factor — 

both of which concern the success and actions of aspiring and elected politicians 

— should be relevant to minority voters’ claim that the franchise itself has been 

denied, not that its effectiveness has been diluted. The District Court’s emphasis 

on responsiveness is particularly troubling in light of the explicit statement in the 

Senate Report that the Factor is of “limited relevance” and that, accordingly, 

“unresponsiveness is not an element of Plaintiffs’ case.” Senate Report at 29 n.l 16.

Third, the District Court erred by not fully considering those Senate Factors 

that are actually pertinent to Plaintiffs’ claim. Although the District Court 

followed this Court’s previous instruction to evaluate Plaintiffs’ evidence of 

discrimination in Washington’s criminal justice system, it gave little weight to its 

finding that Plaintiffs had established proof of what actually is the most probative 

evidence of vote denial in this case. Moreover, the District Court’s finding that the

19



Senate Factor concerning the tenuousness of the policy’s justification favored the 

State was clearly erroneous. At no point in this litigation has the State offered a 

justification for the policy, and Plaintiffs offered expert testimony explaining that 

there is in fact no legitimate rationale for disenfranchising people with felony 

convictions.

Finally, the District Court erred in holding that it could not rule for Plaintiffs 

because Section 2 does not protect individual voters. It is well settled that Section 

2 protects individuals. Contrary to the District Court’s holding, “the denial or 

abridgement of one citizen’s right to vote ‘on account of race or color’” does, in 

fact, violate Section 2 of the VRA. Farrakhan, 2006 WL 1889273, at *9. The 

District Court’s decision thus rests on an erroneous view of the law and should be 

reversed.

In sum, Plaintiffs have demonstrated that Washington State’s felon 

disfranchisement scheme interacts with social and historical circumstances — 

namely, racial discrimination and bias at every level of the State’s criminal justice 

system — in a manner that shifts racial inequality into the political process. 

Section 2, by its plain language, clearly prohibits this result. The District Court’s 

conclusion to the contrary rests on several individual errors and an overall refusal 

to adhere to this Court’s mandate in Farrakhan /  that Section 2 liability can attach 

upon a showing that racial bias in the criminal justice system interacts with

20



Washington State’s felon disfranchisement law “to create the kinds of barriers to 

political participation on account of race that are prohibited by Section 2.” 338 

F.3d at 1020. As a result of the District Court’s decision, a disproportionately 

large number of Black, Latino and Native American residents of the State of 

Washington are left without recourse to that “‘fundamental political right’” that is 

“‘preservative of other basic civil and political rights.’” Reynolds v. Sims, 377 U.S. 

533, 562 (1964) (citation omitted). Nothing in the VRA or this Court’s cases 

permits that result to stand.

ARGUMENT

The decision below rests on a fundamentally misconceived Section 2 

analysis: the District Court sought to impose a framework that is appropriate for 

vote dilution claims challenging reapportionment decisions on the analytically 

distinct vote denial claim at issue in this case. In a vote dilution challenge to a 

districting scheme, the analysis requires an assessment of the effectiveness of 

racial minority votes that are cast. In other words, although individual voters have 

a statutory right to cast undiluted votes, courts can only determine whether votes 

have been diluted by examining whether, in the relevant geographic area, the 

individual belongs to a racial minority group that has an equal opportunity to elect 

representatives of choice and influence the political process. Accordingly, in those 

circumstances, courts must consider a number of factors to determine whether,

21



notwithstanding this access parity at the ballot box, existing districts are drawn in a 

manner that provides minority voters with “less opportunity than other members of 

the electorate to participate in the political process and to elect representatives of 

their choice.” 42 U.S.C. § 1973(b).1 In contrast to vote dilution challenges, vote 

denial challenges are much simpler — if individuals’ access to the franchise has 

been denied or abridged on account of race, it is indisputable that those voters have 

“less opportunity than other members of the electorate to participate in the political 

process and to elect representatives of their choice” in violation of Section 2. By 

failing to recognize this distinction between vote dilution and vote denial, the 

District Court improperly relied on Senate Factors that have little to no relevance 

to Plaintiffs’ claim.

I. THE DISTRICT COURT ERRED BY PLACING EXCESSIVE
WEIGHT ON THE ABSENCE OF A HISTORY OF
DISCRIMINATION IN THE AREA OF VOTING IN WASHINGTON

The District Court’s consideration of the totality of the circumstances rested 

almost entirely — if not exclusively — on its conclusion that the first Senate 

Factor (history of official voting discrimination) was not satisfied. The District 

Court’s totality of the circumstances analysis began with text from its 2000 Order

However, as explained below, the District Court’s analysis would have been 
incorrect even if it were appropriate to apply the vote dilution framework to this 
case.

22



addressing that Factor, and repeated its prior conclusion that this Factor alone 

“strongly favors a finding that Washington’s felon disenfranchisement law does 

not violate Section 2 of the VRA.” Farrakhan, 2006 WL 18S9273, at *7. Without 

conducting any further analysis, the District Court found that the “remarkable 

absence of any history of official discrimination in Washington factors heavily in 

the Court’s totality of the circumstances analysis.” Id. The near-dispositive 

weight placed on this Factor by the District Court was clear error.

A. Senate Factor One Has Limited Relevance to Plaintiffs’ Vote 
Denial Claim

Contrary to the District Court’s view, for the purposes of Section 2 liability, 

there is nothing “remarkable” about the “absence of any history of official 

discrimination” in Washington State — or in any other jurisdiction. To be sure, 

the VRA was enacted to respond to the “insidious and pervasive evil which had 

been perpetuated in certain parts of our country through unremitting and ingenious 

defiance of the Constitution.” South Carolina v. Katzenbach, 383 U.S. 301, 309 

(1966). Yet the 97th Congress was equally concerned about ferreting out “voting 

discrimination in any area o f the country where it may occur,” and to that end 

enacted Section 2, which “broadly prohibits the use of voting rules to abridge 

exercise of the franchise on racial grounds.” Id. at 316 (emphasis added). Indeed, 

Section 2 has been “consistently understood” to “combat different evils and,

23



accordingly, to impose very different duties upon the States” than other parts of the 

VRA. Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 477 (1997). Unlike Section 

5, for example, which “is limited to particular covered jurisdictions” with a 

demonstrated history of official discrimination in voting, Section 2 “applies to all 

States,” regardless of their pasts. Georgia v. Ashcroft, 539 U.S. 461, 478 (2003).

Plaintiffs do not, of course, contend that the history of official discrimination 

in the area of voting is irrelevant. In many Section 2 claims, evidence of such past 

discriminatory practices by the challenged jurisdiction is relevant as a means of 

determining whether “past discrimination [has] severely impairfed] the present-day 

ability of minorities to participate on an equal footing in the political process.” 

United States v. Marengo County Comm’n, 731 F.2d 1546, 1568 (11th Cir. 1984). 

If a jurisdiction has a long history of official electoral discrimination, people of 

color may have registration and voting rates that are lower than those of their 

White counterparts. See id. at 1567 (“Past discrimination may cause blacks to 

register or vote in lower numbers than whites.”). This would be relevant to a 

Section 2 vote dilution claim in which plaintiffs argue that a jurisdiction must 

create a majority-minority district in order to provide individual members of the 

minority group an equal opportunity to participate in the political process and elect

24



'y
candidates of their choice. Indeed, such evidence is particularly important in 

reapportionment cases, because “[w]hen the question . . . comes down to the 

reasonableness of drawing a series of district lines in one combination of places 

rather than another, judgments about inequality may become closer calls.” 

Johnson v. DeGrandy, 512 U.S. 997, 1013 (1994); see also United States v. Blaine 

County, Mont., 363 F.3d 897, 906 (9th Cir. 2004) (noting that Congress recognized 

that Section 2 vote dilution cases “are some of the most difficult to litigate because 

plaintiffs must usually present the testimony of a wide variety of witnesses — 

political scientists, historians, local politicians, lay witnesses — and sift through 

records going back more than a century”). 2

2
Evidence of past discrimination in voting may also be indicative of a present- 
day intent to discriminate against minority voters. See Gomez v. City o f 
Watsonville, 863 F.2d 1407, 1418 (9th Cir. 1988) (explaining that the first 
Senate Factor is relevant to the “plaintiffs ability to prove intentional 
discrimination”); Buckanaga v. Sisseton Indep. Sch. Dist., 804 F.2d 469, 474 
(8th Cir. 1986) (“[A] history of discrimination against a minority is important 
evidence of both discriminatory intent and discriminatory results.”); United 
States v. Marengo County Comm’n, 731 F.2d 1546, 1567 (11th Cir. 1984) (“A 
history of pervasive purposeful discrimination may provide strong 
circumstantial evidence that the present-day acts of elected officials are 
motivated by the same purpose, or by a desire to perpetuate the effects of that 
discrimination.”). Although the 1982 Amendments to the VRA establish that 
plaintiffs need not prove intentional discrimination in order to succeed under 
Section 2, proof of intentional discrimination remains a valid ground upon 
which plaintiffs may rely to win such suits. See Garza v. County o f Los Angeles, 
918 F.2d 763, 766 (9th Cir. 1990).

25



But as one scholar has observed, “[a] court does not need to rely on such 

circumstantial evidence, however, when there is direct evidence that an electoral 

practice has the result of disproportionately denying minority votes” — as is the 

case here. Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets 

the Voting Rights Act, 57 S.C. L. Rev. 689, 721 (2006). That is because, for the 

most part, evidence of discriminatory effect is readily apparent in vote denial cases: 

racial minorities either are being disproportionately denied access to the ballot or 

they are not. C f Goosby v. Town Bd., 180 F.3d 476, 500 (2d Cir. 1999) (Leval, J., 

concurring) (noting that compared to the more difficult challenge of determining 

whether Section 2 has been violated in a vote dilution case like White v. Regester, 

412 U.S. 755 (1973), an “easy case” under Section 2 “might occur where 

established polling places are geographically inaccessible to a new settlement of 

voters in a protected class”). If such disproportionate denial occurs, it is 

indisputable that the minority group’s “members have less opportunity than other 

members of the electorate to participate in the political process and to elect 

representatives of their choice.” 42 U.S.C. § 1973(b).

Moreover, excessive emphasis on the first Senate Factor — particularly 

when the presence or absence of that Factor does not serve as circumstantial 

evidence of discriminatory effect — is at odds with Section 2’s focus on 

discriminatory results. This Court has cautioned that focusing primarily on the

26



history of official discrimination in voting, to the exclusion of other enumerated or 

non-enumerated factors, runs the risk of “placing] too much emphasis on the 

plaintiffs ability to prove intentional discrimination” — the precise risk that 

Section 2 was amended to avoid. Gomez v. City o f Watsonville, 863 F.2d 1407, 

1418 (9th Cir. 1988). Indeed, the first Senate Factor, like all of the Senate Factors, 

is only relevant to the extent that it sheds light on the question “whether, ‘as a 

result of the challenged practice or structure plaintiffs do not have an equal 

opportunity to participate in the political process and to elect candidates of their 

choice.’” Gingles, 478 U.S. at 44 (quoting Senate Report at 28); see also id. at 44- 

45 (noting that the Senate Factors “typically may be relevant” to answering this 

ultimate question, and further noting that “the list of typical factors is neither 

comprehensive or exclusive.”).

The District Court’s treatment of the first Senate Factor in both its 2000 

opinion, and the decision under review, demonstrates precisely the type of 

inappropriate emphasis on that Factor that contravenes the mandate of the Senate 

Report itself — as well as case law from the Supreme Court and this Court. In its 

2000 opinion, the District Court evaluated the first Senate Factor in connection 

with its observation that “[t]he most striking thing about this case is that, although 

the disenfranchisement provision clearly has a disproportionate impact on racial 

minorities, there is no evidence that the provision’s enactment was motivated by

27



racial animus, or that its operation by itself has a discriminatory effect.” 2000 

Order, 2000 U.S. Dist. LEXIS 22212, at *9-10. This Court rejected the District 

Court’s “by itself’ causation standard in part because it “would effectively read an 

intent requirement back into the VRA, in direct contradiction of the clear command 

of the 1982 Amendments to Section 2.” Farrakhan I, 338 F.3d at 1019. 

Notwithstanding this Court’s warning about improperly resurrecting the intent test, 

it appears that, once again, the District Court has endeavored to have Plaintiffs 

produce evidence of discriminatory intent behind the enactment of Washington’s 

felon disfranchisement law. Compare Farrakhan, 2006 WL 1889273, at *9 

(“Other factors, particularly Washington’s history, or lack thereof, of racial bias in 

its electoral process and in its decision to enact the felon disenfranchisement 

provisions, counterbalance the contemporary discriminatory effects that 

result . . . .”) (emphasis added), with id. at 648 (“‘Plaintiffs have not offered any 

evidence of a [history of official discrimination in the area of voting] such as to 

lead the Court to conclude that the circumstances surrounding the 

disenfranchisement’s provision created an inference o f discriminatory intent or a 

causal connection between the provision and the result.’”) (quoting 2000 Order, 

2000 U.S. Dist. LEXIS 22212, at *10-11) (emphasis added). Such a requirement, 

however, is decidedly not the law.

28



In explaining its decision to overrule the intent test set forth in Mobile v. 

Bolden, 446 U.S. 55 (1980), the Senate Judiciary Committee observed that “if an 

electoral system operates today to exclude blacks or Hispanics from a fair chance 

to participate, then the matter of what motives were in an official’s mind 100 years 

ago is of the most limited relevance. The standard under the Committee 

amendment is whether minorities have equal access to the process of electing then- 

representatives.” Senate Report at 36; see Blaine, 363 F.3d at 909 (recognizing 

this rationale as Congress’s “principal justification for rejecting the intent test”).

In this case, that Washington has a different history than another State when 

it comes to discriminating against minorities at the polls sheds little light on 

whether its felon disfranchisement law causes racial minorities, in the modem day, 

to have “less opportunity than other members of the electorate to participate in the 

political process and to elect representatives of their choice.” 42 U.S.C. § 1973(b). 

Given Congress’s intent to have Section 2, unlike Section 5, apply nationwide, it is 

simply absurd to suggest that the fact that Washington does not have a history of 

official electoral discrimination can effectively trump the most compelling 

evidence of present-day racial bias. Because this is not a case in which the 

discriminatory effects of the challenged electoral practice are unclear or debatable, 

resort to the history of official discriminatory voting practices is not informative

29



under the totality of the circumstances. 3 Indeed, precisely because the 

discriminatory effects of Washington State’s felon disfranchisement law could not 

be clearer, the controlling weight attached to the first Senate Factor by the District 

Court was clearly erroneous.

B. Courts Have Found Section 2 Violations in Cases Involving No 
History of Official Electoral Discrimination

It is not surprising, given the nation’s dark history of excluding racial 

minorities from political participation, that courts conducting Section 2’s totality of 

the circumstances analysis may frequently fmd that the first Senate Factor is 

satisfied. That fact, however, does not mean that jurisdictions like Washington 

without a history of official discrimination in voting are immune from Section 2 

liability. Indeed, courts have frequently found that such jurisdictions have violated 

the VRA. See generally Ellen D. Katz et al., Documenting Discrimination in 

Voting: Judicial Findings Under Section 2 o f the Voting Rights Act Since 1982, 

Final Report o f the Voting Rights Initiative, 39 U. Mich. J.L. Reform 644, 676 

n. 174 (2006), available at

3
Notably, the Supreme Court in Gingles observed that even in vote dilution 
cases, “other factors, such as the first Senate factor, ‘are supportive of, but not 
essential to, a minority voter’s claim.’” Blaine, 363 F.3d at 915 (quoting 
Gingles, 478 U.S. at 48 n.15); see id. (concluding that plaintiffs’ Section 2 vote 
dilution claim could succeed even without a demonstration that the first Senate

(cont'd)

30



http://sitemaker.umich.edu/votingrights/files/fmalreport.pdf (last visited Nov. 29, 

2006) (noting that courts have found Section 2 violations “without considering 

Senate Factor 1” or “after considering, but not finding, Factor 1” satisfied). Some 

courts have found a violation of Section 2 without considering the first Senate 

Factor at all. See, e.g., E. Jefferson Coal, for Leadership and Dev. v. Parish o f 

Jefferson, 926 F.2d 487, 494 (5th Cir. 1991); Marks v. Stinson, No. Civ. A. 93- 

6157, 1994 WL 146113, at *34 (E.D. Pa. Apr. 26, 1994); Corbett v. Sullivan, 202 

F. Supp. 2d 972, 983-985 (E.D. Mo. 2002); Bryant v. Lawrence County, 814 F. 

Supp. 1346, 1354 (S.D. Miss. 1993); Goodloe v. Madison County Bd. o f Election 

Comm’rs, 610 F. Supp. 240, 243 (S.D. Miss. 1985). And an even greater number 

have found Section 2 liability after considering, but not finding, the first Senate 

Factor satisfied. See, e.g., Clark v. Calhoun County, 88 F.3d 1393, 1399 (5th Cir. 

1996); Gomez, 863 F.2d at 1418-19; Black Political Task Force v. Galvin, 300 F. 

Supp. 2d 291, 313 (D. Mass. 2004); Houston v. Lafayette County, 20 F. Supp. 2d 

996, 1003 (N.D. Miss. 1998); Harper v. City o f Chicago Heights, Nos. 87 C 5112, 

88 C 9800, 1997 WL 102543, at *8 (N.D. 111. Mar. 5, 1997); League o f United 

Latin Am. Citizens v. N. E. Indep. Sch. Dist., 903 F. Supp. 1071, 1085 (W.D. Tex. 

1995); Ewing v. Monroe County, 740 F. Supp. 417, 422 (N.D. Miss. 1990); Gunn v.

(cont'dfrom previous page)
Factor was satisfied). If the first Senate Factor is not essential to a vote dilution 
claim, then a fortiori it is not essential to a vote denial claim.

31

http://sitemaker.umich.edu/votingrights/files/fmalreport.pdf


Chickasaw County, 705 F. Supp. 315, 320 (N.D. Miss. 1989); Rybicki v. State Bd. 

o f Elections o f III., 574 F. Supp. 1147, 1151 (N.D. 111. 1983), supplemented by 574 

F. Supp. 1161 (N.D. 111. 1983).

Simply put, it is neither novel nor “remarkable” to find a Section 2 violation 

notwithstanding the absence of a history of official electoral discrimination. 

Rather, these cases simply reflect courts giving the first Senate Factor its proper 

weight and relevance when considering the totality of the circumstances — exactly 

what the District Court failed to do here.

This Court has long recognized that the absence of historical official 

discrimination in the area of voting does not preclude a finding of Section 2 

liability. In Gomez, Latino voters challenged the legality of Watsonville’s at-large 

mayoral and city council elections. 863 F.2d at 1409. After finding each of the 

three Gingles preconditions satisfied, id. at 1413-1417, the Court turned to the 

totality of the circumstances inquiry, id. at 1417-1419. The opinion contains a 

lengthy discussion of the District Court’s conclusion that the first and fifth Senate 

Factors — a “history of official discrimination” in the area of voting and “the 

extent to which the minority continues to bear the effects of discrimination in 

socioeconomic areas that hinder their ability to participate in the political process 

effectively” — were not present. Id. at 1417. Notably for purposes of this appeal, 

however, this Court in Gomez did not conclude that the plaintiffs satisfied their

32



burden of proving that the first and fifth Senate Factors weighed in their favor. See 

id. at 1419 (declining to take “judicial notice of the pervasive discrimination 

against Hispanics in California, including discrimination, committed by the state 

government, that has touched the ability of California Hispanics to participate in 

the electoral process”). Rather, the Court concluded that, “even without such a 

showing, plaintiffs have clearly established a violation of Section 2.” Id. (emphasis 

added).

Other Circuits have similarly found Section 2 violations notwithstanding an 

absence of official discrimination that touches on the right to vote — even where, 

unlike here, the plaintiffs claim vote dilution. See supra at 30-31. For example, in 

Rybicki v. State Bd. o f Elections o f III., in the wake of the newly-amended VRA, a 

three-judge panel found that a statewide redistricting plan could dilute Black 

voting strength, and thus required the state to resubmit an alternative plan. 574 F. 

Supp. at 1157- 58. In reaching this conclusion, the Court noted that the “record . . . 

does not disclose a history of overt and systematic electoral discrimination” and 

that “there has been no systematic exclusion of blacks from, or denial of 

meaningful participation in, Chicago’s and Illinois’ political processes comparable 

to the history outlined in White v. Regester.” Id. at 1151.

Clark v. Calhoun County offers the flip-side to Rybicki. In that case, also 

concerning a Section 2 challenge to a redistricting plan, the Fifth Circuit

33



recognized that the County had “concede[d], as it must, that Calhoun County[, 

Miss.] has a history of [voting-related] racial discrimination and that 

socioeconomic differences between white [sic] and blacks continue to exist in the 

County.” 88 F.3d at 1399. Nonetheless, the court concluded that the district court 

appropriately “disregarded] the history of past discrimination and socioeconomic 

disparity” — i.e., the first and fifth Senate Factors — in its totality of the 

circumstances analysis. Id. at 1399. Importantly, the plaintiffs’ inability to show 

that these two Factors weighed in their favor, as well as the district court’s finding 

that the County was responsive to Black citizens, did not preclude the Fifth Circuit 

from finding a Section 2 violation. See id. at 1402 (concluding that “this is not that 

‘unusual case’ in which the three Gingles preconditions are satisfied but the totality 

of circumstances fail to show a Section 2 violation”).

While Rybicki and Clark are illustrative of courts considering the first Senate 

Factor before disregarding the import of that factor in the totality of the 

circumstances analysis, a more recent case demonstrates that any assessment of the 

history of electoral discrimination is sometimes unnecessary, even in a vote 

dilution case. In Black Political Task Force v. Galvin, a three-judge panel 

concluded that the redistricting plan for the Massachusetts House of 

Representatives diluted the voting strength of Black voters in violation of Section 2. 

300 F. Supp. 2d at 316. In an opinion for the court by Judge Selya, the panel made

34



clear that, in gauging the totality of the circumstances, it attached the most weight 

to a factor that was not enumerated in the Senate Report: the fact that “race [was] 

used as a tool to achieve incumbency protection.” Id. at 313; see also id. at 313- 

314 (“[attaching great importance” to the redistricting committee’s decision to 

“sacrifice] racial fairness to the voters on the altar of incumbency protection”) 

(citing Garza v. County o f Los Angeles, 918 F.2d 763, 778-79 (9th Cir. 1990) 

(Kozinski, J., concurring and dissenting in part)); id. at 315 (finding that the use of 

“race as a proxy in achieving incumbency protection . . . weighs heavily in the 

plaintiffs’ favor in a consideration of the totality of the circumstances”). Indeed, 

the court found that the totality of the circumstances demonstrated a Section 2 

violation notwithstanding that certain enumerated Senate Factors favored the State, 

such as the court’s conclusion that “Massachusetts legislators are generally 

responsive to the particularized needs of minorities.” Id. at 313; see also id. 

(noting electoral success of Blacks in State offices over the last twenty-five years, 

but concluding that this particular Senate Factor was “neutralized]” because such 

success has been largely limited to “heavily black districts”). Notably, the court 

concluded that the majority of the Senate Factors — including “the history of 

official discrimination at the polls in Boston” — did “not add substantially to [its] 

understanding of the totality of the circumstances,” and thus made no attempt to 

weigh those factors in the balance. Id.

35



In short, the court undertook the exact inquiry into the relevancy of factors 

(including those not listed in the Senate Report) that a “practical evaluation” of a 

Section 2 claim requires. Far from placing primary emphasis on the first or any of 

the other Senate Factors, the panel opinion demonstrates careful consideration of 

the particular circumstances of that case — precisely what Section 2 demands.

Cases involving vote denial will often present circumstances in which 

consideration of the history of electoral discrimination will fail to “add 

substantially to [an] understanding of the totality of the circumstances.” Black 

Political Task Force, 300 F. Supp. 2d at 313. It is doubtful, for example, that the 

presence or absence of a history of official discrimination in voting reveals much 

about whether the cancellation of absentee ballots from largely-minority 

neighborhoods violates Section 2. See, e.g., Marks, 1994 WL 146113, at *34 

(finding Section 2 violation in a case concerning county’s ballot program without 

considering the first Senate Factor); Goodloe, 610 F. Supp. at 243 (finding that 

cancellation of absentee ballots violated Section 2 without considering first Senate 

Factor). As noted, see supra Part I.A, the discriminatory effect of electoral 

practices that bar individuals from casting a ballot — as opposed to electoral 

practices that abridge the ability of individuals to aggregate their votes in an 

effective manner — is generally manifest.

36



Such is the case here. Blacks, Latinos and Native Americans are 

disproportionately denied the right to vote as a collateral consequence of a felony 

conviction. The lack of an official history of discrimination at the polls in 

Washington State does not alter the present reality that, today, the State utilizes a 

voting qualification that interacts with racial discrimination in the criminal justice 

system to result in a denial of the right to vote to Plaintiffs on account of race.

II. THE DISTRICT COURT ERRED BY CONSIDERING IRRELEVANT 
SENATE FACTORS AND DISREGARDING RELEVANT SENATE 
FACTORS

The District Court’s elevation of the first Senate Factor as a necessary 

prerequisite to a Section 2 vote denial challenge was in and of itself reversible 

error. The District Court’s error, however, is part of a larger problem with the 

lower court’s legal analysis, which failed to reflect a “practical evaluation” of the 

Senate Factors. Senate Report at 30. Such an evaluation necessarily requires 

courts reviewing Section 2 challenges to consider those factors that are relevant to 

the particular claim at hand and to disregard those factors that are not. As this 

Court made clear in Gomez:

The [Senate] Report emphasized . . . that this list of factors was 
not a mandatory seven-pronged test; the list was only meant as a guide 
to illustrate some of the variables that should be considered by the 
court. As stated in the Report, “there is no requirement that any 
particular number of factors be proved, or that a majority of them 
point one way or the other.” [Senate Report at 29]; accord id. at 29 
n.118 . . . (“[T]he Committee [does not] intend [that these factors] be

37



used as a mechanical ‘point counting’ device. The failure of plaintiff 
to establish any particular factor is not rebuttal evidence of [no 
violation].”).

The Senate Committee also noted that, while the basic “totality 
of the circumstances” test remains the same, the range o f factors that 
would be relevant in any given case will vary depending upon the 
nature o f the claim and the facts o f the case. See id. at 28 . . . (“To 
establish a violation, plaintiffs could show a variety of factors, 
depending upon the kind of rule, practice, or procedure called into 
question.”); see also id. at 30 . . . (noting that the proof sufficient to 
sustain a challenge based upon a series of events or episodes “would 
not necessarily involve the same factors” that would be relevant in a 
challenge to a permanent structural barrier).

863 F.2d at 1412 (emphasis added); see also Farrakhan /, 338 F.3d at 1015-1016.

The Supreme Court’s decision in Gingles recognized that certain Senate 

Factors would be more probative of and relevant to particular Section 2 claims than 

others. The Gingles Court was explicit that the second and seventh Senate Factors 

— the “extent to which minority group members have been elected to public office 

in the jurisdiction” and the “extent to which voting in the elections of the state or 

political subdivision is racially polarized,” see Senate Report at 29 — are “the 

most important Senate Report factors bearing on Section 2 [vote dilution] 

challenges to multimember districts.” Gingles, 478 U.S. at 48 n.15. “If present,” 

the Court stated, “the other factors . . .  are supportive of, but not essential to, a 

minority voter’s claim.” Id. Emphasis on those two particular factors “effectuates 

the intent of Congress” by requiring plaintiffs to prove that they have been injured 

by an electoral practice. Id. (“[I]f difficulty in electing and white bloc voting are

38



not proved, minority voters have not established that the multimember structure 

interferes with their ability to elect their preferred candidates.”).

Gingles thus illustrates that it is entirely consistent with Congressional intent 

for courts to isolate only a few, relevant factors when undertaking the totality of 

the circumstances inquiry. Gingles further recognized that the factors that are most 

probative of one type of Section 2 claim may be entirely different from the factors 

that are most probative of another type of Section 2 claim. See id. at 46 n.12 (“We 

note . . . that we have no occasion to consider whether the standards we apply to 

respondents’ claim that multimember districts operate to dilute the vote of 

geographically cohesive minority groups, that are large enough to constitute 

majorities in single-member districts and that are contained within the boundaries 

of the challenged multimember districts, are fully pertinent to other sorts of vote 

dilution claims . . . .”); see also Gomez, 863 F.2d at 1413.

The District Court’s emphasis on clearly inapposite Senate Factors and its 

cursory rejection of the most pertinent Senate Factors to a vote denial claim is 

fundamentally at odds with the “interactive and contextual totality of the 

circumstances analysis” that Section 2 requires. Farrakhan I, 338 F.3d at 1018. 

The District Court treated the Senate Factors as a “mechanical ‘point counting’ 

device,” rather than considering the “relevant factors in [this] particular case” — 

far short of the practical and functional inquiry that Congress intended. Senate

39



Report at 29 n.118; see Gomez, 863 F.2d at 1413 (“[Rjather than applying the 

factors in a mechanical fashion, courts must judge Section 2 claims based on a 

‘searching practical evaluation of the “past and present reality” and on a 

“functional” view of the political process.’”) (quoting Gingles, 478 U.S. at 45).

A. The District Court Erroneously Considered Irrelevant Senate 
Factors

The District Court conceded that it considered Senate Factors that have no

relevance to Plaintiffs’ vote denial claim:

It is Plaintiffs’ burden to show the Senate factors weigh in their favor. 
Plaintiffs have not carried this burden in that they failed to present any 
substantial evidence regarding many of the other Senate factors, 
including those considering racial polarization of the vote, various 
voting mechanisms, candidate slating processes, or the use of racial 
appeals in political campaigns. Admittedly, several o f these factors 
are not relevant in a VRA vote denial claim. Still, Plaintiffs have not 
presented any evidence on the extent to which minority group 
members have been elected to political office in Washington or the 
level of responsiveness elected officials have to the particularized 
needs of members of minority groups. These factors are certainly 
relevant to Plaintiffs’ VRA claim. Plaintiffs’ failure to produce any 
evidence to the contrary leads the Court to believe these factors favor 
Defendants’ position.

Farrakhan, 2006 WL 1889273, at *8 (emphasis added).

The District Court’s reasoning manifests the legal error that infects its 

opinion in several ways. For one thing, the District Court appears to have 

simultaneously credited Plaintiffs’ argument that the Senate Factors concerning 

“racial polarization of the vote, various voting mechanisms, candidate slating

40



processing, or the use of racial appeals in political campaigns” are irrelevant to this 

case and the State’s argument that Plaintiffs have “failed to present any substantial 

evidence regarding” those very factors. Id. The District Court simply cannot have 

it both ways under any proper reading of Section 2 precedent. Moreover, other 

portions of the opinion further suggest that the District Court credited irrelevant 

factors as part of its improper checklist approach to the totality of the 

circumstances inquiry. See, e.g., id. at *7. (“Although the Court is not bound by 

the list of Senate factors, it finds relevance in factors other than numbers 5 and 9.”) 

(citation omitted); id. at *9 (“Other factors . . . counterbalance the contemporary 

discriminatory effects that result from the day-to-day functioning of Washington’s 

criminal justice system.”).

For another thing, the two Senate Factors expressly identified by the District 

Court as relevant to Plaintiffs’ vote denial claim are the most inapposite factors of 

them all: the extent to which minority group members have been elected to

political office in Washington (Senate Factor 7) and the level of responsiveness 

elected officials have to the particularized needs of members of minority groups 

(Senate Factor 8). Farrakhan, 2006 WL 1889273, at *6-7.

With respect to the seventh Senate Factor, it is unclear what the success of 

minority candidates has to do with assessing a claim by minority voters that their 

vote has been denied. If Washington State enacted a literacy test or a passport

41



requirement as a condition for voting tomorrow, one could not seriously contend 

that the fact that it has previously elected Black candidates to office could 

somehow diminish the State’s liability under Section 2. As the Supreme Court 

noted in Gingles, the seventh Senate Factor is most relevant to vote dilution claims. 

478 U.S. at 50 n.15 (noting that the second and the seventh Senate Factors are “the 

most important Senate Report factors bearing on Section 2 challenges to 

multimember districts”); see also Old Person v. Cooney, 230 F.3d 1113, 1128 (9th 

Cir. 2000). The seventh Senate Factor’s probative value in such cases simply 

reflects the nature of a vote dilution claim: “It is obvious that unless minority 

group members experience substantial difficulty electing representatives of then- 

choice, they cannot prove that a challenged electoral mechanism impairs their 

ability ‘to elect.’” Gingles, 478 U.S. at 50 n.15 (quoting 42 U.S.C. § 1973(b)). In 

a vote denial claim, by contrast, there is no such need for Plaintiffs to rely on the 

seventh Senate Factor to prove their claim, as their contention is not that a 

particular practice is “responsible for minority voters’ inability to elect its 

candidates,” id. at 50, but rather that a particular practice denies minority voters 

their right to cast a ballot — for their candidate of choice or any other candidate. 

See generally Heather K. Gerken, Understanding the Right to an Undiluted Vote, 

114 Harv. L. Rev. 1663, 1671-72 (2001) (distinguishing between “first generation” 

vote denial claims that “concerned direct, formal limitations (poll taxes, literacy

42



tests, and the like) on the ability of minorities to register and cast a ballot” and 

“second generation” vote dilution claims that arise when a jurisdiction attempts to 

“take advantage of [a racially polarized] voting pattern to undermine the ability of 

minority group members to affect the political process” and “elect a candidate of 

choice”).

The District Court’s emphasis on the eighth Senate Factor fares no better. 

Congress itself recognized the limited relevance of this Factor by specifically 

calling attention to its diminished importance. The Senate Report states that 

“[ujnresponsiveness is not an essential part of plaintiffs case,” and thus 

“defendants’ proof of some responsiveness would not negate plaintiffs showing 

by other, more objective factors enumerated here that minority voters nevertheless 

were shut out of equal access to the political process.” Senate Report at 29 n.l 16. 

Indeed, this Court has cautioned against giving too much weight to this factor. See 

Old Person, 230 F.3d at 1129 n.14 (noting that District Court’s “finding of 

responsiveness of elected officials [to Native American voters] may be o f ‘limited 

relevance’”); see also Harvell v. Blytheville Sch. Dist. #5, 71 F.3d 1382, 1390 (8th 

Cir. 1995) (en banc) (“Even accepting the [district court’s] finding of 

responsiveness as not clearly erroneous, however, it is similarly insufficient to 

counter the other factors that censure this scheme.”); Westwego Citizens for Better 

Gov't v. City o f Westwego, 872 F.2d 1201, 1213 n.15 (5th Cir. 1989) (“We also

43



note that a finding that city officials are responsive to the concerns of minority 

residents is not enough, by itself, to defeat a voting dilution claim.”)-4

There are several reasons why the eighth Senate Factor is of limited 

relevance. First, responsiveness, as Congress acknowledged, is a rather subjective 

factor. As the Fifth Circuit observed, “[rjesponsiveness, like many things, is a 

question of both kind and degree. While two cities may both be said to be 

responsive to minority needs, the two may vary greatly in approach and 

commitment.” Clark, 88 F.3d at 1401. Because this factor often requires an 

assessment of “difficult qualitative judgments,” id., courts are appropriately 

reluctant to place great weight on this factor.

Second, like the seventh Senate Factor (minority candidate success), the 

responsiveness of elected officials bears little relevance to a claim that minority 

voters are being denied access to the polls. While the responsiveness factor may

4 That courts are reluctant to place much emphasis on this factor is further 
evidenced by the lack of judicial decisions addressing this factor. A recent 
survey of 331 lawsuits addressing Section 2 claims since 1982 found only 107 
lawsuits that addressed this factor — and only 20 (18.7%) of those that have 
found responsiveness lacking. See Ellen D. Katz et al., Documenting 
Discrimination in Voting: Judicial Findings Under Section 2 o f the Voting 
Rights Act Since 1982, Final Report o f the Voting Rights Initiative, 39 U. Mich. 
J.L. Reform 644, 655, 722 (2006), available at
http://sitemaker.umich.edu/votingrights/files/fmalreport.pdf (last visited Nov. 
29, 2006). Indeed, this Court has found Section 2 violations without addressing 
this particular factor at all. See Gomez, 863 F.2d at 1417-1419.

44

http://sitemaker.umich.edu/votingrights/files/fmalreport.pdf


bear upon whether or not minorities are able to participate in the political process 

and influence elections, and thus have some bearing on vote dilution challenges to 

redistricting plans, it is simply inapposite to the challenge in this case. That 

Washington’s elected leaders may not have turned a cold shoulder to all of the 

needs and concerns of its racial minority citizens does not change the fact that the 

State utilizes a voting qualification with demonstrated discriminatory effects on the 

ability of Blacks, Latinos and Native Americans to participate in the selection of 

those leaders. Cf Gunn, 705 F. Supp. at 322 (“A benevolent monarchy would be 

nonetheless non-democratic.”).

Finally, to the extent the District Court considered the other plainly 

irrelevant Senate Factors (which it listed, but did not discuss), the decision cannot 

stand. The District Court apparently faulted Plaintiffs for failing to present 

evidence underlying the Senate Factors that address the “racial polarization of the 

vote, various voting mechanisms, candidate slating processes, or the use of racial 

appeals in political campaigns.” Farrakhan, 2006 WL 1889273, at *8. The first 

and the last of those Senate Factors are most pertinent to demonstrating the 

existence of a racially polarized electorate, a factor that is certainly relevant to a 

dilution challenge to a redistricting plan, see Gingles, 478 U.S. at 50 n.15, but 

wholly inapposite to a claim that a practice operates to deny the vote to racial 

minorities. The Senate Factor that directs courts to make an inquiry into

45



minorities’ access to the candidate slating process (which Washington State does 

not have) is also irrelevant, as that Factor is on its face only applicable “if  there is a 

candidate slating process,” Senate Report at 29 (emphasis added), and is probative 

only insofar as it may reflect on a challenge to the State’s use of a similar 

mechanism. Similarly, the Senate Factor concerning the use of “unusually large 

election districts, majority vote requirements, anti-single shot provisions” and other 

such factors, id., is plainly designed as circumstantial evidence concerning the 

State’s present use of a similar electoral practice. But Plaintiffs do not challenge 

Washington’s method of aggregating electoral votes; they challenge Washington’s 

refusal to permit certain individuals to vote at all.

The District Court’s consideration of Senate Factors that, though probative 

of vote dilution claims, cast no light on Plaintiffs’ vote denial challenge was clear 

error. See Miss. State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 

1263-65, 1268 (N.D. Miss. 1987) (finding that Mississippi’s voter registration 

procedures violated the VRA, while explicitly disputing the relevance of the 

second, third, fourth, and sixth Senate Factors to plaintiffs’ Section 2 challenge), 

aff’d sub nom. Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400 

(5th Cir. 1991).

46



B. The District Court’s Disregard of the Tenuous Justifications 
Offered in Support of the Policy Was Clear Error

Under Section 2’s totality of the circumstances inquiry, “the ultimate 

conclusions about equality or inequality of opportunity were intended by Congress 

to be judgments resting on comprehensive, not limited, canvassing of relevant 

facts.” Johnson v. DeGrandy, 512 U.S. 997, 1011 (1994). In this case, the District 

Court gave the two Factors that are undeniably relevant to Plaintiffs’ claim the 

most cursory treatment in its totality of the circumstances analysis. The District 

Court provided no explanation for why “other factors” operated to 

“counterbalance” Plaintiffs’ compelling evidence of racial discrimination in the 

criminal justice system under the fifth Senate Factor. And as discussed below, the 

District Court gave little consideration to the State’s failure to even attempt to 

justify its felon disfranchisement policy. The District Court’s abbreviated inquiry 

into those two Senate Factors is particularly surprising given that they are the only 

factors that this Court explicitly drew attention to in Farrakhan I. See 338 F.3d at 

1019-20 & n.15 (discussing the fifth and ninth Senate Factors).

Although the District Court did consider the ninth Senate Factor — the 

tenuousness of the State’s policy justification — its finding that the Factor favored 

the State was clearly erroneous. Plaintiffs presented expert testimony that 

concluded that “[ajutomatic disenfranchisement following a felony conviction is a 

tenuous policy.” See Expert Report by Alec Ewald (E.R. 356). Additionally,

47



Plaintiffs noted that, in Dillenburg v. Kramer, this Court cast doubt on the 

rationality of felon disfranchisement. 469 F.2d 1222, 1224 (9th Cir. 1972) (noting 

that “[c]ourts have been hard pressed to defmlTthe state interest served by laws 

disenfranchising persons convicted of crimes”). Moreover, here the State failed to 

proffer any justification for its policy and made no attempt to counter Plaintiffs’ 

expert testimony and arguments — an omission that did not go unnoticed by the 

District Court. Farrakhan, 2006 WL 1889273, at *8 (“As in Dillenburg, the State 

here does not explain why disenfranchisement of felons is ‘necessary’ to vindicate 

any identified state interest.”).

Nonetheless, the District Court still found that this Factor favored the State 

and it offered two reasons for reaching that conclusion. First, the District Court 

emphasized that, “[ujnlike other state voting qualifications, the Constitution of the 

United States recognizes the states’ power to disenfranchise felons.” Id. (citing 

U.S. Const, amend. XIV, § 2 and Richardson v. Ramirez, 418 U.S. 24, 54 (1974)). 

Second, the District Court attached great weight to the fact that all but two states 

currently have laws disenfranchising people with felon convictions, a fact that the 

District Court believed rendered its “ability to examine the tenuousness of 

Washington’s felon disenfranchisement laws . . . extremely limited.” Id. Neither 

argument is sound.

48



The District Court’s first argument is unavailing. The Supreme Court held 

in Richardson that felon disfranchisement laws are generally constitutional, in part 

due to the fact that the Constitution itself recognizes the power of States to enact 

felon disfranchisement laws. Richardson v. Ramirez, 418 U.S. 24, 54 (1974). But 

Richardson simply stands for the proposition that the presumption of 

unconstitutionality that attaches to most restrictions on the fundamental right to 

vote, see Dunn v. Blumenstein, 405 U.S. 330, 340 n.10 (1972), does not similarly 

apply to felony disfranchisement laws. Richardson does not stand for the 

proposition that the Constitution has shielded such laws from any and all legal 

challenges. States cannot, for example, purposefully disenfranchise people with 

felony convictions on the basis of their race. Hunter v. Underwood, 471 U.S. 222 

(1985) (finding Alabama constitutional provision that disenfranchised persons 

convicted of crimes involving moral turpitude violated equal protection, as its 

original enactment was motivated by a desire to discriminate against Blacks). 

Similarly, States “may not disenfranchise criminals in a manner resulting in a 

racially discriminatory denial of the right to vote.” Johnson v. Bush, 405 F.3d 

1214, 1241 (11th Cir.) (en banc) (Wilson, J., concurring in part and dissenting in 

part), cert, denied, 126 S. Ct. 650 (2005). The District Court’s argument to the 

contrary is an attempt to resuscitate the argument that this Court rejected in 

Farrakhan: that the VRA cannot apply to felon disfranchisement laws because

49



Section 2 of the Fourteenth Amendment explicitly acknowledges such laws. See 

Farrakhan I, 338 F.3d at 1016 (“Although states may deprive felons of the right to 

vote without violating the Fourteenth Amendment, when felon disenfranchisement 

results in denial of the right to vote or vote dilution on account of race or color, 

Section 2 affords disenfranchised felons the means to seek redress.” (citation 

omitted)).5

The District Court’s second argument is similarly misplaced. According to 

the District Court, the fact that the majority of the States have some form of felon 

disfranchisement law must mean that the policy has some rational justification. 

Poll taxes, for example, also have a long lineage in American history. The fact that 

such restrictions were commonplace in many parts of the country or date back to 

the nation’s founding did not, however, prevent the Supreme Court from declaring 

them unconstitutional. See Harper v. Va. Bd. o f Elections, 383 U.S. 663, 669

5 Indeed, the District Court conceded that, notwithstanding this Court’s decision 
in Farrakhan I, it remained troubled by the application of the VRA to felon 
disfranchisement laws. Farrakhan, 2006 WL 1889273, at *2 (“The Farrakhan 
II dissent [by Judge Kozinski] raises questions regarding the constitutionality of 
applying the VRA to felon disenfranchisement laws, and these concerns are 
echoed and elaborated upon in recent en banc opinions issued by the Second 
and Eleventh Circuits. Considering these opinions, this Court continues to have 
concerns regarding the constitutionality of applying the VRA to Washington’s 
felon disenfranchisement provisions.” (citations omitted)). The District Court’s 
heavy emphasis on the first Senate Factor further demonstrates the District

(cont'd)

50



(1966) (finding that courts are “not shackled to the political theory of a particular 

era” and are not “confined to historic notions of equality” or “what was at a given 

time deemed to be the limits of fundamental rights”). Moreover, the District 

Court’s reliance on the tradition of felon disfranchisement laws cannot be squared 

with the legislative history of the Voting Rights Act, which makes clear that 

“‘[e]ven a consistently applied practice premised on a racially neutral policy would 

not negate a plaintiffs showing through other factors that the challenged practice 

denies minorities fair access to the [political] process.’” Farrakhan I, 338 F.3d at 

1019 (quoting Senate Report at 29 n.117). Finally, to the extent that the existing 

practices in the states should be a factor in considering the tenuousness of the 

policy justification, it should not be a one-way ratchet: The recent trend in the 

States has been liberalization of felon disfranchisement laws, which suggests that 

States are reconsidering their historic rationales for these policies. See generally 

Developments in the Law, One Person, No Vote: The Laws o f Felon

Disenfranchisement, 115 Harv. L. Rev. 1939, 1942-49 (2002) (discussing 

liberalization trends in the States); The Sentencing Project, Felony 

Disenfranchisement, available at http://www.sentencingproject.org/pubs_05.cfm

(cont'd from previous page)
Court’s conceptual difficulty with a results-based Section 2 challenge to a 
facially neutral felon disfranchisement law.

51

http://www.sentencingproject.org/pubs_05.cfm


(last visited Nov. 26, 2006); Erik Eckholm, States Are Growing More Lenient in 

Allowing Felons to Vote, N.Y. Times, Oct. 12, 2006, at A18.

The District Court’s rationales for its conclusion that the ninth Senate Factor 

“favors Defendants” are even more perplexing given its earlier opinion in this very 

case, which made clear that it considered Dillenburg’’ s rejection of the commonly- 

advanced justifications for felon disfranchisement laws to be binding and that it did 

not think Richardson “limited” its ability to consider policy justifications offered 

for the law. In its 1997 ruling on the State’s motion to dismiss, the District Court 

rejected the State’s argument, based on Wesley v. Collins, 791 F.2d 1255 (6th Cir.

1985), that felon disfranchisement is justified based on “John Locke’s social 

contract theory,” which dictates that “those individuals who do not abide by 

society’s rules cannot participate in their promulgation.” Farrakhan v. Locke, 987 

F. Supp. at 1312. The District Court rejected this “sanctity of the ballot box 

argument” and provided an analysis that differs dramatically from its assessment of 

the ninth Senate Factor in 2006:

Dillenburg remains applicable . . .  to the extent that the decision 
discusses the alleged justifications for felon disenfranchisement 
statutes. The panel in Dillenburg criticized the Locke’s “purity of the 
ballot box” argument as overly academic and empirically unfounded.
The decision also criticized Washington’s law in particular, since it 
denies felons the right to vote based on the possible penalty for their 
offense, rather than their actual penalty or conduct. On the basis of 
Dillenburg, therefore, consideration of Washington’s interest in 
disenfranchising felons is not conclusive as to whether the totality of 
the circumstances standard can be met.

52



Id. at 1312-13 (citation omitted) (footnote omitted). The District Court offers no 

explanation for its reversal on this issue and the State has failed to offer any 

additional arguments or evidence that justify a finding in its favor on this Senate 

Factor. The District Court’s failure to meaningfully consider this Factor is 

especially surprising given this Court’s remand with the view that the ninth Senate 

Factor — and the above-quoted rationale in particular — might factor into the 

District Court’s totality of the circumstances analysis. See Farrakhan /, 338 F.3d 

at 1020 n.15 (noting that “Plaintiffs also presented evidence regarding the tenuous 

policy justifications” and that the District Court’s ruling on the motion to dismiss 

“noted our criticism [in Dillenburg] of the underlying policy justifications for 

Washington’s law”).

Finally, even if Dillenburg is not binding on this Court, its observation that 

courts have searched in vain for rational justifications for felon disfranchisement 

laws remains true. Scholars have noted the difficulty of justifying such laws under 

any of the conventional theories of criminal punishment. See Pamela S. Karlan, 

Convictions and Doubts: Retribution, Representation, and the Debate over Felon 

Disenfranchisement, 56 Stan. L. Rev. 1147, 1166 (2004) (“Nor can

disenfranchisement be explained as a realistic deterrent of criminal behavior. It 

seems unlikely that an individual who is not deterred by the prospect of 

imprisonment or fines or other restrictions on his liberty will be dissuaded by the

53



threat of losing his right to vote . . . .”) (footnote omitted); Alexander Keyssar, The 

Right to Vote: The Contested History o f Democracy in the United States 303

(2000) (“As a penal measure, disfranchisement did not seem to serve any of the 

four conventional purposes of punishment: there was no evidence that it deterred 

crimes; it was an ill-fitting form of retribution; it did not limit the capacity of 

criminals to commit further crimes; and it certainly did not further the cause of 

rehabilitation.”). These arguments, however, were not confined to scholarly 

writings but were presented by Plaintiffs to the District Court. Plaintiffs’ expert 

similarly found that Washington State’s law could not be justified with respect to 

any plausible criminal punishment objective. See Ewald Report (E.R. 362-63). He 

also opined that the State’s failure to assert a legitimate interest served by its law 

notwithstanding the law’s demonstrated discriminatory effects is further evidence 

of its tenuousness. Id. at 371 (concluding that “[striking evidence of the policy’s 

disproportionate racial impact intensifies the need to ask what practical objective 

the state’s disenfranchisement law pursues”); cf. League o f United Latin Am. 

Citizens v. Perry, 126 S. Ct. 2594, 2623 (2006) (concluding that the State’s 

incumbency protection rationale for redistricting, “whatever its validity in the 

realm of politics, cannot justify the effect on Latino voters” and citing the Senate 

Factor of “whether ‘the policy underlying’ the State’s action ‘is tenuous’”) 

(quoting Gingles, 478 U.S. at 45).

54



Moreover, the Supreme Court has made clear that the State has no legitimate 

interest in policing the way in which anyone votes. See Carrington v. Rash, 380 

U.S. 89, 94 (1965) (holding that ‘“ fencing out’ from the franchise a sector of the 

population because of the way they may vote is constitutionally impermissible”); cf. 

Dunn, 405 U.S. at 355, 56 (“‘The fact that newly arrived [Tennesseans] may have 

a more national outlook than longtime residents, or even may retain a viewpoint 

characteristic of the region from which they have come, is a constitutionally 

impermissible reason for depriving them of their chance to influence the electoral 

vote of their new home state.’”) (alteration in original) (citation omitted).

The District Court’s decision to consider irrelevant Senate Factors was 

apparently guided by its belief that focusing on only a minority of the enumerated 

Senate Factors — i.e., the fifth and ninth Factors, as Plaintiffs suggested —- would 

render the totality of the circumstances inquiry incomplete. As demonstrated, 

however, that view is at odds with Congress’s stated intent, see Senate Report at 

28-30, this Court’s precedents, see Gomez, 863 F.2d at 1412, and over 20 years of 

case law under the amended version of Section 2, supra, at 37-46. Indeed, the 

Supreme Court in Gingles not only recognized that a select number of the Senate 

Factors (the second and the seventh) would be particularly relevant to challenges to 

multi-member districts, but also that the entire list of Senate Factors was

55



particularly relevant to vote dilution claims. See Gingles, 478 U.S. at 45 (“While 

the enumerated factors will often be pertinent to certain types of Section 2 

violations, particularly to vote dilution claims, other factors may also be relevant 

and may be considered”) (emphasis added). That many of those enumerated 

factors are more probative in vote dilution cases than they are in vote denial cases 

is unsurprising given that the focus of the Congress that amended the VRA in 1982 

was how to overrule Mobile v. Bolden, 446 U.S. 55 (1980), without providing 

minorities with a right to proportional representation. See Gingles, 478 U.S. at 43- 

46; see generally Armand Derfner, Vote Dilution and the Voting Rights Act 

Amendments o f 1982, in Minority Vote Dilution 145, 153-156 (Chandler Davidson 

ed., 1984).6 That Congress chose to enumerate a list of factors dealing with the 

difficult, often “closer call,” judgments about whether a minority group’s vote has 

been diluted, cf. DeGrandy, 512 U.S. at 1013, does not mean that those factors 

must apply equally to all forms of voting discrimination prohibited by Section 2 — 

including vote denial.

6 The Senate Factors “were derived from the analytical framework of White v. 
Regester, 412 U.S. 755 (1973), as defined and developed by the lower courts, in 
particular by the Fifth Circuit in Zimmer v. McKeithen, 485 F.2d 1297 (1973) 
(en banc).” Gingles, 478 U.S. at 36 n.4 (citing S. Rep. No. 417, at 28 n.113). 
Like Gingles, White and Zimmer both involved Section 2 challenges to at-large 
electoral schemes, and thus the factors outlined in those opinions were directed 
toward the particular concern about how to measure vote dilution.

56



III. THE DISTRICT COURT ERRED BY HOLDING THAT SECTION 2
DOES NOT PROTECT INDIVIDUAL VOTERS

Under Section 2 of the Voting Rights Act, “[n]o 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.” 42 U.S.C. § 1973(a). The plain text of this provision protects the 

rights of individual citizens. Indeed, applying this plain text, the Supreme Court 

has held that Section 2 rights belong to individual voters, not groups. See Shaw v. 

Hunt, 517 U.S. 899, 917 (1996) (“To accept [appellees’ argument] implies that [a 

Section 2] claim . . . belongs to the minority as a group and not to its individual 

members. It does not. See § 1973 (‘the right of any citizen’).”). Any other 

interpretation would not only contravene the text of the statute, it would not make 

sense. If a single Native American voter is told by elections officials that she may 

not register to vote because of her ethnicity, her right to vote has surely been 

denied on account of race or color in violation of Section 2 — regardless of 

whether other Native American experience the same discrimination or whether 

overall Native American registration rates are higher or lower than those of other 

groups.

The District Court, however, failed to recognize that Section 2 protects the 

rights of individual voters. The District Court stated: “If the denial or abridgement

57



of one citizen’s right to vote ‘on account of race or color’ established a violation of 

Section 2 of the VRA, this Court would find for Plaintiffs in this matter.” 

Farrakhan, 2006 WL 1889273, at *9. That should have been the end of the 

inquiry. As explained above, the text of Section 2 states in no uncertain terms that 

“the denial or abridgement of the right of any citizen . . .  to vote on account of race 

or color” establishes a Section 2 violation, 42 U.S.C. § 1973(a), and Supreme 

Court precedent is equally clear that Section 2 protects the rights of individual 

citizens. The District Court, however, did not adhere to the plain text of Section 2 

or the Supreme Court’s interpretation of the statute. Rather, without explanation, 

the District Court concluded that “[t]he statutory language of subsection (a) of § 2 

of the VRA limits its application to those circumstances the totality of which 

establish the existence of discrimination in voting on a broader scale.” Farrakhan, 

2006 WL 1889273, at *9. Contrary to the District Court’s conclusion, nothing in 

the language of Section 2 “limits its application” to cases where plaintiffs 

demonstrate “discrimination in voting on a broader scale.”7

7 In fact, the denial or abridgement of one citizen’s right to vote on account of 
race is sufficient to state a Section 2 violation. In this case, Plaintiffs have 
demonstrated not simply that “one citizen” or even a “few” have had their vote 
denied, but rather that entire groups of minority voters have been 
disproportionately denied the franchise based on discrimination in Washington 
State’s criminal justice system.

58



The District Court’s error on this issue is sufficient grounds to reverse the 

decision below, because the District Court explicitly stated that, if Section 2 

protected individual citizens, it would have ruled for Plaintiffs. In other words, the 

District Court’s ultimate finding concerning Section 2 liability was based on a 

“misreading of the governing law,” and therefore, the decision must be reversed. 

DeGrandy, 512 U.S. at 1022.

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.

59



Dated this 1st day of December, 2006.

Respectfully

ENCE A. WEISER, WSBA#: 6865 
'A ngela 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

1 QXst&m.
Ryan P. H^y$ h)d , Esq.
Theodore MTShaw, Esq. 
Director-Counsel 

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@naacpldf.org

JanielleC. Gray, Esq. 
Four Times Square 
New York, New York 100: 
212.735.3925
dangray @probonolaw. com

Attorneys for Plaintiffs-Appellants

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mailto:rhaygood@naacpldf.org


Ia n  W h itn ey , La w  C lerk  
Un iv er sity  L eg a l  A ssista n ce  
721 N o rth  C in cin n a ti St r eet  
P.O.Box 3528
Spo k a n e , W a sh in g to n  99220-3528 
509.323.5791
iwhitney@lawschool.gonzaga.edu

An g elV u ia n o l i, L egal  In t er n  
U n iv er sity  Leg a l  A ssistance  
721 N orth  C in cin n a ti St r ee t  
P.O. B ox 3528
Spo k a n e , W a sh in g to n  99220-3528 
509.323.5791
agianoli@lawschool.gonzaga.edu

61

mailto:iwhitney@lawschool.gonzaga.edu
mailto:agianoli@lawschool.gonzaga.edu


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 opening brief is proportionately spaced, has a typeface o f 14 points, and 
contains 13,993 words.

DATED this day o f December, 2006

L a w ren ce  A. W e ise r , WSBA #6865 
U n iv er sity  Leg a l  A ssista n ce

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