Briefing Room


What made the Farrakhan v. Gregoire ruling a landmark?

April 5, 2010 | Faculty

Farrakhan v. Gregoire considered the state of Washington’s law disenfranchising people who have been convicted of felonies. The court concluded that Washington’s felony disenfranchisement law violates the Voting Rights Act because of its disproportionate impact on racial and ethnic minorities. Specifically, the court focused on the compelling evidence of racial discrimination within Washington’s criminal justice system. It found that the substantial racial disparities in that system couldn’t entirely be explained by “legitimate” factors, such as higher levels of criminal activity by racial minorities. Professor Daniel Tokaji, an expert in civil rights and civil liberties, discusses the case and its implementations.

Why is the Ninth Circuit’s ruling so important? 

Farrakhan is the first lower court decision to hold that a felony disenfranchisement law violates Section 2 of the Voting Rights Act of 1965. As originally enacted by Congress and interpreted by the Supreme Court, this section prohibited only voting practices adopted with the intent of discriminating based on race. But in 1982, Congress amended the Voting Rights Act to make clear that practices with a discriminatory result may also violate Section 2. Since 1982, most of the litigation under this “results test” has involved practices like redistricting and at-large elections, which allegedly dilute minorities’ voting strength. There have been relatively few cases involving practices such as felony disenfranchisement, which entirely deny certain people the right to vote.

Some other courts have concluded that felony disenfranchisement laws are exempt from this section of the Voting Rights Act. But as the Ninth Circuit determined in Farrakhan, this simply isn’t a tenable interpretation of the statute. The plain language of the statute is clear in providing that any voting qualification, prerequisite, standard, practice, and procedure is subject to the “results” test added in 1982. It makes no exception for felony disenfranchisement laws. Accordingly, these laws can’t be exempted from this test without distorting the statute’s plain language.

The fact that Section 2 applies to felony disenfranchisement laws doesn’t mean that all such laws violate the Voting Rights Act. Farrakhan is important in clarifying how the results test should apply in such cases. Congress identified a number of factors that should be considered in determining whether there’s a discriminatory result in vote dilution cases. Among those factors are whether there are “unusually large election districts,” “a candidate slating process,” or “overt and subtle appeals” in political campaigns.  These factors are often illuminating in vote dilution cases, because they may provide circumstantial evidence that an at-large election system or redistricting plan will weaken minority voting strength.  But the Ninth Circuit recognized that, where there’s direct evidence that a law will disproportionately exclude minority voters, we don’t need the sort of circumstantial evidence that is usually important in vote dilution cases. In other words, the Farrakhan court recognized that vote denial is different than vote dilution. In a vote dilution case, courts usually need to rely on circumstantial evidence to prove discriminatory effects. By contrast, in a vote denial case, it may be possible to produce direct evidence that “racial minorities are disproportionately denied the right to vote,” due to racial discrimination in the criminal justice system. That’s exactly what the African American, Latino, and Native American plaintiffs in Farrakhan proved, so they were entitled to relief under the Voting Rights Act.

How did the court use your “New Vote Denial” piece? 

My article discussed the distinction between vote denial and vote dilution, which is an important part of the Farrakhan court’s analysis. In the early days of the Voting Rights Act, the main focus was on practices that denied racial minorities – especially African Americans in the South – their right to vote entirely.

The 1980s included a shift to vote dilution. But in recent years, the focus has shifted back to vote denial again. Largely as a result of the disputed 2000 election which ended with Bush v. Gore, we have seen greater attention to election administration rules and practices. My “New Vote Denial” article discussed how racial minorities may bear the brunt of disparities in voting technology, voter identification rules, and felony disenfranchisement laws. It suggests a framework for analyzing whether such practices violate the Voting Rights Act. The Farrakhan opinion draws on this framework in explaining the test under Section 2.

What’s next for felony disenfranchisement cases? 

Farrakhan isn’t the first decision to consider felony disenfranchisement, and it certainly won’t be the last. The Ninth Circuit could vote to hear the case en banc and a Supreme Court review is a distinct possibility, given that there’s a circuit split on the applicability of Section 2 to felony disenfranchisement laws.

I think the Ninth Circuit got it exactly right in concluding that the statute applies to felony disenfranchisement laws, but the Supreme Court might not agree. Even though some justices – most conspicuously Justice Scalia – call themselves textualists, they have been willing to depart from a statute’s text when it suits their purposes. An example is the recent decision from the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder. In that case, the Court adopted an implausible interpretation of another provision in the Voting Rights Act in order to avoid a thorny constitutional question. Specifically, the Court allowed a utility district to “bail out” of coverage, despite unambiguous language limiting bailout to counties, parishes, and political subdivisions that “conduct registration for voting.” Even though the utility district didn’t conduct registration, the Court held it could seek bailout. Remarkably, not one of the justices took issue with this surprising and implausible interpretation of the statute.  Given how the Supreme Court misinterpreted the Voting Rights Act in that case, I wouldn’t be surprised to see it do the same with Section 2 of the act, should it grant review in Farrakhan.