Ninth Circuit En Banc Panel Scales Back 2003 Farrakhan Decision Addressing Felon Disenfranchisement & Section 2 Voting Rights Act Challenges

October 11, 2010

Farrakhan v. Washington, 06-35669 (Oct. 7, 2010)

On October 7, 2010, the Ninth Circuit issued the per curiam en banc opinion (available here) in which it held that when plaintiffs bring a section 2 Voting Rights Act challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system, the plaintiffs must show that (1) the state criminal justice system is infected with intentional discrimination or (2) that the felon disenfranchisement law was enacted with such discriminatory intent. 

Plaintiffs alleged that Washington’s felon disenfranchisement law violated section 2 of the Voting Rights Act, because the law resulted in a denial or abridgement of the right to vote on account of race.  Plaintiffs did not claim that the reason the law was enacted was to deny voting rights to minorities. 

In Farrakhan I (Farrakhan v. Washington, 338 F.3d 1009, 1016, 1020 (9th Cir. 2003)) available here, the Ninth Circuit held that felon disenfranchisement laws can be challenged under section 2 of the Voting Rights Act when statistical evidence of racial disparities in the criminal justice system are shown.  Since, its decision in 2003, three other circuits have disagreed with the Ninth Circuit’s holding in Farrakhan I.  The 6th and 11th circuits (both sitting en banc) along with the 1st circuit held that felon disenfranchisement laws are categorically exempt from section 2 Voting Rights Act challenges.   In issuing its own en banc opinion, in Farrakhan, the Ninth Circuit finds that its earlier rule “sweeps too broadly.”

The Ninth Circuit noted the United States’ long history regarding felon disenfranchisement:

  • many felon disenfranchisement laws predated the ratification of the 14th & 15th Amendments;
  • felon disenfranchisement is sanctioned in the 14th Amendment;
  • the Voting Rights Act enacted in 1965 and amended in 1982 made no mention that felon disenfranchisement laws were suspect in any way;
  • all of the states in the Ninth Circuit have felon disenfranchisement laws;
  • felon disenfranchisement only occurs after an individual has been found guilty of a crime;


The Ninth Circuit specifically left open the question whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2.

The en banc panel included Chief Judge Kozinski and Circuit Judges Schroeder, O’Scannlain, Rymer, Kleinfeld, Thomas, Graber, McKeown, Wardlaw, Gould and Clifton.

Two separate concurrences were filed:

Judge Graber’s is available here.

Judge Thomas joined by Judges Schroeder, McKeown, and Wardlaw is available here.



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