                                                                    FILED
                           FOR PUBLICATION                           OCT 07 2010

                                                                 MOLLY C. DWYER, CLERK
               UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                       FOR THE NINTH CIRCUIT



MUHAMMAD SHABAZZ                             No. 06-35669
FARRAKHAN, aka Ernest S. Walker;
AL-KAREEM SHADEED; MARCUS                    D.C. No. CV-96-00076-RHW
X. PRICE; RAMON BARRIENTES;
TIMOTHY SCHAAF; CLIFTON
BRICENO,                                     OPINION

          Plaintiffs - Appellants,

  v.

CHRISTINE O. GREGOIRE; SAM
REED; HAROLD W. CLARKE;
STATE OF WASHINGTON,

          Defendants - Appellees.



              Appeal from the United States District Court
                  for the Eastern District of Washington
            Robert H. Whaley, Senior District Judge, Presiding

                Argued and Submitted September 21, 2010
                        San Francisco, California

                                     Filed

Before:   KOZINSKI, Chief Judge, SCHROEDER, O’SCANNLAIN,
          RYMER, KLEINFELD, THOMAS, GRABER, McKEOWN,
          WARDLAW, GOULD and CLIFTON, Circuit Judges.
                                                                                  page 2

PER CURIAM:

      Washington’s constitution denies the right to vote to “[a]ll persons convicted

of infamous crime unless restored to their civil rights.” Wash. Const. art. VI, § 3.

An “infamous crime” is one that’s “punishable by death . . . or imprisonment in a

state correctional facility.” Wash. Rev. Code § 29A.04.079. Washington has

disenfranchised felons since 1866, four years before the Fifteenth Amendment was

ratified. Territorial Law of 1866, Rem. & Bal. Code § 4755.

      Plaintiffs claim that the state’s felon disenfranchisement law violates section

2 of the Voting Rights Act (“VRA”) because the law “results in a denial or

abridgement of the right . . . to vote on account of race.” 42 U.S.C. § 1973(a).

Plaintiffs don’t claim that the law was enacted for the purpose of denying

minorities the right to vote. See Hunter v. Underwood, 471 U.S. 222, 233 (1985).

Nor do they present evidence that their convictions and resulting

disenfranchisement resulted from intentional racial discrimination in the operation

of the state’s criminal justice system. See McCleskey v. Kemp, 481 U.S. 279,

297–98 (1987). Instead, they present statistical evidence that there are racial

disparities in Washington’s criminal justice system.

      When this case was last before our court, we held that felon

disenfranchisement laws can be challenged under section 2 by introducing such
                                                                                  page 3

evidence. Farrakhan v. Washington, 338 F.3d 1009, 1016, 1020 (9th Cir. 2003)

(“Farrakhan I”). Based on the statistical evidence presented by plaintiffs, the

district court on remand found that “there is discrimination in Washington’s

criminal justice system on account of race.” But the court reasoned that this was

only one relevant factor in section 2’s “totality of circumstances” balancing test.

See 42 U.S.C. § 1973(b); S. Rep. No. 97-417, at 28–29 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 206–07; see also Thornburg v. Gingles, 478 U.S. 30, 46 (1986).

It concluded that other factors counterbalanced plaintiffs’ evidence of racial

disparities, and therefore granted summary judgment to defendants.

      Three circuits—two sitting en banc—have disagreed with Farrakhan I and

concluded that felon disenfranchisement laws are categorically exempt from

challenges brought under section 2 of the VRA. See Johnson v. Governor of Fla.,

405 F.3d 1214, 1234 (11th Cir. 2005) (en banc); Hayden v. Pataki, 449 F.3d 305,

323 (2d Cir. 2006) (en banc); Simmons v. Galvin, 575 F.3d 24, 41 (1st Cir. 2009),

petition for cert. filed, 78 U.S.L.W. 3461 (U.S. Feb. 1, 2010) (No. 09-920). In

light of those opinions, we conclude that the rule announced in Farrakhan I sweeps

too broadly. Felon disenfranchisement laws have a long history in the United

States. See Green v. Bd. of Elections of N.Y.C., 380 F.2d 445, 450 & n.4 (2d Cir.

1967). These laws predate the Jim Crow era and, with a few notable exceptions,
                                                                                page 4

see, e.g., Hunter, 471 U.S. at 229 (concluding that an Alabama constitutional

provision “was enacted with the intent of disenfranchising blacks”), have not been

adopted based on racial considerations. Many such laws were in effect when the

Fourteenth and Fifteenth Amendments were ratified, see Hayden, 449 F.3d at 317

n.12 (listing twenty-nine state constitutional provisions); indeed, felon

disenfranchisement has an affirmative sanction in the Fourteenth Amendment,

Richardson v. Ramirez, 418 U.S. 24, 54 (1974). Congress was no doubt aware of

these laws when it enacted the VRA in 1965 and amended it in 1982, yet gave no

indication that felon disenfranchisement was in any way suspect. Today, an

overwhelming number of states—including all states in our circuit—disenfranchise

felons. See The Sentencing Project, Felony Disenfranchisement Laws in the

United States 3 (Mar. 2010), available at http://sentencingproject.org/doc/

publications/fd_bs_fdlawsinusMarch2010.pdf.

      There is an additional reason to be skeptical that felon disenfranchisement

laws can be challenged under section 2 of the VRA. By definition, felon

disenfranchisement takes effect only after an individual has been found guilty of a

crime. This determination is made by the criminal justice system, which has its

own unique safeguards and remedies against arbitrary, invidious or mistaken
                                                                                page 5

conviction. See, e.g., 28 U.S.C. § 2254; Heck v. Humphrey, 512 U.S. 477, 486–87

(1994).

      In light of these considerations, we hold that plaintiffs bringing a section 2

VRA challenge to a felon disenfranchisement law based on the operation of a

state’s criminal justice system must at least show that the criminal justice system is

infected by intentional discrimination or that the felon disenfranchisement law was

enacted with such intent. Our ruling is limited to this narrow issue, and we express

no view as to any of the other issues raised by the parties and amici. We also leave

for another day the question of whether a plaintiff who has made the required

showing would necessarily establish that a felon disenfranchisement law violates

section 2.

      Because plaintiffs presented no evidence of intentional discrimination in the

operation of Washington’s criminal justice system and argue no other theory under

which a section 2 challenge might be sustained, we conclude that they didn’t meet

their burden of showing a violation of the VRA. Accordingly, the district court

didn’t err when it granted summary judgment against them.


      AFFIRMED.
                                                                             page 6

                                     Counsel

Ryan P. Haygood (argued), John Payton, Theodore Shaw, Norman J. Chachkin,
Debo P. Adegbile, Kristen Clarke and Dale E. Ho, NAACP Legal Defense &
Educational Fund, Inc., New York, New York, Danielle C. Gray, New York, New
York, and Lawrence A. Weiser, University Legal Assistance at Gonzaga Law
School, Spokane, Washington, for plaintiffs-appellants.

Robert M. McKenna (argued), Attorney General, Daniel J. Judge, Senior Counsel,
and Jeffrey T. Even, Carol Murphy and William B. Collins, Deputy Solicitors
General, Olympia, Washington, for defendants-appellees.

Derek S. Tarson and Marianne Koh, Of Counsel, Debevoise & Plimpton LLP, New
York, New York, for amici curiae Twenty-Three Leading Criminologists.

Sharon L. Browne and Ralph W. Kasarda, Pacific Legal Foundation, Sacramento,
California, for amici curiae Pacific Legal Foundation and Center for Equal
Opportunity.

Thomas C. Goldstein, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.,
and Pamela S. Karlan and Jeffrey L. Fisher, Stanford Law School Supreme Court
Litigation Clinic, Stanford, California, for amici curiae Thirteen Law Professors.

Daniel F. Kolb and Edmund Polubinski III, Davis Polk & Wardwell LLP, New
York, New York, for amicus curiae Brennan Center for Justice at New York
University School of Law.

Juan Cartagena, Community Service Society, New York, New York, for amicus
curiae Community Service Society.

Elizabeth B. Wydra, Douglas T. Kendall and David H. Gans, Constitutional
Accountability Center, Washington, D.C., for amicus curiae Constitutional
Accountability Center.

Whitty Somvichian, Kyle C. Wong, Kelly Cooke and Tyler Onitsuka, Cooley LLP,
San Francisco, California, for amici curiae Lawyers’ Committee for Civil Rights,
                                                                           page 7

Equal Justice Society, Legal Services for Prisoners with Children and American
Parole and Probation Association.

Sarah A. Dunne and Nancy Talner, American Civil Liberties Union of Washington
Foundation, Seattle, Washington, Peter A. Danelo, Seattle, Washington, Leonard J.
Feldman, P.K. Runkles-Pearson and Daniel A. Swedlow, Stoel Rives LLP, Seattle,
Washington, and Laughlin McDonald and Nancy G. Abudu, ACLU Voting Rights
Project, Atlanta, Georgia, for amici curiae American Civil Liberties Union of
Washington and American Civil Liberties Union.

Lawrence S. Lustberg and Jennifer B. Condon, Gibbons P.C., Newark, New Jersey,
for amici curiae National Black Police Association, National Latino Officers
Association, American Probation and Parole Association and Six Former Law
Enforcement Officials.
