                                                                                 FILED
                                                                                  OCT 07 2010

                                                                              MOLLY C. DWYER, CLERK
Farrakhan v. Gregoire, No. 06-35669                                            U .S. C O U R T OF APPE ALS




THOMAS, Circuit Judge, with whom SCHROEDER, MCKEOWN, and
WARDLAW, Circuit Judges, join, concurring:

      I agree that the judgment of the district court should be affirmed, but on

different grounds. I would hold that the claims for prospective injunctive relief are

moot, and that the district court should be affirmed on the remainder of the claims

for the reasons provided by the district court. On this record, we need go no

further.

                                           I

      “As a general rule, if a challenged law is repealed or expires, the case

becomes moot.” Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th

Cir. 1994); see also Bunker Ltd. Partnership v. United States, 820 F.2d 308, 312

(9th Cir. 1987) (holding that new legislation superseding prior law rendered

challenge to prior statute moot).

      In this case, after the district court issued its decision on remand,

Washington repealed its felon disenfranchisement statute and enacted a new

provision. Among other changes, Washington law now provides that the voting

rights of felons will be “provisionally restored,” at such time as those convicted

under Washington state law are no longer under the authority of the Washington

Department of Corrections. An Act Relating to the Restoration of the Right to Vote
for People Who Were Convicted of Felonies, ch. 325, 2009 Wash. Sess. Laws

1649 (codified at Wash. Rev. Code §§ 9.92.066, 9.94A.637, 9.94A.885, 9.96.050,

10.64.140, 29A.08.520).

      The plaintiffs posit that the new law actually increases disenfranchisement;

the State disputes this contention. Regardless, the legal landscape has materially

changed. Plaintiffs sought to enjoin operation of the prior statute. That

prospective relief is no longer available. Plaintiffs now request that we enjoin

operation of the new statute. However, the district court has not had the

opportunity to address that issue in the first instance, and the empirical analysis

that formed the basis of the claim has changed. Therefore, I would either dismiss

the portion of the appeal that relates to prospective injunctive relief as moot or, as

Judge McKeown suggested in her dissent to the panel opinion, remand the case to

the district court for re-examination in light of the new legislation. Farrakhan v.

Gregoire, 590 F.3d 989, 1016-18 (9th Cir. 2010) (McKeown, J., dissenting).

                                           II

      As to the claims that are not moot,1 I would affirm the judgment of the

      1
        Plaintiffs’ challenge to Wash. Const. art. VI, § 3, and plaintiffs’ damage
claims were not rendered moot by passage of the new statute. Additionally,
plaintiffs’ claims for declaratory relief are arguably not moot to the extent that the
provisions of the new and the old statutes are coextensive and the plaintiffs are
subject to the same harm. Jacobus v. State of Alaska, 338 F.3d 1095, 1102-05 (9th
Cir. 2003).

                                          -2-
district court as entered on remand. Farrakhan v. Gregoire, No.

CV-96-076-RHW, 2006 WL 1889273 (E.D. Wash. July 7, 2006). The district

court thoroughly considered and weighed the traditional § 2(b) factors, often

referred to as “the Senate Factors.” S. Rep. No. 97-417, at 28-29 (1982), reprinted

in 1982 U.S.C.C.A.N. 177; Thornburg v. Gingles, 478 U.S. 30, 47 (1986). The

district court properly concluded that, considering the totality of the circumstances,

Washington's felon disenfranchisement law does not violate the Voting Rights Act.

Therefore, I agree that the judgment should be affirmed.

      As I understand the majority opinion, it does not disturb the holding in

Farrakhan v. Washington, 338 F.3d 1009, 1019 (9th Cir. 2003) that a § 2 analysis

requires consideration of factors external to the challenged voting mechanism

itself. Nor does the majority opinion categorically prohibit a § 2 challenge to a

felon disenfranchisement statute. With that understanding, I concur in the majority

opinion.

       Congress enacted the Voting Rights Act of 1965 for the broad remedial

purpose of eliminating racial discrimination in voting. South Carolina v.

Katzenbach, 383 U.S. 301, 315 (1966). In enacting § 2, Congress noted that it was

impossible to predict the variety of means that would be used to infringe on the

right to vote and that the voting rights landscape was marked by innovation and



                                          -3-
discrimination.2 Congress’s express objective in amending § 2 was to “broaden the

protection afforded by the Voting Rights Act.” Chisom v. Roemer, 501 U.S. 380,

404 (1991). Thus, examination of factors external to the challenged voting

mechanism is a required part of a § 2 analysis.

      Section 2 provides, without limitation, that any voting qualification that

denies citizens the right to vote in a discriminatory manner violates the Voting

Rights Act. 42 U.S.C. § 1973; see also Allen v. State Bd. of Elections, 393 US.

544, 566-67 (1969) (noting that Congress intentionally chose the expansive

language “voting qualifications or prerequisite to voting, or standard, practice, or

procedure” for § 2 so as to be “all-inclusive of any kind of practice” that might be

used by states to deny citizens the right to vote (internal quotation marks omitted)).

There is no categorical exclusion for felon disenfranchisement laws in the text of

the statute. If Congress had intended categorically to exclude certain laws from the

reach of § 2, it could have easily done so explicitly. It may still do so, if it chooses.

      That being said, in my view, establishing that a particular felon


      2
        S. Rep. No. 89-162, at 5 (1965), reprinted in 1965 U.S.C.C.A.N. 2508,
2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick,
Tydings, Dirksen, Hruska, Fong, Scott, and Javits); H.R. Rep. No. 89-439, at 10
(1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2441 (describing how “even after
apparent defeat resisters s[ought] new ways and means of discriminating,” and, as
a result, rejecting the case by case approach that “too often ha[d] caused no change
in result, only in methods.”)

                                           -4-
disenfrancement law violates § 2 because it discriminates on the basis of race will

be very difficult. As we know, felon disenfranchisement provisions are

presumptively constitutional. Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974).

A state’s criminal justice system is a complex organization, with many factors

contributing to the ultimate incarceration of a particular person. Of course,

individual decisions can, in the aggregate, result in a prison population that is

racially disproportionate. That is the thrust of the plaintiffs’ argument in this case:

that a multitude of small discriminatory decisions (whether intentional or not) have

led to incarceration of minorities in percentages that cannot be explained by non-

racial factors. However, that result alone does not, in my judgment, compel the

conclusion that the felon disenfranchisement law violates § 2. If it did, then

enforceability of felon disenfranchisement laws simply would depend on whether

prison populations mirrored general population demographics. Using that logic, if

the prison population deviated from the norm in a statistically significant way, then

felon disenfranchisement would be enjoined; if the prison population returned to

normal distributions, the injunction would be lifted. That is not the foundation of a

§ 2 violation. Indeed, Congress rejected this reasoning when it provided elsewhere

in the statute that “nothing in this section establishes a right to have members of a

protected class elected in numbers equal to their proportion in the population.” 42



                                          -5-
U.S.C. § 1973(b) (emphasis added). We have also noted that “a bare statistical

showing of disproportionate impact on a racial minority does not satisfy the § 2

‘results’ inquiry.” Smith v. Salt River Project Agric. Improvement & Power Dist.,

109 F.3d 586, 595 (9th Cir. 1997) (emphasis in original). Thus, in my view, the

district court properly analyzed the data presented by the plaintiffs in the context of

the totality of the circumstances and in consideration of the Senate Factors.

      On the other hand, one can conceive of circumstances in which felon

disenfranchisement laws could operate to violate § 2, whether by the structure or

intent of the law itself, or by other means. Indeed, the Supreme Court has made it

clear that states cannot use felon disenfranchisement as a tool to discriminate on

the basis of race, even if the laws are facially race-neutral. Hunter v. Underwood,

471 U.S. 222, 233 (1985). Thus, in my view, a categorical exclusion of felon

disenfranchisement laws from the reach of § 2 is inappropriate, either as a matter

of judicial construct or statutory interpretation.

                                           III

      I respectfully part company with the majority to the extent that it suggests

that proof of discriminatory intent is required to establish a § 2 violation. Congress

amended § 2 in 1982 “to make clear that proof of discriminatory intent is not

required to establish a violation of Section 2.” S. Rep. No. 97-417, at 2 (1982),



                                           -6-
reprinted in 1982 U.S.C.C.A.N. 177, 179; see also Ruiz v. City of Santa Maria,

160 F.3d 543, 557 (9th Cir. 1998) (noting Congress's statement that the “intent

test” was “unnecessarily divisive [in that] it involve[d] charges of racism on the

part of individual officials or entire communities,” it “placed an inordinately

difficult burden of proof on plaintiffs,” and it “asked the wrong question” (internal

quotation marks omitted, alterations in the original)). This is a question we need

not decide on this record or in this case.

      With these observations, I concur.




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