Earlier this year, in Farrakhan v. Gregoire, the Ninth Circuit Court of Appeals decided 2–1 that Washington’s felony disenfranchisement law violated the Federal Voting Rights Act which prohibits state and local laws that deny the right to vote on account of race or color.  The decision was based on a finding of “racial discrimination in Washington’s criminal justice system.” In short, because Washington's criminal justice system is biased against African Americans resulting in a disproportionate rate of felony convictions of African-Americans because of their race, felony disenfranchisement acts as a law denying voting rights because of race.  The likely consequence of that conclusion would be to enjoin enforcement of the felony disenfranchisement law thereby allowing all felons to vote until such time as the discrimination within Washington’s system was determined to be eradicated.

The State, which disagreed obviously, requested that the decision be reviewed by the Court en banc— i.e. by a court comprised of 11 of the judges of Circuit.  The Ninth Circuit granted the request and on Tuesday the en banc court heard argument in the case.  Arguing for the plaintiffs was Ryan Haygood of the NAACP Legal Defense and Education Fund and for the State was Attorney General Rob McKenna. McKenna had not argued the case to the original three judge panel of the Court.  Here is a report on the argument.

Haygood argued first.  His principal challenge was that three other federal circuit courts had held that felony disenfranchisement statutes were not within the purview of the Voting Rights Act. Haygood countered that that there was nothing in the language of the Act that supported that conclusion relying heavily on a dissent in a Second Circuit case written by then judge and now Justice of the Supreme Court Sotomayor. He emphasized that his argument was not that every felony disenfranchisement law violated the Voting Rights Act, but was that in limited situations where, as in Washington, there was "compelling evidence of racial discrimination and bias"  felony disenfranchisement laws would violate the Act.

McKenna’s principal challenge was to explain why the unchallenged conclusion of the experts regarding bias in Washington’s system did not support a finding that the voting rights act had been violated.  McKenna’s main argument was that it did not matter because as a matter of law Congress did not intend felony disenfranchisement laws to be covered by the Voting Rights Act regardless of bias in the system.  He noted for example that forty seven states had felony disenfranchisement laws at the time of the passage of the Voting Rights Act (and still do today) yet Congress made no mention of such laws in the Act itself or in the legislative history.

McKenna also argued that the racial disparities in Washington’s system were attributable to factors other than racial discrimination and that the totality of the circumstances does not support a finding that the Act was violated. But Chief Judge Kozinski seemed skeptical, quoting Sherlocks Holmes line: "Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth."

Finally, McKenna tried to argue that the situation in Washington was changing—that the racial disparities were diminishing —but he was called on the carpet by the court for arguing facts that were not in the record and for which he had not made a motion asking the court to take judicial notice.  (McKenna made another faux pas by failing to introduce himself at the start of the argument.  Perhaps he thought everyone on the court should know who he is?  Well Chief Judge Kozinski asked him to identify himself for the record and said somewhat sarcastically “welcome” after McKenna did so.)

So what do we take from this.  Based on the vigorous questioning of both sides, it's hard to predict where the court will come out.  Both counsel were tripped up by difficult questions from the court. For example, Haygood had trouble explaining why bias in the criminal justice system should be deemed a voting rights issue rather than one evaluated in an individual challenge to the propriety of underlying criminal conviction.  McKenna would not directly answer whether a felony disenfranchisement act passed with the intent to deny voting rights would be covered under the Voting Rights Act because a yes answer would have undercut his argument that all felony disenfranchisement statutes are outside the purview of the Act and a no answer would be hard to swallow.

I think the plaintiffs are right based on the terms of the statutes; there is nothing in the terms to suggest felony disenfranchisement laws are outside the purview of the Voting Rights Act.  But I also think McKenna is right that Congress probably did not consider the application of such laws in the voting rights context as they were widespread and not just found in the South where states were trying to limit minority voting.

At the end of the day, the en banc court may punt.  There is a similar case where a request for U.S. Supreme Court review is pending and the Ninth Circuit may wait to see whether review is accepted.  The issue may also be avoided as the State recently amended its felony disenfranchisement law to make it easier for felons to regain their right to vote and the Court could send the case back to the trial court to determine whether that amendment cures the problem.  But bottom line this is a very hard case because the State made a strategic decision not to offer any counter evidence to the plaintiffs’ experts’ opinions that Washington’s criminal justice system is discriminatory.

And what do we take from McKenna’s decision to argue the case himself?  This is not the first time McKenna has taken on felony disenfranchisement issues. He personally defended  the constitutionality of the felony disenfranchisement act against a challenge in the Washington Supreme Court before his last run for attorney general. And then when he ran, he touted his personal participation in the case to republican audiences.  After all, being anti-criminals is a good sell in republican circles.  Plus he kept felons from voting, undoubtedly a plus for republicans. Now if the en banc panel upholds the original decision, felons will likely be allowed to vote in the next gubernatorial election here in Washington.  That would not be good for a McKenna gubernatorial run.  So McKenna definitely had a strong personal reason for arguing the case.

But on another note, the most disturbing aspect of McKenna’s participation in the issues raised by the case are that he is limiting himself to winning the argument that the Voting Rights Act does not apply even though both the trial court and appellate court found compelling evidence of discriminatory bias in Washington’s criminal justice system.  If  McKenna really wanted to reach out to the broader electorate he would be using his role as chief legal officer in the state to talk about proposals to erase bias in our system.  Regardless of whether the Voting Rights Act is violated, a criminal justice system is not just if it is discriminatory.