Good news out of the liberal (and frequently reversed) Ninth Circuit Court of Appeals — an en banc panel just upheld Washington State’s felon-disenfranchisement law and backtracked from a badly decided earlier opinion (Farrakhan v. Gregoire).
Liberals have been attacking state laws that take away the right to vote from persons convicted of felonies. They claim these laws violate Section 2 of the Voting Rights Act (VRA) because they are “discriminatory.” Washington has had such a law in place since 1866, four years before the 15th Amendment even gave African Americans the right to vote. The felons who brought this suit claimed, in essence, that Washington’s law violated the VRA because of the statistical disparity between blacks and whites who are convicted of crimes in the state’s criminal justice system.
Of course, the 14th Amendment specifically gives states the right to abridge the right to vote “for participation in rebellion, or other crime.” Three other federal circuit courts of appeal, including the 11th, the 2nd, and the 1st, have thrown out such Voting Rights Act claims brought by liberal advocacy groups because of that constitutional authority and the legislative history of the VRA, which makes it pretty clear that it wasn’t intended to apply to such felon laws.
To no one’s great surprise, the Ninth Circuit had previously gone the other way in this very case in a three-judge panel decision, recognizing a claim under Section 2 of the VRA against Washington State for racial disparities. That panel remanded the case to the district court for review under the VRA. But in a development that must have irritated the panel, the district court once again found no violation of the law.
The case went back up to the panel on appeal, and in January, the panel simply ruled in favor of the six felons who filed the lawsuit. It was a terrible decision participated in by the most infamous activist on the Ninth Circuit, Stephen Reinhardt, who in reaction to his frequent reversals by the Supreme Court once declared, “They can’t catch ’em all.” Reinhardt and his cohort, Judge Wallace Tashima, basically ignored the Constitution and the legislative history of the VRA to come to the decision they wanted.
Fortunately, on Oct. 7 an eleven-judge panel led by Chief Judge Alex Kozinski (a Reagan appointee and son of Holocaust survivors) overruled Reinhardt and Tashima. Chief Kozinski noted the opposing decisions of the three other circuits and concluded that “the rule announced” in the prior Ninth Circuit decision “sweeps too broadly.” As Kozinski pointed out in the per curiam opinion, “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.” The court was “skeptical that felon disenfranchisement laws can be challenged under section 2 of the VRA” and concluded that at the very least, someone challenging such a state law must show “that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.”
The 1st Circuit decision upholding Massachusetts’s felon law, Simmons v. Galvin, is before the U.S. Supreme Court on a petition for certiorari. Because of the prior conflict in the federal circuits, election-law watchers were betting that the Court would take the case. However, now that the Ninth Circuit has backtracked and repudiated its earlier decision, the conflict has disappeared, making it much less likely that the Supreme Court will accept review.
So once again, the NAACP Legal Defense Fund, which brought the suit, and its amicus allies, the ultra-liberal Brennan Center for Justice, the ACLU, and the Lawyers’ Committee for Civil Rights, have lost. But Americans who believe in the rule of law and the Constitution, as well as in not rewarding individuals who break the law, have won.