The Ninth Circuit has denied an en banc hearing over a strong dissent by Judge Kozinski in Farrakhan v. State of Washington. At issue in the case is whether Washington’s law that disenfranchises felons violates section 2 of the Voting Rights Act, which prevents discrimination in voting on account of race or color. Plaintiffs’ primary claim in the case rested on statistical evidence “showing that disparities in the felon conviction rates of certain minority groups in relation to their presence in the general population lead to a dispartiy in the rate of disenfranchisement under Washington’s felon disenfranchisement law.” (Kozinski dissent at 2398).
Judge Kozinski, along with six other (mostly quite conservative) dissenters, seems to have it right here. By relying on statistical impact alone, the Ninth Circuit has reached a result contrary to other circuits that have looked at the issue. Kozinski finds the result contrary to Congress’s intent in amending section 2 in 1982 and also argues—persusasively—that the holding could call into question the constitutionality of section 2. If section 2 indeed reaches this far, it might go further than Congress’s powers allow under City of Boerne v. Flores. (I address the constitutional question with section 2 in my book at 120-33 and the parallel issue under section 5 of the Voting Rights Act in this working paper.)
Finally, Judge Kozinski considers the broad implications of the ruling. It could, for example, lead courts to strike down internet voting given disparities by race in internet access. (On this point, I was gratified to see that Judge Kozinski cited and discussed articles by Alvarez & Nadler, Moglen & Karlan, and Pershing in this Loyola of Los Angeles Law Review symposium on Internet Voting that I organized a few years ago.)
Professor Rick Pildes, in bringing this case to my attention, noted that “[t]he dissent will signal to the Court that cert. should be strongly considered, so this [case] could become even more significant.” I agree with Rick.