Muhammad Shabazz Farrakhan, Individually Aka Ernest S. Walker; Marcus X. Price, Individually; Ramon Barrientes, Individually; Timothy Schaaf, Individually; Clifton Briceno, Individually; Al-kareem Shadeed, Individually, Plaintiffs-appellants, v. State of Washington; Gary Locke, in His Official Capacity As Governor of the State of Washington; Sam Reed, in His Official Capacity of Secretary of State and Chief Election Officer for the State of Washington; Joseph Lehman, in His Official Capacity As Secretary of the Department of Corrections of the State of Washington, Defendants-appellees, 338 F.3d 1009 (9th Cir. 2003)

BACKGROUND

Felon disenfranchisement is a voting restriction that denies citizens who are convicted of felonies the right to vote. Article VI, Section 3 of the Washington State Constitution provides that " [a]ll persons convicted of an infamous crime ... are excluded from the elective franchise."¹  Disenfranchised felons in Washington remain ineligible to vote until they have completed all the requirements of their sentences and have obtained certificates of discharge under Section 9.94 A. 637 of the Revised Code of Washington ("RCW"). A discharge under Section 9.94 A. 637 has "the effect of restoring all civil rights lost by operation of law upon conviction." RCW § 9.94A.637(4).

Plaintiffs Muhammad Shabazz Farrakhan, Marcus Price, Ramon Barrientes, Tim Schaaf, Clifton Briceno, and Al-Kareem Shadeed²  are citizens who were convicted of felonies in Washington state and consequently disenfranchised under Article VI, Section 3 of the Washington State Constitution. None of the plaintiffs has had his civil rights restored under RCW § 9.94 A. 637.

When Plaintiffs initially filed their complaint, they challenged Washington's disenfranchisement scheme on federal constitutional grounds and as violative of the Voting Rights Act ("VRA").³  They sought both declaratory and injunctive relief to enjoin Defendants⁴  from applying the voting restriction and related statutory provisions against all felons. In allowing Plaintiffs to proceed on their vote denial claim under Section 2, the district court rejected the State's argument that the VRA could not apply to felon disenfranchisement laws. Farrakhan v. Locke, 987 F. Supp. 1304, 1311 (E.D.Wa.1997). However, the court dismissed Plaintiffs' constitutional and vote dilution claims and denied Plaintiff Farrakhan's request for leave to file a due process challenge to Washington's statutory scheme governing the restoration of felons' civil rights. Id. at 1315.

In their Fourth Amended Complaint, Plaintiffs alleged that Article VI, Section 3 of the Washington Constitution, along with the process set forth for restoration of disenfranchised felons' civil rights, result in the denial of their right to vote on account of race in violation of Section 2. This was the operative complaint upon which the parties relied when they filed cross-motions for summary judgment.

In support of its motion, the State filed a statement of material facts as required by Rule 56.1(a) of the Local Rules for the Eastern District of Washington. In this statement, the State set forth facts that it contended were not disputed regarding (1) Plaintiffs' criminal histories and the fact that none had completed all the requirements of his sentence, (2) the background and history of Washington's felon disenfranchisement law and statistics regarding citizens who had been affected by it, (3) the statutory procedure for restoration of civil rights and reinstatement of the right to vote, (4) the history of Washington's African-American population, (5) the racial and ethnic make-up of Washington's population, (6) the composition of Washington's felony population, (7) the background and work of the Washington State Minority and Justice Commission, ("WSMJC") and (8) the history of and changes to Washington's voting laws and practices. With the exception of three issues relating to the operation of Washington's disenfranchisement scheme and its history of discrimination against Native Americans, Plaintiffs did not dispute the State's statement of material facts.

To substantiate their vote denial claim, however, Plaintiffs presented statistical evidence of the disparities in arrest, bail and pre-trial release rates, charging decisions, and sentencing outcomes in certain aspects of Washington's criminal justice system.⁵  They also submitted expert declarations and relied on the same reports and studies that the State had submitted to show the extent to which these disparities could be attributed to racial bias and discrimination.⁶  In addition to this evidence regarding racial bias in Washington's criminal justice system, Plaintiffs offered evidence of the tenuous policy justifications for Washington's felon disenfranchisement law, and presented evidence of the discriminatory intent that guided the enactment of these laws in several states, discussing the similarities between other states' statutes and the one enacted in Washington.

As noted, the district court ultimately granted the State's motion for summary judgment. Despite the fact that there was little dispute over the State's separate statement of material facts,⁷  the district court nonetheless characterized Plaintiffs' evidence of discrimination in Washington's criminal justice system and the resulting disproportionate impact on minority voting power as "compelling."⁸  However, the district court ultimately concluded that such evidence was insignificant to its inquiry regarding a possible causal connection between the disenfranchisement provision and the disproportionate impact on the number of minorities ineligible to vote.⁹  As we explain, the district court's analysis and conclusion misunderstand Section 2's "totality of the circumstances" test, which requires the court to consider the way in which the disenfranchisement law interacts with racial bias in Washington's criminal justice system to deny minorities an equal opportunity to participate in the state's political process.

DISCUSSION

Congress enacted the VRA for the broad remedial purpose of "rid [ding] the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966). Initially responding "to the increasing sophistication with which the states were denying racial minorities the right to vote," Farrakhan, 987 F. Supp. at 1308, Congress amended Section 2 of the VRA in 1982 to relieve plaintiffs of the burden of proving discriminatory intent.¹⁰  Chisom v. Roemer, 501 U.S. 380, 394, 111 S. Ct. 2354, 115 L. Ed. 2d 348 (1991); 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 involved charges of racism on the part of individual officials or entire communities [and] placed an inordinately difficult burden of proof on plaintiffs and [] asked the wrong question." (internal alteration and quotation marks omitted)). As amended, Section 2 provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f) (2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, 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 U.S.C. § 1973. Thus, a plaintiff may establish a Section 2 violation by showing that, based on of the totality of the circumstances, the challenged voting practice results in discrimination on account of race.¹¹ 

The Senate Report accompanying the 1982 amendments identified "typical factors" that may be relevant in analyzing whether Section 2 has been violated:

(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;

(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

(4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;

(6) whether political campaigns have been characterized by overt or subtle racial appeals;

(7) the extent to which members of the minority group have been elected to public office in the jurisdiction;

(8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;

(9) whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

See S.Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07 ("Senate Report"). Congress did not intend this list to be comprehensive or exclusive, nor did it intend that "any particular number of factors be proved, or that a majority of them point one way or the other." Id. at 29. Rather, as explained by the Supreme Court, in examining the totality of the circumstances to determine whether a challenged voting practice results in vote denial or vote dilution on account of race, courts must consider how the challenged practice "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S. Ct. 2752.

As a preliminary matter, we agree with the district court that Plaintiffs' claim of vote denial is cognizable under Section 2 of the VRA. Felon disenfranchisement is a voting qualification, and Section 2 is clear that any voting qualification that denies citizens the right to vote in a discriminatory manner violates the VRA. 42 U.S.C. § 1973. Indeed, the Supreme Court has made clear that states cannot use felon disenfranchisement as a tool to discriminate on the basis of race, see Hunter v. Underwood, 471 U.S. 222, 233, 105 S. Ct. 1916, 85 L. Ed. 2d 222 (1985) (holding that where racial bias motivated its original enactment, a facially neutral felon disenfranchisement law violated the Equal Protection Clause), and Congress specifically amended the VRA to ensure that, "in the context of all the circumstances in the jurisdiction in question," any disparate racial impact of facially neutral voting requirements did not result from racial discrimination, Senate Report at 27; see also Chisom v. Roemer, 501 U.S. at 394 & n. 21, 111 S. Ct. 2354.

Permitting a citizen, even a convicted felon, to challenge felon disenfranchisement laws that result in either the denial of the right to vote or vote dilution on account of race animates the right that every citizen has of protection against racially discriminatory voting practices. Although states may deprive felons of the right to vote without violating the Fourteenth Amendment, Richardson v. Ramirez, 418 U.S. 24, 54-55, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974), when felon disenfranchisement results in denial of the right to vote or vote dilution on account of race or color, Section 2 affords disenfranchised felons the means to seek redress.¹² 

Next, we consider whether the district court erred in failing to consider evidence of racial bias in Washington's criminal justice system in determining whether Washington's felon disenfranchisement laws result in denial of the right to vote on account of race. We hold that it did, as the district court misconstrued the causation requirement of a Section 2 analysis.

Relying extensively on our decision in Salt River, 109 F.3d at 594-96, the district court concluded that Plaintiffs had failed to demonstrate that Washington's felon disenfranchisement provision was either "motivated by racial animus, or that its operation by itself has a discriminatory effect."¹³  Although it determined that the disenfranchisement statute resulted in the under-representation of minorities in Washington's political process, the district court found that Plaintiffs had failed to satisfy their causal burden because the cause of the underrepresentation "is not the voting qualification; instead, the cause is bias external to the voting qualification," i.e., discrimination in the criminal justice system.¹⁴  In so ruling, the district court applied a causal standard at odds with the Salt River decision (which "compelled" its understanding of the Section 2 analysis), the plain language of the VRA, its legislative history, and other well-established judicial precedent.

Section 2 plainly provides that a voting practice or procedure violates the VRA when a plaintiff is able to show, based on the totality of the circumstances, that the challenged voting practice results in discrimination on account of race. 42 U.S.C. § 1973. The Supreme Court has interpreted " [t]he essence of a [Section] 2 claim" to be "that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S. Ct. 2752 (emphasis added). Thus, it is clear that whether a particular practice results in vote denial or vote dilution in violation of Section 2 always depends on the "totality of the circumstances" in which the practice operates.

In fact, in Salt River, we applied the totality of the circumstances test to determine whether an agricultural improvement and power district's land ownership voting qualification violated Section 2. 109 F.3d at 594-95. The plaintiffs were African-American, non-landowning residents of the district who claimed that the land ownership requirement was a racially discriminatory voting qualification because a disproportionate percentage of landowners in the district were white. Id. at 588.

In assessing their claim, we considered both the interaction of the challenged landownership requirement with the surrounding social and historical circumstances in the district and expert testimony "regarding the relationship, or lack thereof, between race and home ownership" in the district. Id. at 590. Deferring to the district court's factual findings, we focused on its conclusion that "the observed difference in rates of home ownership between non-Hispanic whites and African-Americans is not substantially explained by race but is better explained by other factors independent of race" which "adequately rebutted any inference of racial bias that the [disparate impact] statistics might suggest." Id. at 591 (emphasis added) (internal citations omitted). Because the land ownership rates did not reflect racial discrimination, we concluded that the land ownership requirement did not violate Section 2. Id. at 594-96.

In so concluding, the Salt River court did not focus solely on the land ownership requirement and exclude external factors that helped determine the qualification's disparate racial impact. Instead, we considered the external factors, but ultimately concluded that the statistics evidencing the disproportionate percentage of white landownership did not reflect racial discrimination and so failed to satisfy the "on account of race" requirement of the results test. As we noted, this conclusion was dictated by the Salt River plaintiffs' admission that there was no evidence of discrimination as measured by the Senate Report factors, id. at 595-96, and their stipulation to "the nonexistence of virtually every circumstance which might indicate that landowner-only voting results in racial discrimination," id. at 595, leaving only a bare statistical showing of disparate impact to support their Section 2 claim.

In light of these constraints, the Salt River court's statement regarding the need for evidence of "a causal connection between the challenged voting practice and [a] prohibited discriminatory result," id. (internal quotation marks omitted) (alteration in original), simply does not stand for the proposition that the practice must, "by itself," cause the discriminatory result. Indeed, if it did, there would have been no need for the court to consider whether land ownership rates reflected racial discrimination or to assess other totality of the circumstances factors.

Further, demanding "by itself" causation would defeat the interactive and contextual totality of the circumstances analysis repeatedly applied by our sister circuits in Section 2 cases, as they also require a broad, functionally-focused review of the evidence to determine whether a challenged voting practice interacts with surrounding racial discrimination in a meaningful way or whether the practice's disparate impact "is better explained by other factors independent of race." Salt River, 109 F.3d at 591 (internal quotation marks omitted); see, e.g., Ortiz v. City of Philadelphia Office of the City Comm'rs, 28 F.3d 306, 310-16 (3d Cir. 1994) (acknowledging that Section 2 violations occur when challenged voting practices interact with social and historical conditions to deny minorities equal access to the political process, but ultimately upholding Pennsylvania's voter purge law because there was no evidence that discrimination or societal disadvantages had contributed to low minority voter turnout); Salas v. S.W. Tex. Junior Coll. Dist., 964 F.2d 1542, 1555-56 (5th Cir. 1992) (noting that "practical impediments to voting" are relevant in assessing a Section 2 challenge but finding no credible evidence that the effects of prior discrimination — including unemployment, illiteracy, and low income — had contributed to the low voter turnout that caused Hispanics' lack of electoral success, the court held that the real cause of this lack of success was not the challenged voting practice); Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1358-59 (4th Cir. 1989) (upholding an appointive rather than an elective scheme for selecting county school boards because (1) in the few counties in which blacks were significantly underrepresented the disparity was due to the fact that fewer blacks sought appointment, and (2) the composition of the officials responsible for making appointments either manifested no discrimination or should have been addressed through a challenge to the selection procedures for those officials); United States v. Marengo County Comm'n, 731 F.2d 1546, 1574 (11th Cir. 1984) (finding that the evidence demonstrated that blacks' lack of success at the polls was not due to "apathy" but rather due to social and historical factors including "a history of pervasive racial discrimination," and holding that an at-large election system therefore resulted in a Section 2 violation).

Moreover, the district court's "by itself" causation standard would effectively read an intent requirement back into the VRA, in direct contradiction of the clear command of the 1982 Amendments to Section 2. A facially neutral voting qualification, even one that results in substantial discriminatory effects, would only be discriminatory "by itself" if its purpose was to achieve those discriminatory effects. Instead, courts must be able to consider whether voting practices "accommodate or amplify the effect that ... discrimination has on the voting process," Salt River, 109 F.3d at 595 n. 7 (internal quotation marks omitted); absent proof that the challenged practice was adopted or maintained out of overt, intentional racial animus, its disproportionate effect on minority voters could only ever be "on account of race" through its interaction with racial discrimination "outside of the challenged voting mechanism."

In sum, although Salt River made clear that "a bare statistical showing of disproportionate impact on a racial minority does not satisfy the [Section] 2 `results' inquiry" because causation cannot be inferred from impact alone, 109 F.3d at 595, the legislative history of the VRA along with the consistent judicial interpretation of Section 2 clarify that " [e]ven a consistently applied practice premised on a racially neutral policy would not negate a plaintiff's showing through other factors that the challenged practice denies minorities fair access to the process." Senate Report at 29 n.117. Certainly, plaintiffs must prove that the challenged voter qualification denies or abridges their right to vote on account of race, but the 1982 Amendments and subsequent case law make clear that factors outside the election system can contribute to a particular voting practice's disparate impact when those factors involve race discrimination. Therefore, under Salt River and consistent with both Congressional intent and well-established judicial precedent, a causal connection may be shown where the discriminatory impact of a challenged voting practice is attributable to racial discrimination in the surrounding social and historical circumstances. In light of this determination, we turn to the question of whether evidence of racial discrimination in the criminal justice system qualifies as such evidence.

As noted above, the Senate Report accompanying the 1982 Amendments identified "typical factors" that may be relevant in analyzing whether a particular voting practice violates Section 2, but Congress did not intend the listed factors to be exhaustive. The legislative history accompanying the 1982 Amendments acknowledged that "while these enumerated factors will often be the most relevant ones, in some cases other factors will be indicative" of a Section 2 violation. Senate Report at 29. Further, the Supreme Court has emphasized the importance of maintaining a practical perspective when evaluating the effects or lawfulness of a challenged voting practice, Gingles, 478 U.S. at 46, 106 S. Ct. 2752, and courts have followed this directive in considering the lower socio-economic status of American Indians, see Old Person v. Brown, 312 F.3d 1036, 1042 (9th Cir. 2002), the disproportionate number of blacks living in poverty and inadequate housing, see Johnson v. Halifax County, 594 F. Supp. 161, 169-70 (E.D.N.C. 1984), a Board of Education's opposition to school desegregation, see Marengo, 731 F.2d at 1568, and the past and continuing unemployment, illiteracy, and low income that Hispanic citizens face, see Salas, 964 F.2d at 1556.

Thus, simply because Congress did not specifically identify racial bias in the criminal justice system as a relevant factor in identifying a Section 2 violation does not mean that it should be excluded from a totality of the circumstances analysis. In fact, this kind of evidence is encompassed within the scope of factor (5), directing courts to consider "the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment, and health." Senate Report at 29.

This factor underscores Congress's intent to provide courts with a means of identifying voting practices that have the effect of shifting racial inequality from the surrounding social circumstances into the political process. To the extent that racial bias and discrimination in the criminal justice system contribute to the conviction of minorities for "infamous crimes," such discrimination would clearly hinder the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic. Thus, racial bias in the criminal justice system may very well interact with voter disqualifications to create the kinds of barriers to political participation on account of race that are prohibited by Section 2, rendering it simply another relevant social and historical condition to be considered where appropriate.

Indeed, had the district court properly interpreted the causation requirement under the totality of the circumstances test instead of applying its novel "by itself" causation standard, the court might have reached a different conclusion.¹⁵  Although we conduct a de novo review of the record, in light of the district court's assessment that Plaintiffs' evidence was compelling and its determination that such evidence was insignificant for its analysis of the totality of the circumstances surrounding Plaintiffs' Section 2 claim, we believe that it is appropriate to remand this claim to the district court for further proceedings. On remand, the district court should make any requisite factual findings following an appropriate evidentiary hearing, if necessary, and assess the totality of the circumstances, including Plaintiffs' evidence of racial bias in Washington's criminal justice system.

We recognize that this is a difficult issue and that it requires a searching inquiry into all factors that bear on Plaintiffs' claim. We, however, express no opinion on the merits of Plaintiffs' claim and leave that determination to the district court in the first instance.

Plaintiffs also argue that Washington's statute for the restoration of civil rights, RCW § 9.94 A. 220, and the process that the State has adopted to implement the statute, violate Section 2.¹⁶  The statute provides:

(1) When an offender has completed the requirements of the sentence, the secretary of the department [of Corrections] or the secretary's designee shall notify the sentencing court, which shall discharge the offender and provide the offender with a certificate of discharge.

(2) The discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state.

RCW § 9.94 A. 220. Plaintiffs contend that Washington's scheme for restoration of civil rights is "cumbersome, excessively complex, and places difficult burdens on offenders seeking restoration of voting rights."¹⁷  Plaintiffs further argue that the statutory eligibility requirements violate the VRA by causing a disproportionately minority population to be prohibited from registering and voting.

With regard to the challenge to the eligibility statute itself, Plaintiffs have produced no evidence that minorities are less able to meet the requirements for restoration.¹⁸  At a minimum, Section 2 requires evidence that the challenged provision results in discrimination. The evidence submitted by Plaintiffs, however, demonstrates only that the disenfranchisement scheme may be discriminatory; Plaintiffs' evidence does not support a similar conclusion with respect to the restoration scheme, except insofar as it reflects any discrimination caused by the disenfranchisement scheme. Without evidence that minorities are less able to complete the eligibility requirements, Plaintiffs' challenge to these requirements must fail.¹⁹ 

As to Plaintiffs' challenge to the restoration procedures, the district court held that Plaintiffs lacked standing to challenge the restoration scheme because they presented no evidence of their eligibility, much less even allege that they were eligible for restoration, and had not attempted to have their civil rights restored. We conduct a de novo review of the standing question, Hartman v. Summers, 120 F.3d 157, 159 (9th Cir. 1997), and we agree with the district court that Plaintiffs lack standing to assert this claim.

Standing generally requires a plaintiff to establish the following: (1) injury in fact, (2) a causal connection between the injury and the conduct in question, and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Because Plaintiffs cannot meet the requirement of injury in fact, they lack standing to pursue this claim.

Plaintiffs argue that because Section 9.94 A. 220 prohibited them from registering and voting, they have suffered an injury in fact. However, proof of this element requires "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S. Ct. 2130 (internal quotation marks and citations omitted). Plaintiffs' argument glosses over the fact that they have not been denied the right to vote because of the restoration process, but rather due to the disenfranchisement provision discussed at length above, and because they have not satisfied all the requirements of their sentences to become statutorily eligible for discharge of their convictions. The right to a discharge of conviction arises only upon the completion of all the requirements of the judgment and sentence.

To the extent that the basis for Plaintiffs' asserted injury in fact is the statutory process "as applied," their allegations of harm are conjectural or hypothetical — Plaintiffs speculate that the process would be "cumbersome, excessively complex, and place [] a difficult burden on them" should they ever qualify for restoration of their civil rights under Section 9.94 A. 220.²⁰  Accordingly, we agree with the district court that Plaintiffs lack standing to challenge the process for obtaining restoration of their civil rights under RCW § 9.94 A. 220 as a violation of Section 2.²¹ 

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.