June 8, 2011
Examining the Ninth Circuit’s “Intentional Discrimination” Standard in Farrakhan v. Gregoire
From The Sentencing Project
Ryan P. Haygood examines the “intentional discrimination” threshold established by the Ninth Circuit Court of Appeals in “Disregarding the Results: Examining the Ninth Circuit’s Heightened Section 2 “Intentional Discrimination” Standard in Farrakhan v. Gregoire,” which was recently published in the Columbia Law Review. Haygood is Co-Director of the Political Participation Group at the NAACP Legal Defense & Education Fund, and counsel for the Farrakhan plaintiffs
A group of minority inmates in Washington initiated Farrakhan, arguing that the disproportionate disenfranchisement of racial minorities with felony convictions was a result of pervasive racial discrimination in the state’s criminal justice system. According to the plaintiffs, this discrimination contributed to the disenfranchisement of 15% of Washington’s Black population, constituting a violation of the Voting Rights Act of 1965.
The intentional discrimination standard imposed in October 2008 by the Ninth Circuit requires plaintiffs to show that “at least”: (1) Washington’s “criminal justice system was infected by intentional discrimination,” or (2) that the state’s “felon disenfranchisement law was enacted with such intent.” Haygood argues that the new standard is nearly insurmountable and is inconsistent with the text, precedent, and legislative history of the Voting Rights Act.
According to Haygood, requiring plaintiffs to offer more evidence, particularly when the state has not disputed the claim that racial discrimination exists within the justice system, speaks to the barrier the court has erected for plaintiffs wishing to bring felon disenfranchisement challenges. By imposing the intent standard, the court disregards the resulting impact, foreclosing upon any realistic possibility of relief for plaintiffs bringing felon disenfranchisement challenges.