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Jonathan Sgro

For Complete Article See: Jonathan Sgro, Intentional Discrimination in Farrakhan V. Gregoire: the Ninth Circuit's Voting Rights Act Standard results In the New Jim Crow, 57 Villanova University 139 (2012) (178 Footnotes)


Jarvious Cotton cannot vote. . . . Cotton's family tree tells the story of several generations of black men who were born in the United States but who were denied the most basic freedom that democracy promises--the freedom to vote for those who will make the rules and laws that govern one's life. Cotton's great-great-grandfather could not vote as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy tests. Today, Jarvious Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole.

If current incarceration rates hold, three in ten of the next generation of African-American men will be disenfranchised at some point in their lives. In states that disenfranchise ex-offenders, as many as forty percent of African-American men will permanently lose their right to vote. Congress enacted the Voting Rights Act of 1965 (VRA) with the intent to rid the country of racial discrimination in voting. In part due to the VRA, people of color are no longer subject to racial intimidation or literacy tests at the ballot box; however, a more subtle and insidious mechanism has replaced these explicit methods to suppress the minority vote: felon disenfranchisement.

Forty-eight states maintain felon disenfranchisement laws--only Maine and Vermont permit inmates to vote. These laws, like their racially explicit predecessors, overwhelmingly affect people of color due to racial bias in the criminal justice system. Presently, the United States imprisons a larger percentage of its black population than did South Africa at the height of Apartheid. In fact, roughly thirteen percent of African American men, or 1.4 million, are disenfranchised, a rate seven times the national average.

Initially, advocates alarmed by the disparate impact of felon disenfranchisement on racial minorities brought challenges under the Fourteenth and Fifteenth Amendments of the Constitution. However, recent efforts to invalidate felon disenfranchisement laws have focused on section 2 of the VRA. Section 2 provides that [n] o voting qualification or prerequisite to voting . . . shall be imposed or applied . . . in a manner which results in a denial or abridgement of the right . . . to vote on account of race or color. Currently, federal circuit courts are divided over whether challenges to felon disenfranchisement laws are cognizable under section 2 of the VRA. In this sometimes rancorous division, the Ninth Circuit is the only circuit to explicitly hold that it is permissible to challenge felon disenfranchisement laws under the VRA. Nevertheless, in Farrakhan v. Gregoire (Farrakhan III), the Ninth Circuit recently revised its previous holding en banc and required plaintiffs bringing a section 2 claim alleging racial bias in the criminal justice system to show intentional discrimination in that system or in the challenged law's passage. The Supreme Court has not considered a challenge to felon disenfranchisement under section 2, but its decisions on vote dilution claims under the VRA provide insight into the Court's understanding of the Act and the framework for successful challenges.

This Note (i) argues that the Ninth Circuit's intentional discrimination requirement directly contradicts the language of the VRA's 1982 amendments and (ii) suggests a formulation of section 2's results test that aligns with precedent under the VRA and the Court's disparate impact jurisprudence. Part II briefly outlines the history of felon disenfranchisement laws in the United States and the current racial bias in the criminal justice system, and Part III provides an overview of challenges under section 2 of the VRA. Part IV discusses the Ninth Circuit's decision in Farrakhan III, while Part V analyzes the court's novel evidentiary standard. Part VI suggests the appropriate evidentiary standard for assessing felon disenfranchisement laws under section 2. Part VII concludes with a discussion of the impact of the Ninth Circuit's decision on future challenges to felon disenfranchisement and the Court's interpretation of section 2.