En Banc Ninth Circuit Unanimously Affirms District Court's Denial of Section 2 Voting Rights Act Felon Disenfranchisement Claim; Supreme Court Action in First Circuit Case Now Seems Very Unlikely

Via Howard Bashman come links to the per curiam opinion, Judge Thomas's narrower concurring opinion for four judges, and Judge Graber's opinion concurring in the judgment.

Though there are differences among the judges' opinions, the controlling language is from the per curiam opinion, which reads the possibility of a felon disenfranchisement case under VRA section 2 verry narrowly: "we hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a states criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2." (original emphasis).

Both the Ninth Circuit case and the First Circuit case raise the VRA section 2 felon disenfranchisement issue. I originally predicted the Supreme Court would take the original Ninth Circuit case, continuing (from an earlier 9th Circuit case) to recognize a VRA section 2 felon disenfranchisement claim) unless the Ninth Circuit reversed the panel en banc. The en banc reversal of the panel decision is exactly what happened today.

There is now no split on this question as the Supreme Court decides whether to hear the First Circuit case. It is unlikely to do so especially in light of the Solicitor General's invitation brief suggesting that the Court should not take the case in the absence of a circuit split, I now think it is exceedingly unlikely the Court will wade into this sensitive area of race an politics at this point. This is sure to disappoint Linda Greenhouse but I see it as better than the Supreme Court agreeing to hear the case.