Subject: Re: [EL] 9th Circuit en banc felon disenfranchisement case decided
From: Justin Levitt
Date: 10/7/2010, 6:39 PM
To: Rick Hasen
CC: Election Law <election-law@mailman.lls.edu>

A question about the decisions in this case.  Upon first reading, it appears that both the per curiam and the concurring opinions offer a novel treatment of the statistical evidence. 

As I understand it, the plaintiffs offered an unrebutted statistical study purporting to show that the racial disparities in policing, prosecution, and sentencing in Washington could not be explained by factors relating to legitimate policing, prosecution, and sentencing concerns, like participation in crime.  That is, the evidence offered purported to show that after taking into account a wealth of potential causal factors relevant to legitimate law enforcement, the disparities could not be explained on grounds other than race.

That's not direct evidence of intentional discrimination.  And it's apparently not persuasive circumstantial evidence to prove that there was discrimination against _particular_ plaintiffs, as is now required in a constitutional claim after McCleskey v. Kemp -- though I don't believe that VRA dilution claims have required that sort of particularized discrimination before.  It may even not be _enough_ evidence to make out a compelling case of unlawful discrimination under the totality of the circumstances, as the district court held in this case. 

But until today, I thought that evidence showing that there was a disparity that cannot be explained by any grounds other than the race of the individual is at least valid circumstantial evidence that the relevant decisions are being made intentionally based on the race of the individual.    (See, for example, Arlington Heights: "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. . . . Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U.S. 356 (1886) . . . . The evidentiary inquiry is then relatively easy.")

Yet the per curiam opinion claims that the plaintiffs presented "no evidence of intentional discrimination."  And the concurring opinion likewise seems to conflate statistics that show a disparity inexplicable on grounds other than race (which would lead to an inference of intentional discrimination) with statistics that show a departure from general population demographics (which would not).  If the statistical study did not show what it purported to show, that would be one thing.  But there's no indication in either opinion that the study was itself flawed.

So do today's opinions show bad statistics, or a substantive change in the evidentiary standards, requiring direct evidence of intentional discrimination, despite Arlington Heights?  Or both?

-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt@lls.edu
ssrn.com/author=698321


On 10/7/2010 5:13 PM, Rick Hasen wrote:

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.

Posted by Rick Hasen at 05:12 PM
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org

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-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt@lls.edu
ssrn.com/author=698321