Re: [EL] 9th Circuit en banc felon disenfranchisement case decided

/McCleskey v. Kemp/

Justin - The Ninth Circuit, like all the other Circuits, is saying that
under Richardson and Hunter (and Washington v. Davis) you cannot
challenge felon disfranchisement under federal law without proving 
SUBJECTIVE   INTENT to discriminate on the part of the Legislature.
Disparate impact will not suffice..... The handwriting was on the wall
since Richardson, which is why I sued under the New Jersey Constitution
(challenging disfranchisement of parolees/probationers) , since the New
Jersey Supreme Court appeared to have rejected a Davis analysis under
equal protection. The New Jersey Appellate Division disagreed with me
(NAACP v. Harvey, Atty. Genl.) and the NJ Supreme Court denied review.
That case has now been pending before the Inter American Commission on
Human Rights for nearly 5 years.  The IACHR finally ordered the U.S. to
respond last spring, and the U.S. has defended to date on the ground
that petitioners failed to exhaust their domestic remedies, because
there was a split among the Circuit Courts citing the panel opinion in
Farrakhan, which we noted had been withdrawn by the en banc court
pending en banc review, and we said it was obvious that the Circuit
would overrule the panel opinion. Presumably, we have now exhausted all
domestic remedies, although I assume the U.S. will now argue that the
Petitioners in Farrakhan have a right to seek cert.  FRANK

Prof. Frank Askin
Distinguished Professor of Law       and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687>>> Justin Levitt <Justin.Levitt@lls.edu> 10/7/2010 9:39
PM >>>
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: