I understand that the Farrakhan decision is asking for intent to discriminate (in the predicate social condition -- here, the criminal justice system -- that results in an abridgment of the right to vote) in order to find a Voting Rights Act violation. The question, though, is _how_ you furnish that proof, after the opinion.
As I understand it (I haven't read the original studies; I'm relying on the Ninth Circuit panel's description), the studies in question in the case did not simply show disparate impact. Disparate impact would be a finding that X% of the relevant population is, say, African-American, but X+20% of the disenfranchised population is African-American. One of the reasons that this isn't enough is that there might be other intervening factors relevant to criminal enforcement that might better explain the disparity, showing that there was no intent to discriminate, but only an intent to prosecute neutrally, based on those other factors.
What the studies seemed to show, instead, is that after taking into account all possible other factors, there was still a disparity that was not explained by anything other than the race of the individual. (Or, more precisely, I believe that this was the unrebutted assertion, credited by the trial court.)
That's not direct evidence of discriminatory intent. (I'm not sure what _direct_ evidence of systemic discriminatory intent would look like, other than a law requiring differential treatment or a statement suggesting a jurisdiction-wide policy to convict and imprison more African-Americans because of their race. And if that's really what's required, that seems to give short shrift indeed to the 1982 VRA Amendments.)
Instead, the studies sounded to me like circumstantial evidence of discriminatory intent. As in Yick Wo, where the statistics suggested discriminatory intent even without direct proof. Now, maybe the studies here could be rebutted. Maybe they're not sufficiently persuasive as circumstantial evidence of intent to meet the plaintiff's burden of proof. Maybe they suffice as evidence of discriminatory intent, but there's still room to find no abridgment of the right to vote under the totality of the circumstances. But the en banc opinion didn't say any of those things. It claimed that the plaintiffs offered "no" evidence of intentional discrimination, circumstantial or otherwise.
And so, my question. Does the opinion now mean that the only acceptable evidence of discriminatory intent is direct evidence? If so, what did the 1982 Amendments accomplish? And if not, what circumstantial evidence would suffice?
Justin
----- Original Message -----
From: Frank Askin <faskin@kinoy.rutgers.edu>
Date: Friday, October 8, 2010 10:13 am
Subject: Re: [EL] 9th Circuit en banc felon disenfranchisement case decided
To: Justin Levitt <Justin.Levitt@lls.edu>, Rick Hasen <Rick.Hasen@lls.edu>
Cc: Election Law <election-law@mailman.lls.edu>
> 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:
> >
> >
> > 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
> <http://howappealing.law.com/100710.html#039222>
> > come links to the per curiam
> >
> <http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669.pdf>
> opinion,
> > Judge Thomas's narrower concurring opinion
> >
> <http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669c1.pdf>
>
> > for four judges, and Judge Graber's opinion
> >
> <http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669c2.pdf>
>
> > 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
> > <http://electionlawblog.org/archives/015258.html> 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
> > <http://electionlawblog.org/archives/017038.html>
> 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
> <http://electionlawblog.org/archives/016568.html> Linda
> > Greenhouse but I see it as better than the Supreme Court
> > <http://www.slate.com/id/2228257/> agreeing to hear the case.
> >
> > Posted by Rick Hasen at 05:12 PM
> > <http://electionlawblog.org/archives/017279.html>
> > --
> > 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
> >
> >
> > _______________________________________________
> > election-law mailing list
> > election-law@mailman.lls.edu
> > http://mailman.lls.edu/mailman/listinfo/election-law
>
> --
> 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
>
> _______________________________________________
> election-law mailing list
> election-law@mailman.lls.edu
> http://mailman.lls.edu/mailman/listinfo/election-law
--
Justin Levitt
Associate Professor of Law
Loyola Law School
919 Albany St.
Los Angeles, CA 90015
213-736-7417