A recent decision by an eleven-judge panel of the Ninth Circuit underscores the importance of the Equal Justice Society’s efforts to overturn the Intent Doctrine.
Earlier this year, the Equal Justice Society (EJS), the Lawyers’ Committee for Civil Rights, Legal Services for Prisoners with Children, and the American Parole and Probation Association submitted an amicus brief in the Ninth Circuit case, Farrakhan v. Gregoire, which would determine whether Washington’s felon disenfranchisement law violated the Voting Rights Act of 1965 (VRA). Section 2 of the VRA was enacted to protect against racial discrimination in voting, and prohibits states from using any voter qualification system that results in a denial of the right to vote on account of race or color. Here, Washington’s disenfranchisement law resulted in the loss of voting rights to an astonishing 24 percent of African-American men and 15 percent of Washington’s overall black population.
An earlier ruling by a three-judge panel of the Ninth Circuit relied on undisputed, “compelling” evidence of racial bias throughout Washington state’s criminal justice system to determine that the disproportionate disenfranchisement of Blacks, Latinos and Native Americans as a result of this bias violates Section 2 of the VRA. The case was subsequently taken up by an en banc, eleven-judge panel.
In a disheartening ruling, the en banc panel overruled the three-judge panel and upheld Washington’s felon disenfranchisement law. While acknowledging the presence of discrimination in Washington state’s criminal justice system, the court declined to adopt the previous holding that Washington’s disenfranchisement law violates the VRA because it found no evidence of intentional discrimination.
The court concluded:
[P]laintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state’s 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.
Because plaintiffs presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained, we conclude that they didn’t meet their burden of showing a violation of the VRA. (Emphasis added.)
The court’s conclusion is particularly troubling given that – as noted by the earlier three-judge panel – voter discrimination need not be intentional to violate Section 2 of the VRA. In fact, Section 2 was explicitly drafted to cover both intentional and disparate impact-based instances of discrimination. The court’s holding provides yet another example of how the “intent” requirement first articulated in the 1976 Supreme Court case Washington v. Davis gradually has crept into areas of law beyond 14th Amendment equal protection jurisprudence, denying victims of discrimination access to meaningful relief in a wide variety of contexts.
According to EJS President Eva Paterson, “In the years since Washington v. Davis was decided, the requirement of proving discriminatory intent has barred countless victims of discrimination from accessing a legal remedy because it fails to address contemporary forms of discrimination. We no longer have George Wallace’s chanting: ‘segregation now, segregation tomorrow, segregation forever’ on the school house steps, yet we continue to see race-based disparities in almost every measure of societal well-being. Requiring proof that these disparities resulted from ‘intentional’ discrimination simply makes no sense in an age when the majority of racial bias is implicit or structural.”
Extensive empirical and theoretical research confirms that implicit bias substantially motivates disproportionate outcomes even absent an express intent to discriminate. However, courts have been slow to acknowledge this reality. For instance, in McCleskey v. Kemp, a 1987 Supreme Court case, a habeas petitioner presented statistical evidence showing grave disparities in the imposition of the death penalty in Georgia. Specifically, a review of over 2,000 cases illustrated that the death penalty was assessed in 22% of cases involving black defendants and white victims, and just 1% of those involving black defendants and black victims. Likewise, application of the death penalty was 4.3 times higher when the defendant was charged with killing a white victim. Despite this clear evidence of systemic racial bias, the Supreme Court held that the petitioner failed to show discriminatory intent or purpose sufficient to establish a violation of the Equal Protection Clause. Moreover, the Court insinuated that accepting McCleskey’s claim would require the court to address discrimination present throughout the criminal justice system, a task that was simply “too large” for the Court to undertake. Making a similar argument in Farrakhan, the Pacific Legal Foundation asserted that allowing disenfranchisement statutes to be invalidated based on unintentional racial discrimination would require states to monitor their criminal justice systems to ensure that arrests and convictions were “racially balanced.” 
These arguments fly in the face of the notion of equal protection enshrined by the 14th Amendment. That the task of “addressing systemic bias within the criminal justice system” is too large is not a reason to avoid undertaking it. In fact, justice demands that we do undertake this task, alongside the task of addressing systemic bias throughout our society, and that our courts do the same. This is why the Equal Justice Society’s commitment to overturning Washington v. Davis and the Intent Doctrine is so essential. Voters in Washington State and victims of discrimination everywhere should again be able to rely upon the 14th Amendment’s guarantee of equal protection under the law.
The Equal Justice Society is a national legal organization that promotes a vision of a society where race is no longer a barrier to opportunity. To achieve its mission, EJS is active in a number of criminal justice and voting reform initiatives, as well as cases that highlight modern-day manifestations of discrimination.
 Bob Egelko, Court upholds Washington inmate voting ban, The San Francisco Chronicle, October 8, 2010, available at: http://articles.sfgate.com/2010-10-08/bay-area/24117303_1_felons-appeals-court-justice-system