Farrakhan v. Gregoire , 603 F.3d 1072 ( 2010 )

FILED
OCT 07 2010
MOLLY C. DWYER, CLERK
Farrakhan v. Gregoire, No. 06-35669 U .S. C O U R T OF APPE ALS
GRABER, Circuit Judge, concurring in the judgment:
I concur in the judgment. Because I would resolve the case on the ground
that we specifically remanded to the district court, I would not reach the issue
addressed by the majority. I therefore do not concur in the majority opinion.
In Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir. 2003), we held
that Plaintiffs’ felon disenfranchisement claim is cognizable under Section 2 of the
Voting Rights Act ("VRA"). We held that the district court had applied an
erroneous standard instead of the correct "totality of the circumstances" standard.
Id. at 1016-19. Rather than apply the test ourselves, we remanded to the district
court for it to "make any requisite factual findings following an appropriate
evidentiary hearing, if necessary, and assess the totality of the circumstances." Id.
at 1020.
We denied Defendants’ petition for rehearing en banc. Farrakhan v.
Washington, 359 F.3d 1116, 1116 (9th Cir. 2004) (order). Seven judges dissented
from denial of rehearing en banc. Id. at 1116-27 (Kozinski, J., dissenting from
denial of rehearing en banc). The dissenting judges would have reversed the
judgment of the three-judge panel because of their view that Section 2 of the VRA
does not reach felon disenfranchisement laws. Id. The Supreme Court denied
certiorari.1 Locke v. Farrakhan, 543 U.S. 984 (2004).
On remand, the parties conducted additional discovery and filed new
affidavits and other submissions, including expert reports. The district court
dutifully applied the "totality of the circumstances" test and concluded that,
"[t]aking all of the relevant factors into account," Washington’s felon
disenfranchisement law does not violate the VRA. Farrakhan v. Gregoire, No. CV-
96-076, 2006 WL 1889273, at *9 (E.D. Wash. July 7, 2006) (unpublished). I agree
with the district court’s thorough analysis and its conclusion that, although one of
the many relevant factors supports a finding of discrimination, none of the other
factors does. Id. at *6-9. I would affirm the district court on that ground.
Accordingly, there is no need to reach the question whether felon
disenfranchisement laws may be challenged under Section 2 of the VRA.
Reaching that question is unnecessary because we can affirm on the ground
described above—the ground that we mandated the district court to determine.
Perhaps more importantly, judicial prudence strongly suggests that we
decline to reach that question. We already decided that question in this case more
than seven years ago. We declined to rehear the case en banc, over a vigorous
1
I note that we voted to deny rehearing en banc and that the Supreme Court
denied certiorari only as important procedural history. I do not intend to imply that
either we or the Court actually voted on the merits of the legal issue.
2
dissent, and the Supreme Court denied certiorari. In the many years that have
followed, the parties have conducted additional discovery, filed voluminous
submissions, and written dozens of pages of briefs. The district court followed our
mandate in detail and resolved the case on the ground that we had specified. On
appeal to this court, the parties filed additional briefs, and the three-judge panel,
too, resolved the appeal on the ground that it previously had specified.
Once we have resolved a preliminary and important point of law and the full
court and the Supreme Court have declined to intervene, judicial prudence strongly
suggests that we should not later disturb that ruling—and thereby undo years of
effort by the parties and the courts—in the very same case when doing so is
entirely unnecessary. The animating principles of the "law of the case" doctrine
apply here: "when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case."
Arizona v. California, 460 U.S. 605, 618 (1983). I do not question the authority or
legitimacy of the majority’s opinion; I merely disagree with its discretionary
decision to resolve this case on its chosen ground.2 Were the result of this case to
2
The decision to revisit a precedent in a later, different case presents a
different issue than whether to revisit an issue decided in an earlier stage of the
same case.
3
hinge on that ground, or were there some compelling reason to reach the issue,3 I
might well come to a different conclusion.
3
That the Supreme Court may soon vote to decide the issue is, in my view, a
reason to defer submission of this case, not a reason to decide this case with haste.
4