On June 11, 2011, CAC filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in Farrakhan v. Gregoire, arguing that the text and history of the Fifteenth Amendment give Congress broad power to proscribe racial discrimination in voting, including felon disenfranchisement laws that operate in tandem with racial discrimination in the criminal justice system to discriminatorily deny the vote to African Americans.

Farrakhan involves a challenge to Washington State’s felon disenfranchisement statute under the Voting Rights Act’s nationwide prohibition on voting qualifications that have the result of discriminatorily denying or abridging the right to vote on account of race. The critical constitutional issue in the case is the relationship between Section 2 of the Fourteenth Amendment and the subsequent Fifteenth Amendment. CAC’s brief offers a comprehensive analysis of the text and history of the Fourteenth and Fifteenth Amendments, and demonstrates that Congress has ample power under the Fifteenth Amendment to ban racial discrimination in voting, including felon disenfranchisement statutes that result in a discriminatory denial of the right to vote. As the brief shows, the mention of criminal disenfranchisement in Section 2 of the Fourteenth Amendment does not affect Congress’ power to enforce the Fifteenth Amendment’s ban on racial discrimination voting.

On October 7, 2010, the en banc Ninth Circuit held, in an unsigned and flawed per curiam opinion, that “a section 2 Voting Rights Act 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.”