Farrakhan v. Gregoire, No. 06-35669 (1-5-10). This is a big civil rights/disenfranchisement case. Originally filed in 1996, plaintiffs contended that due to racial discrimination in the State of Washington's criminal justice system, the automatic disenfranchisement of felons resulted in the denial of the right to vote on account of race. This violated Sec. 2 of the Voting Rights Act. The 9th (Tashima joined by Reinhardt) reversed the district court’s denial of summary judgment for plaintiffs in a 1983 action brought by minority citizens of Washington state who had lost their right to vote pursuant to the state’s felon disenfranchisement provision. In a prior appeal, Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert denied, 543 U.S. 984 (2004) ("Farrakhan I"), this court reversed the district court’s summary judgment and held that vote denial claims challenging felon disenfranchisement laws were cognizable under § 2 of the VRA.

The 9th first found that Farrakhan I remained binding precedent despite contrary decisions from the 1st, 2nd, and 11th circuits. The 9th recognized the circuit split with its decision in Farrakhan I, but did not recognized Farrakhan I as clearly erroneous or that it needed to be reconsidered. The 9th found that the plaintiffs had standing, and that the plaintiffs had demonstrated that the discriminatory impact of Washington’s felon disenfranchisement was attributable to racial discrimination in Washington’s criminal justice system. The panel thus held that Washington’s felon disenfranchisement law violated § 2 of the VRA. The 9th remanded with instructions to grant summary judgment to plaintiffs given the evidence already before the court. Dissenting, Judge McKeown argued that the majority erred in granting summary judgment for the plaintiffs and that the proper approach would have been to remand the case to the district court for consideration of the plaintiffs’ motion for summary judgment. On remand, the court would weigh the evidence as to racial discrimination, and to assess other factors to determine if the VRA had been violated.

Given the state constitutional issues, the statutory VRA issues, and a circuit split, plus the shadow of McCleskey, this could well be headed to the Supremes, if there is not an en banc first.

Harrison v. Gillespie, No. 08-16602 (1-5-10). The state jury came back guilty on murder. As to the sentence, the jury reported that it was deadlocked, and two juror notes indicated that the deadlock was between life with parole, and life without. The petitioner asked to poll the jurors on whether there was unanimous agreement that as to whether aggravated circumstances existed and whether they found that mitigating circumstances outweighed aggravators. The trial court denied the request, and declared a mistrial. The State of Nevada sought to retry the petitioner on death, and he seeks double jeopardy relief through habeas. The 9th (Reinardt joined by Hug) granted relief and reversed the district court’s denial of the petition. The panel held the trial court abused its discretion by declaring a mistrial without first granting petitioner’s request to poll the jury to determine whether it had acquitted petitioner of the death penalty. The panel further held that, because no other alternative would adequately protect petitioner’s rights under the Double Jeopardy Clause, the State could not seek and the court could not impose the death penalty at a sentencing retrial. Judge Silverman dissented, because the federal constitution does not require a state trial judge to inquire into the unfinished deliberations of a discretionary matter before declaring a mistrial.