Farrakhan

PER CURIAM Opinion; Concurrence by Judge THOMAS; Concurrence by Judge GRABER.

OPINION

Washington’s constitution denies the right to vote to “[a]ll persons convicted of infamous crime unless restored to their civil rights.” Wash. Const, art. VI, § 3. An “infamous crime” is one that’s “punishable by death ... or imprisonment in a state correctional facility.” Wash. Rev. Code § 29A.04.079. Washington has disenfranchised felons since 1866, four years before the Fifteenth Amendment was ratified. Territorial Law of 1866, Rem. & Bal. Code § 4755.

Plaintiffs claim that the state’s felon disenfranchisement law violates section 2 of the Voting Rights Act (“VRA”) because the law “results in a denial or abridgement of the right ... to vote on account of race.” 42 U.S.C. § 1973 (a). Plaintiffs don’t claim that the law was enacted for the purpose of denying minorities the right to vote. See Hunter v. Underwood, 471 U.S. 222, 233 , 105 S.Ct. 1916 , 85 L.Ed.2d 222 (1985). Nor do they present evidence that their convictions and resulting disenfranchisement resulted from intentional racial discrimination in the operation of the state’s criminal justice system. See McCleskey v. Kemp, 481 U.S.…

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, *997 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…