appropriately. this kind of data was released by mistake, and all these people have social security numbers. this data collection complex is really out-of-control, said to say, and consequently, it is going to provide fuel for this kind of debate in the future. >> jeff chester, linda woolley said earlier in this program that personal information is a commodity. . corps and over those 49 years, tens of thousands, and indeed hundreds of thousands of americans have served this couldn't arery in what is known as the most difficult job you'll ever love. and my wife and i did indeed love it. however, the tax proposal that's before this is that every american taxpayer will are receive a lower tax rate on the first $250,000 that they have in adjusted gross income, whether they're a small business or individual

taxpayer. those that have greater would pay a somewhat higher tax. the other alternative is to run up the deficit another $700 billion, which i think is a particularly bad idea but back to the peace corps. it's a great institution. and it's been supported by both democrats and republicans, and we think that's a good thing. and that's the rest of the story. i yield back my time. the speaker pro tempore: for what purpose does the gentleman >> we will still have a problem. >> the director for the center for executive democracy. we also talked to the direct marketing association earlier. this has been the third installment in the communicators

look at online privacy. . next week, congressman stearns will be on this program together. thank you. we will see you next week. >> tonight, a ceremony for richard etchberger. was killed in combat and was recognized with the nation's highest honor. you can see the ceremony tonight at 8:00 p.m. eastern here on c- span. after that, a dinner hosted by

log cabin republicans. they support gays and lesbians in the republican party. we will hear from several members of congress. that starts at 8:30 p.m. eastern. >> earlier this week, and 11 judge panel in the ninth circuit court of appeals in center cisco heard arguments as to whether washington state can band felons and ex balance from voting. this is a little more than one hour. >> good afternoon. we are here to hear the arguments verses farrakhan versesgregoire. you may proceed.

>> good afternoon. i and with the legal defense fund and counsel for the pellets in this action took out like to reserve five minutes for rebuttal. this is a very rel. fell one disfranchising- disenfranchisement case. plaintiffs had established substantial evidence that the racial disparity in nearly every phase of washington's justice system cannot be described as a nondiscriminatory. the defendants have failed to offer any evidence to contest the plaintiffs record which the district court recognized as compliant -- compelling evidence. forced a -- the district court

recognizes that the disenfranchisement law will shift in equality to the political process. this is the essence of the section 2 vote denial claim. the fact that it is external to voting interacts with the voting qualification and denying the right to vote to plaintiffs on account of their race. this is not a case of disenfranchisement law. the plaintiffs argue that disparity alone establishes an act under section 2. the plaintiff will argue that the disenfranchisement law is used as a tool for racial discrimination. >> this rests on a finding that entire criminal justice system

in the state of washington is intentionally against minority? what's that is not right. the evidence shows that the racial disparity arrives from and results in discrimination on account of race. >> there is no finding or no contention that there was any contention, even at the level of the justice system? >> that is right. >>the evidence shows that there are racial disparities in washington's criminal justice system. >> [unintelligible] >> that is right. they said the disparity is not sufficient. >> we would have to overrule

that. >> you would not. the evidence in this case is different from that provided by salt river. the court was constrained by stipulations to the nonexistence of every factor that would lead the court to find racial discrimination here. the district court distinguished our evidence from salt river by finding that the disparities in this case derived from an result in discrimination. -- and result in discrimination. >> i recognize that you come here in a posture of having substantial and very impressive evidence before the district court. you are also doing that landscape that clearly permitted this to fall within section 2. my question now is that we are back in and en banc court and

this is on the table. why should we part company from the other circuits in respect to the viability of such a claim under section 2? >> because, that is what the plain language of section 2 requires. section 2 applies to any voting qualifications without exception. those two propositions are the entirety of the analysis. >> what do you do with section 4 with the precise potential disqualification here which is felony disenfranchisement? we can't read a section 2 without taking action on section 4 but you may have a way to do this. when you look at congress taking this into account, which i thought that section 4 did, that

you have almost a specific overriding event. >> the supreme court uses the legislative history of a statue to interpret another. section 4, congress called that they did not do this under section 2. the plain language of this requires that we use statutory interpretation which holds the where a statue is used, that the supreme court explains that intent is bound in the text of the statute. >> counsel, let me ask you about the statute.

it says that no prerequisite to voting. if you just look at the words, if you do not look at the history, which is what we all know that congress was concerned with that the southern states used to disenfranchise black people from voting, just look at the words. the disenfranchisement is not a qualification or prerequisite, it is a disqualification for people who have previously been qualified. if we go beyond this statute and we look at, not legislative history, which i agree is a pretty dubious reason. none of the history says that they meant to get rid of felon disenfranchisement in 1965 or 1982. if you look at other statutes,

the national voter registration act of 1993 and the help america vote act of 2002, both have provisions requiring the federal government to assist the state in felon disenfranchisement enforcement. when i look at the package together, what i get is a history where these felon disenfranchisement laws were adopted, not for the purpose of excluding black voters, but excluding white voters because the southern states used to exclude black voters because they were black. they did not need any in directrix. all of the states excluded felons. every single person excluded from voting on account of felon disenfranchisement was white. i think it is extraordinary to try to read the words which do not seem to apply in light of

other legislation which makes it clear that the words do not apply and history which makes it clear that the words were never meant to apply to me the opposite. >> your honor, i think that the text of section 2a captures pretty clearly the disenfranchisement law. >> why is this supposed to disqualification? >> i think it is a distinction without a difference. washington imposes this felon disenfranchisement qualification -- >> suppose you could prove that most of the people that left a particular state, say they left louisiana or mississippi and moved to chicago were black and left the southern states where

they were discriminated against and went to chicago. would that mean that leaving the state and becoming a non resident and becoming disenfranchised was prohibited? >> the clients were able to trace the discriminatory impact of the voting qualifications racial discrimination, they would have a viable claim. >> are you saying they would be able to vote in louisiana and mississippi because of non residency disqualification? >> the fact your hypothetical would result in a discriminatory one. looking at a later enactments, the supreme court has looked at

later congressional enactments. the best evidence is in a different context. >> they said that congress cannot say in 2010 what it meant in 1973. it is not saying what it meant. it is just saying that it plainly required disenfranchisement. >> congress set out to expand a law. but i have two questions about current developments that may or may not affect what we do. i would like to ask you about both of them. one is the question about whether the courts should wait for the supreme court to act on another case which is pending

and on which the solicitor general has been asked for a brief and the second is an amendment of the washington statute so that it is a prisoner disenfranchisement law because once someone is no longer incarcerated, but are generally restored their right to vote. i was wondering if you would comment on those two developments as to how they should influence our analysis? >> my best estimation to the first question is that the supreme court may be waiting to see what this court does in this matter. >> i am not sure about that. [applause] -- [laughter] that may not-that may mean that you do not want to win here. >> the washington amendment continues to disenfranchise 27,000 people who are currently

under community custody. what that means is that there are more people living in disenfranchisement. the law disenfranchise as more people who were not incarcerated them are incarcerated. >> this is thismooted? >> not at all. this does not permit racial minorities. >> my question is, is the original statute still alive issue-still a live issue? -- still a live issue. >> it does not alleviate racial

minorities from being disproportionately -- with respect to the amended statute -- >> which statute is the live statute? >> it is 29.08. the limited statute as a similar number. >> how can we possibly make a decision about a statute that has been repealed? that is why i ask you about the provisions of the statute. if there is a lot of controversy, wouldn't it have to be about this at to the way it now is? what's the statute as it is is the statute that we have now. >> the evident that you presented to the district court applied with equal force. >> that is right. >the plan as an able to show

that even considering statutory standards in the presence of legal variables, they recommend that blacks are more likely to be charged and receive a longer prison sentence. the prosecutor is recommending that blacks face more than whites. >> in regards to the threshold question been covered under section 2, i am looking at the us -- supreme court case where the holding is there is a section of the 14th amendment. how can you ignore that expression? >> what the plan that is

challenging is that what race plays in the disenfranchisement law. this does not prohibit the statute for three reasons. >> first of all, section 2 of the 14th amendment makes an exception for crime. >> the 14th amendment -- washington cannot do so as it is doing here. the 15th amendment does not carve out an exception. it is not worthy to pour out -- point out that they openly rejected that exception. they reached all voting qualifications that have discriminatory results. the third reason is that the

absence of a constitutional prohibition does not bar a statutory one. they prohibit certain types of disenfranchisement. congress prohibited disenfranchisement for statutory felonies. >> let me go back to the congressional language and to my question to you about reading the statute as a whole. you have section 4 which was adopted and the distinction was made about jurisdiction. it seems to me that you would have this bizarre paradox with respect to felon disenfranchisement under section 4 if they were meant to be included under section 2 if you permitted them in the non-

covered jurisdictions. could you go back and try to reconcile how those pieces of the statute it together, given the distinction that was made and continues to be made over covered it vs non-covered jurisdictions 3 >> section 4 and section 2 or different sections. -- are different sections. the best lesson to be learned -- >> that does not answer my question i know that they are different-answer my question. i know that they're different sections because they have different numbers. that does not really answer the question as to how this fits together as a scheme to attack what you eloquently started out with which is discrimination in the voting system.

>> the supreme court reads different sections of a statute to determine another provision of a statute. the best example to be learned by section 4 is that were congress to carve that out, it did so unambiguously. you cannot read it section force -- section 4. congress enacted that to root out discrimination. >> if we were to reaffirm the case of felon disenfranchisement that it falls within articles of section 2, we would be creating a circuit that would surely get the supreme

court's attention. how would you distinguish this from what we have before us? >> i am glad that she mentioned that. i was going to do it again. those three circuits disregarded the statutory interpretation. justice sotomayor explain that it is clear that reading section 2 would have felon dozen french because bossed disenfranchisement laws -- felon disenfranchisement laws.

it would apply to felon disenfranchisement laws. >> what is the remedy that you wish to seek in order to wear felon disenfranchisement disproportionately affects blacks. >> it violates section 2 of the voting rights act. it is helpful to know that when the supreme court found out, they struck down that long after everyone who was disenfranchise under that law. the record requires this. >> i have a question about that. about how to understand section

b of section 2. a violation is established by showing that the political process leading to nomination for election is not equally open. what you seem to be saying is that what you -- once you show a voting standard has a disproportionate effect on one racial group or another, that translates automatically into a showing that the political process is affected and i wonder if that is correct or if there is some other step that has to be gone through in an evidentiary series. showing how the political process leading to nomination or election is affected by discrimination. it seems to me to be a different question. >> the political process for some is not open to all.

it is moral to the context. we're talking about participation. my clients do not have that right at all. returning to the example of the prosecutor, we have shown in this case that prosecutors recommend that blacks who are similarly situated with whites spend more time incarcerated. >> the criminal justice system is a unique animal in that it has its own built-in protections. if the prosecutor has prosecuted selectively, there is a remedy for that.

if the investigation has been based upon evidence, there is a remedy for that. you cannot be tried by a discriminatory jury. once convicted, it is not exactly like another case, but it is bumping up against the notion that you are trying to say that at the end of the day, without having achieved the remedy, that a conviction should not have been -- should not stand. >>it is bordering on a peculiar notion. >> what we are arguing is the violation of the section 2

rights. >> if this were upheld and the final determination was that the entire criminal justice system in washington is discriminatory, why would that not be a launchpad for collateral attacks? if you're convicted by a system that is racially discriminatory , as a judge pointed out boston led >>-- >> the effect of racial discrimination in the criminal justice system denies the right to vote to minorities. >> felon disenfranchisement laws are fine, so long as the state prosecutes, convicts more

whites and more people of other races. it is not felon disenfranchisement that is the problem, and it is not that the defendants are innocent of the felonies and for only convicted because of racial discrimination, it is that not enough white felons are getting caught, so your argument is that the felon disenfranchisement laws are just fine as long as they convict fairly. >> the state has to disenfranchise the citizens as long as they do not do so on a discriminatory basis. >> also -- all felons, regardless of race, are disenfranchised and subject to this new law.

>> the problem in washington state is that racial discrimination in the criminal justice system is being injected into the political system. i think this provides an example of how congress will to look at the way racial discrimination has shifted from the external factors into the political process. >> the district court here it looked at more. is it your position that this is the bellwether in a case like this? if you are correct, the court shouldn't look at other factors? >> the factors should be considered in their totality. congress is clear that no single factor is disparate oive.

proceed to count them against a plaintiff in any event. the supreme court explained that the majority of the factors are pertinent in the context as almost all of them look to the effectiveness of racial minorities, not as to whether minorities have access to the ballot at all. >> you have 10 minutes left. did you want to say? >> we will hear from the state, now. >> chief justice, and may it please the court. we believe strongly that this does not disenfranchise. >> would you state your name for the record?

>> [unintelligible] in the first instance, it is clear that this does not apply to felon disenfranchisement. the focus on the language in section 2a the, supreme court made it clear in another case that one must read a section 2a and tob together and wione when they do so see how they apply to the political process. this refers to the opportunity to participate in the political process. >> subsection 8 refers to prerequisite standards, practices and procedures that could be covered if the proof exists. b about what to have to prove.

-- is about what you have to prove. why isn't a lot of this kind one of the following, a voting qualification, a prerequisite to voting, a standard, a practice or procedure? >> for the purposes of the voting rights act, none of those apply to disenfranchisement. >> that is the ultimate answer that you want us to come to. it is not an explanation. why isn't a law that says that people who have certain status for have engaged in certain behavior are no longer entitled to vote, why does that not count as a standard, practice or procedure related to voting? what's because congress did not intend for it to apply. they have lost their right to

vote previously. therefore, not within that system do you have a opportunity to participate in the process. >> why do they not have the right? that is not an answer. that is a circular response. >> unlike literacy tests, felon disenfranchisement is sanctioned. >> that is a different question. " i think that you are saying that a good moral character is a qualification for voting. >> i am not. that is the section where you would expect congress would have addressed felon disenfranchisement if they intended to do so. >> you have to have not felonious-non-felonious character.

-- non-felonious character. >> the language refers to losing the right to a vote for committing a felony. it is not a question of moral character. moral character is the language used in our state constitution and our statute. it was language addressed by congress in section a. >> i understood your arguments to concede that not having committed a felony or was, in fact, a voting qualification. for your argument not to be a claim -- a plain language argument, it would be based on other things. >> the reason we think that the plain language in section 2 does not discuss felon disenfranchisement is the language in section 2b taken

with section 2a. citizens have the opportunity to participate and they want to know whether the challenged qualification or practice -- >> this is not open by members of class protected by the subsection? >> yes, your honor. some have less opportunity to participate? you cannot go in and hold up signs for your favorite canada and call people of the phone and tell them how to vote if you are in prison. >> if they are in jail, they do not have an opportunity to participate. >> so what of the plain language argument? >> the courts chooses to examine

the legislative history, so we covered the legislative history in our brief as well. >> i would like to present you with a hypothetical. suppose there is a state that has never had a law like this before and the legislature says that we cannot have a poll tax anymore and we cannot have literacy tests anymore, but there is a really good way to keep racial minorities from having their fair share of the political process. we will pass a felon disenfranchisement law for the express purpose of making sure that we have fewer minority voters. is that covered by section 2 of the voting rights acts? >> this is pretty much the situation.

they simply look to equal protection of the 14th amendment and they spoke to discrimination. whether there is intentional discrimination, refer to the 13th and 14th amendments. you would not need to go to the voting rights act. >> if you did, what would you find out? >> if there were a finding of potential discrimination, even though the voting rights act does not cover this, it is conceivable for the court to say yes. i do not think it would reach that question. >> so, the real question is whether you are saying that in theory, it is possible. there is not any proof that the political process has been tainted in a way that is forbidden by section 2b whether

you are saying to not even think about the question. >> there was a 14th amendment equal protection claim made in this case. it was dismissed by the district court back in 1997. the district court found expressly that no intentional discrimination in washington when the district court in 2006 found the lack of any discrimination in washington. >> that sounds like a section 2b argument and not a theoretical argument. >> i am referring to the court's conclusion. >> what do you make of the findings? you find that there is no intentional discrimination in this case. now we go one step back. do you remember this well?

it is page 10. the court says that the court finds compelling evidence of racial discrimination and bias in washington's general justice system. contrary to assertions, the court finds [unintelligible] my question is, is this a finding of intentional discrimination by the state of washington? >> no, it is not.

it is a finding of sufficient evidence to conclude that factor 5 applies in this case. >> so you agree with opposing counsel that there is a disparity and that it is not an intentional discrimination. i read it very differently. when you talk of racial discrimination, discrimination connotes an act of a state of mind as opposed to disparity. discrimination suggests an intent to separate one from another. i read this as a finding of intentional discrimination in the administration of the criminal justice system of the state of washington. you do not agree with that. i would doubt that opposing

counsel does either. >>without intention maliki -alir intentionality with the criminal justice system, how would it be covered under section 2? >> we do not believe that the fiscal parity and the disproportionality -- >> let's look at the word disparity. you believe that there is not sufficient evidence.

let's say that we put that question aside. there is clear evidence that the criminal-justice system options in a disparate, although not discriminatory manner. is that enough to trigger the section 2 violation? >> no, we do not believe that it is. in cases like ortiz and salt river, they concluded that. it is not enough to establish a claim. what the judge did is analogize the discrimination suits to say that it is under the civil rights act. it is not the appropriate standard under section 2 in the voting rights act. you have to apply tests and show

a connection. that has simply not been the case here. even when disparity is cited by the expert witnesses, they explained it. they say that most of the disparity is expendable due to factors. they say that these studies are not designed to uncover causes of discrimination. we do not think that we can explain it by irrelevant factors, but we will assume that the remaining disparity was also discrimination. >> that is how we often make decisions to show a cause when you exclude all the possibilities, then the probable must be true because we

operate that way. you have evidence of things that you can get positive proof of something and you ask what the likely cause is. life is finite. we move on and say that it must be this other thing. >> congress said it is not. congress applied a test which other courts have read to me that disparity is not enough. -- to mean that disparity is not enough. you have to move beyond factor five and a speech the other factors that are not relevant, which the district court would analyze and conclude that under the circumstances, even though

there was compelling evidence based on fiscal disparity, he concluded that the disenfranchisement law does not violate the voters right act. >> they do not present any evidence to support the experts conclusions. is that an accurate statement? was the state just willing to go with its little argument? >> we did focus on the legal argument, but we also pointed out the fact that all the studies show disparities that are explained away. the experts explain the disparity. even if one assumes that it applies to factor 5, that is the

point that the district court reached. the district court judge found that it was not enough to apply to disenfranchisement under the totality of the case. >> what me ask you -- let me ask you, if one assumes that without deciding this is under section 2, what would be your decision? >> but evidence is not sufficient under section 2 to conclude that the statute violates the voting rights act. one of the figures that they relied on heavily, the ratio of african-americans that are incarcerated, that is a burly figure. that number has dropped by 30%.

secondly, most of the studies that they rely on were commissioned by washington state. it was created to address disproportionality in our criminal-justice system. it was a study created by the state legislature in response to the 1980 study which is a result of several amendments to state law that had the affect of amendments and sentencing so that the judge's explain themselves. this has contributed to a 50% reduction in disproportionality by 2005. >> is that on the record? >> i would refer to e.r.130.

we do not have the 2007 figures in the record. they are based on u.s. census records. >> what your giving us right now, of a properly in front of us? >> i believe that they are. the census data is already in the record. i would ask you to take judicial notice of the fact that there has been a 50% reduction in disproportionality. the sentencing commission is the source of the statistics in the first instance. >> thank you. what evidence did the state put on in its summary judgment papers?

what's your honor, dr. leon >> your honor, we brought in analysis of our evidence. no evidence has been brought in under factor too. no evidence of denial of access. note evidence of subtle racial appeals. we showed that a washington voter elected an african- american to be chief executive of the largest county in our state. we also provided evidence regarding responsiveness. the fact that the 2009 amendments were adopted is evidence of this. >> what is your response to the

issue that i raised earlier? the 2009 statute that is presently before us for analysis, assuming that there is a claim, is that the version of law? if so, what is your response to opposing counsel that the amendment has only made things worse? >> we believe that the current version of law is the version of law before this court for the purposes of this case. where relief is being sought is to join the current law. secondly, i do not believe that opposing counsel said that the amendment made things worse, i think he said that there are still a lot of people that are

disenfranchised that are supervised. a majority of the states that disenfranchise felons disenfranchise them while they are on -- in prison and while they are on supervised lee. because they are still on community supervision, they can be pulled back into prison at any time. the policy decision has been made not to allow them to be registered, only to have them be invalidated. many are in and out of jail while they are on supervision. the state of washington legislature, in greatly reducing the number of felons affected by disenfranchisement laws, made the decision to keep supervised felons as well as incarcerated felons under the scope of our state law. >> how does this apply to

federal felons? >> federal felons are not covered by our law. if they move to our state and they are on federal parole, they can register to vote. the language of the statute refers expressly to those expressly under supervision of the state court of washington. if a convicted felon moved into our state from another state and is still on parole from the other state, they are not covered by our law. there are not disenfranchise in washington. >> so i felon should move to washington? >> no, thank you. >> you argue that the voting rights act does not apply to the felon disenfranchisement laws, but i hear the arguments that it does not matter. it that so far as this case is concerned, and putting aside

whether the evidence is substantial or not, there is a shot of discrimination. >> we do not believe that it is within the ambit of the voting rights act because we do not believe congress intended to apply -- unless there is intentional discrimination. we discussed a hypothetical a few minutes ago where you have to consider a felon disenfranchisement law and acted for intentional discrimination purposes. in that case, the court would address the under the 14th and 15th amendments. >> the problem with that argument is that we have that very case right now. the supreme court did support the claim and was left with the voting rights act claim.

the case that you are saying cannot possibly occur is what you are arguing. >> a case involving intentional discrimination has been ruled out. >> what happens if we disagree with the council on both sides and refer to page 10 and find intentional discrimination in the criminal justice system, leaving in place that there is no discrimination? no intention to discriminate. >> in that scenario, we would ask the court to look at the other factors and conduct an analysis.

we believe that you would reach the same conclusion. >> use of the same thing when i ask you about disparity. -- you said the same thing when i asked you about disparity. >> the hypothetical that you addressed to me -- >> i understand. you said that this shows disparity and and you go and [unintelligible] >> what i hope that i said is that if it is simply a fiscal disparate, but we are not looking at factor 5, here. you do not prove even that one factor. >> i may have misunderstood the question, but i think these are ships passing in the night,

here. if i look at the chief judge's question, if the felon disenfranchisement was passed with no discrimination, but the criminal justice system was now discriminating, so the combination of the two was, as a practical matter, having a disproportionate exclusionary effect on the rights of some to participate in the political process. you need a factual inquiry. >> there needs to be proved provided by the appellate -- proof provided by the appellate s. >> did you run into this problem of the 1982 change in section

19. >> the 1982 amendments are aimed at the paine -- of the opinion of the u.s. courts. the courts look at that language and said he did not satisfy the results just by pointing out the disparities. >> the case that you were asked about is an intent to discriminate with criminal law enforcement. a bad sheriff or whoever is in charge of law-enforcement tells all of the deputies that work for him to ignore all of the whites. they are all nice folks. justin forceful in the black areas. -- just enforce the law in the black areas. >> you would still have to look at the circumstances.

i would look at the language of factor 5 itself. if it picks up a slice of the circumstances in the broader environment, doesn't that make one look at the balance? >> that goes to the posture of this case if we were to take it as it came to us. which was a summary judgment for the defendant. the context of that, the district court uses two different words. i do not know if --