Moreover, although
Hayden,
Johnson, and
Simmons created a circuit split with our decision in
Farrakhan I, we do not agree that those decisions demonstrate that
Farrakhan I was “clearly erroneous.” First, both
Hayden and
Johnson were rendered over vigorous dissents.
See Hayden, 449 F.3d at 343–62 (Parker, J., dissenting, joined by Calabresi, Pooler, and Sotomayor, JJ.);
id. at 362–67 (Calabresi, J., dissenting);
id. at 367–68 (Sotomayor, J., dissenting);
id. at 368–69 (Katzmann, J., dissenting);
Johnson, 405 F.3d at 1239–44 (Wilson, J., dissenting in relevant part);
id. at 1247–51 (Barkett, J., dissenting).
Thus, even if we assume that
Farrakhan I was erroneous, such error was hardly “clear,” given the vigorous dissenting opinions in the First, Second, and Eleventh Circuits. Second,
Farrakhan I was called en banc but failed to attract a majority vote of the nonrecused active judges in favor of en banc rehearing.
Farrakhan v. Washington, 359 F.3d 1116 (9th Cir.2004) (denying petition for rehearing en banc). That a majority of this Court's active judges did not consider
Farrakhan I worthy of en banc rehearing also supports a conclusion that the decision was not “clearly erroneous.”
Cf. Jeffries, 114 F.3d at 1493 (holding that a three-judge panel “should not have exercised its discretion to depart from its prior decision” in part because “further appellate review of [that decision] was sought and denied prior to the panel's change of heart”).
Finally, although it did not directly address the question whether challenges to felon disenfranchisement laws are cognizable under VRA § 2, the Sixth Circuit treated them as such when it decided a § 2 vote dilution challenge to Tennessee's felon disenfranchisement law.
See Wesley v. Collins, 791 F.2d 1255, 1259–62 (6th Cir.1986). Taking
Wesley into account, there is a close split among the circuits that have faced VRA challenges to felon disenfranchisement laws on whether such challenges are cognizable, lending further support to the conclusion that
Farrakhan I cannot be considered “
clearly erroneous” for the purpose of departing from the law of the case.