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Voting Rights Case Reinstated

In the July, 1994, issue of PLN we reported Baker v. Cuomo, 842 F. Supp. 718 (SD NY 1993), where a district court in New York sua sponte dismissed a lawsuit filed by black and Hispanic prisoners under 42 U.S.C. § 1983 claiming that state statutes disenfranchising felons from voting violated their right to equal protection and under 42 U.S.C. §1973 et seq., the Voting Rights Act, by having a disproportionate impact on minorities. The court of appeals for the second circuit has reversed and remanded the case. Section 5-106 of New York state's election law prohibits incarcerated felons from voting even though non-imprisoned felons can vote. The plaintiffs claimed that because of racist sentencing practices and the racial composition of the state prison system § 5-106 acted to violate their right to vote under the fourteenth and fifteenth amendments and the Voting Rights Act (VRA). Their suit sought declaratory and injunctive relief, namely, being allowed to vote in New York City's 1993 elections, and $1.50 in damages for each day they were not allowed to vote. The district court held that the complaint failed to state a claim upon which relief could be granted and dismissed the case. The prisoners appealed.

In the ongoing struggle for political rights for prisoners this is an important case, more so because this is a still developing area of law. In the May, 1994, issue of PLN our front page article was Giving Cons and Ex-Cons the Right to Vote by Andrew Shapiro. That article was excerpted from the original article by Shapiro titled Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale Law Journal 537 (1993). Shapiro, a Yale law student, argued this case before the appeals court and his strategy has, so far, been successful.

Important facts in this case are that blacks and Latinos constitute 22 percent of New York state's population but 82 percent of the state's prison population; 75 percent of the state prison population come from 14 assembly districts located in New York City; the New York State Judicial Commission on Minorities has reported that there was evidence of race based disparities in state court's conviction rates and sentence types.

The appeals court noted that pro se complaints must be liberally construed. "Rule 12(b)(6) dismissals are especially disfavored in cases where the complaint sets forth a novel legal theory that can best be assessed after factual development." The court explained the difference between 28 U.S.C. § 1915(d) dismissals and Rule 12(b)(6) dismissals. In remanding the case to the lower court the appeals court stated it would be appropriate to appoint counsel to represent the plaintiffs. In its remand the court set forth guidance for the lower court. Given the scarcity of law on this issue the ruling is of great importance for any prisoner contemplating litigation on this issue.

The prisoners claimed that by enforcing § 5-106 the defendants violated their rights under 42 U.S.C. § 1983, the supreme court has held that only two allegations must be made to state a claim for violation of § 1983: that some person has deprived him of a federal right and that person acted under color of state or territorial law. See: Gomez v. Toledo, 446 US 635, 640, 100 S.Ct. 1920, 1923 (1980). Thus, the main question was whether enforcement of the statute deprived the prisoners of their constitutional and VRA rights.

The appeals court upheld dismissal of the prisoners' constitutional claims because the supreme court has previously upheld the practice of not allowing prisoners to vote, based on obscure language in the fourteenth amendment which states that citizens can be disenfranchised for participating " rebellion, or other crime." See: Richardson v. Ramirez, 418 US 24, 94 S.Ct. 2655 (1974). "Although the right to vote is generally considered fundamental, in the absence of any allegation that a challenged classification was intended to discriminate on the basis of race or other suspect criteria, statutes that deny felons the right to vote are not subject to strict judicial scrutiny." Ramirez, 94 S.Ct. at 2670-72; Owens v. Barnes, 711 F.2d 25 (3rd Cir. 1983); Shepard v. Trevino, 575 F.2d 1110 (5th Cir. 1978). The court held that under these cases felon disenfranchisement was reasonably related to penal considerations and, somehow, ensuring that elections are free from fraud and corruption.

The court held that Hunter v. Underwood, 471 US 222, 105 S.Ct. 1916 (1985) and Hobson v. Pow, 434 F. Supp. 362 (ND AL 1977) were distinguishable from these case because they involved Alabama constitutional sections specifically intended to disenfranchise newly freed black slaves. Both cases applied heightened scrutiny. Hobson relied on a facial gender discrimination claim because the provision challenged disenfranchised "wife beaters." In contrast, § 5-106 showed no suspect classification its face. The court held that "Disparate impact alone is not sufficient to establish a Fourteenth Amendment violation." The court held that because the initial complaint was filed pro se the plaintiffs should be allowed to amend their complaint to allege disparate impact. The court expressed no opinion as to whether such amendment would save the fourteenth amendment claim.

Discussing the fifteenth amendment claim, the court held the complaint failed to claim intentional race, color or condition of servitude discrimination. The prisoners claimed that enforcement of § 5-106 resulted in vote denial and vote dilution on account of race. The court held that the prisoners should be allowed to amend their complaint on remand to reflect the necessary allegations of intentional discrimination.

The court discussed the legislative history of the VRA and noted that Congress, in a Senate report, held "The specific intent of this amendment is that the plaintiffs may choose to establish discriminatory results without proving any kind of discriminatory purpose." The statute specifically adopts a results oriented, "totality of the circumstances" standard. The court gave an ample discussion of how this applies to suits brought by prisoners. The VRA prohibits the use of facially neutral voting qualifications that deny the vote to citizens who are disproportionately members of minority groups, i.e. felons. It also prohibits schemes that dilute minority voting strength.

In their complaint the prisoners claimed both vote denial and vote dilution. "...Plaintiffs alleged that § 5-106 interacts with racial discrimination in the New York State criminal justice system to result in the denial of the right to vote on account of race. In addition, plaintiffs cited specific evidence of racially disparate treatment in sentencing, which affects enfranchisement. This pleading was sufficient to survive Rule 12(b)(6) dismissal. Whether plaintiffs are ultimately able to recover, however, will depend upon all of the circumstances, which may include the factors described in the Senate Report accompanying the 1982 amendments and other relevant considerations." Thus, dismissal was inappropriate.

Dismissal of the vote dilution claim was also inappropriate because the prisoners contended that "the disproportionate effect of §5-106 dilutes the voting strength of all minorities, including those law abiding or otherwise unincarcerated minority citizens who are registered to vote." The court noted that the prisoner plaintiffs probably lack standing to raise this claim but that "A black or Hispanic voter from one of these assembly districts might well have standing to assert a cause of action for vote dilution." This claim can be pursued in the district court on remand.

The court rejected the defendants' motion for rehearing and addressed their argument that the VRA conflicts with the fourteenth amendment. While the fourteenth amendment allows the disenfranchisement of felons, "it does not permit the states to pick and choose among felons in a way that violates whatever statutory protections of the right to vote Congress has enacted pursuant to its broad powers. ...Section two does not authorize states to intentionally disenfranchise black felons while permitting white felons to vote, Hunter v. Underwood, 471 US 222, 225, 233, 105 S.Ct. 1916, 1918-1919 (1985), and Congress may enforce constitutional provisions against such discrimination by applying the Voting Rights Act to prisoners, at least to the extent of prohibiting voting requirements that achieve discriminatory results." See: Baker v. Cuomo, 58 F.3d 814 (2nd Cir. 1995).

Prisoners interested in litigating this issue should refer to Shapiro's article in the May, 1994, PLN and the Yale Law Journal. It is worth noting that if prisoners could vote (three states allow it already) little would change. As they say, if voting could change things it would illegal. That is because the political system is set up so that meaningful change cannot be accomplished via the ballot or voting. But, that is the subject of another article.

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Related legal case

Baker v. Cuomo


Baker v. Cuomo, 67 F.3d 39 (2d Cir. 10/10/1995)

[Editor's note: footnotes (if any) trail the opinion]


[2] Nos. 565, 1135, 1136, 1137 -- August Term 1994

[3] Petition for Rehearing

[4] Decided: October 10, 1995

[5] Submitted: May 26, 1995

[6] Docket Nos. 94-2163, -2164, -2165, 2176


[8] Plaintiffs,


[10] Plaintiffs-Appellants,


[11] MARIO CUOMO, Governor of the State of New York, THOMAS A. COUGHLIN, Commissioner of New York State Department of Correctional Services,

[12] Defendants-Appellees.


[14] Suggestion for rehearing in banc of an appeal of a judgment of the District Court for the Southern District of New York (Vincent L. Broderick, Judge) dismissing a complaint of state prisoners alleging denial of voting rights. Panel remanded, and denied petition for rehearing, Baker v. Cuomo, 58 F.3d 814 (2d Cir. 1995).

[15] Rehearing in banc ordered.


[17] The Court orders a rehearing in banc, limited to the issue of the applicability of the Voting Rights Act. See Baker v. Cuomo, 58 F.3d 814 (2d Cir. 1995).


[18] *fn* Circuit Judges Ralph K. Winter, Pierre N. Leval, Guido Calabresi, and Jos A. Cabranes recused themselves.

***** END FOOTNOTE(S) HERE *****