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New York's Felon Disenfranchisement Law Not Saved By Federal Voting Rights Act

New York's Felon Disenfranchisement Law Not Saved
By Federal Voting Rights Act

by John E. Dannenberg

The Second Circuit U.S. Court of Appeals held that New York Election Law § 5-106, which disenfranchises [i.e., suspends voting rights] of parolees and currently incarcerated felons is not overridden by the federal Voting Rights Act (VRA), 42 U.S.C. § 1973 [which prohibits racially discriminatory state voter qualification laws]. In a lengthy decision that analyzed a Second Circuit en banc decision on this topic ( Baker v. Pataki , 85 F.3d 919 (2nd Cir. 1996)) wherein the court was evenly divided [and its decision therefore had no precedential value], the Second Circuit now applied intervening U.S. Supreme Court and other Circuit case law to reach a unanimous ruling.

New York state political prisoner Jalil Muntaqim, a.k.a. Anthony Bottom, filed a pro se complaint in the U.S. District Court (N. D., N.Y.), alleging, inter alia, that New York state's § 5-106 had a racially suspect effect. That is, since New York state felons and parolees are disproportionately black and Hispanic [stemming allegedly from racially biased sentencing], the statutory disenfranchisement scheme necessarily causes a disproportionate reduction of black and Hispanic voters in the community at large. Muntaqim grounds his complaint in the VRA the federal statute that expressly forbids state laws that color voting rolls by any racially restrictive registration qualifications.

Muntagim's case is the latest in a long history of undoing the pre Fourteenth/Fifteenth Amendment rampant practice of preventing blacks (especially in southern states) from voting at all. Congress' most recent statutory pronouncement was in 1982 when it amended the burden of proof in existing voting rights protection laws (former § 1973) from requiring a "discriminatory purpose" [i.e., affirmative animus] to instead only impute a "result [of disenfranchisement] on account of race." Under the newer formulation, then, even inadvertent biases must be repaired.

In Baker , the two evenly opposed opinions held that (1) because the "results" test of § 1973 is not inherently violative of the Fourteenth or Fifteenth Amendments, that, absent a strong plain statement by Congress, it would be a violation of the separation of state and federal powers for Congress to quietly prohibit a state statute, or [on the other hand] (2), because there is no ambiguity in the language of the VRA, no such "plain statement" [that Congress intended the VRA to apply to felon disenfranchisement statutes] is required.

In Muntaqim v. Coombe , No. 94-CV-1237 (Jan 24, 2001) below, the district court held that § 1973 did not limit New York's authority to disenfranchise felons, siding with the Baker camp that required a "plain statement" of such Congressional intent.

On appeal, the Second Circuit noted that two other circuits had concluded that felon disenfranchisement laws did violate the VRA. In Johnson v. Governor of Fla ., 353 F.3d 1287 (11th Cir. 2003), a divided panel rejected the district court's holding below that it was not racial discrimination per se that caused loss of the right to vote, but rather the prisoner's decision to commit a crime. The Eleventh Circuit reversed, based on Thornburg v. Gingles , 478 U.S. 30 (1986), which held that the proper question was whether the underlying social/historical condition had initially caused the inequality resulting in felon status which in turn predisposed disenfranchisement. The Eleventh circuit is rehearing the case en banc.

Similarly, in Farrakhan v. Washington , 338 F.3d 1009 (9th Cir. 2003) [see: PLN , Nov. 2004], the Ninth Circuit concluded that a claim of felon disenfranchisement under Washington State's scheme was cognizable under § 1973. "Although states may deprive felons of the right to vote without violating the Fourteenth Amendment, when felon disenfranchisement results in the denial of the right to vote or vote dilution on account of race or color, [§ 1973] affords disenfranchised felons the means to seek redress." More recently, with seven judges dissenting, the Ninth Circuit denied Washington's petition for rehearing en banc. See: Farrakhan v. Washington , 359 F.3d 1116 (9th Cir. 2004). The supreme court later denied review as well.

The Second Circuit, however, ruled here that the question turned solely on the "clear statement rule." That is, unless and until Congress expressly includes felon disenfranchisement by so amending § 1973, the court will not step in to judicially expand the scope of the statute thereby upsetting the balance of power between the states and the federal government. "The question before us," the court wrote, "is not whether Congress exceeded its authority when it enacted § 1973; rather it is whether Congress would exceed its authority if § 1973 were applied to state felon disenfranchisement statutes." Flatly disagreeing with the Eleventh and Ninth Circuits, the Second Circuit held that "because Congress did not make an unmistakably clear statement that § 1973 applies to state felon disenfranchisement statutes, we will not apply § 1973 to § 5-106." See: Muntaqim v. Coombe , 385 F.3d 793 (2nd Cir. 2004). In it's 2004 term the supreme court declined to grant review in both this case and Farrakhan , ensuring the circuit split continues.

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Related legal case

Muntaqim v. Coombe

JALIL ABDUL MUNTAQIM, a/k/a Anthony Bottom, Plaintiff-Appellant, v. PHILLIP COOMBE; ANTHONY ANNUCCI; LOUIS F. MANN, Defendant-Appellee.



385 F.3d 793; 2004 U.S. App.

October 1, 2004, Decided

PRIOR HISTORY: Muntaqim v. Coombe, 366 F.3d 102, 2004 U.S. App. (2d Cir. N.Y., 2004)

DISPOSITION: Rehearing en banc denied.

JUDGES: [**1] Jose A. Cabranes, Circuit Judge, concurring. Straub, Pooler, Sack and Katzmann, Circuit Judges, concurring. Dennis Jacobs, Circuit Judge, dissenting. Calabresi, Sotomayor, and B.D. Parker, Circuit Judges, dissenting.

[*794] At the request of a judge, the court sua sponte conducted a poll as to whether to rehear this case in banc. The suggestion did not garner support from a majority of the active judges on the court, and has therefore failed.

CONCURBY: Jose A. Cabranes; Straub; Pooler; Sack; Katzmann

Jose A. Cabranes, Circuit Judge, concurring:
The question presented in this case should not be confused with the more frequently debated question whether former felons should lose their right to vote for a time or even permanently. The issue presented here is whether New York Election Law § 5-106-which disenfranchises persons currently in prison or on parole -can be challenged under the Voting Rights Act. This presents a significantly narrower legal and policy issue. See Developments in the Law: One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1942-43 (2002) (noting that two states [**2] grant prisoners the franchise; sixteen states disenfranchise felons during the incarceration period only; four states, including New York and Connecticut, disenfranchise those incarcerated or on parole, but not those on probation; and twenty-eight states disenfranchise those incarcerated, on parole, or on probation, of which eight permanently disenfranchise those convicted of felonies ).
I note also that the New York law here in question dates to 1829 in its original form, more than thirty years before the Civil War. See 1 N.Y. Rev. Stat. ch. 6, tit. 1, § 3 (1829) ("No person who shall have been convicted within this state, of an infamous crime, at any time previous to an election, shall be permitted to vote thereat; unless he shall have been pardoned by the executive, and by the terms of such pardon restored to all the rights of a citizen." ); see also N.Y. Const. Art. 2, § 2 (1829) ("Laws may be passed, excluding from the right of suffrage, persons who have been, or may be, convicted of infamous crimes."). There is no claim in this action that the statute was enacted with any racially discriminatory intent, but rather that the statute "violates the Voting Rights Act because [**3] it has 'resulted in the unlawful dilution of voting rolls in the African-American and Hispanic communities of New York City' and because the racial disparity in New York's prison population is caused, at least in part, by racial discrimination in sentencing." Muntaqim v. Coombe, 366 F.3d 102, 105 (2d Cir. 2004) (quoting Compl. P 18).
As the author of the panel opinion which has been the subject of the en banc poll, I offer a bit of history. No party has sought en banc review in this case; rather, the litigants chose to petition directly for a writ of certiorari in the Supreme Court. They do so with good reason. This case presents major questions of constitutional law and statutory interpretation which are now the subject of different holdings in several circuits. The panel opinion specifically stated that "all three judges on this panel believe that the issues presented in this case are significant and, in light of the differing perspectives among and within the courts of appeals, warrant definitive resolution by the United States Supreme Court." Id. at 130. No judge of this Circuit has expressed any view suggesting otherwise.
As noted [**4] in our panel opinion, a panel of the Ninth Circuit has held that a claim of vote denial under Washington State's felon disenfranchisement scheme can state a claim under § 1973. n1 Farrakhan v. Washington, 338 F.3d 1009, 1012 (9th Cir. 2003) [*795] (involving disenfranchisement scheme whereby "disenfranchised felons in Washington remain ineligible to vote until they have completed all the requirements of their sentences and have obtained certificates of discharge" from the sentencing court). n2 In Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir. 2003), a panel of the Eleventh Circuit, over a dissent by Judge Phyllis A. Kravitch, assumed, though it did not expressly hold, that § 1973 applies to felon disenfranchisement schemes. n3 Id. at 1292-93, 1306 (involving disenfranchisement scheme whereby first-time convicted felons are permanently disenfranchised unless they receive clemency). This judgment was recently vacated when the Eleventh Circuit decided to rehear the case en banc. Johnson v. Governor of Florida, 377 F.3d 1163 (11th Cir. July 20, 2004).

n1 Judge Richard A. Paez's opinion was joined by U.S. Circuit Judge Dorothy W. Nelson, and U.S. Circuit Judge Harlington Wood, Jr., of the United States Court of Appeals for the Seventh Circuit, sitting by designation.

n2 The Ninth Circuit denied a petition for rehearing in banc over the dissent of seven judges. See Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004).
n3 Judge Rosemary Barkett's majority opinion was joined by U.S. District Judge John P. Fullam, of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.

Petitions for certiorari are currently pending before the Supreme Court in this case as well as in Farrakhan. See Muntaqim v. Coombe, petition for cert. filed, 2004 WL 1752185, (U.S. July 21, 2004) (No. 04-175); Locke v. Farrakhan, petition for cert. filed, 2004 WL 1203077, (U.S. May 24, 2004) (No. 03-1957).
In these circumstances, it seems clear that the Supreme Court's definitive, nationwide resolution of the questions presented by these cases is appropriate.

Straub, Pooler, Sack and Katzmann, Circuit Judges, concurring:
While we recognize that the suggestion to rehear this case in banc has failed, our concurrence is specifically without prejudice to renewal by [**6] a judge or party after the Supreme Court acts on the certiorari petitions now pending.

DISSENTBY: Dennis Jacobs; Calabresi; Sotomayor; B.D. Parker

Dennis Jacobs, Circuit Judge, dissenting:
I have no qualm about the panel's scholarly opinion; but I vote in favor of the poll nevertheless, because a majority now expresses- or signals- an interest in hearing this appeal in banc. Unless our in banc practice is to become a dead letter altogether, this is a circumstance in which our full Court should convene. It is no proper solution for us to forgo in banc review "without prejudice," and thus expressly reserve an opportunity to hear the case as a full court if the Supreme Court does not: the Court of last resort is on First Street, not on Foley Square.

Calabresi, Sotomayor, and B.D. Parker, Circuit Judges, dissenting:
We respectfully dissent from the court's denial to rehear this appeal in banc.