Does Section 2 of the Voting Rights Act (VRA) Apply to Felon Disenfranchisement Laws?
Sonia Sotomayor, JD, Circuit Judge of the 2nd Circuit Court of Appeals, wrote in her May 4, 2006 dissenting opinion in Hayden v. Pataki (404KB) :
"It is plain to anyone reading the Voting Rights Act that it applies to all 'voting qualification[s].' And it is equally plain that [New York Election Law] § 5-106 [which denies the vote to incarcerated felons and felons on parole] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.
The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. The majority’s 'wealth of persuasive evidence' that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act, Maj. Op. at 25, includes not a single legislator actually saying so. But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.
Jessie Allen, JD, lead attorney for Thomas Johnson, et al. in the appeal of Johnson v. Governor of the State of Florida to the U.S. Supreme Court for a Writ of Certiorari (Case No. 5212), wrote:
"In light of the long history of invidious racial discrimination detailed by Congress in enacting the VRA, Section 2 is a congruent and proportional response to certain states' repeated attempts to stifle minority participation in the electoral process.
While Congress did not specifically cite felon disenfranchisement as a particular target of the VRA or its Section 2 amendment, it could never compile an exhaustive list if the VRA was to effectively respond 'to the increasing sophistication with which the states were denying racial minorities the right to vote.' [Farrakhan v. Locke, 987 F.Supp. 13004, 1308] 'Congress found specifically that it was impossible to predict the variety of means that would be used to infringe on the right to vote.' [Johnson III][...]
Indeed, many of the measures targeted by the VRA are, like Florida's felon disenfranchisement provision, facially valid laws that have discriminatory effects and originate from a long history of racial injustice."
In Farrakhan v. State of Washington, the Ninth Circuit Court of Appeals stated in its July 25, 2003 decision:
"Congress amended Section 2 of the VRA in 1982 to relieve plaintiffs of the burden of proving discriminatory intent.[...]
The Senate Report accompanying the 1982 amendments identified 'typical factors' that may be relevant in analyzing whether Section 2 has been violated.[...] Congress did not intend this list to be comprehensive or exclusive [...]
As a preliminary matter, we agree with the district court that Plaintiff's claim of vote denial is cognizable under Section 2 of the VRA. Felon disenfranchisement is a voting qualification, and Section 2 is clear that any voting qualification that denies citizens the right to vote in a discriminatory manner violates the VRA."
Janai S. Nelson, JD, JSD, lead attorney for Hayden et al., wrote in the Hayden v. Pataki amended complaint, filed Jan. 15, 2003:
"New York State and governmental jurisdictions within the state have historically used a wide variety of mechanisms to discriminate against minority voters in violation of the Constitution and laws of the United States [...]
As a result of the disproportionate disfranchisement of Blacks and Latinos, the voting strength of Blacks and Latinos in certain citywide, statewide, and other jurisdiction-wide elections, as separate groups and collectively, is diluted in violation of Section 2 of the Voting Rights Act of 1965, et seq."
In Hayden v. Pataki, the United States Court of Appeals for the 2nd Circuit stated in its May 4, 2006 ruling:
"Here there are persuasive reasons to believe that Congress did not intend to include felon disenfranchisement provisions within the coverage of the Voting Rights Act, and we must therefore look beyond the plain text of the statute in construing the reach of its provisions.[...]
These reasons include
the explicit approval given such laws in the Fourteenth Amendment;
the long history and continuing prevalence of felon disenfranchisement provisions throughout the United States;
the statements in the House and Senate Judiciary Committee Reports and on the Senate floor explicitly excluding felon disenfranchisement laws from provisions of the statute;
the absence of any affirmative consideration of felon disenfranchisement laws during either the 1965 passage of the Act or its 1982 revision;
the introduction thereafter of bills specifically intended to include felon disenfranchisement provisions within the VRA's coverage; the enactment of a felon disenfranchisement statute for the District of Columbia by Congress soon after the passage of the Voting Rights Act; and
the subsequent passage of statutes designed to facilitate the removal of convicted felons from the voting rolls.
We therefore conclude that [The Voting Rights Act] was not intended to - and thus does not - encompass felon disenfranchisement provisions."
Judge Alex Kozinski, Circuit Judge of the 9th Circuit Court of Appeals, stated Feb. 24, 2004 in his dissent of the order denying a 9th Circuit appeals rehearing en banc in Farrakhan v. State of Washington:
"This is a dark day for the Voting Rights Act. In adopting a constitutionally questionable interpretation of the Act, the [9th Circuit Court of Appeals] panel lays the groundwork for the dismantling of the most important piece of civil rights legislation since Reconstruction. The panel also misinterprets the evidence, flouts our voting rights precedent and tramples settled circuit law pertaining to summary judgment, all in an effort to give felons the right to vote.[...]
The panel's decision suffers from a more fundamental flaw: It ignores the fact that the VRA was never intended to reach felon disenfranchisement laws. When Congress enacted the VRA in 1965, it was careful to carve out an exception for felon disenfranchisement laws. [...] There was no evidence that felon disenfranchisement laws were being used in a discriminatory manner, nor any discussion of felon disenfranchisement at all."