Does Section 2 of the Voting Rights Act Apply to Laws That Disenfranchise People with Felony Convictions?
General Reference (not clearly pro or con)
SCOTUS Blog, in an undated article, “Section 2 of the Voting Rights Act: Vote Dilution and Vote Deprivation,” accessed on Aug. 3, 2021 and available at scotusblog.com, stated:
“With respect to vote deprivation claims, in one early case (Richardson v. Ramirez, 1974) the Supreme Court held that felon disenfranchisement laws did not violate Section 2, in part because the 14th Amendment expressly countenances restricting the right to vote on the basis of ‘participation in rebellion, or other crime.’ Most Section 2 vote deprivation claims, however, have not reached the Supreme Court, even though the lower federal courts have struggled with a host of interpretive issues, particularly in light of the 1982 amendment that permitted results-based claims. It is a thorny problem to decide whether a voting process whose effect is to exclude a minority voter from participating in an election amounts to a violation of Section 2, under the ‘totality of the circumstances’ test, when some nonminority voters are also excluded by the same process (as, for instance, by a voter identification requirement with a disproportional impact on lower-income voters).”Aug. 3, 2021
The US Department of Justice, in a Sep. 11, 2020 article, “Section 2 of the Voting Rights Act,” available at justice.gov, stated:
“Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2 since its enactment involved challenges to at-large election schemes, but the section’s prohibition against discrimination in voting applies nationwide to any voting standard, practice, or procedure that results in the denial or abridgment of the right of any citizen to vote on account of race, color, or membership in a language minority group. Section 2 is permanent and has no expiration date as do certain other provisions of the Voting Rights Act.
In 1980, the Supreme Court held that the section, as originally enacted by Congress in 1964, was a restatement of the protections afforded by the 15th amendment. Mobile v. Bolden, 446 U.S. 55 (1980). Under that standard, a plaintiff had to prove that the standard, practice, or procedure was enacted or maintained, at least in part, by an invidious purpose.
In 1982, Congress extended certain provisions of the Act such as Section 5 that were set to expire, and added protections for voters who required assistance in voting. At the same time, it examined the history of litigation under Section 2 since 1965 and concluded that Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.”Sep. 11, 2020
Section 2 of the Voting Rights Act of 1965, as amended in 1982 and renewed on July 20, 2006, reads:
“a. No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
b. A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its member have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered. Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their participation in the population.”July 20, 2006 - Voting Rights Act
Sonia Sotomayor, JD, Circuit Judge of the 2nd Circuit Court of Appeals, wrote in her May 4, 2006 dissenting opinion in Hayden v. Pataki:
“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.
I respectfully dissent.”May 4, 2006
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.”Mar. 2006 - Johnson v. Governor of the State of Florida
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.”July 25, 2003 - Farrakhan v. State of Washington
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:
1. the explicit approval given such laws in the Fourteenth Amendment;
2. the long history and continuing prevalence of felon disenfranchisement provisions throughout the United States;
3. 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;
4. the absence of any affirmative consideration of felon disenfranchisement laws during either the 1965 passage of the Act or its 1982 revision;
5. 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
6. 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.”May 4, 2006 - Hayden v. Pataki
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.”Feb. 24, 2004 - Dissent by Judge Kozinski
Rob McKenna, JD, Attorney General (R) for the State of Washington, wrote in the Defendants’ Memorandum in Farrakhan v. State of Washington, supporting a dismissal and summary judgment:
“Although this court is bound by the holding of the Court of Appeals, the Defendants’ position remains that, in light of rulings in other circuits, the VRA does not apply to felon disenfranchisement.”Dec. 13, 2005 - Defendants' Memorandum in Farrakhan v. State of Washington