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For Opinion See 2006 WL 2242760 , 2004 WL 1335921
United States District Court, S.D. New York. Joseph HAYDEN; Lumumba Akinwole-Bandele; Wilson Andino; Gina Arias; Wanda Best-Deveaux; Carlos Bristol; Augustine Carmona; David Galarza; Kimalee Garner; Mark Graham; Keran Holmes, III; Chaujuan-
theyia Lochard; Steven Mangual; Jamel Massey; Stephen Ramon; Lillian M. Rivera; Nilda Rivera; Mario Romero; Jessica Sanclemente; Paul Satterfield; and Barbara Scott, on behalf of themselves and all individuals
similarly situated, Plaintiffs, v.
George PATAKI, Governor of the State of New York and Carol Berman, Chairperson, New York State Board of Elections, Defendants.
No. 00 Civ. 8586 (LMM). January 15, 2003.
First Amended Complaint
Respectfully submitted, Janai S. Nelson (JN1825), Elaine R. Jones, Director-Counsel, Theodore M. Shaw, Norman J. Chachkin, Debo P. Adegbile, NAACP Legal Defense and Educational Fund, Inc.
99 Hudson Street, Suite 1600, New York, NY 10013-2897, (Tel.) 212-965-2200, (Fax) 212-226-7592, jnelson@naacpldf.org.
Todd A. Cox, NAACP Legal Defense and Educational Fund, Inc., 444 Eye Street, 10th Floor, Washington, D.C. 20005, (Tel.) 202-682-1300, (Fax) 202-682-1312, fcox@naacpldf.org.
Inan Cartagena (JC5087), Risa Kaufman, Community Service Society of New York, 105 E. 22nd Street, New York, NY 10010, (Tel.) 212-614-5462, (Fax) 212-260-6218, jcartagena@cssny.org, Joan P. Gibbs (JG4191).
Esmeralda Simmons, Center for Law and Social Justice at Medgar Evers College, 1150 Carroll Street, Brooklyn, NY 1225, (Tel.) 718- 270-6296, (Fax) 718-270-6190, jgibbs3926@aol.com.
PRELIMINARY STATEMENT
1. Plaintiffs bring this matter before the court to challenge New York State's unconstitutional and discriminatory practice of denying suffrage to persons who are incarcerated or on parole for a felony conviction and the resulting discriminatory impact that such denial of suffrage has on Blacks and Latinos in the State. Plaintiffs contend that this practice of disfranchisement and the resulting discriminatory impact violate the First, Fourteenth, and Fifteenth Amendments of the United States Constitution; Section 2 of the Voting Rights Act of 1965, codified at ; the Civil Rights Acts of 1957 and 1960, codified at 42 U.S.C. §§ 1971(a)(1), 1971(a)(2)(A), and 1971(a)(2)(B) ; 42 U.S.C. § 1983, and customary international law.
JURISDICTION AND VENUE
2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343; 42 U.S.C. § 1973j(f) and ; and under the
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First, Fourteenth and Fifteenth Amendments to the United States Constitution.
3. Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202, and by Rules 57 and 65 of the Federal Rules of Civil Procedure.
4. Venue is proper pursuant to 28 U.S.C. § 1391(b).
PARTIES
Plaintiffs
5. JOSEPH HAYDEN is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He is currently on parole for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106(2).
6. LUMUMBA AKINWOLE-BANDELE is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He currently resides in the Bedford-Stuyvesant neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
7. WILSON ANDINO is a Latino of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He is currently serving a sentence in Woodbourne Correctional Facility for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106(2).
8. GINA ARIAS is a Latina of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. She currently resides in the Washington Heights neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York-State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
9. WANDA BEST-DEVEAUX is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. She currently resides in the Queens Village neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
10. CARLOS BRISTOL is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He currently resides in the East New York neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
11. AUGUSTINE CARMONA is an African American and Latino of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He is currently on parole for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106(2).
12. DAVID GALARZA is a Latino of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He currently resides in the Sunset Park neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
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13. KIMALEE GARNER is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. She is currently on parole for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106(2).
14. MARK GRAHAM is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York, He is currently on parole for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106(2).
15. KERAN HOLMES, III is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He is currently serving a sentence in Woodbourne Correctional Facility for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106 (2).
16. CHAUJUANTHEYIA LOCHARD is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York; She currently resides in the Bedford-Stuyvesant neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
17. STEVEN MANGUAL is a Latino of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He is currently serving a sentence in Otisville Correctional Facility for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106(2).
18. JAMEL MASSEY is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He is currently serving a sentence in Otisville Correctional Facility for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106 (2).
19. STEPHEN RAMON is a Latino of lawful voting age, a citizen of the United States and a legal resident of the State of New York. He currently resides in the Harlem neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
20. LILLIAN M. RIVERA is a Latina of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. She currently resides in the Lower East Side neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
21. NILDA RIVERA is a Latina of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. She currently resides in the Lower East Side neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
22. MARIO ROMERO is a Latino of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He is currently serving a sentence in Woodbourne Correctional Facility for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106(2).

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23. JESSICA SANCLEMENTE is a Latina of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. She currently resides in the Harlem neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
24. PAUL SATTERFIELD is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. He is currently serving a sentence in Otisville Correctional Facility for a felony conviction and is therefore barred from registering to vote under New York State Election Law § 5-106 (2).
25. BARBARA SCOTT is an African American of lawful voting age, a citizen of the United States, and a legal resident of the State of New York. She currently resides in the Cambria Heights neighborhood of New York City and is denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
Defendants
26. GEORGE PATAKI is the Governor of the State of New York. He is sued in his official capacity in connection with actions taken under color of state law. As Governor, he is charged with upholding the Constitution and laws of the State of New York, including those provisions disfranchising persons who are incarcerated or on parole for a felony conviction.
27. CAROL BERMAN is the Chairperson of the New York State Board of Elections, and, as such, is vested with the authority for the execution and enforcement of the state laws related to the elective franchise and for the preservation of public confidence in the democratic process and engagement of voter participation in elections. She is sued in her official capacity in connection with actions taken under color of state law.
CLASS ACTION ALLEGATIONS
28. Plaintiffs bring this action on their own behalf and on behalf of all others similarly situated against the Defendants pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
29. The Plaintiff class includes three subclasses: (a) Black and Latino prisoners who are of lawful voting age, citizens of the United States, currently incarcerated in New York State as a result of a felony conviction, and otherwise qualified to vote but for their incarceration resulting from a felony conviction; (b) Black and Latino parolees who are of lawful voting age, citizens of the United States, currently on parole in New York State as a result of a felony conviction, and otherwise qualified to vote but for their parole resulting from a felony conviction; and (c) Black and Latino persons who are of lawful voting age, citizens of the United States, qualified to vote, and denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement under New York State Election Law § 5-106(2) of Black and Latino persons who are incarcerated or on parole for a felony conviction.
30. The named Plaintiffs representing subclass (a) are as follows: WILSON ANDINO; KERAN HOLMES, III; STEVEN MANGUAL; JAMEL MASSEY; MARIO ROMERO; and PAUL SATTERFIELD.
31. The named Plaintiffs representing subclass (b) are as follows: JOSEPH HAYDEN; AUGUSTINE CARMONA; KIMALEE GARNER; and MARK GRAHAM.
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32. The named Plaintiffs representing subclass (c) are as follows: LUMUMBA AKINWOLE-BANDELE; GINA ARIAS; WANDA BEST-DEVEAUX; CARLOS BRISTOL; DAVID GALARZA; CHAUJUANTHEYIA LOCHARD; STEPHEN RAMÓN; LILLIAN M. RIVERA; NILDA RIVERA; JESSICA SANCLEMENTE; and BARBARA SCOTT.
33. The members of the Plaintiff class are so numerous as to make it impractical to bring them all before this Court.
34. There are questions of law and fact regarding the rights of citizens to register to vote and the dilution of minority voting strength that are common to the class as a whole.
35. The claims of the Plaintiffs are typical of the claims of the class as a whole.
36. The Plaintiffs can adequately and fairly represent the interests of the Plaintiff class. The Plaintiffs are not seeking monetary or other relief that would require consideration of individual circumstances.
37. The Plaintiffs are represented by counsel who are familiar with the applicable laws, including attorneys of the NAACP Legal Defense and Educational Fund, Inc., the Community Service Society of New York, and the Center for Law and Social Justice at Medgar Evers College. Counsel for Plaintiffs have the resources necessary to pursue this litigation and are experienced in class action litigation and litigation regarding civil rights, including voting rights.
38. Class certification pursuant to Fed. R.Civ.P. 23(a) and (b)(2) is warranted because Defendants have acted or failed to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole.
FACTS
History of Race Discrimination in New York State's Disfranchisement Laws
39. 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, including, inter alia, literacy tests, English-only election procedures, and racially discriminatory rules for purging voters from registration lists.
40. New York's history of discrimination in contravention of minority voting rights has triggered coverage of three of its counties under Section 5 of the Voting Rights Act. 42 U.S.C. § 1973c. Congress passed Section 5 to require states or portions of states with a history of voting discrimination to submit any law that affects voting to the federal government for review. Since the passage of the Act, Congress has extended New York's Section 5 status twice: first in 1975 for a seven-year period, Voting Rights Act of 1965-Extension, Pub. L. No. 94-73, 89 Stat. 400 (1975), and then a second time in 1982, when Congress extended coverage until the year 2007. Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (1982).
41. New York State's extensive history of racial discrimination in voting dates as far back as the State's provisions in its constitution regarding suffrage. Throughout the New York Constitutional Conventions addressing the right of suffrage, the framers made explicit statements of intent to discriminate against minority voters.
42. Delegates created certain voting requirements that expressly applied only to racial minorities and crafted
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other provisions with seemingly neutral language that they knew would have a discriminatory effect on racial minorities. The disfranchisement of felons was one aspect of this effort to deprive minorities of the right to vote.
43. In 1777 the framers of the first New York State Constitution excluded minorities from the polls by limiting suffrage to property holders and free men. See N.Y. Const. art. VII (repealed 1826). These voting requirements disproportionately disfranchised Blacks.
44. As more Blacks became property holders and free men, the New York Constitution further limited their access to the ballot.
45. In 1801 the legislature removed all property restrictions from the suffrage requirements for the election of delegates to New York's first Constitutional Convention; however, to ensure that this act would not extend the vote to Blacks, the legislature expressly excluded Blacks from participating in this election.
46. At the second New York Constitutional Convention in 1821, the delegates met to address the issue of suffrage generally and Black suffrage in particular. The question of Black suffrage sparked heated discussions, during which many delegates expressed the view that racial minorities were essentially unequipped to participate in civil society. Some delegates made explicit statements regarding Blacks' natural inferiority and unfitness for suffrage.
47. Based on their belief in Blacks' unfitness for democratic participation, the delegates designed new voting requirements aimed at stripping Black citizens of their previously held right to vote.
48. Article II of the Constitution of 1821 incorporated the new discriminatory restrictions and contained new and unusually high property requirements that expressly applied only to men of color. N.Y. Const. art. II, § 1 (repealed 1870). Only 298 Blacks out of 29,701, or .0075 % of the Black population, met these new requirements. Article II also provided new citizenship requirements that applied only to men of color. Id.
49. Article II further restricted the suffrage of minorities by permitting the state legislature to disfranchise persons “who have been, or may be, convicted of infamous crimes.” N.Y. Const. art. II, § 2. Through common law and legislative interpretation, “infamous crimes” came to mean traditional felonies.
50. In an 826 amendment to the Constitution, New York State formally abolished all property qualifications for white male suffrage, but the unduly onerous property requirements for Black males were left intact.
51. At the third Constitutional Convention of New York in 1846, heated debates over suffrage again focused on Blacks. Advocating for the denial of equal suffrage, delegates continued to make explicit statements regarding Blacks' unfitness for suffrage, including a declaration that the proportion of “infamous crime” in the minority population was more than thirteen times that in the white population.
52. Felon disfranchisement was further solidified in the Convention of 1846. As amended, the relevant constitutional provision stated: “Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, of larceny or of any infamous crime; and for depriving every person who shall make, or become directly or indirectly interested in any bet or wager depending upon the result of any election, from the right to vote at such election.” N.Y. Const. art. II, § 2 (amended 1894) (emphasis added).
53. When re-enacting the felon disfranchisement provision and specifically including “any infamous crime” in the category of convictions that would disqualify voters, the delegates were acutely aware that these restrictions
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would have a discriminatory impact on Blacks,
54. At the fourth Constitutional Convention of New York in 1866-67, after engaging in heated debates, the legislators ultimately rejected various proposals to expand suffrage and instead chose to maintain racially discriminatory property qualifications.
55. New York's explicitly racially discriminatory suffrage requirements were in place until voided in 1870 by the adoption of the Fifteenth Amendment to the United States Constitution. U.S. Const. amend. XV.
56. However, two years after the passage of the Fifteenth Amendment, an unprecedented committee convened and amended the disfranchisement provision of the New York Constitution to require the state legislature, at its following session, to enact laws excluding persons convicted of infamous crimes from the right to vote. N.Y. Const. art, II, § 2 (amended 1894). Theretofore, the enactment of such laws was permissive.
57. In 1894, at the Constitutional Convention following this amendment, the delegates permanently abandoned the permissive language and adopted a constitutional requirement that the legislature enact disfranchisement laws. As amended, the provision stated that “[t]he legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.” N.Y. Const. art. II, § 2 (emphasis added). This is the provision in the Constitution pursuant to which § 5-106 of the New York State Election Law was enacted and under which persons incarcerated and on parole for felony convictions are presently disfranchised in New York State.
Disparate Application of New York State Election Law § 5-106
58. The New York State Constitution mandates that the Legislature “enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.” N.Y. Const. art. II, § 3.[FN1]
FN1. In New York's Seventh Constitutional Convention in 1938. Article II. Section 2 of the New York Constitution of 1894 became Article II, Section 3. See N.Y. Const. art. II, §3.
59. Pursuant to Article II, Section 3 of the New York State Constitution, New York State Election Law prohibits persons convicted of a felony under the laws of New York State from voting, unless said persons have been pardoned, received a suspended or commuted sentence, been sentenced to probation or conditional or unconditional discharge, or served their maximum sentence of imprisonment, including parole.
60. As a result of the disparate application of New York State Election Law § 5 106(2), persons who are convicted of “bribery or of any infamous crime” and are sentenced to incarceration and/or parole are not permitted to vote, whereas their counterparts who have been pardoned, received a suspended or commuted sentence, or been sentenced to probation or conditional or unconditional discharge are permitted to vote.
Racial Disparities in Disfranchisement Rates of Blacks and Latinos
61. In New York State, Blacks and Latinos are prosecuted, convicted, and sentenced to incarceration at rates substantially disproportionate to whites.
62. Although Blacks make up approximately 15.9% of New York State's overall population (as reported in the 2000 Census), they make up 54.3% of the current prison population and 50% of the current parolee population in New York State.
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63. Although Latinos make up approximately 15.1% of New York State's overall population (as reported in the 2000 Census), they make up 26.7% of the current prison population and 32% of the current parolee population in New York State.
64. Collectively, Blacks and Latinos make up 86% of the total current prison population and 82% of the total current parolee population in New York State, while they approximate only 31% of New York State's overall population.
65. By contrast, whites make up approximately 62% of New York State's overall population (as reported in the 2000 Census) and only 16% of New York State's current prisoners and parolees, respectively.
66. Blacks and Latinos are sentenced to incarceration at substantially higher rates than whites, and whites are sentenced to probation at substantially higher rates than Blacks and
Latinos. For example, in 2001 whites made up approximately 32% of total felony convictions, yet comprised 44% of those who received probation and only 21.4% of those incarcerated for. felony convictions. By contrast, Blacks made up 44% of those convicted of a felony, yet approximately only 35% of those sentenced to probation and over 51% of those sentenced to incarceration. Latinos comprised 23% of those convicted of a felony, yet only 19% of those sentenced to probation and over 26.5% of those sentenced to incarceration.
67. In addition, Blacks make up 30% and Latinos make up 14% of the total current population of persons sentenced to probation in New York State, while whites make up 51% of such persons.
68. Nearly 52% of those currently denied the right to vote pursuant to New York State Election Law § 5-106(2), are Black and nearly 35% are Latino. Collectively, Blacks and Latinos comprise nearly 87% of those currently denied the right to vote pursuant to New York State Election Law § 5-106(2).
Minority Vote Dilution
69. The disproportionate rates of prosecution, conviction, and incarceration of Blacks and Latinos and the resulting disproportionate rates of disfranchisement among these groups has a disparate impact on the ability of Blacks and Latinos in New York State to participate in the political process.
70. Approximately 80% of New York State's prison population consists of Blacks and Latinos from New York City communities in the following areas: Harlem; Washington Heights; the Lower East Side; the South and East Bronx; Central and East Brooklyn; and Southeast Queens.
71. 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.
Customary International Law and Felony Disfranchisement
72. Customary international law is binding on all States, including the United States.
73. Political participation, which includes the right to vote and to participate in the conduct of public affairs, is a fundamental human right recognized under international law.

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74. Article 5, Section (c) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), to which the United States is a signatory member, guarantees all citizens equality before the law in the exercise of political rights, including the right to vote, regardless of race, color, descent, or national or ethnic origin.
75. Article 25 of the International Covenant on Civil and Political Rights (ICCPR), to which the United State is also a signatory member, guarantees every citizen the right and the opportunity to vote without unreasonable restrictions.
76. Article 5, Section (c) of CERD and Article 25 of the ICCPR reflect principles of customary international law.
77. The disfranchisement of persons who are incarcerated or on parole for a felony conviction under New York State Election Law § 5-106(2) has a disproportionate impact on
Blacks and Latinos and serves to deny the Plaintiff class of persons who are incarcerated and on parole for a felony conviction the right to vote generally and on account of their race, color, descent, or national or ethnic origin in violation of customary international law.
CLAIMS FOR RELIEF
First Claim for Relief
(Fourteenth Amendment Equal Protection Clause)
78. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 76 above.
79. Defendants have maintained and administered non-uniform practices of disfranchising persons convicted of a felony under the laws of the State of New York, whereby persons convicted of a felony who receive a suspended or commuted sentence or are sentenced to probation or conditional or unconditional discharge are permitted to vote while persons convicted of a felony who are sentenced to incarceration are not.
80. These practices violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983 in contravention of the rights of persons incarcerated and on parole for a felony conviction (Plaintiff subclasses (a) and (b)).
Second Claim for Relief
(Fourteenth Amendment Due Process Clause)
81. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 76 above.
82. Defendants have maintained and administered non-uniform practices of disfranchising persons convicted of a felony under the laws of the State of New York, whereby persons convicted of a felony who receive a suspended or commuted sentence or are sentenced to probation or conditional or unconditional discharge are permitted to vote while persons convicted of a felony who are sentenced to incarceration are not without affording such persons due process under the law.
83. These practices violate the Due Process Clause of the Fourteenth Amendment to the United States Constitu-
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tion and 42 U.S.C. § 1983 in contravention of the rights of vote of persons incarcerated and on parole for a felony conviction (Plaintiff subclasses (a) and (b)).
Third Claim for Relief (Equal Protection Clause of the Fourteenth Amendment; Fifteenth Amendment; Section 2 of the Voting Rights Act of 1965; the Civil Rights Acts of 1957 and 1960)
84. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 76 above. 85. Section 5-106(2) of New York Election Law was enacted pursuant to Article I, Section 2 of the New York State Constitution with the intent to disfranchise Blacks. 86. Section 5-106(2) of New York Election Law and Article I, Section 2 of the New York State Constitution abridge the right to vote of persons incarcerated and on parole for a felony conviction (Plaintiff subclasses (a) and (b)) on account of their race in violation of the Equal Protection Clause of the Fourteenth Amendment; Fifteenth Amendment; Section 2 of the Voting Rights Act of 1965; the Civil Rights Acts of 1957 and 1960, and 42 U.S.C. § 1983.
Fourth Claim for Relief (Section 2 of the Voting Rights Act of 1965) 87. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 76 above. 88. The disfranchisement of persons under New York State Election Law § 5-106(2) has a disproportionate impact on Black and Latino persons incarcerated or on parole for a felony conviction. 89. As a result, such persons are denied an equal opportunity to participate in the political process in New York State. 90. The discriminatory impact of New York's disfranchisement laws serves to deny the Plaintiff class of persons incarcerated or on parole for a felony conviction (Plaintiff subclasses (a) and (b)) the right to vote in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973.
Fifth Claim for Relief (Section 2 of the Voting Rights Act of 1965) 91. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through paragraph 76 above. 92. The disfranchisement of persons incarcerated or on parole for a felony conviction under New York State's Election Law has a disproportionate impact on Blacks and Latinos. 93. Consequently, § 5-106(2) of New York Election Law serves to dilute the voting strength of Blacks and Latinos and certain minority communities in New York State (Plaintiff subclass (c)) in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973.
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Sixth Claim for Relief
(First Amendment)
94. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 76 above.
95. New York State Election Law § 5-106(2) imposes severe restrictions on the right to vote of persons who are incarcerated or on parole for a felon conviction (Plaintiff subclasses (a) and (b)) in violation of the First Amendment to the United States Constitution.
Seventh Claim for Relief
(Customary International Law)
96. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 76 above.
97. (2) and Article I, Section 2 of the New York State Constitution violate customary international law because they were enacted with the intent to disfranchise Blacks.
98. New York State Election Law § 5-106(2) further violates customary international law because it denies persons who are incarcerated or on parole for a felony conviction the right to vote and has a disparate effect on Blacks and Latinos on account of their race, color, descent, or national or ethnic origin.
99. As a result of New York State Election Law § 5-106(2), Plaintiffs (Plaintiff subclasses (a), (b), and (c)) are denied the enjoyment of guaranteed political rights, such as the right to vote and participate in the political process, in violation of customary international law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully ask this Court:
(1) To certify the Plaintiff class, consisting of the following subclasses of:
(a) Black and Latino persons who are of lawful voting age, citizens of the United States, currently incarcerated in New York State as a result of a felony conviction, and otherwise qualified to vote but for their incarceration resulting from a felony conviction;
(b) Black and Latino persons who are of lawful voting age, citizens of the United States, currently on parole in New York State as a result of a felony conviction, and otherwise qualified to vote but for their parole resulting from a felony conviction; and
(c) Black and Latino persons who are of lawful voting age, citizens of the United States, qualified to vote, and denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement of Blacks and Latinos under New York State Election Law § 5-106(2).
(2) To enter a judgment declaring and determining that § 5-106(2) of New York's Election Law and Article I, Section II of the New York State Constitution violate the First, Fourteenth, and Fifteenth Amendments of the United States Constitution; Section 2 of the Voting Rights Act of 1965, codified at ; the Civil Rights Acts of 1957 and 1960, codified at 42 U.S.C. §§ 1971(a)(1), 1971(a)(2)(A) and 1971(a)(2)(B); 42 U.S.C. § 1983; and
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customary international law; (3) To grant injunctive relief enjoining Defendants from implementing and enforcing § 5-106(2) of New York Election Law; (4) To award Plaintiffs their costs and disbursements associated with the filing and maintenance of this action, including an award of reasonable attorneys' fees pursuant to 42 U.S.C. §§ 1973(e) and 1988; and (5) To award such other equitable and further relief as the Court deems just and proper. DATED: January 15, 2003 Respectfully submitted, <<signature>> Janai S. Nelson (JN1825) Elaine R. Jones Director-Counsel Theodore M. Shaw Norman J. Chachkin Debo P. Adegbile NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 (Tel.) 212-965-2200 (Fax) 212-226-7592 jnelson@naacpldf.org Todd A. Cox NAACP Legal Defense and Educational Fund, Inc. 444 Eye Street, 10th Floor Washington, D.C. 20005 (Tel.) 202-682-1300 (Fax) 202-682-1312
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2003 WL 25655437 (S.D.N.Y.)
fcox@naacpldf.org <<signature>> Inan Cartagena (JC5087) Risa Kaufman Community Service Society of New York 105 E. 22nd Street New York, NY 10010 (Tel.) 212-614-5462 (Fax) 212-260-6218 jcartagena@cssny.org Joan P. Gibbs (JG4191) Esmeralda Simmons Center for Law and Social Justice at Medgar Evers College 1150 Carroll Street Brooklyn, NY 1225 (Tel.) 718- 270-6296 (Fax) 718-270-6190 jgibbs3926@aol.com
END OF DOCUMENT

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 2003 WL 25655438 (S.D.N.Y.)

Page 1

For Opinion See 2006 WL 2242760 , 2004 WL 1335921
United States District Court, S.D. New York. Joseph HAYDEN, et al., etc., Plaintiffs, v.
George PATAKI, Governor of the State of New York, and Carol Berman, Chairperson, New York State Board of Elections, Defendants.
No. 00 Civ. 8586 (LMM) (HBP). April 14, 2003.
Answer to Amended Complaint
Eliot Spitzer, Attorney General of the State of New York, Attorney for Defendant Governor, Joel Graber (JG-3337), Assistant Attorney General, 120 Broadway - 24th Floor, New York, NY 10271-0332, (212) 416-8645, Fax (212) 416-6075, joel.graber@oag.state.ny.us.
Defendant the Governor of the State of New York, by his attorney, ELIOT SPITZER, Attorney General of the State of New York, as and for his answer to the amended complaint herein:
1. States that the allegations set forth in paragraphs 1, 28 and 29 of the amended complaint consist in plaintiffs' characterizations of the action to which no response is required.
2. Denies knowledge or information sufficient to form a belief in respect to the allegations contained in paragraphs 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,22, 23, 24, 25, 30, 31, 32, 33, 35, 36, 37, 61, 62, 63, 64, 65, 66, 67, 68, 70, 74, 75 and 76 of the amended complaint.
3. Denies the allegations set forth in paragraph 26 of the amended complaint, except admits that George E. Pataki is the Governor of the State of New York, with powers and duties as prescribed by law, and respectfully refers the Court to the constitution and laws of the State of New York for the terms and contents thereof respecting the Governor.
4. Denies the allegations in paragraph 27 of the amended complaint, except admits that Carol Berman is Chairperson of the New York State Board of Elections, with powers and duties as prescribed by law, and respectfully refers the Court to the constitution and laws of the State of New York for the terms and contents thereof respecting the Chairperson.
5. Denies the allegations set forth in paragraphs 34, 38, 39, 41, 42, 44,45, 46, 47, 51, 53, 54, 55, 69, 71, 72, 73, 77, 79, 80, 82, 83, 85, 86, 88, 89, 90, 92, 93, 95, 97, 98, and 99 of the amended complaint.
6. Denies the allegations contained in paragraphs 40,43, 48,49, 50,52, 56, 57 and 60 of the amended complaint, except respectfully refers the Court to the provisions of law referred to in those paragraphs for the terms and contents thereof.
AS AND FOR A FIRST DEFENSE
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Page 2

7. The amended complaint and each of the seven claims alleged therein fail to state a claim upon which relief can be granted.
AS AND FOR A SECOND DEFENSE
8. Each of plaintiffs Akinwole-Bandele, Arias, Best-Deveaux, Bristol, Galarza, Lochard, Ramon, L. M. Rivera, N. Rivera, Sanclemente and Scott lack standing to maintain the fifth and seventh claims alleged in the amended complaint, as such claims may only be maintained, if at all, by a member of the public duly registered to vote in the State of New York.
9. By reason of the foregoing, the Court lacks subject matter jurisdiction over the fifth and seventh claims alleged on behalf of each of plaintiffs Akinwole-Bandele, Arias, Best-Deveaux, Bristol, Galarza, Lochard, Ramon, L. M. Rivera. N. Rivera, Sanclemente and Scott.
AS AND FOR A THIRD DEFENSE
10. Each of plaintiffs Andino, Holmes, Mangual, Massey, Romero, Satterfield, Hayden Carmona, Gamer and Graham lack standing to maintain any claim under § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, as any claim under § 2 may only be maintained, if at all, by a member of the public duly registered to vote in the State of New York.
11. By reason of the foregoing, the Court lacks subject matter jurisdiction over the third and fourth claims under § 2 alleged on behalf of each of plaintiffs Andino, Holmes, Mangual, Massey, Romero, Satterfield, Hayden, Carmona, Garner and Graham.
AS AND FOR A FOURTH DEFENSE
12. Each of plaintiffs Akinwole-Bandele, Arias, Best-Deveaux, Bristol, Galarza, Lochard, Ramon, L M. Rivera, N. Rivera, Sanclemente and Scott lacks standing to maintain any claim in respect to any district in which he or she does not reside.
13. By reason of the foregoing, the Court lacks subject matter jurisdiction over any such claim or claims on behalf of each of plaintiffs Akinwole-Bandele, Arias, Best-Deveaux, Bristol, Galarza, Lochard, Ramon, L. M. Rivera, N. Rivera, Sanclemente and Scott.
AS AND FOR A FIFTH DEFENSE
14. The mere fact that the governor of a state is under a general duty to enforce state law is not sufficient to make a governor a proper party to litigation challenging a state law.
15. Defendant the Governor has no connection with the enforcement of the provisions of law challenged in this action, within the meaning of Ex Parte Young, 209 U.S. 123 (1908).
6. By reason of the foregoing, this action as against defendant the Governor is barred by the Eleventh Amendment and, accordingly, the Court lacks subject matter jurisdiction over this action as against defendant the Governor.
AS AND FOR A SIXTH DEFENSE
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2003 WL 25655438 (S.D.N.Y.)

Page 3

17. The actions and conduct of defendant the Governor and all agents and employees of the State of New York under his direction or control in regard to the matters alleged in the amended complaint, at all relevant times have been fully in compliance with all applicable federal and State constitutional provisions, statutes and regulations.
WHEREFORE, defendant the Governor respectfully requests that judgment be entered: (A) dismissing the amended complaint in this action in entirety; (B) dismissing the amended complaint in this action in entirety as against defendant the Governor; (C) awarding to defendant the Governor, as against plaintiffs and each of them, reasonable attorney's fees and expenses, pursuant to 42 U.S.C. § 1988, for each of those claims against him as are frivolous, unreasonable, or without foundation, and; (D) granting such other and further relief as the Court may deem just and proper.
Dated: New York, New York April 14, 2003
ELIOT SPITZER
Attorney General of the
State of New York
Attorney for Defendant Governor
By: <<signature>>
JOEL GRABER (JG-3337)
Assistant Attorney General 120 Broadway - 24th Floor
New York, NY 10271-0332
(212) 416-8645
FAX (212) 416-6075
joel.graber@oag.state.ny.us
TO:
CLERK OF THE COURT
ATTORNEYS-OF-RECORD
END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 Hayden v. Pataki, Not Reported in F.Supp.2d (2004)

2004 WL 1335921 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Joseph HAYDEN, et al., Plaintiffs, v.
George PATAKI, Governor of the State of New York, and Carol Berman, Chairperson, New York
State Board of Elections, Defendants.
No. 00 Civ. 8586(LMM). | June 14, 2004.
Opinion
MEMORANDUM AND ORDER
MCKENNA, J.
*1 Joseph Hayden, Lumumba Akinwole–Bandele, Wilson Andino, Gina Arias, Wanda Best–Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Jamel Massey, Stephen Ramon, Lillian M. Rivera, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield and Barbra Scott, on behalf of themselves and all others similarly situated (“plaintiffs”), bring this purported class action against George Pataki, Governor of the State of New York and Carol Berman, Chairperson of New York State Board of Elections (“defendants”) pursuant to 42 U.S.C. § 1983 seeking to invalidate New York Constitution Article II, § 3 and New York Election Law § 5–106(2) on federal constitutional grounds and as violative of the Voting Rights Act of 1965.
Plaintiffs allege that these provisions “unlawfully deny suffrage to incarcerated and paroled felons on account of their race” in violation of the United States Constitution, the Voting Rights Act of 1965 and customary international law. (Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Judgment on the Pleadings (“Pl.Mem.”) at 2.) Plaintiffs seek declaratory and injunctive relief enjoining defendants from implementing and enforcing § 5–106(2). Currently pending before the court is defendants’ motion for judgment on the pleadings brought pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below defendants’ motion is granted.

BACKGROUND
Plaintiffs are black and latino individuals who have been convicted of felonies under the laws of the state of New York and were or are currently incarcerated in the New York prison system or on parole. (Am.Comp.¶¶ 5–25.) Pursuant to § 5–106(2), as incarcerated or paroled felons, plaintiffs are not permitted to vote in state or federal elections.
The state of New York has barred incarcerated felons and parolees from voting for over one hundred and seventy years. In 1821 New York adopted a constitutional amendment which stated: “Laws may be passed excluding from the right of suffrage persons who have been, or may be, convicted of infamous crimes.” N.Y. Const. (1821), art. II, § 2. New York’s current Constitution, adopted in 1938, contains language that has remained unaltered since 1894 and provides: “The Legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.” N.Y. Const. (1938), art. II., § 3. It is from this language that the State of New York created its felon disenfranchisement statute. New York Election Law § 5–106(2) provides:

No person who has been convicted

of a felony pursuant to the laws of

this state, shall have the right to

register for or vote at any election

unless he shall have been pardoned

or restored to the rights of

citizenship by the governor, or his

maximum

sentence

of

imprisonment has expired, or he

has been discharged from parole.

The governor, however, may attach

as a condition to any such pardon a

provision that any such person shall

not have the right of suffrage until

it shall have been separately

restored to him.

*2 The most significant amendment to the statute since its enactment occurred in the 1970’s. Pursuant to New York Laws of 1971, c. 310 § 1, the Legislature amended former New York Election Law § 152, the predecessor to § 5–106, to eliminate disqualification after a felon served his or her maximum sentence or had been discharged from parole. This change was made, according to the Senate Sponsor, because the Legislature decided that “the general philosophy of corrections” is not “to continue punishment after a person has accounted.” (Defendants’ Memorandum of Law in Support of Motion for Judgment on the Pleadings at 4 (quoting 1971 N.Y.S. Legis. Ann.

1

Hayden v. Pataki, Not Reported in F.Supp.2d (2004)
201) .) At the time of enactment, this amendment was supported by various civil rights organizations in New York including the Citizens Union, The Legal Aid Society Prisoner’s Rights Project and the New York Civil Liberties Union, as well as the Association of the Bar of the City of New York. (Affirmation of Joel Graber (“Graber Aff.”) Exs. A & B.)
Plaintiffs contend that New York Constitution Article II, § 3 and § 5–106(2) “violate the Equal Protection Clause of the Fourteenth Amendment, based on an unlawful statutory classification (first claim); the Due Process Clause of the Fourteenth Amendment (second claim); the Equal Protection Clause, based on intentional race discrimination (third claim); the Civil Rights Acts of 1957 and 1960, codified at 42 U.S.C. § 1971 (third claim); Section 2 of the Voting Rights Act of 1965, based on § 5–106(2)’s disproportionate impact on incarcerated and paroled Blacks and Latinos (fourth claim); Section 2 of the Voting Rights Act of 1965, based on § 5–106(2)’s dilution of the voting strength of Blacks and Latinos and certain minority communities in New York State (fifth claim); the First Amendment (sixth claim); and Customary International Law (seventh claim).” (Pl. Mem. at 2–3.)
DISCUSSION
I. Standard of Review When deciding a motion for judgment on the pleadings under Rule 12(c), the court must “ ‘apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.” ’ Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004)(quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999)).
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45–46 (1957). However, conclusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments will not be accepted as true. See De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir.1995), cert. denied, 519 U.S. 1007 (1996) (“A complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6).”).

II. Equal Protection Under the Fourteenth and Fifteenth Amendments *3 Plaintiffs argue that their Amended Complaint sufficiently alleges a claim under the Fourteenth and Fifteenth Amendments because “New York State’s extensive history of racial discrimination in voting dates as far back as the State’s provisions in its constitution regarding suffrage” and “[t]hroughout the New York Constitutional Conventions addressing the right of suffrage, the framers made explicit statements of intent to discriminate against minority voters.” (Am.Comp.¶ 41.) The disenfranchisement of felons, plaintiffs contend, “was one aspect of this effort to deprive minorities of the right to vote.” (Id. ¶ 42.)

The Supreme Court has held that the language of section 2 of the Fourteenth Amendment expressly allows a state to prohibit felons from voting.1 Richardson v. Ramirez, 418 U.S. 24, 55 (1974) (“[section 1 of the Fourteenth Amendment], in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement”). However, that does not mean states can pass disenfranchisement statutes for the purpose of discriminating against any particular class of persons based on race. See Hunter v. Underwood, 471 U.S. 222 (1985) (holding Alabama’s disenfranchisement statute unconstitutional under the Equal Protection Clause because it was clearly enacted with the intent to discriminate against blacks). Therefore, a state law that is racially neutral on its face will violate the Fourteenth and Fifteenth Amendments only if its enactment was motivated by discriminatory intent. See Village of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977) (holding that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause”); see also Romeu v. Cohen, 265 F.3d 118, 133–34 (2d Cir.2001) (“Only intentional discrimination is barred by these amendments.”). Accordingly, plaintiffs’ equal protection challenge will survive defendants’ motion for judgment on the pleadings only if plaintiffs sufficiently allege that New York’s decision to disenfranchise incarcerated and paroled felons was motivated by discriminatory intent.

1

In fact, at the time the Civil War Amendments

(Fourteenth and Fifteenth Amendments) were enacted

“29 [out of 36] States had provisions in their

constitutions which prohibited, or authorized the

legislature to prohibit, exercise of the franchise by

persons convicted of felonies or infamous crimes.”

Richardson v. Ramirez, 418 U.S. 24, 48 (1974).

Therefore, the prevalence of this practice prior to these

Amendments being passed “indicates that felon

disenfranchisement was not an attempt to evade the

requirements of the Civil War Amendments or to

2

Hayden v. Pataki, Not Reported in F.Supp.2d (2004)
perpetuate racial discrimination forbidden by those amendments.” Baker v. Pataki, 85 F.3d 919, 928 (2d Cir.1966)(opinion of Mahoney, J.).

A. Discriminatory Intent Plaintiffs allege that “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, including, inter alia, literacy tests, English-only election procedures, and racially discriminatory rules for purging voters from registration lists.” (Am.Comp.¶ 39.) Plaintiffs claim that throughout New York’s Constitutional Conventions beginning in 1777 “framers made explicit statements of intent to discriminate against minority voters” and “created certain voting requirements that expressly applied only to racial minorities.” (Id. ¶¶ 41–42 .)
*4 In their Amended Complaint plaintiffs describe at length how laws were enacted in the early to mid–1800s creating onerous voting requirements, such as racially discriminatory property qualifications, in an effort to deny suffrage to blacks. (Id. ¶ 43–48, 50, 54.) However, just because some laws were enacted in the early to mid–1800s with the intent to discriminate against blacks and other minorities does not necessarily mean New York Constitution Article II, § 3 and § 5–106(2) or their predecessors were similarly enacted with such intent. The majority of allegations that plaintiffs provide in the Amended Complaint to show New York State sought to disenfranchise felons for the purpose of discriminating against blacks and other minorities are entirely conclusory in nature. In fact, the only factual allegation that could possibly support a finding of discriminatory intent is plaintiffs’ allegation that during the 1846 Constitutional Convention the delegates were “[a]dvocating for the denial of equal suffrage” and they “continued to make explicit statements regarding Blacks’ unfitness for suffrage including a declaration that the proportion of ‘infamous crime’ in the minority population was more than thirteen times that in the white population.”2 (Am.Comp.¶ 51.) However, this one allegation is simply an insufficient basis, even under the liberal standards of a Rule 12(c) motion, from which to draw the inference that these provisions or their predecessors were enacted with discriminatory intent.3

2

The Amended Complaint seems to suggest that the term

“infamous crime” was added to the New York State

Constitution after 1846 as a result of the debates at the

1846 Constitutional Convention. However, the State

legislature had been empowered to enact laws

excluding from the right of suffrage those who had

been convicted of “infamous crimes” since 1821. See N.Y. Const. (1821), art. II, § 2 (“Laws may be passed excluding from the right of suffrage persons who have been, or may be, convicted of infamous crimes.”).

3

Plaintiffs attempt to analogize their case to Hunter v.

Underwood where the Supreme Court invalidated part

of the Alabama Constitution relating to the

disenfranchisement of persons convicted of, among

other offenses, “any crime ... involving moral

turpitude” as violative of the Equal Protection Clause.

471 U.S. 222, 233 (1985). There the Court found that

because the disenfranchisement of blacks was a major

purpose behind Alabama’s 1901 Convention during

which this provision was adopted, and because this

provision would not have been enacted in absence of

the racially discriminatory motivation, it was held

unconstitutional. Id. 229–233. However, the facts of

this case are very different from Hunter. First, in

Hunter the Court invalidated a statute that denied

suffrage to those who had committed certain

misdemeanors, not felonies. Second, the plaintiffs in

Hunter provided strong factual support showing a long

history of racial discrimination including actual

testimony of specific discriminatory statements made

during the 1901 Constitutional Convention where a

“zeal for white supremacy ran rampant”. Id. at 229.

Here, plaintiffs have not alleged any such facts with

respect to the enactment of New York Constitution

Article II, § 3 and § 5–106(2) or their predecessors.

B. Disenfranchising Only Felons Incarcerated or on Parole Plaintiffs also contend that “New York’s non-uniform practices of disenfranchising only those felons sentenced to incarceration or serving parole are neither compelling nor rational” and thus violate the Equal Protection Clause of the Fourteenth Amendment. (Pl. Mem. at 21.)
While plaintiffs are correct that section 2 of the Fourteenth Amendment does not remove “all equal protection considerations from the state-created classifications denying the right to vote to some felons while granting it to others,” see Williams v. Taylor, 677 F.2d 510, 516 (5th Cir.1982) (finding that “[n]o one would contend that section 2 permits a state to disenfranchise all felons and then re-enfranchise only those who are, say, white”), it is also true that “equal protection does not mean that a state must treat all persons identically.” Id. Equal Protection simply “demands that when the state draws distinctions between similarly situated individuals it must show that the distinction is rational, not arbitrary.” Id. (citing Stanton v. Stanton, 421 U.S. 7, 14 (1975)).
3

Hayden v. Pataki, Not Reported in F.Supp.2d (2004)

Here, as explained in the Bill Memorandum to the 1971 amendment of § 5–106(2), the New York State Legislature’s justification for the proposed amendment was that disenfranchising felons after they had served their maximum term of imprisonment or were released from parole was inconsistent with the primary concerns of the penal system, which is rehabilitation of the offender. (See Graber Aff. Ex. A at 8 (“It is inconsistent with the general philosophy of corrections to continue punishment after a person has accounted.”).) And, as evidenced by the letters written in support of the amendment, many New York civil rights organizations thought this was at least a step in the right direction. (Id. at 12; see also Ex. B at 28–31, 35–36.) Furthermore, distinguishing between felons who are incarcerated or on parole with those serving suspended sentences or probation is entirely rational. Parole is “[t]he release of a prisoner from imprisonment before the full sentence has been served” and is “usually granted for good behavior on the condition that the parolee regularly report to a supervising officer.” Black’s Law Dictionary (8th ed.2004). “Parole is not freedom.” Id. Alternatively, probation is “[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison.” Id. Therefore, while both felons on parole and felons on probation are released into society, parolees are still technically serving a prison sentence, just in the outside world. Denying suffrage to those who have received more severe punishments, such as a term of incarceration, and not to those who have received a lesser punishment, such as probation, is certainly not arbitrary. Furthermore, the determination of whether to sentence a felon to prison as opposed to probation is a decision made by a sentencing judge after consideration of many factors including the nature of the crime and the criminal history of the defendant. Where a more severe punishment is warranted it is entirely rational that that person should lose more rights and vice versa.4

4

Plaintiffs allege that blacks and other minorities are

prosecuted, convicted, and sentenced to terms of

incarceration at a much higher rate than whites

convicted of similar crimes. (Am.Comp.¶¶ 61–68.)

Even if this contention is correct, whether convictions

and sentencing determinations are made in a

discriminatory fashion is not an issue that can be

resolved by challenging New York’s election laws.

*5 Accordingly, plaintiffs’ claims challenging New York Constitution Article II, § 3 and § 5–106(2) under the Fourteenth and Fifteenth Amendments are dismissed.

III. Voting Rights Act of 1965, 42 U.S.C. § 1973 Plaintiffs’ claims under Section 2 of the Voting Rights

Act of 1965, codified at 42 U.S.C. § 1973, must be dismissed in light of the Second Circuit’s recent holding in Muntaqim v. Coombe, 366 F .3d 102 (2d Cir.2004). There the Second Circuit held that “ § 1973 cannot be used to challenge the legality of § 5–106.” Id. at 104.
IV. Civil Rights Act of 1957 and 1960, 42 U.S.C. § 1971 Plaintiffs argue that New York’s felon disenfranchisement statute violates the Civil Rights Acts of 1957 and 1960, codified at 42 U.S.C. § 1971(a)(1), § 1971(a)(2)(A) and § 1971(a)(2)(B). However, as the majority of courts addressing civil rights claims brought under § 1971 have held, this section does not provide for a private right of action and is only enforceable by the United States in an action brought by the Attorney General. See 42 U.S.C. § 1971(c); see also McKay v. Thompson, 226 F.3d 752, 756 (6th Cir.2000) ( “section 1971 is enforceable by the Attorney General, not by private citizens”); Mixon v. State of Ohio, 193 F.3d 389, 407 (6th Cir.1999) (42 U.S.C. § 1971 “is not part of the enforcement provisions of the Voting Rights Act and only the Attorney General can bring a cause of action under this section.”); Gilmore v. Amityville Union Free Sch. Dist., 305 F.Supp.2d 271, 279 (E.D.N.Y.2004) (the provisions of section 1971 “are only enforceable by the United States of America in an action brought by the Attorney General and may not be enforced by private citizens”); Cartagena v. Crew, No. 96 Civ. 3399, 1996 U.S. Dist. LEXIS 20178, at *13 n.8 (E.D.N.Y. Sept. 5, 1996) (“To the extent that plaintiffs allege a cause of action under 42 U.S.C. § 1971 in their memorandum of law, such claim is precluded since a private right of action has not been recognized under this section.”); Willing v. Lake Orion Community Sch. Bd. of Trustees, 924 F.Supp. 815, 820 (E.D.Mich.1996) ( “Section 1971 is intended to prevent racial discrimination at the polls and is enforceable by the Attorney General, not by private citizens.”); Spivey v. Ohio, 999 F.Supp. 987, 996 (N.D.Ohio 1998) (“The terms of § 1971(c) specifically state that the Attorney General may institute a civil action to remedy a violation of the Voting Rights Act. An individual does not have a private right of action under § 1971.”). But see Schwier v. Cox, 340 F.3d 1284, 1297 (11th Cir.2003) (“the provisions of section 1971 of the Voting Rights Act may be enforced by a private right of action under § 1983”).
Regardless, even if plaintiffs could assert a private right of action under § 1971, their claim would still fail since they are not “otherwise qualified to vote.” See Texas Supporters of Workers v. Strake, 511 F.Supp. 149, 155 (S.D.Tex.1981) (citing Richardson v. Ramirez, 418 U.S. 24 (1974) (holding that plaintiffs, convicted felons who had not been pardoned, did not possess one of the prerequisites to asserting a § 1971 cause of action: they were not “otherwise qualified to vote” because the “constitutionality of disenfranchising convicted felons has
4

Hayden v. Pataki, Not Reported in F.Supp.2d (2004)
been firmly established”)). Accordingly, plaintiffs’ claim under 42 U.S.C. § 1971 must be dismissed.
V. First Amendment *6 Plaintiffs also contend that New York Constitution Article II, § 3 and § 5–106(2) violate their rights guaranteed under the First Amendment. However, the case law is clear that the First Amendment does not guarantee felons the right to vote. See Farrakhan v. Locke, 987 F.Supp. 1304, 1314 (E.D.Wash.1997) rev’d in part on other grounds, 338 F.3d 1009 (9th Cir.2003) (holding that in order to uphold a First Amendment claim “the Court would have to conclude that the same Constitution that recognizes felon disenfranchisement under § 2 of the Fourteenth Amendment also prohibits disenfranchisement under other amendments.... The Court is not inclined to interpret the Constitution in this internally inconsistent manner or to determine that the Supreme Court’s declaration of the facial validity of felon disenfranchisement laws in Richardson v. Ramirez was based only of the fortuity that the plaintiffs therein did not make their arguments under different sections of the Constitution”); Johnson v. Bush, 214 F.Supp.2d 1333, 1338 (S.D.Fl.2002) rev’d in part on other grounds 353 F.3d 1287 (11th Cir.2003) (“it is clear that the First Amendment does not guarantee felons the right to vote”). Accordingly, plaintiffs’ claim under the First Amendment is also dismissed.
VI. Due Process Under the Fourteenth Amendment Plaintiffs argue that disenfranchising felons without notice violates the Due Process Clause of the Fourteenth Amendment. (Pl. Mem. at 45.) Plaintiffs claim that “New York courts regularly pronounce sentences after trial and accept guilty pleas from defendants without providing notice that a sentence including a term of incarceration will automatically lead to a termination of their voting rights” and if the Court does not invalidate the disenfranchisement statute this practice will continue. (Id. at 46.)
First, as defendants point out, criminal defendants are advised by counsel throughout the plea bargaining and sentencing phases of a criminal prosecution. Second, the real remedy to this claim, as plaintiffs argue, is a statutory requirement that sentencing judges advise criminal defendants of all the rights they might lose, including their right to vote, if they were to plead guilty to a criminal charge. However, even if this suggestion has merit, plaintiffs’ challenge to the election laws is misguided. What plaintiffs are essentially suggesting is a proposed change to New York’s criminal procedure laws. A federal district Court is not the proper venue to suggest an amendment to state statutory law since this Court

obviously could not direct the New York State legislature to institute a new criminal procedure law. Accordingly, there is no real basis for plaintiffs’ due process claim nor an appropriate judicial remedy.
VII. Treaties and Customary International Law Finally, plaintiffs allege, pursuant to 28 U.S.C. § 1331 that New York Constitution Article II, § 3 and § 5–106(2) violate customary international law, Article 5, Section (c) of the Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) and Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”), because felons are “denied the enjoyment of guaranteed political rights, such as the right to vote and participate in the political process.” (Am.Comp.¶¶ 97–98.)
A. Customary International Law *7 Customary international law alone does not provide a cause of action in federal court in the absence of a federal statute. See Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.1995) (citing Tel–Oren v. Libyan Arab Republic, 726 F.2d 774, 778 (D.C.Cir.1984) (Edwards, J. concurring) (“The law of nations generally does not create private causes of action to remedy its violations, but leaves to each nation the task of defining the remedies that are available for international law violations.”)); see also Friedman v. Bayer Corp., No. 99–CV–3675, 1999 WL 33457825, at *3 (E.D.N.Y Dec. 15, 1999) (citing In Re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir.1994) (“Like international treaty law, customary international law prescribes norms of conduct among nations but does not create private rights of action for individuals.”)); White v. Paulsen, 997 F.Supp. 1380, 1383 (E.D.Wash.1998) (holding that the law of nations itself does not give rise to a private right of action because “ ‘international law does not require any particular reaction to violations of law.... Whether and how the United States wishes to react to such violations are domestic questions”). Because plaintiffs have not provided any statutory basis upon which this court has jurisdiction under 28 U.S.C. § 1331 to remedy an alleged violation of customary international law, this claim must be dismissed.
B. Treaties of the United States: ICCPR and CERD With respect to plaintiffs’ claims under the ICCPR and the CERD, “the United States expressly declared upon ratification that ‘the provisions of the Convention are not self-executing.” ’ United States v. Perez, No. 3:02 Cr 7, 2004 U.S. Dist. LEXIS 7500, at *52 (D.Conn. Apr. 29, 2004) (citing International Convention on the Elimination
5

Hayden v. Pataki, Not Reported in F.Supp.2d (2004)
of All Forms of Racial Discrimination, adopted by the U.N. General Assembly Dec. 21, 1965, 660 U.N.T.S. 195 (ratified by the United States June 24, 1994); U.S. Senate Resolution of Advice and Consent to Ratification of the CERD, 140 Cong. Rec. S7634–02 (June 24, 1994); see also U.S. Senate Resolution of Advice and Consent to Ratification of the ICCPR, 138 Cong. Rec. S4781, S4783 (daily ed. Apr. 2, 1992) (declaring that “the provisions of articles 1 through 27 of the Covenant are not self-executing.”)); see also White, 997 F.Supp. at 1386 (holding that no court that has considered the ICCPR has found it to be self-executing). Therefore, “[t]he United States thus clarified that the ICCPR and the CERD did not create a private right of action enforceable in U.S. courts.” Perez, 2004 U.S. Dist. LEXIS 7500, at *52 (citing Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163 (2d Cir.2003) (“Self-executing treaties are those that ‘immediately create rights and duties of private individuals which are enforceable and [are] to be enforced by domestic tribunals.’ Non-self-executing treaties ‘require implementing action by the political branches of government or ... are otherwise unsuitable for judicial application.” ’) (citations omitted)). Accordingly, this Court does not have the authority under § 1331 to hear plaintiffs claims under the ICCPR or CERD.

CONCLUSION
*8 For the reasons set forth above defendants’ motion for judgment on the pleadings is granted.5

5

In the wake of the Second Circuit’s decision in

Muntagim v. Coombe,supra, plaintiffs have moved for

voluntary dismissal of their third claim in part and their

fourth and fifth claims in their entirety, without

prejudice. Defendants have opposed voluntary

dismissal unless it is with prejudice. In view of the

above, the application for dismissal without prejudice is

denied as moot.

Plaintiffs’ motion for class certification is also

denied as moot.

SO ORDERED.
	  

6

 
 Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 1 of 10
CLOSED, CASREF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:00−cv−08586−LMM−HBP

Hayden, et al v. Pataki, et al Assigned to: Judge Lawrence M. McKenna Referred to: Magistrate Judge Henry B. Pitman Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff Joseph Hayden on behalf of himself and all individuals similarly situated
Plaintiff Lumumba Akinwole−Bandelle
Plaintiff Wilson Andino
Plaintiff Gina Arias
Plaintiff Gina Arias Plaintiff Wanda Best−Deveaux
Plaintiff Carlos Bristol

Date Filed: 11/09/2000 Date Terminated: 11/01/2010 Jury Demand: None Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question
represented by Joseph Hayden PRO SE
Janai Nelson NAACP Legal Defense &Educ. Fund 99 Hudson St. New York, NY 10013 (212) 965−2200 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph A. Hayden , Jr. Federal Correctional Institution P.O. Box 1000 #05694−158 Otisville, NY 10963 LEAD ATTORNEY
represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 2 of 10

Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Augustine Carmona

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David Galarza

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kimalee Garner

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kimalee Garner

Plaintiff Mark Graham

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Keran Holmes, III

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Chaujuantheyia Lochard

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Steven Mangual

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Steven Mangual

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jamel Massey

represented by Janai Nelson (See above for address)

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 3 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Stephen Ramon

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Stephen Ramon

Plaintiff Nilda Rivera

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Mario Romero

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jessica Sanclemente

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Paul Satterfield

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Barbara Scott

represented by Janai Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Movant Lillian M. Rivera

V.
Defendant
Governor George Pataki Governor of the State of New York

represented by Joel Graber New York State Office of the Attorney General (24th Floor) 120 Broadway, 24th Floor New York, NY 10271 (212) 416−8645 Fax: (212) 416−6075 Email: joel.graber@ag.ny.gov

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 4 of 10

LEAD ATTORNEY

Defendant
Carol Berman Chairperson, New York Board of Elections

represented by Joel Graber (See above for address) LEAD ATTORNEY

Patricia Lynn Murray NYS Board of Elections 40 Steuben Street Albany, NY 12207 518−474−6367 Fax: 518−486−4546 Email: PMurray@elections.state.ny.us LEAD ATTORNEY

Patricia Lynn Murray (See above for address)

Defendant
Glenn S. Goord Commissioner of New York State Department of Correctional Services

represented by Joel Graber (See above for address) LEAD ATTORNEY

Date Filed 11/09/2000
11/09/2000 11/09/2000 12/13/2000
12/13/2000
12/29/2000 01/03/2001 01/05/2001 01/25/2001
02/08/2001 02/13/2001 02/28/2001

# Docket Text
1 Order endorsed on declaration in support of request to proceed in forma pauperis; I.F.P. request is granted. ( signed by Chief Judge Michael B. Mukasey ) (bm) (Entered: 11/21/2000)
2 COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). . (bm) (Entered: 11/21/2000)
Magistrate Judge Henry B. Pitman is so Designated. (bm) (Entered: 11/21/2000)
3 U.S. MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED of Summons &Complaint as to George Pataki by Richard Platkin on 12/7/00 . Answer due on 12/27/00 for George Pataki . (jp) (Entered: 12/14/2000)
4 U.S. MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED of Summons &Complaint as to Glenn S. Goord by William Gonzalez on 12/9/00 . Answer due on 12/29/00 for Glenn S. Goord . (jp) (Entered: 12/14/2000)
5 ACKNOWLEDGEMENT OF SERVICE as to Carol Berman by mail on 12/21/00. Answer due on 1/10/01 for Carol Berman. (kw) (Entered: 01/02/2001)
7 NOTICE of change of address by Joseph Hayden . (pl) (Entered: 01/08/2001)
6 ANSWER to Complaint by Carol Berman (Attorney Patricia L. Murray from the New York State Board of Elections). (sn) (Entered: 01/08/2001)
8 Memo−Endorsement on letter addressed to Judge McKenna from Joel Graber, dated 1/17/01. Reset answer due for 2/28/01 for Carol Berman, and for George Pataki . ( signed by Judge Lawrence M. McKenna ); Copies mailed. (kw) (Entered: 01/26/2001)
9 APPLICATION by Joseph Hayden for the Court to request counsel . (lf) (Entered: 02/09/2001)
10 AFFIDAVIT of due diligence, filed by Carlos Caballero. (jp) (Entered: 02/14/2001)
11 ANSWER to Complaint by George Pataki, Carol Berman, Glenn S. Goord (Attorney Joel Graber from the Firm: Attorney−General NYS) (cd) (Entered: 03/01/2001)

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 5 of 10

10/24/2001 02/25/2002 01/15/2003 01/15/2003 02/24/2003 03/18/2003
03/19/2003 04/15/2003 04/15/2003 04/18/2003
05/13/2003
05/21/2003
06/05/2003

12 NOTICE of address change filed by Joseph Hayden . (yv) (Entered: 10/24/2001)
Notice of change of address filed by Joseph Hayden new location: 201 Ravine Ave. #66 Yonkers, NY 10701. (bai) (Entered: 02/27/2002)
13 NOTICE OF MOTION by Joseph Hayden for leave to file Amended Complaint ; Return Date not indicated (cd) (Entered: 01/17/2003)
14 MEMORANDUM OF LAW by Joseph Hayden in support of [13−1] motion for leave to file Amended Complaint . (cd) (Entered: 01/17/2003)
15 Memo endorsed on courtesy copy of motion; granting [13−1] motion for leave to file Amended Complaint. No opposition having been received. ( signed by Judge Lawrence M. McKenna ); (kw) (Entered: 02/25/2003)
16 AMENDED COMPLAINT by Joseph Hayden, George Pataki, Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Kimalee Garner, Mark Graham, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott (Answer due 3/28/03 for Glenn S. Goord, for Carol Berman, for George Pataki ); amending [2−1] complaint ; Summons issued. (pl) (Entered: 03/27/2003)
Memo endorsed on motion; mooting [9−1] motion for the Court to request counsel, counsel havings approved for plaintiff. ( signed by Judge Lawrence M. McKenna ); (pl) (Entered: 03/20/2003)
17 ANSWER to Complaint by Carol Berman. (kw) (Entered: 04/17/2003)
18 ANSWER by George Pataki to [16−1] amended complaint. (Attorney Eliot Spitzer ). (jco) (Entered: 04/17/2003)
19 Memo−Endorsement on letter addressed to Judge McKenna from Janai S. Nelson, dated 4/9/03. counsel for plaintiffs request that this Court decline Mr. Graber's request to stay proceedings in this case pending adjudication of other litigation. The Court does not perceive any reason to stay proceedings at this time, and declines to do so. However, any motion by defendants relating to plaintiffs' 42 U.S.C. 1973 claim may be filed within 30 days of the Second Circuit's decision in Muntaqim. The parties should otherwise proceed with motions on such reasonable schedule as they may be able to agree to, or the Magistrate Judge to whom this case will be referred will set . ( signed by Judge Lawrence M. McKenna ); (yv) (Entered: 04/21/2003)
20 ORDER, that any motion pursuant to FRCP 12(c) for judgment on the pleadings shall be served no later than 7/9/03; papers in opposition to any motion pursuant to FRCP 12(c) shall be served no later than 9/9/03; moving and opposition papers concerning any motion pursuant to FRCP 12(c) shall be served by hand; no later than 5/16/03 counsel for all parties shall submit letters to my chambers with their respective proposals for the scheduling of discovery in this matter . ( signed by Magistrate Judge Henry B. Pitman ); Copies mailed by chambers. (dle) (Entered: 05/14/2003)
21 Memo−Endorsement on letter addressed to Judge Pitman from Ianai S. Nelson, dated 5/16/03. Re: all parties request the following schedules: initial disclosures due 7/9/03; motion for class certification due 11/3/03, response due 1/5/04, reply due 1/23/04; expert discovery due 8/30/04; general discovery due 9/30/04; dispositive motions due 12/1/04, response due 1/31/05, reply due 2/28/05. The dates to when the parties agree &pltffs proposed schedule for extent disclosures are approved. Due to the extraordinarily prolonged schedule proposed above, further extensions will not be granted, except for unforeseeable emergencies. The press of other cases &vacation schedules will not justify further extensions . ( signed by Magistrate Judge Henry B. Pitman ) (db) Modified on 05/22/2003 (Entered: 05/22/2003)
22 Letter filed by Carol Berman addressed to Clerk's Office from Patricia L. Murray, re: address change. (yv) (Entered: 06/09/2003)

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 6 of 10

07/10/2003 07/10/2003 07/14/2003 09/03/2003 09/09/2003
09/22/2003 11/03/2003 11/03/2003 01/07/2004

23 NOTICE OF MOTION by George Pataki, Carol Berman for an Order and judgment pursuant to Rule 12(c) of the FRCP, dismissing the claims in the amended complaint alleging violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment, the Fifteenth Amendment, 42 U.S.C. 1971(a)(1), 1971(a)(2)(A) and 1971(a)(2)(B), and customary international law, on the grounds of a lack of federal subject−matter jurisdiction . Return Date not indicated. Affirmation of Joel Graber in support attached. (yv) (Entered: 07/11/2003)
24 MEMORANDUM OF LAW by George Pataki, Carol Berman in support of [23−1] motion for an Order and judgment pursuant to Rule 12(c) of the FRCP, dismissing the claims in the amended complaint alleging violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment, the Fifteenth Amendment, 42 U.S.C. 1971(a)(1), 1971(a)(2)(A) and 1971(a)(2)(B), and customary international law, on the grounds of a lack of federal subject−matter jurisdiction . (yv) (Entered: 07/11/2003)
25 Memo−Endorsement on letter addressed to Judge McKenna from Joel Graber, dated 7/2/03: Granting defendants' request for a page limit of 50 pages, and a 20 page reply . ( signed by Judge Lawrence M. McKenna ). (tp) (Entered: 07/15/2003)
26 Memo−Endorsement on letter addressed to Judge McKenna from Ryan Paul Haygood, dated 8/29/03. Granting plaintiffs' request for leave to file a brief of 50 pages . ( signed by Judge Lawrence M. McKenna ); (kw) (Entered: 09/09/2003)
27 MEMORANDUM OF LAW by Joseph Hayden, Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Kimalee Garner, Mark Graham, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott in opposition to [23−1] motion for an Order and judgment pursuant to Rule 12(c) of the FRCP, dismissing the claims in the amended complaint alleging violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment, the Fifteenth Amendment, 42 U.S.C. 1971(a)(1), 1971(a)(2)(A) and 1971(a)(2)(B), and customary international law, on the grounds of a lack of federal subject−matter jurisdiction . (djc) (Entered: 09/12/2003)
28 MEMORANDUM OF LAW by George Pataki, Carol Berman in support of [23−1] motion for an Order and judgment pursuant to Rule 12(c) of the FRCP, dismissing the claims in the amended complaint alleging violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment, the Fifteenth Amendment, 42 U.S.C. 1971(a)(1), 1971(a)(2)(A) and 1971(a)(2)(B), and customary international law, on the grounds of a lack of federal subject−matter jurisdiction . (moc) (Entered: 09/24/2003)
29 NOTICE OF MOTION by Joseph Hayden, Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott, Lillian M. Rivera for an order for a determination that this case may proceed as a class action purs. to Rules 23(a), 23(b)(2) and 23(c)(4)(B) of the FRCP . No Return Date. Received in the night deposit box on 11/3/03 at 6:09 p.m. (sb) (Entered: 11/07/2003)
30 MEMORANDUM OF LAW by Joseph Hayden, Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott, Lillian M. Rivera in support of [29−1] motion for an order for a determination that this case may proceed as a class action purs. to Rules 23(a), 23(b)(2) and 23(c)(4)(B) of the FRCP. (sb) (Entered: 11/07/2003)
31 MEMORANDUM OF LAW in Opposition re: 29 Motion to Certify Class. Document filed by Carol Berman, Glenn S. Goord, George Pataki. (ps, ) (Entered:

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 7 of 10

01/23/2004 02/25/2004
02/25/2004
04/19/2004 04/23/2004 05/28/2004
05/28/2004 06/14/2004 06/16/2004 06/23/2004

01/16/2004)
32 REPLY MEMORANDUM OF LAW in Support re: 29 Motion to Certify Class. (NDB) Document filed by Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Joseph Hayden, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Jamel Massey, George Pataki, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott. (pa, ) (Entered: 01/29/2004)
33 NOTICE of Rule 30(b)(6) deposition of defendant Carol Berman. Document filed by Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Joseph Hayden, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Lillian M. Rivera, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott. Received in night deposit box on 2/25/04 at 5:21 p.m. (db, ) (Entered: 03/01/2004)
34 NOTICE of Rule 30(b)(6) deposition of defendant George Pataki, Governor of the State of New York. Document filed by Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Joseph Hayden, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott. Received in night deposit box on 2/25/04 at 5:21 p.m. (db, ) (Entered: 03/01/2004)
35 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial. Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Lawrence M. McKenna on 4/19/2004) (jp, ) (Entered: 04/20/2004)
36 STIPULATION AND ORDER. The discovery schedule in this matter be modified as follows: Initial expert witness reports shall be submitted to opposing counsel on or before 7/2/04 and expert witness rebuttal reports, if any, shall be submitted to opposing counsel on or before 8/16/04. The parties will disclose to each other by letter the subject matter of their proposed expert witness testimony no later than 6/1/04. (Signed by Judge Henry B. Pitman on 4/20/04) (yv, ) (Entered: 04/26/2004)
37 MOTION for an order allowing the plaintiffs to withdraw without prejudice the third, fourth, and fifth claims for relief in their first amended complaint to the extent that they are based on the Voting Rights Act of 1965, 42 USC 1973. Document filed by Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Joseph Hayden, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott. (dle, ) (Entered: 06/01/2004)
38 MEMORANDUM OF LAW in Support re: 37 MOTION to Dismiss.. Document filed by Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Joseph Hayden, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott. (dle, ) (Entered: 06/01/2004)
39 ORDER defendants' motion for judgment on the pleadings is granted. So Ordered. (Signed by Judge Lawrence M. McKenna on 6/14/04) (jco, ) (Entered: 06/15/2004)
40 CLERK'S JUDGMENT granting defendants' motion for judgment on the pleadings. (Signed by J. Michael McMahon, clerk on 6/16/04) (ml, ) (Entered: 06/16/2004)
Mailed notice of Right to Appeal to Attorney(s) of Record: Joel Graber, Joseph A. Hayden Jr., Patricia L. Murray, Janai Nelson. (snu, ) (Entered: 06/29/2004)

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 8 of 10

07/13/2004
07/13/2004 07/13/2004 08/02/2004
08/02/2004 05/18/2006 06/28/2006
06/30/2006
06/30/2006

41 NOTICE OF INTERLOCUTORY APPEAL from 39 Order. Document filed by Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Wanda Best−Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Joseph Hayden, Keran Holmes III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott. Filing fee $ 255.00, receipt number E 514388. Copies of Notice of Interlocutory Appeal mailed to Attorney(s) of Record: JOEL GRABER,AAG, PATRICIA L. MURRAY,. (pr, ) (Entered: 07/13/2004)
Transmission of Notice of Appeal to the District Judge re: 41 Notice of Interlocutory Appeal,,. (pr, ) (Entered: 07/13/2004)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 41 Notice of Interlocutory Appeal,,. (pr, ) (Entered: 07/13/2004)
42 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for 41 Notice of Interlocutory Appeal,, filed by Joseph Hayden, Nilda Rivera, David Galarza, Barbara Scott, Wanda Best−Deveaux, Gina Arias, Lumumba Akinwole−Bandelle, Wilson Andino, Carlos Bristol, Augustine Carmona, Kimalee Garner, Mark Graham, Keran Holmes, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Mario Romero, Jessica Sanclemente, Paul Satterfield, Chaujuantheyia Lochard USCA Case Number 04−3886−pr, 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (tp, ) (Entered: 08/02/2004)
Appeal Record Sent to USCA (File). Indexed record on Appeal Files for 41 Notice of Interlocutory Appeal,, filed by Joseph Hayden, Nilda Rivera, David Galarza, Barbara Scott, Wanda Best−Deveaux, Gina Arias, Lumumba Akinwole−Bandelle, Wilson Andino, Carlos Bristol, Augustine Carmona, Kimalee Garner, Mark Graham, Keran Holmes, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Mario Romero, Jessica Sanclemente, Paul Satterfield, Chaujuantheyia Lochard USCA Case Number 04−3886−pr, were transmitted to the U.S. Court of Appeals. (tp, ) (Entered: 08/02/2004)
Minute Entry for proceedings held before Judge Lawrence M. McKenna : Status Conference held on 5/18/2006 (on Mandate). Court instructs counsel to notify the Court as to the status of this case relative to other cases currently pending in USDC in other Districts. No transcript. All parties present. (db, ) (Entered: 05/19/2006)
45 MEMORANDUM AND ORDER; With respect to the May 4, 2006 and June 1, 2006 en banc decisions in this case of the Court of Appeals for the Second Circuit, plaintiffs are to advise this Court in writing, not later than July 17, 2006, whether in their view they have raised a claim on behalf of plaintiffs who are neither incarcerated nor on parole that their votes are diluted because of New York's apportionment process, as elaborated in the Court of Appeals' decisions, and, if the answer is affirmative, to identify the relevant portions of the complaint and suggest what further proceedings should be had in this Court; the State defendants are to respond in writing, not later than July 27, 2006. (Signed by Judge Lawrence M. McKenna on 6/28/06) (djc, ) (Entered: 07/06/2006)
43 MANDATE of USCA (Certified Copy) as to 41 Notice of Interlocutory Appeal, filed by Joseph Hayden, Nilda Rivera, David Galarza, Barbara Scott, Wanda Best−Deveaux, Gina Arias, Lumumba Akinwole−Bandelle, Wilson Andino, Carlos Bristol, Augustine Carmona, Kimalee Garner, Mark Graham, Keran Holmes, III, Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Mario Romero, Jessica Sanclemente, Paul Satterfield, Chaujuantheyia Lochard, USCA Case Number 04−3886−pr. It is hereby Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED, and the cause is REMANDED to the District Court for further proceedings in accordance with the opinion of this Court. Roseann B. MacKechnie, Clerk USCA. Issued As Mandate: 6/1/06. (tp, ) (Entered: 07/05/2006)
44 MANDATE of USCA (Certified Copy) as to 41 Notice of Interlocutory Appeal, filed by Joseph Hayden, Nilda Rivera, David Galarza, Barbara Scott, Wanda Best−Deveaux, Gina Arias, Lumumba Akinwole−Bandelle, Wilson Andino, Carlos Bristol, Augustine Carmona, Kimalee Garner, Mark Graham, Keran Holmes, III,

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 9 of 10

07/05/2006 07/05/2006 07/13/2006
08/04/2006 08/11/2006
10/11/2006
10/11/2006 03/25/2010
03/25/2010

Steven Mangual, Steven Mangual, Jamel Massey, Stephen Ramon, Mario Romero, Jessica Sanclemente, Paul Satterfield, Chaujuantheyia Lochard, USCA Case Number 04−3886−pr. It is hereby Ordered, Adjudged and Decreed that the case is REMANDED to the District Court. Roseann B. MacKechnie, Clerk USCA. Issued As Mandate: 6/1/06. (tp, ) (Entered: 07/05/2006)
Transmission of USCA Mandate/Order to the District Judge re: 43 USCA Mandate.(tp, ) (Entered: 07/05/2006)
Transmission of USCA Mandate/Order to the District Judge re: 44 USCA Mandate. (tp, ) (Entered: 07/05/2006)
46 PLAINTIFFS' RESPONSE TO COURT'S 6/28/06 MEMORANDUM AND ORDER Document filed by Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Kimalee Garner, Mark Graham, Keran Holmes, III, Chaujuantheyia Lochard, Steven Mangual, Steven Mangual, Joseph Hayden, Jamel Massey, Stephen Ramon, Stephen Ramon, Nilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, Barbara Scott, Lumumba Akinwole−Bandelle, Wilson Andino, Gina Arias, Gina Arias, Wanda Best−Deveaux. (jco, ) (Entered: 07/18/2006)
47 MEMORANDUM AND ORDER: The Court finds that no further proceedings in the District Court are required, and that the case in the District Court need not be reopened. (Signed by Judge Lawrence M. McKenna on 8/3/2006) (lb, ) (Entered: 08/07/2006)
Appeal Record Returned. Indexed record on Appeal Files for 41 Notice of Interlocutory Appeal,, filed by Joseph Hayden,, Nilda Rivera,, David Galarza,, Barbara Scott,, Wanda Best−Deveaux,, Gina Arias,, Lumumba Akinwole−Bandelle,, Wilson Andino,, Carlos Bristol,, Augustine Carmona,, Kimalee Garner,, Mark Graham,, Keran Holmes, III, Steven Mangual,, Steven Mangual,, Jamel Massey,, Stephen Ramon,, Mario Romero,, Jessica Sanclemente,, Paul Satterfield,, Chaujuantheyia Lochard, USCA Case Number 04−3886, returned from the U.S. Court of Appeals. (nd, ) (Entered: 08/17/2006)
48 ORDER of USCA (Certified Copy) as to 41 Notice of Interlocutory Appeal, filed by Joseph Hayden,, Nilda Rivera,, David Galarza,, Barbara Scott, Wanda Best−Deveaux,, Gina Arias,, Lumumba Akinwole−Bandelle, Wilson Andino,, Carlos Bristol,, Augustine Carmona,, Kimalee Garner, Mark Graham,, Keran Holmes, III, Steven Mangual,, Steven Mangual, Jamel Massey,, Stephen Ramon,, Mario Romero, Jessica Sanclemente, Paul Satterfield,, Chaujuantheyia Lochard, USCA Case Number 04−3886−pr. In a published Opinion filed June 1, 2006, the Court, sitting en banc, remanded this appeal to the District Court for further proceedings. Those proceedings having now been concluded, IT IS HEREBY ORDERED the mandate is recalled and appeal is restored to the Court's argument calendar. Roseann B. MacKechnie, Clerk USCA. Certified: 10/6/2006. (nd, ) (Entered: 10/11/2006)
Appeal Remark as to 41 Notice of Interlocutory Appeal, Re: 43 Mandate of USCA, 44 Mandate of USCA USCA Case Number 04−3886−pr: Mandates are returned to Court of Appeals, 2nd Cir. to the attn of G. Phillip. (nd, ) (Entered: 10/11/2006)
49 MANDATE of USCA (Certified Copy) as to 41 Notice of Interlocutory Appeal,, filed by Carlos Bristol, Steven Mangual, Augustine Carmona, Mark Graham, Barbara Scott, Joseph Hayden, Nilda Rivera, Mario Romero, Jessica Sanclemente, David Galarza, Gina Arias, Lumumba Akinwole−Bandelle, Kimalee Garner, Wanda Best−Deveaux, Jamel Massey, Wilson Andino, Stephen Ramon, Chaujuantheyia Lochard, Keran Holmes, III, Paul Satterfield USCA Case Number 04−3886−pr. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED and the case is REMANDED in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 02/19/2010. (nd) (Entered: 03/25/2010)
Transmission of USCA Mandate/Order to the District Judge re: 49 USCA Mandate,,. (nd) (Entered: 03/25/2010)

Case: 1:00-cv-08586-LMM-HBP As of: 07/10/2011 12:13 PM EDT 10 of 10

04/12/2010 04/12/2010 11/01/2010

50 CASE MANAGEMENT PLAN AND SCHEDULING ORDER, that plaintiffs may have until 7/12/10 to file an amended complaint. (Signed by Judge Lawrence M. McKenna on 4/12/10) (pl) (Entered: 04/12/2010)
Minute Entry for proceedings held before Judge Lawrence M. McKenna: Status Conference held on 4/12/2010......in re: as Mandated. All parties present. The Court grants Plaintiffs leave to file an Amended Complaint no later than 7/12/2010. No transcript taken. (tro) (Entered: 04/13/2010)
51 STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FRCP 41(a)(1)(A)(ii)that the action is voluntarily dismissed against all the defendants pursuant to FRCP 41(a)(1)(A)(ii). (Signed by Judge Lawrence M. McKenna on 11/1/10) (cd) (Entered: 11/01/2010)

 
 PLEl..:.,~ :.. ::..

. - t .- - ...... ,..... •
• -......J J...u....,.i,:•l

To be argued by

Janai S. Nelson, Esq.

United States Court of Appeals

"~'V

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I L ED -1..o/.>

for the

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SEP 2 7 20v~~4

=========Se=c=on=d=C=i=rc=ui=t ===~~-~~~"'~6~ 9N1\J ~ Ct· 'R~ \~: .,

JOSEPH HAYDEN; LUMUMBA AKINWOLE-BANDELE; WILSON ANDINO; GI

AS;

WANDA BEST-DEVEAUX; CARLOS BRISTOL; AUGUSTINE CARMONA; DAVID GALARZA;

KIMALEE GARNER; MARK GRAHAM; KERAN HOLMES, III; CHAUJUANTHEYIA

LOCHARD; STEVEN MANGUAL; JAMEL MASSEY; STEPHEN RAMON; LILLIAN M. RIVERA;

NILDA RIVERA; MARIO ROMERO; JESSICA SANCLEMENTE; PAUL SATTERFIELD; and

BARBARA SCOTT, on behalf of themselves and all individuals similarly situated,

-against-

Plaintiffs-Appellants,

GEORGE PATAKI, Governor of the State of New York, and CAROL BERMAN, Chairperson, New York State Board of Elections,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR PLAINTIFFS-APPELLANTS

NAACP LEGAL DEFENSE & EDUCATIONAL
FuND, INC.
Theodore M. Shaw Director-Counsel
Norman J. Chachkin Janai S. Nelson Ryan P. Haygood
[Listing of Counsel Continued Inside Cover]

COMMUNITY SER \'ICE SOCIETY OF NEW YORK
Juan Cartagena Risa Kaufman 105 E. 22nd Street New York, NY 10010 (212) 260-6218

• NAACP LEGAL DEFENSE & EDUCATIONAL
FuND, INC. (cont'd) Debo P. Adegbile Alaina C. Beverly
• 99 Hudson Street New York, New York 10013-2897 (212) 965-2200
CENTER FOR LAW AND SOCIAL JUSTICE
e AT MEDGAR EVERS COLlEGE
Joan P. Gibbs Esmeralda Simmons 1150 Carroll Street
e Brooklyn, NY 11225
(718) 270-6296
Attomeys for Appellants
·=================================================
•
•
•
•
•
•

•

CORPORATE DISCLOSURE STATEMENT

•

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, the

NAACP Legal Defense and Educational Fund, Inc., Community Service Society of

•

New York, and the Center for Law and Social Justice at Medgar Evers College, by

and through the undersigned counsel, make the following disclosures:

•

Counsel for plaintiffs-appellants, all not-for-profit corporations of the State

of New York, are neither subsidiaries nor affiliates of a publicly owned

corporation .
•

•

~ Janai S. Nelson, Esq.

Director of Political Participation

NAACP Legal Defense &

Educational Fund, Inc.

•

99 Hudson Street, Suite 1600

New York, NY 10013

jnelson @naacpldf.org

•

•

•

•

•

TABLE OF CONTENTS
• CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

•

TABLE OF AUTHORITIES ................................................................................... iv

PRELIMINARY STATEMENT............................................................................... 1

•

STATEMENT OF SUBJECT MATTER AND JURISDICTION ........................... 2

ISSUES PRESENTED FOR REVIEW .................................................................... 2

e

STATEMENT OF THE CASE ................................................................................. 3

STATEMENT OF FACTS ....................................................................................... 5

•

A. New York's Felon Disfranchisement Laws ............................................... 5

B. The Amended Complaint ........................................................................... 6

C. The Public Record .................................................................................... I 0
• D. The District Court's Opinion Regarding the Claims on Appeal ............. 14

SUMMARY OF THE ARGUMENT ..................................................................... 16

•

STANDARD OF REVIEW .................................................................................... 16

ARGUMENT .......................................................................................................... 17

•

I. The District Court Substantially Misapplied thl' Standard for

Dismissal Under Rule 12(c) ............................................................... 17

A. The District Court's Premature Dismissal of Plaintiffs'

•

Amended Complaint is Contrary to the Law of this Circuit and Supreme Court Precedent ....................................................... 19

11
•

•

•

II. Plaintiffs Met the Pleading Requirements of Rule 8(a) by Alleging Facts that Put Defendants on Notice of Their Claims, and of

Rule 12(c) by Setting Forth Sufficient Facts to State Legally

Cognizable Causes of Action.............................................................. 23

•

A. Intentional Discrimination Claim ................................................. 26

1. Elements of an Intentional Discrimination Claim .............. 26

•

2. The District Court Incorrectly Applied the Pleading Standard and Mischaracterized the Allegations in the

Amended Complaint ........................................................... 28

•

B. Applying Rational Basis Review in a Wholly Deferential Manner, the District Court Dismissed Plaintiffs' Claim that New

York State's Non-uniform Felon Disfranchisement Scheme

Violates Equal Protection Guarantees prior to Affording Plaintiffs

the Opportunity to Develop and Present Evidence Regarding

•

Defendants' Justifications for the Law ......................................... 35

1. The district court erred in dismissing Plaintiffs'

equal protection claims without subjecting §5-106

•

to strict scrutiny ................................................................... 37

2. Even if rational basis is the appropriate level of review

for Plaintiffs' equal protection claims, the district court erred

in applying the standard in a wholly deferential manner

•

and finding a rational basis for New York's felon disfranchisement regime ..................................................... 40

C. Voting Rights Acts Claims ........................................................... 42
• CONCLUSION ....................................................................................................... 43

•

111
•

• TABLE OF AUTHORITIES

Cases

•

Benjamin v. Jacobson,

Pages

124 F.3d 162 (2d Cir. 1997), vacated on other grounds,

172 F.3d 144 (2d Cir. 1999) ..................................................................... 37

•

Burdick v. Takushi,

504 u.s. 428 (1992) ........................................................................... 38, 39

City of Cleburne v. Cleburne Living Center, Inc.,

•

473 u.s. 432 (1985) ................................................................................. 37

Conley v. Gibson,
355 u.s. 41,47 (1957) ....................................................................... 21, 22

•

Davis v. Beason,

133 U.S. 333 (1890) ........................................................................... 42 n.9

De Jesus v. Sears, Roebuck & Co.,

•

87 F.3d 65 (2d Cir. 1995)................................................................... 17 n.5

DeMuria v. Hawkes,

328 F.3d 704 (2d Cir. 2003) ................................................... 19, 20, 24, 36

•

Dioguardi v. Durning,

139 F.2d 774 (2d Cir. 1944) ..................................................................... 20

Dunn v. Blumstein,

•

405 U.S. 330 (1972) ................................................................... 38, 41 n.lO

Dwyer v. Regan,

777 F.2d 825 (2d Cir. 1985), modified on other grounds,

•

793 F.2d 457 (2d Cir. 1986) ..................................................................... 20

Farrakhan v. Washington,

359 F.3d 1116 (9th Cir. 2004), petition for cert. filed,

72 U.S.L.W. 3741 (U.S. May 24, 2004) ..................................................42
• Friedlander v. Cimino,

520 F.2d 318 (2d Cir. 1975) ..................................................................... 22

•

iv

•
Cases (cont'd)

Pages

•

Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980)............................................................... 20, 24

Hayden v. Pataki, No. 00 Civ. 8586, 2004 WL. 1335921 (S.D.N.Y. June 14, 2004) ..... 17, 39
• Heller v. Doe, ex rel. Doe, 509 u.s. 312 (1993) ................................................................................. 42

•

Hunter v. Underwood,
471 u.s. 222 (1985) ............................................................... 27, 32, 33, 34

Irish Lesbian & Gay Organization v. Giuliani, 143 F.3d 638 (2d Cir. 1998)............................................................... 18, 20
• Kramer v. Union Free School District No. 15, 395 u.s. 621 (1969) ················································································· 37

•

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ..................................................................... 21, 21 n.6

Muntagim v. Coombe,

366 F.3d 102 (2d Cir. 2004), petition for cert. filed,

•

73 U.S.L.W. 3113 (U.S. July 21, 2004) ...............................4, 5, 16, 42,43

Nagler v. Admiral Corp.,

248 F.2d 319 (2d Cir. 1957) ..................................................................... 21

•

Norman v. Reed,

502 u.s. 279 (1992) ................................................................................. 38

•

Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123 (2d Cir. 2001) ............................................................... 18, 19

Phillip v. University of Rochester, 316 F.3d 291 (2d Cir. 2003) ..................................................................... 22
•

•

v

• Cases (cont'd)

Pages

Reynolds v. Sims,

•

377 u.s. 533 (1964) ................................................................................. 38

Romer v. Evans,
517 u.s. 620 (1996) ........................................................................... 40, 41

•

Ryder Energy Distributing Com. v. Merrill Lynch Commodities, Inc.,

748 F.2d 774 (2d Cir. 1984) ..................................................................... 20

Salahuddin v. Cuomo,

•

861 F.2d 40 (2d Cir. 1988)................................................................. 22, 23

Scheuer v. Rhodes, 416 U.S. 232 (1974),

overruled on other grounds, Davis v. Scherer,

•

468 u.s. 183 (1984) ................................................................................. 29

Scutti Enterprises, LLC v. Park Place Entertainment Com.,

322 F.3d 211 (2d Cir. 2003) ..................................................................... 19

•

Shechter v. Comptroller of the City of New York,

79 F.3d 265 (2d Cir. 1996)....................................................................... 20

Swierkiewicz v. Sorema, N.A.,

•

534 u.s. 506 (2002) .................................................................... 21, 22, 29, 34

Underwood v. Hunter,

730 F.2d 614 (11th Cir. 1984), aff, 471 U.S. 222 (1985) ....................... 33

•

Vargas v. City of New York,

377 F.3d 200 (2d Cir. 2004) ..................................................................... 16

Village of Arlington Heights v. Metropolitan Housing Development

•

Corn., 429 U.S. 252 (1977) .............................................. 24, 27, 28, 30, 31

Washington v. Davis,

426 u.s. 229 (1976) ················································································· 28

•

•

vi

• Cases (cont'd)

Pages

•

Williams v. Apfel, 204 F.3d 48 (2d Cir. 1999)....................................................................... 19

Williams v. Taylor,

•

677 F.2d 510 (5th Cir. 1982).................................................................... 39

Yick Wo v. Hopkins,
118 u.s. 356 (1886) ................................................................................. 38

•

Ziemba v. Wezner, 336F.3d 161 (2dCir.2004))] .................................................................. 17

Constitutions, Statutes & Rules
• U.S. Const. amend. XIV, § 1......................................................................... 27

N.Y. Const. (1821), art. II, § 1 (repealed 1870) ........................................... 12

•

N.Y. Const. art. II,§ 2 ..................................................................................... 9

N.Y. Const. (1821), art. II,§ 2 ........................................................................ 7

•

N.Y. Const. art. II,§ 2 (amended 1894)....................................................... 8,9

N.Y. Const. art. II,§ 3 ..................................................................................... 5

•

28 u.s.c. §§ 1331 ........................................................................................... 2

28 u.s.c. §§ 1343 ........................................................................................... 2

•

42 u.s.c. §§ 1973 ....................................................................................... 1, 2

42 U.S.C. §§ 1983 ........................................................................................... 2

Fed.R.Civ.P. 8 ........................................................................................passim

•

Fed.R.Civ.P. 12 ......................................................................................passim

N.Y.Elec. Law§ 5-106...................................................................... 3, 5, 9, 16

•

vii

• Miscellaneous

Cong. Globe, 41st Cong., 2d Sess................................................................. 14

•

Constitutional Convention of 1846, Debates of 1846 ................................... 12

Documents of the Convention of the State of New York,1867-1868,

•

No. 16, 3, Vol. One (Albany: Weed, Pearsons & Co. 1868) ............ 13, 14

Nathaniel Carter, William Stone, & Marcus Gould,

Reports of the Proceedings and Debates of the Convention of 1821,

(Albany: E. & E. Hosford, 1821) ...................................................... 10, 11

•

New York State Constitutional Convention Committee,

Problems Relating to Home Rule and Local Government,

(Albany, NY: J.B. Lyon Co., 1938) ......................................................... 12

•

•

•

•

•

•

•

viii

•

PRELIMINARY STATEMENT

•

Plaintiffs-Appellants (hereinafter, "Plaintiffs") seek to challenge the New

York State laws that deny the franchise to voting-age citizens incarcerated or on

e

parole for a felony conviction on the grounds that such laws (1) were enacted with

the intent to discriminate against African Americans, (2) have the present-day

•

effect of disfranchising African Americans and Latinos on account of race at a rate

vastly disproportionate to Whites, and (3) are applied unequally among persons

convicted of a felony in New York State. Plaintiffs appeal from those portions of

•

the final judgment and order of the United States District Court for the Southern

District of New York (Hon. Lawrence M. McKenna, J.) dated and entered on June

•

14, 2004, dismissing Plaintiffs' claims for relief under the Equal Protection Clause

of the Fourteenth Amendment of the United States Constitution, the Fifteenth

•

Amendment of the United States Constitution, and Section 2 of the Voting Rights

Act of 1965, codified at 42 U.S.C. § 1973, et seq. ("Voting Rights Act" or

•

"VRA"). The premature dismissal of Plaintiffs' claims is directly contrary to

controlling precedent of the Supreme Court and this Court concerning pleading

requirements generally and the elements of equal protection claims in particular

•

and, therefore, should be reversed.

•

•

I

STATEMENT OF SUBJECT MATTER

•

AND APPELLATE JURISDICTION

Plaintiffs' claims for declaratory and injunctive relief arise under the

Fourteenth and Fifteenth Amendments of the United States Constitution and under

•

§ 2 of the Voting Rights Act. Thus, the district court had subject matter

jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. §§ 1331 and 1343, and 42

e

U.S.C. §§ 1973(f) and §1983. The final judgment and order dismissing Plaintiffs'

claims was entered on June 14, 2004. On July 13, 2004, Plaintiffs filed their notice

•

of appeal in the district court.

ISSUES PRESENTED FOR REVIEW

e

I. Whether the district court improperly and against the weight of relevant case law

heightened the pleading requirements for Plaintiffs' amended complaint in

•

dismissing their claims under Federal Rule of Civil Procedure 12(c).

II. Whether Plaintiffs' amended complaint, which alleges that New York's felon

•

disfranchisement laws were originally enacted with the intent to exclude Blacks

from the franchise, states a claim under the Equal Protection Clause of the

Fourteenth Amendment and under the Fifteenth Amendment.

•

III. Whether Plaintiffs' amended complaint, which alleges that, without adequate

justification, New York law disfranchises only those persons with felony

•

convictions who are incarcerated or on parole, but not persons receiving other

•

2

•

sentences for felony convictions, states a claim under the Equal Protection Clause

•

of the Fourteenth Amendment.

IV.Whether the district court erred m applying a wholly deferential standard of

e

rational basis review to Plaintiffs' equal protection claim against New York's non-

uniform practices of disfranchising only those persons with felony convictions who

•

are incarcerated or on parole and in finding a rational basis for such practices.

STATEMENT OF THE CASE

•

This case was originally filed pro se by plaintiff Joseph Hayden on

November 9, 2000, in the Southern District of New York, alleging that New York

•

Election Law § 5-106, which prohibited him from voting in New York solely

because of his felony conviction and incarceration, violated his rights under the

Voting Rights Act and under the U.S. Constitution. Defendant Carol Berman,

•

Chairperson of the New York State Board of Elections ("Berman"), and

Defendants George Pataki ("Pataki"), Governor of the State of New York, and

•

Glenn Goord, Commissioner of New York State Department of Correctional

Services ("Goord"), filed answers on January 5, 2001 and on February 28, 2001,

e

respectively.

On January 15, 2003, Hayden, on parole, but, nonetheless disfranchised by

•

operation of New York's felon disfranchisement laws, moved (by and through the

undersigned attorneys) for leave to file an amended complaint for declaratory and

•

3

•

injunctive relief. Judge McKenna granted this motion on February 21,2003. The

•

amended complaint added new plaintiffs1 and expanded the claims in this action

against defendants Pataki and Berman in their official capacities? The Amended

e

Complaint includes detailed allegations in support of the Constitutional and Voting

Rights Act claim of intentional discrimination in the original enactment of New

•

York's felon disfranchisement laws, as well as claims under the First Amendment,

the Due Process Clause of the Fourteenth Amendment, the Civil Rights Acts of

1957 and 1960, and customary international law. Defendants Berman and Pataki
• answered this amended pleading on April 8, 2003, and April 14, 2003,

respectively .

•

On April 10, 2003, Judge McKenna denied Defendants' motion to stay

discovery until this Court adjudicated Muntagim v. Coombe, 366 F.3d 102 (2d Cir.

e

2004), pet. for cert. filed, 73 U.S.L.W. 3113 (U.S. July 21, 2004) (No. 04-175), a

prose case challenging New York's felon disfranchisement laws under the Voting

•

1 The additional Plaintiffs may be grouped within three separate subclasses: a)

Blacks and Latinos eligible to vote but for their incarceration for a felony

conviction; b) Blacks and Latinos eligible to vote but for their parole for a felony

conviction; c) Black and Latino voters who reside in specific communities in New

•

York City and whose collective voting strength is unlawfully diluted because of New York's disfranchisement laws. Plaintiffs filed a motion to certify these

subclasses on November 3, 2004, which the district court denied as moot in its

June 14, 2004 judgment and order granting Defendants' Motion for Judgment on

•

the Pleadings. 2 Goord was not named as a defendant in the amended complaint and is no longer a

party to this action.

•

4

•

Rights Act. Discovery by all parties commenced pursuant to a scheduling order

•

issued by Magistrate Judge Henry Pitman on May 19, 2003. Defendants filed a

motion for judgment on the pleadings in July 10, 2003 and Plaintiffs filed a brief in

e

opposition in September 9, 2003.

All parties actively engaged in discovery through June 14, 2004, at which

•

time Judge McKenna issued a final Memorandum and Order granting Defendants'

Motion for Judgment on the Pleadings in its entirety. The district court held that

Plaintiffs' Voting Rights Act claims must be dismissed in light of the ruling by a
• panel of this Court earlier this year in Muntagim v. Coombe, which held that the

VRA does not apply to felon disfranchisement laws. The court below further held

•

as a matter of law that Plaintiffs had not alleged facts sufficient to state claims

against Defendants under the Fourteenth and Fifteenth Amendments. This appeal

e

followed.

STATEMENT OF FACTS

•

A. New York's Felon Disfranchisement Laws

N.Y. Const. art. II, § 3 provides that "[t]he Legislature shall enact laws

excluding from the right of suffrage all persons convicted of bribery or any

•

infamous crime.''3 Id. New York Election Law § 5-l 06(2) provides:

•

3 The term "infamous crime" has come to mean felony under New York State

law. (JA 00107 [FAC «Jl49]).

•

5

•

No person who has been convicted of a felony pursuant to the laws of the

•

state, shall have the right to register for or vote at any election unless he shall have

been pardoned or restored to the rights of citizenship by the governor, or his

e

maximum sentence of imprisonment has expired, or he has been discharged from

parole. The governor, however, may attach as a condition to any such pardon a

•

provision that any such person shall not have the right of suffrage until it shall have

been separately restored to him.

B. The Amended Complaint

•

In eighteen separate allegations in their amended complaint (Joint Appendix

("JA") 00105-109 [First Amended Complaint ("FAC") <JI<JI 39 - 57]), Plaintiffs

•

outline over one-hundred years of constitutional history in New York and made

allegations of specific acts of intentional discrimination to deny the franchise to

e

Blacks.

The allegations of the amended complaint detail how the framers of the New

•

York State Constitution in 1777 intentionally excluded Blacks from the polls by

limiting suffrage to property holders and free men (JA 00106 [FAC <JI 43]),

requirements that disproportionately disfranchised Blacks. Id. Further, when in
• 1801 the legislature removed all property restrictions from the suffrage

requirements for the election of delegates to New York's first Constitutional
•

•

6

•

Convention, at the same time it expressly excluded Blacks from participating in

•

this election. (JA 00106 [FAC I)[ 45)).

New York's felon disfranchisement provisions originated in this historical

e

period, specifically at the Constitutional Convention of 1821 - a convention

dominated by an express, racist purpose to deprive the vote from "men of color."

•

(JA 00107 [FAC 1)[48)). Delegates clearly expressed their conviction that Black

New Yorkers were unequipped and unfit to be part of the democratic process (JA

00106-107 [FAC 1)[1)[ 46-47)) and crafted new voting requirements that were aimed
• at stripping Blacks of their previously held, albeit severely restricted, right to vote.

Id. Race-based suffrage requirements, such as heightened property requirements

•

applicable only to Blacks, were written into Article II of the New York State

Constitution. (JA 00107 [FAC I)[ 48]). The discriminatory effect of these measures

•

was evident; only 298 out of 29,701 Blacks, or less than 1% of the Black

population of the State, met these new requirements. Id. New citizenship

•

requirements were also devised and applied in a racially discriminatory manner.

I d.

•

The delegates to the 1821 Constitutional Convention also adopted a

provision that permitted the legislature to exclude from the franchise those "who

have been, or may be, convicted of infamous crimes." (JA 00107 [FAC «JJ 49,

•

quoting N.Y. Const. (1821), art. II, § 2]). In 1826, the State Constitution was

•

7

•

amended to expand White male suffrage without any alteration of either the

•

onerous property requirements for Black males, or the felon disfranchisement

provision. (JA 00107 [PAC en 50]).

•

Delegates to New York's 1846 Constitutional Convention made explicit

references to their belief that Blacks were unfit to vote. (JA 00107 [PAC en 51]).

•

They adopted a new Constitutional provision expanding the Legislature's

authorization to deny the franchise to "all persons who have been or may be

convicted of bribery, of larceny, or of any infamous crime." (JA 00107-108 [PAC
• en 52, quoting N.Y. Canst. art. II, § 2 (amended 1894)]). As in 1821, the delegates

to the 1846 Constitutional Convention acted with knowledge that felon

•

disfranchisement would disproportionately reduce the numbers of Black voters (JA

00108 [PAC en 53); one speaker, for example, noted that "the proportion of

e

'infamous crime' in the minority population was more than thirteen times that in

the white population." (JA 00107 [PAC en 51]). The delegates were, therefore,

•

aware of the racially discriminatory impact of the felon disfranchisement law. (JA

00108 [FAC en 53]).

•

In the aftermath of the Civil War and the advent of Reconstruction, another

Constitutional Convention was convened in New York from 1866-67. At this

Convention, again the issue of equal manhood suffrage for Blacks was considered
•

•

8

•

but rejected. (JA 00108 [PAC <Jl 54]). And the felon disfranchisement provision

•

was not removed or altered. Id.

It took the power of the federal government finally to bring equal manhood

•

suffrage to New York with the ratification of the Fifteenth Amendment in 1870.

(JA 00108 [FAC 'II 55]). But two years after the passage of the Fifteenth

•

Amendment, an unprecedented committee convened to amend the New York State

Constitution's disfranchisement provision to require the State Legislature, at its

following session, to enact laws excluding persons convicted of infamous crimes

•

from the franchise. (JA 00108 [FAC 'II 56], see, N.Y. Const. art. II, § 2 (amended

1894)). Until that point, enactment of such laws had been permissive. (JA 00108

•

[FAC 'II 56]). This new mandate for felon disfranchisement was reaffirmed at a

Constitutional Conven~ion in 1894. (JA 00108-109 [FAC 'II 57]).

•

Plaintiffs' allegations in their amended complaint thus describe the genesis

of present Article ll, § 3 of the New York Constitution in the 1821 and 1846

•

Constitutional Conventions, reaffirmed and extended in 1872 and 1894, and which

resulted in New York Election Law § 5-106 under which Blacks and Latinos

incarcerated and on parole for felony convictions are presently disfranchised in

•

New York State.

•

•

9

•

C. The Public Record

•

In addition to the allegations m the amended complaint, which by

themselves suffice to state cognizable claims against defendants, the district court

e

below had before it numerous references from the public record, the laws of New

York, and historical scholarship that supported and elaborated upon the detailed

•

allegations in the amended complaint that race, indeed, played a significant role in

the adoption of New York's felon disfranchisement laws.4 These references

included the following:

•

1)

At the New York Constitutional Convention of 1821 the question

of Black suffrage sparked heated debates during which delegates

•

expressed their views that Blacks, as a "degraded" people, and by

virtue of their natural inferiority, were unfit to participate in civil

•

society. Nathaniel Carter, William Stone, & Marcus Gould,

Reports of the Proceedings and Debates of the Convention of 1821,

•

4 Plaintiffs introduced these facts in opposition to Defendants' Motion for

Judgment on the Pleadings in order to provide additional context for their legally

sufficient allegations of intentional discrimination and to offer a sample of the

•

evidence that exists to support such claims. Plaintiffs provided these references

without the benefit of the full expert reports by the historians they retained, since,

as noted above, Judge McKenna's decision was issued while the parties were in the throes of discovery. Moreover, while this showing is not necessary to withstand a

•

motion for judgment on the pleadings, it provided the district court with ample

information with which to measure the strength of plaintiffs' allegations.

•

10

•

at 198 (Albany: E. & E. Hosford, 1821) (hereafter "Debates of

•

1821 ").

2)

One delegate to the 1821 convention instructed his colleagues to

•

"[l]ook to your jails and penitentiaries. By whom are they filled?

By the very race, whom it is now proposed to cloth with power of

•

deciding upon your political rights." Id. at 191.

3)

Another delegate to the 1821 convention urged the other delegates

to "[s]urvey your prisons- your alms houses- your bridewells and
• your penitentiaries and what a darkening host meets your eye!

More than one-third of the convicts and felons which those walls

•

enclose, are of your sable population." ld. at 199.

4)

As is made manifest by their own language, the delegates not only

•

understood that enacting the felon disfranchisement provision

would result in the disproportionate disfranchisement of Blacks, but

•

actively sought to preserve the franchise for Whites only: "[A]ll

who are not white ought to be excluded from political rights." Id.

at 183.

•

5)

As articulated by one delegate to the 1821 Constitutional

Convention, the new property qualification "was an attempt to do a

•

thing indirectly which we appeared to either be ashamed of doing,

•

11

•

or for some reason chose not to do directly . . . . This freehold

•

qualification is [for Blacks] a practical exclusion [from the

franchise]." New York State Constitutional Convention

•

Committee, Problems Relating to Home Rule and Local

Government, at 143 n.l3 (Albany, NY: J.B. Lyon Co., 1938).

•

6)

Heightening the requirements for Black voters previously outlined

in the New York State Constitution of 1777, delegates to the New

York Constitutional Convention of 1821 required that Black males
• be citizens of New York for three years while Whites were only

required to be "inhabitants" for one year. N.Y. Canst. (1821), art.

•

II, § 1 (repealed 1870).

7)

Moreover, as an additional barrier to voting, in 1821 it was decided

•

that Blacks were required to possess a freehold estate worth $250

for the year preceding any election. ld.

•

8)

In the 1846 Constitutional Convention, the delegates continued to

advocate for the denial of equal suffrage to Blacks including one

delegate's assertion that: "[Blacks] were an inferior race to whites,
• and would always remain so." Constitutional Convention of 1846,

Debates of 1846, at 1033 (hereafter "Debates of 1846").
•

•

12

•

9)

The understanding by the delegates that Blacks were thirteen times

•

more likely to commit "infamous crimes" than Whites, set out in

'!( 51 (JA 001 07) of the amended complaint, was substantiated by a

•

citation to the record of those debates, Debates of 1846, at 1033.

10) Moreover, the delegates were well aware of and sought the same

•

the success of other slaveholding states in excluding Blacks from

the ballot. As one delegate suggested to the convention, "in nearly

all the western and southern states ... the [B]lacks are excluded ...

•

would it not be well to listen to the decisive weight of precedents

furnished in this case also?" Id. at 181.

•

11) In the 1866-67 Constitutional Convention, instead of abolishing the

suffrage distinction for Blacks, the delegates favored a separate

•

submission to the voters on the issue of equal Black suffrage. "[l]t

must be done by the direct and explicit vote of the electors. We are

•

foreclosed from any other course by the repeated action of the

State." Documents of the Convention of the State of New York,

1867-68, No. 16, 3, Vol. One (Albany: Weed, Pearsons & Co.
• 1868) (hereafter "1867-68 Documents").

12) Previous separate submissions to the voters on equal Black suffrage

•

had proven that it was an unsuccessful way to abolish the legacy of

•

13

•

the 1821 Convention. For instance, an 1846 referendum to extend

•

the franchise to Blacks failed by a vote of 85,306 to 223,884. In

1850, the reintroduced referendum failed by a vote of 197,503 to

•

337,984. Documents, No. 16, 3, Vol. One.

13) During Reconstruction, additional measures were taken that would

•

reveal the racial motivation of the state actors with regard to voting;

for example, after initially ratifying the Fifteenth Amendment, New

York withdrew its ratification. Cong. Globe, 41 51 Cong., 2d Sess.,
• at 1447-81.

•

In short, the sampling of historical references that Plaintiffs highlighted to

the district court, even in the absence of full expert discovery, demonstrated to the

court that Plaintiffs could proffer evidence to bolster the specific allegations in

•

their amended complaint. The district court's premature dismissal of Plaintiffs'

claims, however, f~reclosed further development of the case .
• D. The District Court's Opinion Regarding the Claims on Appeal

•

In evaluating Plaintiffs' claims for intentional discrimination, the district

court stated that Plaintiffs could withstand judgment on the pleadings "only if

[they] sufficiently allege[d] that New York's decision to disenfranchise

•

incarcerated and paroled felons was motivated by discriminatory intent." (JA

•

14

•

00018 [00 Civ. 8586 Mem. & Order, at 7]). The court then referred to plaintiffs'

•

allegations in support of this claim and held that they do not "necessarily mean

New York Constitution Article II, § 3 and § 5-106(2) or their predecessors were

•

... enacted with [discriminatory] intent." (JA 00019 [00 Civ. 8586 Mem. &Order,

at 8]). The court further held that "[t]he majority of allegations" in support of the

•

intentional discrimination claim are "entirely conclusory in nature," stating that

only one of plaintiffs' factual allegations "could possibly support a finding of

discriminatory intent." (JA 00019 [00 Civ. 8586 Mem. & Order, at 8]). The

•

district court then determined that "this one allegation is simply an insufficient

basis, even under the liberal standards of a 12(c) motion, from which to draw the

•

inference that these provisions or their predecessor were enacted with

discriminatory intent." (JA 00020 [00 Civ. 8586 Mem & Order, at 9]).

•

With respect to plaintiffs' claim that New York's non-uniform practices

violate equal protection guarantees, the district court did not explicitly challenge

•

the sufficiency of plaintiffs' pleadings concerning this claim. Rather, the district

court applied a wholly deferential standard of rational basis review and asserted,

•

sua sponte, a justification for New York's non-uniform felon- disfranchisement

laws. (JA 00020-23 [00 Civ. 8586 Mem. & Order, at 9-12]). For these reasons,

•

the district court dismissed Plaintiffs' well-pleaded claims for intentional

•

15

•

discrimination and non-uniform application of New York's felon disfranchisement

•

laws.

SUMMARY OF THE ARGUMENT

•

Plaintiffs alleged specific facts regarding the history of official

discrimination against racial and ethnic minorities in New York State, including

•

facts from which to infer intentional discrimination in the enactment of New

York's felon disfranchisement provisions. Moreover, Plaintiffs specifically

alleged facts concerning the unequal application of New York Election Law § 5-

•

106(2) that set forth a violation of the Equal Protection Clause of the Fourteenth

Amendment because, Plaintiffs alleged, there is neither a compelling state interest

•

nor a rational basis for the distinction in the law or the resulting disparity. Because

these allegations easily satisfy the liberal pleading requirements under Rules 12(c)

e

and 8(a), the district court's dismissal of Plaintiffs' Fourteenth and Fifteenth

Amendment claims should be reversed. Moreover, the district court's dismissal of

•

Plaintiffs' VRA claims should be vacated pending disposition of the Petition for

Certiorari filed seeking review of this Court's ruling in Muntagim v. Coombe.

STANDARD OF REVIEW

•

An appellate court reviews the district court's ruling on a Rule 12(c) motion

for judgment on the pleadings de novo. Vargas v. City of New York, 377 F.3d

•

200, 205 (2d Cir. 2004).

•

16

•

ARGUMENT

•

I. The District Court Substantially Misapplied the Standard for

Dismissal Under Rule 12(c)

The district court substantially misapplied - and indeed heightened - the

•

pleading requirements under Federal Rule of Civil Procedure 12(c) in deciding the

Defendants' motion for judgment on the pleadings. Despite recognizing that Rule

•

12(c) requires it to "accept[] the allegations contained in the complaint as true and

draw[] all reasonable inferences in favor of the [Plaintiffs]," (JA 00015-00016

e

[Hayden v. Pataki, No. 00 Civ. 8586, 2004 WL 1335921, at *4-5 (S.D.N.Y. June

14, 2004), (quoting Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004))]), the

•

district court conducted a cursory analysis of Plaintiffs' legally cognizable claims

and, without regard to relevant and controlling case law, granted Defendants'

motion. Moreover, the district court incorrectly held that plaintiffs' amply-
• pleaded complaint stated mere legal conclusions and did not set forth sufficient

factual allegations. Id. 5

•

5 The-district court incorrectly relied on the inapposite case of De Jesus v. Sears,

Roebuck & Co., 87 F.3d 65 (2d Cir. 1995), which held that conclusory allegations

•

unsupported by factual assertions are insufficient to satisfy 12(b)(6), to support its improper dismissal of the plaintiffs' complaint. In that case, however, this Court

upheld the dismissal of the plaintiffs' complaint against a parent company for the

alleged fraudulent activity of its subsidiary because plaintiffs' pleadings did not

allege "any specific facts or circumstances ... from which it may be inferred" that

•

the parent company or its employees exercised actual domination over the subsidiary. ld. at 70 (emphasis in original). The facts of the instant case are

clearly distinguishable from De Jesus, as the Plaintiffs' amended complaint

•

17

•

Here, Plaintiffs' allegations, far from merely stating general legal

•

conclusions, are well supported by factual assertions that sufficiently satisfy the

Rule 12(b)(6) (and, therefore, Rule 12(c)) standard. See Patel v. Contemporary

e

Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citing Irish Lesbian &

Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). Specifically, Plaintiffs'

•

amended complaint asserts that New York's extensive history of intentional racial

discrimination against Blacks in voting dates back to its Constitution in 1777 and

spans more than a century. During this time, delegates to Constitutional

•

Conventions and legislators purposefully erected barriers, including requiring the

Legislature to enact a felon disqualification statute, that were intended to, and have

•

had the effect of, disfranchising Blacks and other racial minorities. Plaintiffs also

allege that without any adequate justification, New York disfranchises only those

e

persons with felony convictions who are incarcerated or on parole, but not those

persons convicted of felonies but given probation, a suspended or commuted

•

sentence, or other form of conditional or unconditional discharge.6 These facts,

•

specifically alleges facts and circumstances from which it can be inferred, without

much effort, that New York's felon disfranchisement laws were enacted with intent

to disqualify Blacks from voting.

•

6 For ease of reference in the balance of this Brief we generally refer to such alternate forms of sentence or disposition upon conviction of a felony as

"probation."

•

18

•

taken as true, sufficiently state the basis for this Court to reverse the district court's

•

ruling and remand this case for trial.

A.

The District Court's Premature Dismissal of Plaintiffs'

Amended Complaint is Contrary to the Law of this Circuit

•

and Supreme Court Precedent

While its uncertain which standard of review the district court may have

•

applied to Plaintiffs' claims, it is clear that the district court failed to follow the

current precedent of the Supreme Court and this Circuit on pleading requirements.

•

The standard for evaluating Defendants' motion for judgment on the pleadings

under Rule 12(c) is identical to that of a 12(b)(6) motion for failure to state a

claim. See Patel, 259 F.3d at 123. Thus, in deciding a Rule 12(c) motion, a court

•

must accept the allegations in the complaint as true and draw all reasonable

inferences in favor of the plaintiff. DeMuria v. Hawkes, 328 F.3d 704, 706 (2d

•

Cir. 2003) (citing Scotti Enters., LLC v. Park Place Entm't Corn., 322 F.3d 211,

214 (2d Cir. 2003)); see also Williams v. Apfel, 204 F.3d 48.49 (2d Cir. 1999)).

•

In applying this liberal pleading standard, "[t]he court may not dismiss a

complaint unless it appears beyond doubt, even when the complaint is liberally

•

construed, that the plaintiff can prove no set of facts which would entitle him to

relief." DeMuria, 328 F.3d at 706. In addition, in considering a Rule 12(c)

motion, the court's function "is merely to assess the legal feasibility of the

•

complaint, not to assay the weight of the evidence which might be offered in

•

19

•

support thereof." Ryder Energy Distrib. Corn. v. Merrill Lynch Commodities,

•

Inc., 748 F.2d 774, 779 (2d Cir. 1984); Giesler v. Petrocelli, 616 F.2d 636, 639 (2d

Cir. 1980). In assessing the sufficiency of a pleading under Rule 12(c), "[t]he issue

e

is not whether a plaintiff will ultimately prevail but whether the claimant is entitled

to offer evidence to support the claims." DeMuria, 328 F.3d at 706.

•

This Court requires that this already demanding standard for prevailing on a

Rule 12(c) motion be applied with "particular strictness when the plaintiff

complains of a civil rights violation." Irish Lesbian & Gay Org., 143 F.3d at 644;
• see also Shechter v. Comptroller of New York, 79 F.3d 265, 270 (2d Cir. 1996);

(Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir. 1985), modified on other grounds,

•

793 F.2d 457 (2d Cir. 1986)(same)).

In addition to the foregoing, courts must be mindful of the relatively low

e

standard and relaxed rules of pleading, which require a plaintiff to provide only a

"short and plain statement of the claim showing that the pleader is entitled to

•

relief," Fed. R. Civ. P. 8(a)(2), that "[a]ll pleadings shall be so constructed as to do

substantial justice." Fed. R. Civ. P. 8(f). Consistent with the spirit of Rule 8, this

Court has made clear that the Rule does not even require that a plaintiff plead all
• relevant facts. Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944) (finding

that although plaintiff could not demonstrate precisely how medical tonics were

•

improperly disposed of, it was sufficient to plead that an impropriety had been

•

20

•

committed). Indeed, presentation of voluminous and/or specific evidence during

•

the pleading, rather than at the discovery phase, is not only unnecessary, but also

undesirable. See Nagler v. Admiral Com., 248 F.2d 319, 326 (2d Cir. 1957).

•

In Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), the Supreme Court

unanimously rejected a heightened pleading standard upon the plaintiff. In

•

Swierkiewicz, a panel of this Court had affirmed the dismissal of the plaintiffs

lawsuit against his former employer on the grounds that his complaint did not

adequately allege facts constituting a prima facie case of racial discrimination

•

under the McDonnell Douglas7 standard. See 534 U.S. at 509-510. In reversing

the panel's decision, the Supreme Court noted that a heightened pleading standard

•

in employment discrimination cases is inappropriate because "the prima facie case

under McDonnell Douglas . . . is an evidentiary standard, not a pleading

e

requirement." ld. at 510.

The Supreme Court also held that a heightened pleading requirement

•

conflicted with Federal Rule of Civil Procedure 8(a)(2), which provides that a

complaint must only include "a short and plain statement of the claim showing that

•

the pleader is entitled to relief." ld. at 512. Such a statement, the Supreme Court

reasoned, must simply "give the defendant fair notice of what the plaintiffs claim

is and the grounds upon which it rests." ld. (quoting Conley v. Gibson, 355 U.S .
•
7 McDonnell Douglas Com. v. Green, 411 U.S. 792, 802 (1973).

•

21

•

41, 47 (1957)). Under this simplified pleading standard, "[a] court may dismiss a

•

complaint [under Rule 12] only if it is clear that no relief could be granted under

any set of facts that could be proved consistent with the allegations." Id. at 514.

•

Relying on the Supreme Court's ruling in Swierkiewicz, this Court in Phillip

v. University of Rochester, 316 F.3d 291,298-99 (2d Cir. 2003), announced that it

•

would apply the lowered pleading standard set forth in Swierkiewicz. Indeed, even

before the Supreme Court's ruling in Swierkiewicz, this Court had recognized that

•

"(w]hile clarity and precision are desirable in any pleading, the Federal Rules of

Civil Procedure (F.R.C.P.) require little more than an indication of the type of

litigation that is involved. A generalized summary of the claims and defenses,

•

sufficient to afford fair notice to the parties is enough." Friedlander v. Cimino, 520

F.2d 318, 319 (2d Cir. 1975) (citing Conley, 355 U.S. at 41, 47) (emphasis added).

e

Accordingly, this Court has acknowledged that dismissal on the pleadings is

reserved only for the cases in which "the complaint is so confused, ambiguous,

•

vague, or otherwise unintelligible that its true substance. if any, is well disguised."

Salahuddin v. Cuomo, 861 F.2d 40,42 (2d Cir. 1988).

•

The district court appears to have dismissed Plaintiffs' amended complaint

for both failure to meet Rule 8(a)'s pleading requirements. and for failing to set

forth sufficient facts to state a legal claim. However, as set forth above, on either
•

•

22

•

ground, it is clear that the district court did not apply the appropriate standard of

•

review and its ruling should therefore be reversed.

II. Plaintiffs Met the Pleading Requirements of Rule S(a) by Alleging

Facts that Put Defendants on Notice of Their Claims, and of Rule

•

12(c) by Setting Forth Sufficient Facts to State Legally Cognizable Causes of Action

Notwithstanding the district court's application of a heightened pleading

•

standard in the instant case, Plaintiffs' amended complaint contains clear and

sufficient allegations of intentional discrimination and violations of equal

e

protection to withstand a dismissal at this stage of litigation. Far from asserting

conclusory allegations, the complaint is well supported by factual averments that

•

satisfy the Rule 12(c) standard. Plaintiffs' amended complaint also clearly gave

Defendants fair notice of the basis for the claims and the grounds upon which the

claims rested and stated claims upon which relief could be granted.

•

As noted above, the principal goal of Rule 8(a), particularly the "short and

plain statement" requirement, is to guarantee that adverse parties receive notice of

•

legal actions to which they must respond. Salahuddin v. Cuomo, 861 F.2d at 42

(holding that a "statement should be plain because the principal function of

e

pleadings under the Federal Rules is to give the adverse party fair notice of the

claim asserted so as to enable him to answer and prepare for trial.") (citing Geisler

•

v. Petrocelli, 616 F.2d at 640.. Plaintiffs' amended complaint more than

adequately puts Defendants on notice that they are challenging the racial animus

•

23

•

behind the original enactment of felon disfranchisement laws in New York, as well

•

the equal protection violations inherent in a scheme that distinguishes among

individuals with felony convictions, denying the right to vote to those sentenced to

•

incarceration or serving parole, but not to those sentenced to probation. Likewise,

Plaintiffs set forth sufficient allegations to support a cognizable cause of action, as

•

required to survive a Rule 12(c) motion, and thus are "entitled to offer evidence to

support [their] claims." DeMuria v. Hawkes, 328 F.3d at 706. The district court

erred in not allowing Plaintiffs to proceed to that stage.
• Plaintiffs amended complaint contains numerous, specific allegations that

would support a complete review of the "circumstantial and direct evidence of

•

intent as may be available," Vill. of Arlington Heights v. Metro. Hous. Dev. Com.,

429 U.S. 252, 266 (1977), regarding the role of race in the enactment of felon

•

disfranchisement laws in New York. As detailed, infra, the complaint contains

allegations that the framers of New York law in the 18th and 19th centuries, both the

•

Legislature and the delegates to the various New York State Constitution

Conventions intended to, and did, discriminate against persons of color with

•

respect to the franchise and made "explicit statements of [their] intent" to that

effect. (JA 00106 [FAC 'li 41]). The amended complaint sets forth the

unmistakable, de jure limitations on the ability of Black New Yorkers to vot~ (JA
•

•

24

•

00106 [FAC 'JICI[ 43-45]), that provided an historical context for the actions taken at

•

the 1821 New York Constitutional Convention.

Additionally, the amended complaint sufficiently alleges that these actions

•

had the discriminatory effect that the delegates had hoped for. For example, the

delegates remarked explicitly that Blacks were thirteen times more likely than

•

whites to be convicted of "infamous crime[s]." (JA 00107 [FAC ']l51]). Likewise,

Plaintiffs included allegations regarding the equal protection violations that occur

•

when the State discriminates among similarly situated individuals, denying the

right to vote to some individuals convicted of a felony conviction but not others,

and the racially disparate disfranchisement that results from this unequal

•

application of law. (JA 0012 [FAC 'll'll 77-79]).

Accordingly, Plaintiffs' amended complaint represents the very "short and

•

plain statement" contemplated by Rule 8(a), that would put any reader on notice

that the role of race in the initial adoption of felon disfranchisement laws in New

•

York is at the core of this case. Plaintiffs have also alleged sufficient facts setting

forth a cognizable claim of intentional discrimination which, under the standard for

•

assessing a Rule 12(c) Motion, allows them to proceed to discovery on these

claims. Finally, Plaintiffs have alleged sufficient facts to put Defendants on notice

of their race-neutral Equal Protection claim and to proceed to discovery on these

•

claims.

•

25

•

A. Intentional Discrimination Claim

•

The amended complaint sufficiently alleges that New York's felon

disfranchisement laws were enacted with the intent to discriminate against

e

"persons incarcerated and on parole for a felony conviction ... on account of their

race" in violation of the Equal Protection Clause of the Fourteenth and the

•

Fifteenth Amendment. (JA 00113 [FAC <J[<J[ 85-86]). In dismissing Plaintiffs'

intentional discrimination claim, the district court held that they did not allege any

facts to support a finding of intentional discrimination and referred to a subset of
• the Plaintiffs' allegations, which it said, even if true, could not support a finding of

intentional discrimination. This conclusion is patently in error, not only because it

•

misstates the burden of pleading, but also because it fails to take into account the

breadth of allegations in the amended complaint.

•

1. Elements of an Intentional Discrimination Claim.

Although Plaintiffs are not required to state each element of an intentional

•

discrimination claim in order to survive a motion to dismiss or for judgment on the

pleadings, it is useful nonetheless to understand the scope of such a claim in order

•

to appreciate the extent to which Plaintiffs' claim of intentional discrimination

easily satisfies the requirements of Rule 8(a) and 12(c). In Richardson v. Ramirez,

418 U.S. 24 (1974), the Supreme Court held that§ 2 of the Fourteenth Amendment

•

allows states to exclude from the franchise convicted felons, notwithstanding § 1's

•

26

•

requirement that "[n]o state shall ... deny to any person within its jurisdiction the

•

equal protection of the laws." U.S. Canst. amend. XIV, § 1.

Richardson did not, however, close the door on all Constitutional challenges

e

to felon disfranchisement provisions; indeed it did not even close the door on

Equal Protection challenges. Nearly a decade after deciding Richardson, the Court

•

in Hunter v. Underwood, 471 U.S. 222 (1985), found that Alabama had enacted its

felon disfranchisement provision with discriminatory intent, and therefore in

violation of the Equal Protection Clause, on grounds that § 2's authorization of
• state disfranchisement laws did not permit purposeful discrimination. Hunter, 471

U.S. at 233. Hunter, therefore, stands for the proposition that racially motivated

•

disfranchisement statutes violate the Equal Protection Clause even if Richardson

otherwise sanctions such laws (not adopted with discriminatory intent) under the

•

Fourteenth Amendment. Id. at 232-33.

Facially neutral state laws that have a racially disparate impact, like New

•

York's felon disfranchisement laws, are subject to the test outlined in Arlington

Heights in order to determine whether such laws violate the Equal Protection

•

Clause of the Fourteenth Amendment. See Hunter, 471 U.S. at 228. In Arlington

Heights, the Supreme Court held that although "[d]isproportionate impact is not

irrelevant," proof of "racially discriminatory intent or purpose is required to show a

•

violation of the Equal Protection Clause." 429 U.S. at 264-265 (quoting

•

27

•

Washington v. Davis, 426 U.S. 229, 242 (1976)). Indeed, determining whether

•

invidious discriminatory purpose was a motivating factor behind an official action

"demands a sensitive inquiry into such circumstantial and direct evidence of intent

e

as may be available." Arlington Heights, 429 U.S. at 266. Accordingly, as

evidence of intent courts may consider, among other things, whether the impact of

•

an action bears more heavily on one race than another, the historical background of

an official decision, and the legislative or administrative history of an official

action, particularly where there are statements by members of the decision-making
• body. See id. at 266-67.

2. The District Court Incorrectly Applied the Pleading

•

Standard and Mischaracterized the Allegations in the Amended Complaint.

The district court provided a handful of cursory and conclusory reasons for

dismissing Plaintiffs' intentional discrimination claim, which are addressed in tum.

First, the district court took in isolation certain allegations concerning New

York State's history of discrimination in voting, stating that "just because some

laws were enacted in the early to mid-1800s with the intent to discriminate against

blacks and other minorities does not necessarily mean that New York Constitution

Article II, § 3 and § 5-106(2) or their predecessors were similarly enacted with

such intent." (JA 00019 [00 Civ. 8586 (Mem. & Order, at 8)]). The district court's
•

•

28

•

reasoning in this instance is a clear example of its misapplication of the pleading

•

standard.

To substantiate the allegations in the amended complaint that an invidious

e

racial purpose was a motivating factor in the enactment of New York's felon

voting restrictions, Plaintiffs utilized the available historical background and

•

legislative history of the restrictions, (JA 00105-109 [FAC <JI<Jl 39-60]), and their

disproportionate impact on Blacks and Latinos. (JA 00109-00111 [FAC <Jl<Jl 61-

71 ]). However, the district court failed to read Plaintiffs' allegations in the light
• most favorable to them, as is indicated by the court's determination that such

history "does not necessarily" signify the state's intent to discriminate through its

•

felon disfranchisement laws. This is plainly the wrong standard. The question is

not whether past racial discrimination in voting "necessarily" means that New

e

York's felon disfranchisement laws were enacted with the intent to discriminate.

Rather, the question is whether such allegations, which include facts concerning

•

the enactment of the felon disfranchisement statute spec.ifically, could support such

a finding or entitle Plaintiffs to "offer evidence in support" of a finding that they

were enacted for that purpose. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511
• (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

grounds, Davis v. Scherer, 468 U.S. 183 (1984)); see also DeMuria v. Hawkes, 328

•

F.3d at 706. The answer in this case is in the affirmative.

•

29

•

Arlington Heights holds that proof of intent to discriminate can be derived

•

from a contextual analysis of a variety of factors that collectively support an

inference of racial animus. 429 U.S. at 266 (finding that "whether invidious

e

discriminatory purpose was a motivating factor demands a sensitive inquiry into

such circumstantial and direct evidence of intent as may be available."). This

•

analysis would include examining allegations such as Plaintiffs' assertions that

African Americans were routinely intentionally denied suffrage on an equal basis

as Whites, (JA 00105-107 [FAC 'll'll 39-50]), openly regarded and referred to as
• being unfit for suffrage, (JA 00106-107 [FACU 46, 51]), and described as being

13 times as likely as Whites to commit infamous crimes, (JA 00107 [FAC «JJ51])

•

and that, "two years after the passage of the Fifteenth Amendment, an

unprecedented committee convened and amended the disfranchisement provision

e

of the New York Constitution to require the state legislature, at its following

session, to enact laws excluding person convicted of infamous crimes from the

•

right to vote . . . . Theretofore, the enactment of such laws was permissive." (JA

00108 [FAC 'li 56]).

•

Plaintiffs further alleged that the present-day impact of New York's felon

disfranchisement laws has the intended effect of denying the franchise to Blacks

and Latinos in numbers vastly disproportionate to Whites. Specifically, Plaintiffs

•

alleged that Blacks and Latinos are sentenced to incarceration at substantially

•

30

•

higher rates than Whites, and Whites are sentenced to probation at substantially

•

higher rates than Blacks and Latinos. (JA 00110 [FAC 'II 66]). Collectively,

Blacks and Latinos make up 86% of the total current prison population and 82% of

•

the total current parolee population in New York State, while they approximate

only 31% of New York's overall population. (JA 00110 [PAC 11 64]). As a result,

••

nearly 52% of those currently denied the right to vote pursuant to New York State

Election Law § 5-106(2) are Black and nearly 35% are Latino. Id. at 11 68.

Collectively, Blacks and Latinos comprise nearly 87% of those currently denied
• the right to vote pursuant to New York State Election Law§ 5-106(2). Id.

Arlington Heights requires an evaluation of these factors as a whole, in order

•

to appreciate the full context of the origin and effect of the laws in question, and

not in isolation as the district court did here. (JA 00019-20 [Mem. & Order 00 Civ

•

8586, at 8-9]). The district court specifically addressed only "this one allegation"

of Plaintiffs, that Blacks are 13 times more likely to commit a crime than Whites,

•

and found it insufficient to state a claim for intentional discrimination. Id.

When read together in the light most favorable to the Plaintiffs, the

•

allegations in the amended complaint tell a persuasive story of a pattern of

historical intentional discrimination in voting, including repeated explicit

statements about Blacks' fitness for suffrage, their perceived criminality, and the

•

codification of mandatory disfranchisement during an unprecedented special

•

31

•

session at a time when overt denial of the franchise to African Americans was

•

newly outlawed by the Fifteenth Amendment. These allegations are more than

sufficient to notify Defendants of the claims lodged against them and are not meant

•

or required to be exhaustive of all knowledge or evidence in Plaintiffs' possession.

Finally, the district court attempted to compare the allegations in the

•

amended complaint to the evidence presented in Hunter after the plaintiffs in that

litigation had the benefit of discovery and a trial on the merits. Even in making

•

this inappropriate comparison for purposes of a 12(c) motion, the district court

failed to recognize the actual similarities in the facts alleged in the instant case and

those proven in Hunter. The district court notes that in Hunter:

•

[T]he plaintiffs in Hunter provided strong factual support showing a

long history of racial discrimination including actual testimony of

specific discriminatory statements made during the 1901

Constitutional Convention where a "zeal for white supremacy ran

t

rampant." Here, plaintiffs have not alleged any such facts with

respect to the enactment of New York Constitution Article II, § 4 and

§ 5-106(2) or their predecessors.

•

(JA 00020 [Mem. & Order 008586, at 9 n.3]) (citations omitted).

On the contrary, Plaintiffs' amended complaint asserts throughout that New

York's extensive history of intentional racial discrimination in voting dates as far

back as New York's Constitution in 1777 and spans more than 100 years, during

which time delegates to Constitutional Conventions and legislators purposefully

erected barriers intended to prevent Blacks from voting, (culminating in the

32

•

required enactment of a felon disqualification statute), that were intended to, and

•

have had the effect of, disproportionately disfranchising Blacks and other racial

minorities. (JA 00106-108 [FAC 'li'JI 41-42, 43-46, 51-52, 57]). These allegations,

•

taken as true, sufficiently state the basis for this Court to find a violation of the

Equal Protection Clause of the Fourteenth Amendment and the Fifteenth

•

Amendment .

The allegations contained in the amended complaint are, in fact, more

•

detailed and specific than those contained in the complaint in Hunter. In Hunter,

the Supreme Court relied on a number of historical factors presented to the District

Court as evidence of Alabama's discriminatory intent, including the racial

•

composition of members of the convention that enacted the bill, comments made

by the President of the convention, historical studies noting that the Alabama

•

convention was part of a movement to disfranchise Blacks, evidence that the

crimes selected for inclusion in the provision were more commonly committed by

•

Blacks, and witness testimony that the provision had an immediate and predictable

disparate impact on Black voters. Hunter, 471 U.S at :!::!-l-30. Although these

•

factors were enumerated as evidence of discriminatory intent by both the Supreme

Court in Hunter and the 11th Circuit, Underwood v. Hunter. 730 F.2d 614 (11th Cir.

1984), affd 471 U.S. 222 (1985), none of these factors was mentioned in the
•

•

33

•

original complaint filed by plaintiffs in the case. See Compl., Underwood v.

•

Hunter, No. CA-78-Mo704S (N.D. Ala., filed June 21, 1978).8

By contrast, the amended complaint in this case reveals a historical pattern

e

of discrimination by New York intended to disfranchise Black voters. (JA 00105-

108 [FAC 'l['l[ 39-57]). The historical development of New York's felon

•

disfranchisement laws in the amended compliant is not embodied in merely one

comment made at one convention, but rather is a culmination of specific efforts

aimed at disfranchising Blacks that spanned the course of more than 100 years.

•

(JA 00106-108 [FAC 'l['l[ 43, 45-46, 51-52, 57]). As a result, Plaintiffs' amended

complaint clearly alleges Equal Protection and Fifteenth Amendment claims

•

consistent with the Supreme Court's holding in Hunter. Finally, the issue is not

whether Plaintiffs will ultimately prevail, but whether Plaintiffs are entitled to offer

•

evidence to support the claims in the amended complaint. See Swierkiewicz, 534

U.S. at 511. Thus, Plaintiffs are not required to produce evidence, direct or

•

otherwise, or necessarily allege facts identical to those in Hunter as the district

court suggests. Rather, Plaintiffs are required to, and indeed do, sufficiently allege

•

8 It is important to note here, however, that this is evidence that must be

developed through discovery, including expert testimony, and was not required

to be proven or alleged in exhaustive detail by plaintiffs at the stage of the

litigation in which the complaint was dismissed. Plaintiffs-appellants should

•

be afforded an opportunity to develop their case as plaintiffs were in Hunter. . (JA 00033-35).

•

34

that New York practiced unlawful discrimination in violation of the Fourteenth and

•

Fifteenth Amendments and the Supreme Court's rulings in Arlington Heights and

Hunter. 9

•

B. Applying Rational Basis Review in a Wholly Deferential Manner, the District Court Dismissed Plaintiffs' Claim that New York State's

Non-Uniform Felon Disfranchisement Scheme Violates Equal

Protection Guarantees Prior to Affording Plaintiffs the Opportunity

•

to Develop and Present Evidence Regarding Defendants' Justifications for the Law.

In addition to an intentional race discrimination claim, Plaintiffs assert that

•

§5-106(2)'s felon disfranchisement scheme violates equal protection guarantees

because it distinguishes among felons, denying the right to vote only to those

•

felons sentenced to incarceration or serving parole, and not to those sentenced to

probation. The district court erred in dismissing these claims at the pleading stage,

without subjecting the distinction to strict scrutiny review, and without providing

•

Plaintiffs an opportunity to prove that no rational basis is served by the felon

disfranchisement scheme.
•

9 As noted above, although Rule 12(c) does not require plaintiffs at this stage

•

of the litigation to provide an exhaustive history of New York's intentional discrimination against Blacks, and the allegations contained in the amended

complaint sufficiently state the basis for this Court to find a violation of the

Equal Protection Clause of the Fourteenth Amendment and the Fifteenth

Amendment, plaintiffs here provide additional historical information to

•

highlight the context in which New York's felon disfranchisement laws were enacted.

•

35

•

As a threshold matter, Plaintiffs meet Rule 8(a)'s pleading standard for

•

alleging an equal protection claim. Plaintiffs allege that, as a result of New York's

felon disfranchisement scheme, persons who are convicted of "bribery or of any

e

infamous crime" and are sentenced to incarceration and/or parole are not permitted

to vote, whereas their counterparts who have been pardoned, received a suspended

•

or commuted sentence or been sentenced to probation or conditional or

unconditional discharge are permitted to vote. (JA 00109 [FAC 'li 58-59]). In

addition to allegations regarding the racial animus underlying the felon

•

disfranchisement scheme, (JA 00105-108 [FAC U 38-56]), Plaintiffs' amended

complaint contains allegations that this distinction described above has a racially

•

disproportionate impact on Blacks and Latinos, who are prosecuted, convicted and

sentenced to incarceration at rates vastly disproportionate to Whites. (JA 00109-

•

110 [FAC U 60-67]). Thus, Plaintiffs sufficiently state an equal protection claim.

See DeMuria, 328 F.3d at 707 (finding that allegations of impermissible motive

•

and animus is sufficient to allow plaintiffs to proceed with equal protection claim

"at this earliest stage of the proceedings"). The court nevertheless dismissed

•

Plaintiffs' claims, applying the incorrect standard of review and prohibiting

Plaintiffs from presenting any evidence to counter the purported justification for

the felon disfranchisement scheme.
•

•

36

•

1. The district court erred in dismissing Plaintiffs' equal protection claims without subjecting §5-106 to strict scrutiny.

The Equal Protection Clause requires that all persons who are similarly

situated be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.

432, 439 (1985). The "threshold question" in an equal protection challenge "is the

•

appropriate level of scrutiny to be applied." Benjamin v. Jacobson, 124 F.3d 162,

174 (2d Cir. 1997). In addressing this "threshold question," the Supreme Court has

held that a statute is subject to "heightened scrutiny" when it "burdens [a]

•

fundamental right." Id. Here, as Plaintiffs alleged in their amended complaint,

New York's felon disfranchisement scheme strips individuals who are convicted of

•

a felony and sentenced to incarceration or parole of the right to vote, while leaving

the voting rights of those sentenced to probation intact. (JA 00109 [FAC <][ 58-

e

59]). Because it severely burdens the fundamental right to vote of one class of

individuals with felony convictions, the statute must be strictly scrutinized. See

•

Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626-27 (1969) ("If a

challenged state statute grants the right to vote to some bona fide residents of

•

requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state

interest."). In dismissing Plaintiffs' equal protection claim, the district court

•

applied a deferential standard wholly inconsistent with this heightened scrutiny

•

. 37

•

requirement, thereby failing to perform its own searching analysis of Defendants'

•

asserted justification for the voting ban. And, by dismissing Plaintiffs' claim at

this stage of litigation, the court denied Plaintiffs the opportunity to develop and

•

present such an analysis to the court as well.

As the Supreme Court has stated, "voting is of the most fundamental

•

significance under our constitutional structure." Burdick v. Takushi, 504 U.S. 428,

433 (1992), see also Reynolds v. Sims, 377 U.S. 533, 562 (1964) (stating that, by

denying some citizens the right to vote, durational residence requirements deprive

•

them of a "fundamental political right, ... preservative of all rights.") (quoting

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). When Fourteenth Amendment

•

rights are "subjected to 'severe' restrictions, the regulation must be 'narrowly

drawn to advance a state interest of compelling importance."' Burdick, 504 U.S. at

e

434 (1992) (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)); see also Dunn v.

Blumstein, 405 U.S. 330, 336 (1972) (stating that "before the right [to vote] can be

•

restricted, the purpose of the restriction and the asserted overriding interests served

by it must meet close constitutional scrutiny"). A heightened standard of review is

•

applicable in this case because New York's felon disfranchisement scheme directly deprives Plaintiffs' of their fundamental right to vote, and indeed denies the right

to vote to felons who are incarcerated or on parole, while preserving the voting

•

rights of individuals convicted of similar offenses yet sentenced to probation.

•

38

•

To perform this rigorous inquiry, the court was required to examine the

•

propriety of New York's felon disqualification statute and sustain it only if it

concluded that the statute is drawn narrowly to advance a compelling New York

•

State interest. Burdick, 504 U.S. at 434. Yet, the district court did no such thing.

Rather, in dismissing Plaintiffs' equal protection claims, the district court found

•

that New York's non-uniform scheme of disfranchising only those felons

sentenced to incarceration or serving parole met the deferential standard of

"rational, not arbitrary." Hayden v. Pataki, No. 00 Civ. 8586, at *10 (quoting
• Williams v. Taylor, 677 F.2d 510, 516 (5th Cir. 1982)). The court simply accepted

Defendants' explanation for the legislature's 1973 amendment, namely, that the

•

amendment helped to make consistent the statutory scheme. Id. Moreover, going

beyond the Defendants' articulated rationale, the district court consulted Black's

•

Law Dictionary for the definitions of parole and probation to conclude that

denying suffrage to one group and not the other "is certainly not arbitrary." (JA

•

00022 [00 Civ. 8586 Mem. & Order, at 11]). Thus, the district court did no

searching review of justifications for the felon disfranchisement scheme. And in

•

dismissing the Plaintiffs' claims at this early stage of the litigation, the Court

denied Plaintiffs the opportunity to inquire into Defendants' justification, as well.

•

•

39

•

2. Even if Rational Basis is the Appropriate Level of Review

•

for Plaintiffs' Equal Protection Claims, the District Court Erred in Applying the Standard in a Wholly Deferential

Manner and Finding a Rational Basis for New York's Felon

Disfranchisement Regime.

•

In addition and in the alternative, the district court should have applied

rational basis review with some analysis of Defendants' asserted justification for

•

the felon disfranchisement scheme, and only after providing Plaintiffs with the

opportunity to present evidence to counter that justification. Specifically, the court

should have looked beyond Defendants' articulated justifications when

•

determining whether the felon disfranchisement scheme, which in some cases

results in a lifetime ban on voting, is rational. At the very least, the Court should

•

have provided Plaintiffs with the opportunity to develop and provide its own

evidence regarding the purposes served by the law.

•

As the Supreme Court noted in Romer v. Evans, even when applying

rational basis review, courts can "insist on knowing the relation between the

•

classification adopted and the object to be attained." 517 U.S. 620, 632 (1996).

This "search for the link between classification and objective gives substance to

•

the Equal Protection Clause." ld. Indeed, "[b)y requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we

ensure that classifications are not drawn for the purpose of disadvantaging the

•

group burdened by the law." Id.

•

40

In Romer, the Court examined the constitutionality of an amendment to the

t

Colorado state constitution which effectively repealed state and local provisions

barring discrimination on the basis of sexual orientation. Applying a rational basis

•

level of the review, the court nonetheless found that the provision was "at once too

narrow and too broad. It identifies persons by a single trait and then denies them

•

protection across the board." Id. at 633.10

Here, by disfranchising individuals who are convicted of a felony and

sentenced to parole, but not similarly situated individuals who are sentenced to

•

probation, New York's felon voting ban, too, makes a distinction based on the

status of the individual. Moreover, this distinction results in the denial of a

•

fundamental right- the right to vote. Further, in the case of individuals with a

lifetime parole sentence, the distinction results in permanent disfranchisement.

e

Plaintiffs assert that there is simply no rational justification for disfranchising -

and in some cases permanently banning from voting - tax-paying citizens. As

•

was the case in Romer, here, Defendants' justification for the distinction must be

10 Rejecting the dissent's reliance on the case of Davis v. Beason, 133 U.S. 333

•

(1890), the Court noted that to the extent that Davis "held that the groups designated in the statute may be deprived of the right to vote because of their

status, its ruling could not stand without surviving strict scrutiny, a most doubtful

outcome." Romer, 517 U.S. at 635 (citing Dunn, 405 U.S. at337. Although the

court noted that Davis' ruling that a convicted felon may be denied the right to vote

•

under the equal protection clause, id. at 635 (citing Richardson), that statement did not address, and thus is not relevant to, the equal protection implications of

singling out one group of similarly situated felons for disfranchisement.

•

41

•

examined in a manner more searching than done by the district court. At the very

•

least, Plaintiffs should have been provided the opportunity to develop and present

evidence concerning the interests served by the voting ban and whether the

•

distinction is rational.

Even under the most deferential standard, when applying rational basis

•

review, "[t]he burden is on the one attacking the legislative arrangement to

negative every conceivable basis which might support it." Heller v. Doe, ex rei,

•

509 U.S. 312, 322 (1993). By dismissing Plaintiffs' claims at this point, the Court

denied Plaintiffs the opportunity to engage in this analysis. The district court thus

erred in dismissing Plaintiffs' equal protection claims after applying a wholly

•

deferential standard of rational basis review.

C. Voting Rights Acts Claims

•

As noted above, the district court dismissed Plaintiffs' Voting Rights Act

claims based upon this court's ruling in Muntagim v. Coombe, 366 F.3d 102 (2d

•

Cir. 2004), which held that the Voting Rights Act does not apply to felon

disfranchisement laws. On July 21, 2004, Muntaqim, the plaintiff-appellant, filed

•

a petition for a writ of certiorari that is currently pending before the United States Supreme Court.1 See 73 U.S.L.W. 3113 (U.S. July 21, 2004) (No. 04-175). In

addition, there is a fully-briefed petition for writ of certiorari pending in a Ninth

•

Circuit case, Farrakhan v. Washington, that presents the same question of whether

•

42

•

the Voting Rights Act applies to felon disfranchisement laws. 359 F.3d 1116 (9th

•

Cir. 2004), petition for cert. filed, 72 U.S.L.W. 3741 (U.S. May 24, 2004) (No. 03-

1597). In order to preserve their claims under the Voting Rights Act pending final

•

resolution in Muntagim v. Coombe, Plaintiffs appealed the district court's

judgment dismissing those claims. In light of the pendency of Muntagim and

•

Farrakhan before the Supreme Court, the judgment below should be vacated with

instructions to the District Court to reconsider its dismissal in light of any action

taken by the Supreme Court in those matters.
•

•

•

•

•

•

•

43

•

CONCLUSION

•

For the foregoing reasons, the judgment of the district court should be

reversed in part, vacated in part, and the case remanded for further proceedings.

•

Dated:

New York, New York September 27, 2004

fP;0 -

•

/Bifuilai S. Nelson

Theodore M. Shaw

Director-Counsel

Norman J. Chachkin

•

Ryan P. Haygood Debo P. Adegbile

Alaina C. Beverly

NAACP Legal Defense

•

and Educational Fund, Inc. 99 Hudson Street, Suite 1600

New York, NY 10013-2897

(Tel.) 212-965-2200

(Fax) 212-226-7592

•

jnelson@ naacpldf.org

Juan Cartagena

Risa Kaufman

•

Community Service Society of New York

105 E. 22nd Street

New York, NY 10010

(Tel.) 212-614-5462

•

(Fax) 212-260-6218 jcartagena @cssny.org

Joan P. Gibbs

•

Esmeralda Simmons Center for Law and Social Justice

at Medgar Evers College

•

44

•

1150 Carroll Street

•

Brooklyn, NY 11225 (Tel.) 718-270-6296

(Fax) 718-270-6190

joan gibbs@ hotmail.com

•

•

•

•

•

•

•

•

•

45

•

RULE 32(a)(7)(B)(i) CERTIFICATE OF COMPLIANCE

'

The undersigned hereby certifies that this brief complies with the type-

volume limitations of Rule 32(a)(7)(B) of the Federal Rules of Appellate

•

Procedure. Relying on the word count of the word processing system used to

prepare this brief, I hereby represent that the brief of the NAACP Legal Defense

•

and Educational Fund, Inc., Community Service Society of New York, and the

Center for Law and Social Justice at Medgar Evers College for Plaintiffs-

Appellants contains 9,217 words, not including the corporate disclosure statement,

•

table of contents, table of authorities, and certificates of counsel, and is therefore

within the word limit for 14,000 set forth under Fed. R. App. P. 32(a)(7)(B).
•

•

•

•

•

Dated: September 27, 2004

Janai S. Nelson, Esq. Director of Political Participation
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, Suite 1600 New York, NY 10013 jnelson @naacpldf.org

•

•

CERTFICATE OF SERVICE

•

I certify under penalty of perjury pursuant to 28 U.S.C. § 1746 that on

September 27, 2004, I served upon the following, by United States Postal Service

e

priority mail, postage prepaid, two true and correct copies of the attached BRIEF

FOR PLAINTIFFS-APPELLANTS:

•

Patricia L. Murray, Esq . First Deputy Counsel

New York State Board of Election

40 Steuben Street

Albany, New York 12207-2109

•

Counsel for Defendant Carol Berman

Joel Graber, Esq.

Assistant Attorney General of State of New York

•

120 Broadway- 24th Floor New York, New York 10271-0332

Counsel for Defendant Governor George Pataki

by depositing it securely enclosed in a properly addressed wrapper into the custody
• of the United States Postal Service for priority mail delivery. prior to the latest time

designated by that service.

•

-

Janai S. Nelson. Esq.

Director of Political Participation

•

NAACP Legal Defense &

Educational Fund, Inc.

99 Hudson Street, Suite 1600

New York, NY 10013

•

jnelson @naacpldf.org

•

 
 •

r I L E7J-...:.f_1p,o

OF APPEALS FOR THE SECOND CIRCUIT

t<.<'.
2 4 2004

~'!r

~

~ «~~c h ~ ~i' 1,;:'\

JOSEPH HAYDEN, on behalf of himself and all individuals similar y

situated; LUMUMBA AKINWOLE-BANDELE; WILSON ANDINO; GINA ARIAS;

WANDA BEST-DEVEAUX; CARLOS BRISTOL; AUGUSTINE CARMONA; DAVID

GALARZA; KIMALEE GARNER; MARK GRAHAM; KERAN HOLMES, III;

CHAUJUANTHEYIA LOCHARD; STEVEN MANGUAL; JAMEL MASSEY; STEPHEN

RAMON; NILDA RIVERA; MARIO ROMERO; JESSICA SANCLEMENTE; PAUL

SATTERFIELD; and BARBARA SCOTT,

Plaintiffs-Appellants,

v.

GEORGE PATAKI, Governor of the State of New York, and CAROL BERMAN, Chairperson, New York State Board of Elections; GLENN S. GOORD, Comissioner of New York State Department of Correctional Services,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR DEFENDANTS-APPELLEES PATAKI AND GOORD

MICHELLE ARONOWITZ Deputy Solicitor General
GREGORY KLASS Assistant Solicitor General
of Counsel

ELIOT SPITZER Attorney General of the
State of New York Attorney for Defendants-
Appellees 120 Broadway New York, NY 10271 (212) 416-6312

•

TABLE OF CONTENTS

•

PAGE

TABLE OF AUTHORITIES

ii

•

PRELIMINARY STATEMENT

1

ISSUES PRESENTED FOR REVIEW

1

STATEMENT OF THE CASE . . .

2

•

A. New York's Felon Disenfranchisement Law

2

B. Procedural History

3

•

ARGUMENT

POINT I

•

7

NEW YORK'S DENIAL OF THE FRANCHISE ONLY TO

FELONS CURRENTLY INCARCERATED OR ON PAROLE WAS

NOT MOTIVED BY DISCRIMINATORY INTENT AND IS

SUPPORTED BY A RATIONAL BASIS, AND THEREFORE

THE APPELLANTS' EQUAL PROTECTION AND FIFTEENTH

AMENDMENT CLAIMS WERE PROPERLY DISMISSED .

10

A. The legislative history of the challenged

provisions demonstrate that they were not

•

motivated by an intent to discriminate against

blacks on account of race . . .

11

B. Supreme Court and Second Circuit cases

establish as a matter of law that, absent

•

a showing of race-based discriminatory intent, the challenged provisions do not violate the

Equal Protection Clause. . . .

25

POINT II
•

THERE ARE NO GROUNDS TO VACATE THE DISTRICT

COURT'S DISMISSAL OF THE APPELLANTS' VOTING

RIGHTS ACT CLAIMS

29

CONCLUSION

31

•
i
•

•

•

CASES

TABLE OF AUTHORITIES

PAGE

Anheuser-Busch, Inc. v. Schmoke,

63 F.3d 1305 (4th Cir. 1995)

13

•

Automated Salvage Transoort v. Wheelabrator Environmental

System, 155 F. 3d 59 (2d Cir. 1998)

. . . . . . .

13

Baker v. Cuomo,

•

58 F.3d 814 (2d Cir. 1995)

passim

Blue Tree Hotels Investment (Canada), Ltd. v. Starwood

Hotels & Resorts Worldwide, Inc.,

369 F.3d 212 (2d Cir. 2004) . . . .

13

•

Connecticut v. Physicians Health Services

Of Connecticut, Inc., 287 F.3d 110 (2d Cir. 2002)

26

Cotton v. Fordice,

157 F.3d 388 (5th Cir. 1998)

•

FCC v. Beach Communications, Inc.,

508 u.s. 307 (1993) . . . . .

15 27,28,29

Farrakhan v. Washington,

•

359 F.3d 1116 (9th Cir. 2004)

30

Gmurzynska ·v. Hutton,

355 F.3d 206 (2d Cir. 2004)

12

Heller v. Doe,

509 u.s. 312 (1993)

28

Hunter v. Underwood,
471 u.s. 222 (1985)

passim

Johnson v. Florida, 353 F.3d 1287 (2003)

15,16,18

Keefe v. Shalala,

71 F.3d 1060 (2d Cir. 1995)

30

ii

•

•

Landell v. Sorrell,

382 F.3d 91 (2d Cir. 2004)

PAGE 14

Leonard F. v. Israel Discount Bank,

•

199 F.3d 99 (2d Cir. 1999)

13

Locke v. Farrakhan,

No. 03-1597, 73 U.S.L.W. 3286 (Nov. 8, 2004)

30

•

Muntaaim v. Combe, 366 F.3d 102 (2d Cir. 2004)

Muntagim v. Coombe, No. 04-175, 73 U.S.L.W. 3285 (Nov. 8, 2004)

•

Norton v. Sam's Club, 145 F.3d 114 (2d Cir. 1998)

passim 1,30 . 30

O'Hara v. Weeks Marine, Inc.,

294 F.3d 55 (2d Cir. 2002)

•

Owens v. Barnes,

711 F.2d 25 (3d Cir. 1983)

30 . . . . . . . . . . 27,28

Pani v. Empire Blue Cross Blue Shield,

•

152 F.3d 67 (2d Cir. 1998)

13

Patel v. Contemporary Classics of Beverly Hills,

259 F.3d 123 (2d Cir. 2001)

...... .

11

•

Phillip v. University of Rochester, 316 F.3d 291 (2d Cir. 2003)

Richardson v. Ramirez,
418 u.s. 24 (1974)

•

Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978)

11,16,24 passim 27

Swierkiewicz v. Sorema N.A.,

534 u.s. 506 (2002)

12

•

iii

•

•

•

Taylor v. Vermont Department of Education, 313 F.3d 768 (2d Cir. 2002) . . . . .

PAGE 13

Tremblay v. Riley,

917 F. Supp. 195 (W.D.N.Y., 1996)

14

•

United States v. Adkinson,

135 F.3d 1363 (11th Cir. 1998) . . .

15

United States v. Biaggi,

•

909 F.2d 662 (2d Cir. 1990)

26

United States v. Desist,

384 F.2d 889 (2d Cir. 1967)

30

•

United States v. Ianniello, 808 F.2d 184 (2d Cir. 1986)

30

Village of Arlington Heights v. Metropolitan Housing Authority, 429 U.S. 252 (1976) . . . . . . . . . 8

•

CONSTITUTION

Federal

•

u.s. Const. Am. I

u.s. Const. Am. XIV, § 1

u.s. Const. Am. XIV, § 2

•

u.s. Const. Am. XV

3,6 passim
7 passim

State

'

N.Y. Const. Art. II, § 3

N.Y. Const. Art. I I, § 2 (1846)

N.Y. Const. Art. II, § 2 (1874)
'
iv

passim 19 19

•

•

STATUTES & RULES

•

Federal

Civil Rights Acts of 1957 and 1960, 42 u.s.c. § 1971

Voting Rights Act of 1964, 42 u.s.c. § 1973

•

F.R.C.P. Rule 8 (a)

F.R.C.P. Rule 12 (b) (6)

•

F.R.C.P. Rule 12 (c) Fed. R. Evid. 201 .

PAGE
. . 3, 6 passim
12 11 4,11
14

•

State

N.Y. Elec. Law§ 5-106(2)

passim

Act of Feb. 16, 1971, ch. 310,

•

1971 McKinney's N.Y. Laws 430

Act of Jan. 3 0, 1973, ch. 679,

1973 McKinney's N.Y. Laws 1287

. .
.

5,16 5,16

•

Act in Relation to the Election Law, Recodifying the Provisions Thereof, ch. 233,

1976 McKinney's N.Y. Laws 474 . . . . . . .

16

•

MISCELLANEOUS Amendments Proposed to the Constitution of

the State of New York (1873) . . .

PAGE 21

Charles Z. Lincoln, The Constitutional History of

•

New York (1906)

. . . . .

. 19,20

E.F. Underhill, Report of the Proceedinos and Debates of the Convention for the Revision of the Constitution

of the State of New York 1867-'68 (1868) . . . . 20,21,22,23

•

v

•

•

•

Kenneth Culp Davis, An Approach to Problems of Evidence in the Administroative Process,

55 Harvo L. Rev. 364, 403-07 (1942)

PAGE 14

New York State Constitution Annotated (1938)

•

State of New York, Messaoes from the Governors

(Charles Z. Lincoln ed. 1909) . . . 0

19 • 0 21,22

Robert Carter, New York State Constitution: Sources of

•

Legislative Intent (2d ed. 2001)

..... .

18

Wright & Miller, Federal Practice and Procedure:

Civ. 3d § 1347, 376 (2004)

... 0

••

13

•

•

•

•

•

•
vi

•

PRELIMINARY STATEMENT

•

In this appeal, plaintiffs-appellants challenge the

dismissal of their claims that New York's decision not to permit

incarcerated and paroled felons to vote violates the Equal

•

Protection Clause of the Fourteenth Amendment, the Fifteenth

Amendment and the Voting Rights Act of 1964. The district court

correctly dismissed the plaintiffs' Equal Protection Clause and

e

Fifteenth Amendment claims because the legislative histories of

the most recent amendments to the challenged provisions

demonstrate beyond cavil that they were reenacted with a

•

nondiscriminatory motive and because the disenfranchisement of

this class of felons is rationally related to a legitimate

•

government purpose. The plaintiffs' claims under the Voting Rights Act were properly dismissed under Muntagim v. Combe, 366

F.3d 102, en bane hearing denied, 385 F.3d 793 (2d Cir.), cert.

•

denied, No. 04-175, 73 U.S.L.W. 3285 (Nov. 8, 2004) .

ISSUES PRESENTED FOR REVIEW

•

1 . Did the district court correctly dismiss the

plaintiffs' third claim, which alleges racially discriminatory

legislative intent in violation of the Equal Protection Clause

•

and the Fifteenth Amendment, where the legislative histories of

Article II, section 3 of the New York Constitution and of New

York Election Law section 5-106(2) demonstrate as a matter of law
•
1

•

•

that racial discrimination was not a substantial or motivating

•

factor in the most recent reenactments of those provisions?

2. Did the district court properly dismiss the plaintiffs'

first claim, which alleges violations of the Equal Protection

e

Clause and does not allege a racially discriminatory legislative

intent, where New York's decision not to permit felons

incarcerated or on parole to vote is rationally related to a

•

legitimate government interest?

4. Did the district court properly dismiss the plaintiffs'

fourth and fifth claims, brought under the Voting Rights Act of

•

1964, based on Muntagim v. Combe?

•

STATEMENT OF THE CASE

A. New York's Felon Disenfranchisement Law

Article II, section 3 of the New York State Constitution

e

provides that ~[t)he Legislature shall enact laws excluding from

the right of suffrage all persons convicted of bribery or of any

infamous crime." New York Election Law section 5-106(2)

•

stipulates:

No person who has been convicted of a felony pursuant to the

laws of this state, shall have the right to register for or

vote at any election unless he shall have been pardoned or

•

restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has expired, or he has

been discharged from parole. The governor, however, may

attach as a condition to any such pardon a provision that

any such person shall not have the right of suffrage until

•

it shall have been separately restored to him .

2

•

•

In accordance with these provisions, New York does not permit

e

convicted felons who are currently incarcerated or on parole to

vote. All other felons are permitted to vote .

•

B. Procedural History

Plaintiffs-appellants are convicted New York felons either

incarcerated or on parole. In an amended complaint submitted on

•

January 15, 2003 (Joint Appendix 98-117 ("J.A. __")), the

plaintiffs alleged that the above provisions of New York law

•

violated: (1) the Equal Protection Clause of the Fourteenth Amendment, based on an impermissible statutory classification

that disenfranchises only those convicted felons currently

•

incarcerated or on parole; (2) the Due Process Clause of the

Fourteenth Amendment, based on New York's allegedly non-uniform

sentencing practices; (3) the Equal Protection Clause of the

e

Fourteenth Amendment, the Fifteenth Amendment and the Civil

Rights Acts of 1957 and 1960 (codified as amended at 42 U.S.C.

§ 1971), based on alleged intentional race discrimination; (4)

•

Section 2 of the Voting Rights Act of 1965 ( "VRA") (codified as

amended at 42 U.S.C. § 1973), based on the alleged denial of the

right to vote to incarcerated and paroled Blacks and Latinos; (5)

•

Section 2 of the VRA, based on alleged dilution of the voting

strength of Blacks and Latinos and certain minority communities

•

in New York State; (6) the First Amendment; and (7) customary

3

•

international law.

•

Defendants-appellees moved to dismiss all of the claims

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

The United States District Court for the Southern District of New

e

York (McKenna, J.) granted that motion in its entirety on June

14, 2004 (J.A. 12-30).

With respect to the Equal Protection Clause and Fifteenth

•

Amendment claims (numbers one and three) , the district court held

that under Hunter v. Underwood, 471 U.S. 222 (1985), New York's

•

facially neutral voting classification could violate these constitutional provisions if its enactment was motivated by

discriminatory intent, and that absent such intent, the

•

provisions were subject to rational basis review (J.A. 17-

18, 21).

Applying these standards, the court acknowledged the

e

complaint's detailed allegations that the New York Legislature

enacted other voting qualifications in other periods with a

discriminatory intent, but concluded that the plaintiffs had

e

failed to allege facts that would support a finding of

discriminatory intent in the enactment of the challenged

provisions (J.A. 18-20). The court therefore granted the motion

•

to dismiss plaintiffs' third claim for relief, a decision the

plaintiffs challenge on appeal.

•

The court then applied rational basis review to the

4

•

•

plaintiffs' first claim for relief, which alleged violations of

•

the Equal Protection Clause based on impermissible statutory

classification. Focusing on the legislative history of the most

recent amendments to section 5-106(2), which extended the right

e

to vote to nonincarcerated felons while reaffirming the

disenfranchisement of felons in prison or on parole, Act of Feb.

16, 1971, ch. 310, 1971 McKinney's N.Y. Laws 430; Act of Jan. 30,

•

1973, ch. 679, 1973 McKinney's N.Y. Laws 1287, the court observed

that the "Legislature's justification for the proposed amendment

•

was that disenfranchising felons after they had served their maximum term of imprisonment or were released from parole was

inconsistent with the primary concerns of the penal system, which

•

is rehabilitation of the offender" (J.A. 21) .

The court also considered the difference in the severity of

punishment marked by the challenged classification. It concluded

•

that New York's distinction "between felons who are incarcerated

or on parole [and] those serving suspended sentences or probation

is entirely rational" and accordingly dismissed the plaintiffs'

e

first claim for relief (J.A. 22). The plaintiffs challenge this

ruling on appeal.

The district court dismissed the plaintiffs' two VRA claims

•

(numbers four and five) on the basis of Muntagim v. Combe, in

which this court held that the VRA "cannot be used to challenge

•

the legality of § 5-106." 366 F. 3d at 104 (J.A. 12). The

5

•

plaintiffs do not challenge the correctness of this ruling or ask

•

the court to reconsider its holding in Muntagim, but merely

request that the district court's ruling be vacated in light of

petitions for certiorari in Muntagim and a case from the Ninth

e

Circuit. Hayden Br. at 43. The Supreme Court denied both those

petitions on November 8, 2004.

With respect to the alleged violation of the Civil Rights

e

Act of 1957 and 1960 (under claim number three) , the district

court followed the majority of other courts in holding that "this

section does not provide for a private right of action" and

•

additionally concluded that even if the plaintiffs had a private

right of action, their claim would fail since they are not

•

"otherwise qualified to vote," as the statute requires (J.A. 23, 25). The court dismissed the plaintiffs' First Amendment claim

(number six) because "the case law is clear that the First

•

Amendment does not guarantee felons the right to vote" (J.A. 25) .

The plaintiffs' due process claim (number two) failed because

criminal defendants are represented by counsel during plea

e

bargaining and sentencing and because the proper remedy would be

not a revision of New York's election laws, but a change in New

York's criminal procedure law (J.A. 26-27). Finally, the court

•

dismissed the plaintiffs' international law claim (number seven)

because neither customary international law nor the relevant

treaties created a cause of action under U.S. law (J.A. 28-30) .
•
6

•

•

The plaintiffs do not appeal any of these portions of the

•

decision below. Hayden Br. at 1 .

ARGUMENT

•

The plaintiffs' Equal Protection Clause and Fifteenth

Amendment claims is are governed by two Supreme Court cases,

Richardson v. Ramirez, 418 U.S. 24 (1974), and Hunter v .

•

Underwood, 471 U.S. 222 (1985).

In Richardson, the Court held that in order to determine how

•

the Equal Protection Clause in section 1 of the Fourteenth Amendment applied to felon voting rights, it was necessary to

read it in light of section 2 of the Amendment. 418 U.S. at 43.

•

Section 2 provides that the number of federal representatives

from a state shall be reduced in proportion to the percentage of

otherwise qualified voters to whom the state denies the

e

franchise. U.S. Canst. Am. XIV, § 2. It excepts from that

calculation, however, persons excluded from the vote "for

participation in rebellion, or other crime." Id .

•

After an extensive analysis of the history and purpose of

both sections 1 and 2, Richardson concluded that section 1, "in

dealing with voting rights as it does, could not have been meant

•

to bar outright a form of disenfranchisement which was expressly

exempted from the less drastic sanction of reduced representation

•

which § 2 imposed for other forms of disenfranchisement." 418

7

•

U.S. at 55. The Court accordingly upheld California's felon

disenfranchisement statute against an Equal Protection challenge.

Id.

Eleven years later, the Supreme Court held that an Alabama

t

felon disenfranchisement statute, who's "original enactment was

motivated by a desire to discriminate against blacks on account

of race and [that] continues to this day to have that effect,"

violated the Equal Protection Clause. Hunter v. Underwood, 471

U.S. 222, 233 (1985). Hunter did not overrule Richardson, but

carved out an exception where there is proof of discriminatory

•

intent or purpose. "[O]fficial action will not be held

unconstitutional solely because it results in a racially

•

disproportionate impact

Proof of racially discriminatory

intent or purpose is required to show a violation of the Equal

Protection Clause." Id. at 227-28 (quoting Village of Arlington

•

Heights v. Metropolitan Housing Authority, 429 U.S. 252, 264-65

(1976)).

The plaintiffs' third claim for relief is pled under Hunter

a

and alleges that "Section 5-106(2) of New York Election Law was

enacted pursuant to Article I, section 2 [sic] of the New York

State Constitution with the intent to disenfranchise Blacks."

•

Am. Compl. ~ 85 (J.A. 113). This claim fails because the

legislative history of the most recent amendments to the

challenged provisions decisively demonstrates that they were
•
8

•

reenacted with a permissible, nondiscriminatory intent. This

legislative history, which is subject to judicial notice, is so

unequivocal with respect to the Legislature's intent as to

demonstrate that the plaintiffs can prove no set of facts that

would support their intentional discrimination claim.

The plaintiffs' first claim alleges violation of the Equal

Protection Clause without alleging discriminatory intent. This

court has already held, however, that Richardson and Hunter

together entail that, absent an allegation of race-based

discriminatory motive, a state's felon disenfranchisement statute

•

is subject only to rational basis review. Baker v. Cuomo, 58

F.3d 814, 820-21 (2d Cir. 1995), vacated in part on other

•

grounds, 85 F.3d 919 (2d Cir. 1996) (en bane) (per curiam) .

Baker also held that New York Election Law section 5-106(2)'s

distinctive treatment of incarcerated and paroled felons was

•

rationally related to a legitimate government interest. Id. at

821. This holding forecloses the plaintiffs' first claim for

relief.

•

Finally, the plaintiffs' fourth and fifth claims, which

allege violations of the Voting Rights Act of 1964, are precluded

by this court's recent ruling in Muntagim, 366 F.3d at 104 .
•

•
9
•

•

POINT I

•

NEW YORK'S DENIAL OF THE FRANCHISE ONLY TO FELONS CURRENTLY INCARCERATED OR ON PAROLE WAS NOT MOTIVED BY DISCRIMINATORY

INTENT AND IS SUPPORTED BY A RATIONAL BASIS, AND THEREFORE

THE APPELLANTS' EQUAL PROTECTION AND FIFTEENTH AMENDMENT

CLAIMS WERE PROPERLY DISMISSED .

•

In their first and third claims for relief, the plaintiffs

maintain that New York Election Law section 5-106(2) violates the

Equal Protection Clause of the Fourteenth Amendment and the

•

Fifteenth Amendment. The third claim alleges that the provision

violates the Equal Protection Clause and the Fifteenth Amendment

•

because it is the result of a racially discriminatory intent; the

first claim alleges that even absent such an intent, the law

violates the Fourteenth Amendment because it employs an

•

constitutionally impermissible statutory classification .

The legislative histories of the challenged provisions

demonstrate that the plaintiffs' allegation of discriminatory

e

legislative intent fail as a matter of law. Even assuming

arguendo that, as the plaintiffs have pled, earlier

constitutional felon disenfranchisement provisions were the

•

result of discriminatory legislative intent, the legislative

histories of the extensive redrafting of the constitutional

•

provisions in 1874 and the most recent statutory amendments of 1971 and 1973 clearly demonstrate a permissible nondiscriminatory

intent. Consequently, "the plaintiff[s] can prove no set of

•

facts in support of [their] claim which would entitle [them] to

10

•

relief." Phil-lip v. University of Rochester, 316 F.3d 291, 293

(2d Cir. 2003); Patel v. Contemporary Classics of Beverly Hills,

259 F.3d 123, 126 (2d Cir. 2001) ("The standard for granting a

Rule 12(c) motion for judgment on the pleadings is identical to

that of a Rule 12(b) (6) motion for failure to state a claim.").

With respect to their claim of impermissible statutory

classification, the plaintiffs argue, first, that even absent a

showing of discriminatory intent, the challenged provisions are

subject to strict scrutiny and, second and in the alternative,

that they should be given further opportunity to argue that New

York's classification fails rational basis review. Neither of

these arguments can be squared with the Supreme Court's holdings

•

in Richardson and Hunter, or with this court's holding in Baker .

A. The legislative history of the challenged provisions

demonstrate that they were not motivated by an intent

•

to discriminate against blacks on account of race .

The amended complaint claimed that section 5-106(2) violates

the Equal Protection Clause of the Fourteenth Amendment and the

t

Fifteenth Amendment in that it was enacted "with the intent to

disenfranchise Blacks" (J.A. 113). The complaint also alleged

detailed historical evidence of such intent at various

•

nineteenth-century constitutional conventions, apparently in an

attempt to make a prima facie case for the plaintiffs' claim.

On appeal the plaintiffs argue that the district court
•
11

•

imposed the wrong pleading standard under Swierkiewicz v. Sorema

•

N.A., 534 U.S. 506 (2002), and that the allegations of

impermissible intent in their recitation of facts and in the

claims section sufficed to state a claim. Hayden Br. at 17-23.

1

The plaintiffs' Memorandum of Law in Opposition to the

Defendants' Motion to Dismiss failed to raise Swierkiewicz and

did not argue that Rule 8(a) did not require that the complaint

•

state a prima facie case. Plaint. Mem. of Law in Opp. at 7-21.

Nonetheless, the defendants acknowledge that the complaint's

allegations satisfy Swierkiewicz's minimal pleading requirements .

•

This court should affirm the dismissal, however, because the

legislative histories of the most recent substantive amendments

•

to the challenged statutory and constitutional provisions clearly demonstrate a nondiscriminatory legislative intent. These

judicially noticeable documents establish as a matter of law that

•

the plaintiffs cannot prove an unconstitutional motive .

"An appellate court is free to affirm a district court

decision on any grounds for which there is a record sufficient to

e

permit conclusions of law, even grounds not relied upon by the

district court." Gmurzynska v. Hutton, 355 F.3d 206, 210 (2d

Cir. 2004) (internal quotation marks omitted) .

•

This court can take judicial notice of published and

publicly available legislative histories in an appeal of a motion

to dismiss. As Wright and Miller explain, "matters incorporated
•
12

•

•

by reference or integral to the claim, items subject to judicial

•

notice, matters of public record, orders, items appearing in the

record of the case, and exhibits attached to the complaint whose

authenticity is unquestioned" are not considered outside of the

e

pleadings and may be considered by the court without converting a

motion to dismiss into one for summary judgment. Wright &

Miller, Federal Practice and Procedure: Civ. 3d § 1357, 376

e

(2004) (emphasis added). The Second Circuit has held that public

records and other matters of which judicial notice may be taken

may be considered in a motion to dismiss without converting it

•

into a motion for summary judgment. Blue Tree Hotels Inv.

(Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369

•

F.3d 212, 217 (2d Cir. 2004) (public records); Taylor v. Vermont Dept. of Educ., 313 F.3d 768, 776 (2d Cir. 2002} (same); Leonard

F. v. Israel Discount Bank, 199 F.3d 99, 107 (2d Cir. 1999)

•

(matters of which judicial notice may be taken); Automated

Salvage Transp. v. Wheelabrator Envtl. Sys., 155 F.3d 59, 67 (2d

Cir. 1998} (same); Pani v. Empire Blue Cross Blue Shield, 152

e

F.3d 67, 75 (2d Cir. 1998) (public records). Other circuits, as

well as lower courts within the Second Circuit, have specifically

recognized that legislative history falls within those

•

categories. Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312

(4th Cir. 1995), vacated and remanded on other grounds 517 U.S.

1206 (1996) ("For purposes of Rule 12 (b) (6), the legislative
•
13

•

•

history of an ordinance is not a matter beyond the pleadings but

•

is an adjunct to the ordinance which may be considered by the

court as a matter of law."); Tremblay v. Riley, 917 F. Supp. 195,

199 n.2 (W.D.N.Y., 1996) ("Legislative history is not considered

e

to be a matter 'outside the pleadings' for purposes of Rule

12(b) (6) and therefore may properly be considered on a motion to

dismiss for failure to state a claim.") .

•

Moreover, legislative intent is not an adjudicative fact,

but a legislative one. It is therefore also within this court's

power to make findings on its own as to whether the challenged

•

provisions were the product of discriminatory intent. See

Landell v. Sorrell, 382 F.3d 91, 106 (2d Cir. 2004) (Winter

•

dissenting) (Legislative facts, such as the legislature's intent,

"are subject to de novo review and appellate courts not only can

find legislative facts on their own but they also usually do

•

so."); Fed. R. Evid. 201, Notes of Advisory Committee,

subdivision (a); Kenneth Culp Davis, An Approach to Problems of

Evidence in the Administrative Process, 55 Harv. L. Rev. 364,

e

403-07 (1942). An examination of the legislative histories of

the challenged statutory and constitutional provisions

demonstrates beyond question that the relevant reenactments of

•

those provisions were not motivated by discriminatory intent.

Hunter did not consider whether or when the subsequent

reenactment of a statute originally enacted with an impermissibly
•
14

•

discriminatory motive removes the taint of the earlier

legislative intent. Indeed, the Court expressly reserved the

question of "whether [the Alabama law] would be valid if enacted

today without any impermissible motivation." 471 U.S. at 233.

Two circuits have since ruled on that question in cases involving

felon disenfranchisement statutes and both have reached the same

result. In Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998), the

I

Fifth Circuit held that the 1950 and 1968 revisions to

Mississippi's felon disenfranchisement statute "superseded the

previous provision and removed the discriminatory taint

•

associated with the original version." Id. at 391. The Eleventh

Circuit similarly held that "an original discriminatory purpose

•

behind Florida's felon disenfranchisement provision establishes an equal protection violation that persists with the provision

unless it is subsequently reenacted on the basis of an

•

independent, non-discriminatory purpose." Johnson v. Florida,

353 F.3d 1287, 1301 (11th Cir. 2003), vacated and rehearing en

bane granted by 377 F.3d 1163 (11th Cir. 2004); ~United States

•

v. Adkinson, 135 F.3d 1363, 1371 n.23 (11th Cir. 1998) ("The

announcement of an en bane rehearing by a court of appeals does

not suspend stare decisis.") . 1

•

1 The Eleventh Circuit panel disagreed with the Fifth

Circuit with respect to which party bore the burden of proof as

to subsequent reenactment, holding that "the Defendants have the

•

burden to show that the State knowingly and deliberately reenacted [the provision] for a non-discriminatory reason." 353

15

•

•

The most recent substantive amendments to New York Election

•

Law section 5-106(2) were in 1971 and 1973. Act of Feb. 16,

1971, ch. 310, 1971 McKinney's N.Y. Laws 430; Act of Jan. 30,

1973, ch. 679, 1973 McKinney's N.Y. Laws 1287. 2 Those amendments

e

reaffirmed that felons either currently incarcerated or on parole

were not permitted to vote, while changing the law to extend the

franchise to all other felons. See N.Y. Elec. Law§ 5-106(2).

e

In the Bill Memorandum attached to the 1971 amendment, the

sponsor explained the Legislature's reasoning as follows:

Once the offender has served his sentence or has been

•

discharged from parole, he is presumed to be capable of

rejoining society.

. It is inconsistent with the general

philosophy of corrections to continue punishment after a

person has accounted.

•

Bill Memorandum of Mr. Corbett (Feb. 5, 1971), reprinted in Bill

Jacket for ch. 310 (1971), at 3 (J.A. 46); compare Baker v.

Cuomo, 58 F. 3d 814, 821 (2d Cir. 1995) (" [F]elon

•

disenfranchisement is reasonably related to social contract

principles, penal considerations and the state's interest in

•

F.3d 1301. Because the plaintiffs in this case appeal from a 12(c) motion to dismiss, this court need not address the burden

of proof issue. Even if the plaintiffs have the ultimate burden

of proving that the taint of an impermissible original intent

persisted, on a 12(c) motion to dismiss the defendants bear the

•

burden of showing that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Phillip, 316 F.3d at 293.

2 Subsequent amendments in 1976 were intended merely to

recodify the earlier law. Act in Relation to the Election Law,

•

Recodifying the Provisions Thereof, ch. 233, 1976 McKinney's N.Y . Laws 474, 536.

16

•

•

ensuring that elections are free from fraud and corruption.").

•

Once the term of punishment ended, however, that rationale no

longer applied.

There is not the slightest hint of a discriminatory intent

•

behind the 1971 or 1973 amendments. Quite the contrary, the

amendments were supported by numerous groups committed to civil

rights, including the New York Urban Coalition, Citizens Union,

•

The Legal Aid Society, the New York Civil Liberties Union, and

the New York State Catholic Committee. Bill Jacket for ch. 310,

at 12 (J.A. 50); Bill Jacket for ch. 679 (1973), at 28, 30-31,

•

35-36, 38-39 (J.A. 80, 82-83, 87-88, 90-91). The clarity of the

legislative record in this case leaves no room for doubt: The

•

Legislature considered the purpose of disenfranchising incarcerated and paroled felons and reenacted the challenged

provisions with a legitimate, nondiscriminatory purpose.

•

Even though the Legislature acted with a nondiscriminatory

purpose in 1971 and 1973, however, it passed those amendments

pursuant to Article II, section 3 of the New York Constitution,

e

which stipulates that "(t]he legislature shall enact laws

excluding from the right of suffrage all persons convicted of

bribery or of any infamous crime." The plaintiffs' complaint

•

suggests that if the constitutional provision was the result of

an impermissible motive, its taint seeps through to the statute

passed pursuant to it. Am. Compl. ~ 85 (J.A. 113) .
•
17

•

•

The relevant sentence of Article II, section 3 is the

•

product of three substantive constitutional amendments, occurring

in 1821, 1846 and 1874. See Robert Carter, New York State

Constitution: Sources of Legislative Intent 15 (2d ed. 2001).

e

Assuming arguendo that the provision was added in 1821 and then

retained in 1846 with the purpose of disenfranchising blacks

(which the defendants do not admit), if the 1874 amendment and

e

reenactment was the result of "an independent, non-discriminatory

purpose," Johnson, 353 F.3d at 1301, the causal chain is broken

and there is no Hunter violation .

•

The plaintiffs have argued that the timing and circumstances

of the 1874 amendment indicate an intent to disenfranchise

•

blacks. Hayden Br. at 30. An examination of the actual legislative history of that amendment, however, demonstrates that

after extensive debate and consideration, the delegates chose to

•

deny the vote to those convicted of "infamous crimes" not with an

intent to disenfranchise blacks or other minorities, but as part

of a larger project aimed at preventing vote buying and other

e

forms of ballot-box corruption.

As the plaintiffs note in their complaint, the significant

constitutional change with respect to felon disenfranchisement in

•

1874 was the replacement of a permissive "may" with mandatory

"shall." Am. Compl. ~ 56 (J.A. 108). Article II, section 2 (the

ancestor of the current section 3) of the 1846 New York
•
18

•

Constitution read:

t

Laws may be passed excluding from the right of suffrage all

persons who have been or may be convicted of bribery,

larceny, or any infamous crime; and for depriving every

person who shall make, or become directly or indirectly

interested in, any bet or wager depending upon the result of

any election, from the right to vote at such election.

Third Constitution of New York, 1846, Art. II, § 2 (emphasis

added), reprinted in New York State Constitution Annotated 48

(1938). In 1874, that section was modified by an amendment that,

inter alia, also changed the sentence concerning "infamous crime"

to read:

The legislature, at the session thereof next after the

adoption of this section, shall, and from time to time

thereafter may, enact laws excluding from the right of

suffrage all persons convicted of bribery or of any infamous

•

crime . 1874 Amendments to the New York Constitution, Art. II, § 2

(emphasis added), reprinted in New York State Constitution

Annotated, at 85, and in Charles Z. Lincoln, 2 The Constitutional

History of New York 482 (1906). In 1894, the occasion of the

next constitutional convention, this temporary wording was

e

changed to its current form:

The Legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.

e

Lincoln, 3 Constitutional History, at 85.

The language enacted in the 1874 amendment originated in a

proposed revised constitution produced by New York's 1867/68
•
19

•

t

Constitutional Convention. Constitution Proposed by the

•

Convention of 1867, Art. II, § 2, reprinted in Lincoln, 2

Constitutional History, at 428. The delegates to that convention

discussed at length a number of proposed modifications to section

•

2, almost all of which focused on a single issue: the need to

prevent corruption at the ballot box in general, and vote buying

in particular. See E.F. Underhill, 1 Report of the Proceedings

•

and Debates of the Convention for the Revision of the

Constitution of the State of New York 1867-'68 226-27, 473-79,

483-89, 501-08, 515-27, 547-68, 611-12 (1868). Delegates were

•

particularly concerned that the Legislature could not be trusted

to pass laws to police the very mechanisms that had put them in

•

power. The majority sentiment was summarized as follows:

This corruption has reached a point where the people

absolutely demand that there shall be a remedy provided in

the organic law. They are not willing to turn this matter

over to the Legislature. They lack confidence in the

•

Legislature.

They are not willing to trust men to

enact laws against bribery and corruption, who have

themselves secured their places by corrupt practices.

I beg that we may not turn this whole matter over to the

Legislature; for, by so doing, I greatly fear that we should

•

fail to obtain what is absolutely necessary to secure the purity of our elections, and the stability of our government.

Id. at 558 (statement of Mr. Smith); see also id. at 483-85, 501-

•

04, 507, 516, 560-61 .

It was precisely this concern that caused the delegates to

change the permissive "may" of the 1847 constitution to a

•

mandatory "shall." Thus on January 24, 1867, delegate A.J.

20

•

•

Parker suggested that a proposed amendment by Mr. Masten, id. at

•

501, "substitute the word 'shall'

. for the word 'may' so as

to make it imperative upon the Legislature to pass such laws,"

id. at 503 (statement of Mr. A.J. Parker). While most of

e

Masten's wording did not survive through to the end of the

convention, the use of "shall" remained, and was consistently

justified by the delegates' desire to ensure legislative action .

•

See, e.g., id. at 516 (statement of Mr. Conger), 528 (statement

of President), 547 (statement of Secretary), 557-58 (statements

of Mr. Folger), 562 (statement of President), 564 (statements of

•

Mr. Masten and Mr. Evarts).

This remained the purpose of the amended section 2 when it

•

was ultimately enacted in 1874. See Reports of Committees of the

Constitutional Commission, Article II, reprinted in Amendments

Proposed to the Constitution of the State of New York 26, 28

•

(1873) ("The proposed amendment contains a stringent provision

excluding from the right to vote all persons guilty of bribery,

whether directly or indirectly, or of corruptly influencing

e

votes."); Annual Message of Gov. Hoffman, Jan. 2, 1872, reprinted

in 6 State of New York, Messages from the Governors 387 (Charles

Z. Lincoln ed. 190 9) (describing the proposed sect ion 2 as

•

"relat[ing] to the corrupt expenditure of money to influence

electors .

which will, if rigidly enforced, tend to check an

evil which has assumed proportions of great magnitude");
•
21

•

•

Communication from Gov. Hoffman, Jan. 26, 1871, reprinted in 6

•

Messages from the Governors 263 (urging constitutional amendment

to combat "the corrupt use of money to influence the votes of

electors.").

•

Nor was the retention of the provision withholding the vote

from "persons convicted

of any infamous crime" a matter of

oversight. The precise wording of that provision was discussed

•

on the floor. 1 Report of the Proceedings and Debates, at 226-

227 (amendment of Mr. Spencer limiting provision to those

convicted of infamous crimes), 232 (statement of Mr. Endress

•

recommending that "larceny" be removed as a ground for

disenfranchisement), 478-79 (proposal of Mr. Duganne to empower

•

legislature to disenfranchise twice-convicted felons) , 501

(proposal of Mr. Matsen to retain "persons convicted .

of any

infamous crime" rather than substituting "felons"), 566

•

(amendment of Mr. Harris replacing "all persons who have been or

may be convicted" with "all persons convicted"). Individual

delegates explained the denial of the vote to these persons both

e

as furthering the anti-corruption purpose of the amendment and in

terms of traditional social contract principles. Id. at 501

(statement of Mr. Masten that the object of disenfranchising

•

felons "doubtless is to protect and secure the purity of

'elections"), 520 (Mr. Hand: "[W]e exclude criminals because they

have forfeited the right of citizenship by their crimes and are
•
22

•

•

unsafe persons to be intrusted with these important

•

responsibilities.") .

Nowhere in the discussion of Article II, section 2 is there

any hint that the substitution of "shall" for "may" or the

e

retention of "infamous crime" was the product of a discriminatory

purpose or intent. On the contrary, there is strong evidence of

a concern to protect the franchise for minorities. Thus while

e

several facially discriminatory amendments were proposed, each

was roundly defeated after little or no discussion. See, e.g.,

id. at 481 (restrictions on right of blacks to vote defeated

•

without debate), 501 (imposition 5-year residency requirement for

emancipated blacks defeated 77 to 37), 549-50 (literacy test to

•

protect against "foreign born citizens" defeated with no debate) . And in drafting section 1, the delegates purposively chose to

permit all "citizens," rather than "citizens of the United

•

States," to vote, in order to avoid any possible limitation of

the rights of blacks under Dred Scott, whose contemporary legal

status was subject to some doubt among the delegates. Id. at

e

473, 517-18, 542-43. While some individual delegates may have

harbored racist beliefs, the record as a whole demonstrates

beyond question that those delegates did not control the outcome

e

of the drafting process with respect to section 2.

The debates surrounding the revisions in the 1874 amendment

to the challenged constitutional provision exhibit with force and
•
23

•

•

clarity that the amendment was the product of a permissible,

•

nondiscriminatory motive, namely to prevent vote buying, bribery

and other forms of ballot-box corruption. Given the extent of

and lack of ambiguity in the published record, this court should

e

conclude that no amount of extrinsic or circumstantial evidence

the plaintiffs might produce could suffice to controvert the

evidence of permissible intent. That is, the legislative history

e

demonstrates that the plaintiffs "can prove no set of facts in

support of [their] claim which would entitle [them] to relief."

Phillip, 316 F.3d at 293. The district court's dismissal of the

•

plaintiffs' Equal Protection and Fifteenth Amendment claim should

therefore be affirmed.

•

Finally, should this court reverse and remand on this issue, while affirming the dismissal of the plaintiffs' other claims for

relief, the defendants respectfully request that it consider

•

clarifying the appropriate scope of discovery on remand. During

the one-year pendency of the defendants' motion to dismiss,

discovery on contemporary disparate impact and other issues was

•

ongoing and extremely burdensome to New York State agencies,

including the Division of Criminal Justice Services, the Division

of Probation, the Division of Parole, and the Department of

•

Correctional Services. Were the plaintiffs' only remaining claim

the allegation of discriminatory legislative intent, the non-

existence of such an intent would be dispositive and subject to a
•
24

•

motion for summary judgment. In that case, it would be

•

appropriate for the district court preliminarily to limit

discovery to this one issue.

•

B . Supreme Court and Second Circuit cases establish as a matter of law that, absent a showing of race-based

discriminatory intent, the challenged provisions do not

violate the Equal Protection Clause.

•

Section 5-106(2) distinguishes between, on the one hand,

incarcerated and paroled felons and, on the other, felons not

sentenced to a period of incarceration or who have completed

•

their sentence, withdrawing the vote from the former group and

extending it to the latter. On appeal, the plaintiffs argue

that, even absent a showing of discriminatory intent, "the

e

distinction [should bel subject to strict scrutiny review," or,

at the very least, that they should have been given "an

opportunity to prove that no rational basis is served by the

•

felon disenfranchisement scheme." Hayden Br. at 35.

The Second Circuit has already rejected both of these

•

propositions. In Baker v. Cuomo, this court held (1) that absent proof of discriminatory intent, a state's felon disenfranchise-

ment statute is subject only to rational basis review and (2)

•

that New York Election Law section 5-106(2) passed such review .

58 F.3d 814, 820-21 (2d Cir. 1995), vacated in part on other

grounds, 85 F.3d 919, 921 (2d Cir. 1996) (en bane) (per curiam)

e

(vacating panel decision with respect to VRA claims, on which en

25

•

•

bane review had been granted, while leaving in place panel ruling

•

on Fourteenth and Fifteenth Amendments); see Connecticut v .

Physicians Health Services Of Connecticut, Inc., 287 F.3d 110,

119 (2d Cir. 2002) (relying on prior Second Circuit decision

e

vacated in part on other grounds); United States v. Biaggi, 909

F.2d 662, 687 (2d Cir. 1990) (same). The holding in Baker

forecloses the plaintiffs' claim that section 5-106(2) employs a

•

statutory classification that violates the Equal Protection

Clause.

•

Moreover, this court's reasoning in Baker was entirely correct. The decision was based on the Supreme Court's rulings

in Richardson v. Rodriguez and Hunter v. Underwood. In

•

Richardson, three convicted felons challenged California's felon

disenfranchisement statute, asserting a strict scrutiny argument

similar to that advanced by the plaintiffs: "that a compelling

•

state interest must be found to justify exclusion of a class from

the franchise, and that [the state] could assert no such interest

with respect to ex-felons." 418 U.S. at 33. As noted above,

e

after examining the history of sections 1 and 2 of the Fourteenth

Amendment, the Supreme Court concluded that the Equal Protection

Clause "could not have been meant to bar [felon disenfranchise-

•

ment] outright" and, without further analysis, held that the

California statute did not violate the Fourteenth Amendment. Id.

at 55 .
•
26

•

Eleven years later in Hunter, the Court revisited the issue

•

and held that an Alabama felon disenfranchisement statute

violated the Equal Protection Clause where there was proof that

the "original enactment was motivated by a desire to discriminate

t

against blacks on account of race and the [law] continues to this

day to have that effect." 471 U.S. at 233. Hunter did not state

what level of review should be applied where there is no proof of

•

discriminatory intent.

Baker considered a Fourteenth and Fifteenth Amendment

challenge to section 5-106(2) and held that, under Richardson and

•

Hunter, "statutes that deny felons the right to vote are not

subject to strict judicial scrutiny." 58 F.3d at 820. Instead,

•

the court held, rational basis review was the appropriate test for determining whether, absent an allegation of racially

discriminatory intent, section 5-106 conformed with the

•

Fourteenth Amendment. !d. at 820-21; see also Owens v. Barnes,

711 F.2d 25, 27 (3d Cir.), cert. denied, 464 U.S. 963 (1983);

Shepherd v. Trevino, 575 F.2d 1110, 1114-15 (5th Cir. 1978),

e

cert. denied, 439 U.S. 1129 (1979). Baker therefore forecloses

the plaintiffs' argument for heightened scrutiny.

Rational basis review in equal protection analysis is an

•

extremely deferential standard. Such review "is not a license

for courts to judge the wisdom, fairness, or logic of legislative

choices." FCC v. Beach Communications, Inc., 508 U.S. 307, 313
•
27

•

•

(1993) . All that is required is "a rational relationship between

•

the disparity of treatment and some legitimate governmental

purpose." Heller v. Doe, 509 U.S. 312, 320 (1993). Moreover, in

seeking out a rational basis for the legislation, the question is

e

not the actual intent of the legislature. "[A] legislature that

creates these categories need not actually articulate at any time

the purpose or rationale supporting its classification." Id.

e

(internal quotation omitted). Rather, a classification "must be

upheld against equal protection challenge if there is any

reasonably conceivable state of facts that could provide a

•

rational basis for the classification." Beach Communications,

508 U.S. at 313.

•

Applying this standard, the Baker court concluded that there was a rational basis for section 5-106(2)'s distinctive treatment

of felons who were incarcerated or on parole. The court agreed

•

with the Third Circuit that the deprivation of liberty justified

restricting participation in the democratic processes that govern

those who remain at liberty. 58 F.3d at 821 (discussing Owens,

•

711 F.2d at 27) . It also noted that "felon disenfranchisement is

reasonably related to social contract principles, penal

considerations and the state's interest in ensuring that

•

elections are free from fraud and corruption." Id. The court

concluded that these state interests are "reasonably related to

disenfranchisement of those felons who commit crimes serious
•
28

•

•

enough to warrant incarceration." Id.

•

In their brief to this court, the plaintiffs do not cite

Baker, much less attempt to explain why it is not controlling

with respect to their claim of impermissible classification. In

e

fact, they cannot. The plaintiffs' argument that strict scrutiny

must apply because voting is a fundamental right, Hayden Br. at

37-39, was rejected by the Supreme Court in Rodriguez, 418 U.S.

•

at 33, 55, and by this court in Baker, 58 F.3d at 820-21. Nor is

it necessary to provide the plaintiffs "the opportunity to

develop and present evidence" on whether the facially neutral

•

categories New York employs are rational. Hayden Br. at 42.

Rational basis review asks whether there is "any reasonably

•

conceivable state of facts that could provide a rational basis for the classification," Beach Communications, 508 U.S. at 313,

and this court has already held that the legally defined

•

characteristics of incarceration and parole provide such a basis .

Baker, 58 F.3d at 821.

•

POINT II

THERE ARE NO GROUNDS TO VACATE THE DISTRICT COURT'S DISMISSAL OF THE APPELLANTS' VOTING RIGHTS ACT CLAIMS.

•

The district court dismissed the plaintiffs' VRA claims

(numbers four and five) based on this court's holding in Muntagim

v. Coombe, 366 F.3d 102, en bane hearing denied, 385 F.3d 793 (2d

e

Cir. 2004), that the VRA does not apply to felon disenfranchise-

29

•

•

ment statutes (J.A. 23). On appeal, the plaintiffs have neither

•

argued that Muntagim got the law wrong nor asked the court to

revisit the question. Instead, they have simply requested that

the court vacate the decision below in light of pending petitions

e

for certiorari in Muntaqim and in Farrakhan v. Washington, 359

F.3d 1116 (9th Cir. 2004). On November 8, 2004, the Supreme

Court denied certiorari in both cases. Locke v. Farrakhan, No .

•

03-1597, 73 U.S.L.W. 3286 (Nov. 8, 2004); Muntagim v. Coombe, No.

04-175, 73 U.S.L.W. 3285 (Nov. 8, 2004). Consequently, the

•

plaintiffs' sole argument for vacatur no longer exists. 3 Nor have the plaintiffs asserted, much less argued, that

Muntagim was decided wrongly. Consequently, they have waived any

•

such argument to this court. Norton v. Sam's Club, 145 F.3d 114,

117 (2d Cir. 1998) (•Issues not sufficiently argued in the briefs

are considered waived and normally will not be addressed on

e

appeal."); Keefe v. Shalala, 71 F.3d 1060, 1066 n.2 (2d Cir.

1995) (Second Circuit will normally not consider arguments not

raised in appellant's brief); O'Hara v. Weeks Marine, Inc., 294

e

F.3d 55, 67 n.5 (2d Cir. 2002) (same).

3 Even if these petitions were still pending, they would not

•

be grounds to vacate the district court's decision. See, e.g., United States v. Desist, 384 F.2d 889, 898 (2d Cir. 1967) (grant of certiorari on issue did not change fact that panel was bound

by Second Circuit case law); United States v. Ianniello, 808 F.2d

184, 190 (2d Cir. 1986) ("This Court is bound by a decision of a

prior panel unless and until its rationale is overruled,

•

implicitly or expressly, by the Supreme Court or this court en bane.").

30

•

•

CONCLUSION

•

For all of the foregoing reasons, the judgment of the

district court should be affirmed.

•

Dated:

New York, New York November 24, 2004

Respectfully submitted,

ELIOT SPITZER

•

Attorney General of the State of New York

Attorney for Respondent

•

Assistant Solicitor General

•

120 Broadway, 25th Floor

New York City, NY 10271

(212) 416-6312

•

MICHELLE ARONOWITZ

Deputy Solicitor General

GREGORY KLASS

Assistant Solicitor General

e

of Counsel

•

•

Reproduced on Recycled Paper

31

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•

Certificate of Compliance

•

I, Gregory Klass, counsel for the defendants-appellees

George Pataki and Glenn S. Goord, do hereby certify that the

foregoing brief complies with the type-volume limitation as set

e

forth in Federal Rule of Appellate Procedure 32(a) (7). According

to the word-count function of the word processor used to prepare

the foregoing brief, the total number of words in the brief is

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6,969 .

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 I

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-

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To be argued by

I

Janai

United States Court of Appeals

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for the

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Second Circuit

I JOSEPH HAYDEN; LUMUMBA AKINWOLE-BANDELE; WILSON ANDINO; GINA ARIAS; WANDA BEST-DEVEAUX; CARLOS BRISTOL; AUGUSTINE CARMONA; DAVID GALARZA;

KIMALEE GARNER; MARK GRAHAM; KERAN HOLMES, III; CHAUJUANTHEYIA

I LOCHARD; STEVEN MANGUAL; JAMEL MASSEY; STEPHEN RAMON; LILLIAN M. RIVERA; NILDA RIVERA; MARIO ROMERO; JESSICA SANCLEMENTE; PAUL SATTERFIELD; and

BARBARA SCOTT, on behalf of themselves and all individuals similarly situated,

I

Plaintiffs-Appellants,

I

-against-

GEORGE PATAKI, Governor of the State of New York, and CAROL BERMAN, Chairperson, New

I

York State Board of Elections, .

Defendants-Appellees.
I ON APPEAL FROM THE UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF NEW YORK

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS
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I NAACP LEGAL DEFENSE & EDUCATIONAL FuND, INC. Theodore M. Shaw

COMMUNITY SERVICE SOCIETY OF NEW YORK
Juan Cartagena Risa Kaufman

I Director-Counsel Norman J. Chachkin
I Janai S. Nelson Ryan P. Haygood

105 E. 22nd Street New York, NY 10010 (212) 260-6218

[Listing of Counsel Continued Inside Cover]
I

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NAACP LEGAL DEFENSE & EDUCATIONAL FuND, INC. (cont'd)

Alaina C. Beverly

I Debo P. Adegbile 99 Hudson Street

New York, New York 10013-2897
I (212) 965-2200

I

CENTER FOR LAW AND SOCIAL JUSTICE

AT MEDGAR EVERS COLLEGE

I Joan P. Gibbs Esmeralda Simmons 1150 Carroll Street

I Brooklyn, NY 11225 (718) 270-6296

I Attorneys for Appellants
I

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TABLE OF CONTENTS

I TABLE OF AUTHORITIES .................................................................................... ii

I

PRELIMINARY STATEMENT ............................................................................... 1

I

ARGUMENT ............................................................................................................. 2

I

I.

Defendant, Like the District Court, Misapplies the Rule 12(c) Standard ................................................................................................... 2

I

II.

Plaintiffs Have Alleged Sufficient Facts of Intentional Discrimination

that Are Not Refuted by Defendant's Misleading Interpretation of the

I

Legislative History of New York's Felon Disfranchisement Laws ....... 7

A. Defendant and the District Court Ignore the Arlington Heights

I

Standard for Pleading Intentional Discrimination that Plaintiffs

Have Clearly Met ............................................................................ 8

I

B. Defendant Misstates the Legislative Record in Support of His

Purge Argument, which Fails Both As A Matter of Law and Fact

I

at this Stage .................................................................................. 13

I

Ill.

Defendant Has Not Proven that New York's Felon Disfranchisement Laws Were Purged of Their Discriminatory Taint, Nor Is that

Determination Appropriate for a Rule 12(c) Proceeding ...................... 19

I

IV.

Plaintiffs' Equal Protection Claim Is Not Barred by Richardson or

I

Baker Nor Is It Subject to Rule 12(c) Dismissal without Further Development of the Record ...................................................................24

I

V.

Plaintiffs' Voting Rights Act Claims Should be Preserved Pending

Final Disposition in Muntagim.............................................................. 30

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CONCLUSION........................................................................................................ 31

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I

I Cases

TABLE OF AUTHORITIES

Pages

I

Baker v. Cuomo, 58 F.3d 814 (2d Cir. 1995), vacated by

Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996)................ 6, 24, 25, 28, 29, 30

I

Burdick v. Takushi,

I

504 u.s. 428 (1992)................................................................................. 27

Carolene Prod. Co. v United States,

I

323 u.s. 18 (1944)..................................................................................... 5

I

Chen v. City of Houston, cert. denied, 206 F.3d 502 (5th Cir. 2000), cert. denied, 532 U.S. 1046 (2001) ... 21 n.5

I

Clark v. Jeter,

.

486 u.s. 456 (1988)................................................................................. 27

I

Cotton v. Fordice,

157F.3d388(5thCir.l998) ................................................................... 21

I

DeMuria v. Hawkes,

I

328 F.3d 704 (2d Cir. 2003) ...................................................................... 3

Dunn v. Blumstein,

I

405 u.s. 330 (1972)................................................................................. 28

I

Ensley Branch, NAACP v. Siebels, 31 F.3d 1548, 1575 (11th Cir. 1994) ....................................................... 22

I

Green v. Bd. ofElections, 380 F.2d 445 (2d Cir. 1967) .............................................................. 28, 29

I

Hunter v. Underwood,

471 U.S. 222 (1985)................................. 11, 12, 14 n.3, 20, 21 n.4, 22, 24

I

Illinois Bd. of Elections v. Socialist Workers Party,

I

440 u.s. 173 (1979)................................................................................. 27

Irish Lesbian & Gay Org. v. Giuliani,

I

143 F.3d 638 (2d Cir.l998) ....................................................................... 3

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11

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Cases (Coot'd)

Pages

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Knight v. Alabama, 14 F.3d 1534 (11th Cir. 1994) ................................................................. 22

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Landell v. Sorrell, 382 F.3d 91, 135 n.24 (2d Cir. 2004)

382 F.3d 91(2d Cir. 2004) ......................................................................... 5

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Mt. Healthy City Bd. ofEduc. v. Doyle,

429 u.s. 274 (1977)................................................................................. 20

I

Muntagim v. Coombe,

I

366 F.3d 102 (2d Cir. 2004), pet. for cert. filed, 73 U.S.L.W. 3113 (U.S. July 21, 2004) ........................................ 2, 30, 31

I

Patel v. Contemporary Classics of Beverly Hills,

259 F.3d 123 (2d Cir. 2001) ............................................................... 3, 7-8

I

Personnel Adm'r of Mass. v. Feeney,

442 u.s. 256 (1979)................................................................................. 20

I Phillip v. Univ. of Rochester,

I

316F.3d291 (2dCir.2003) .............................................................. 20n.4

Ramos v. Town ofVemon,

I

353 F.3d 171 (2d Cir. 2003) .............................................................. 27, 28

I

Reynolds v. Sims,
377 u.s. 533 (1964)................................................................................. 27

I

Richardson v. Ramirez,
418 u.s. 24 (1974),.......................................................... 24, 25, 26, 28, 29

I

Romer v. Evans,

517 u.s. 620 (1996)................................................................................. 29

I

Scutti Enter., LLC v. Park Place Entrn't Corp.,

I

322 F.3d 211 (2d Cir. 2003) ...................................................................... 3

Underwood v. Hunter,

I

730 F.2d 614 (11th Cir. 1984), affd, 471 U.S. 222 (1985) .................... 12

I

Ill

I

I

I

Cases (Cont'd)

Pages

United States v. Hemandez-Fundora.

I

58 F.3d 802 (2d Cir. 1995) ........................................................................ 4

I

United States v. Coleman, 166 F.3d 428 (2d Cir. 1999)(per curiam) ................................................ 27

I

United States v. Fordice. 505 U.S. 717 (1992).......................................................................... 21, 22

I

Village of Arlington Heights v. Metro. Hous. Dev. Corp.,·

429 u.s. 252 (1977)..................,...................................................... 8, 9, 10

I Williams v. Apfel,

I

204 F.3d 48 (2d Cir. 1999) ........................................................................ 3

Constitutions, Statutes & Rules

I

U.S. Canst. Amend. XIV ........................................................................ 16, 17

I

N.Y. Canst. art. II, § 2 .................................................................................. 17

I

Fed. R. Civ. P. 12(c)............................................................................... passim

I

Fed. R. Civ. P. 56 ............................................................................................ 2

Fed. R. Evid. 201, Notes of Advisory Committee on Rules ........................... 4

I

Fed. R. Evid. 20l(e) ....................................................................................... 6

I

N.Y. Elec. Law§ 5-l 06 .................................................................... 24, 27 n.6

I

Miscellaneous

I

Edwin G. Burrows & Mike Wallace, Gotham: A History of New York Citv to 1898 (1998) ........................................................................ 15

I

Cong. Globe, 41st Cong., 2d Sess................................................................ 15

IV
I

I

I

Kenneth Davis, An Approach to Problems of Evidence in the Administrative Process, 55 HARv. L. REv. 364 (1942) ............................ 4

I

Phyllis F. Field, The Politics ofRace in New York: The Struggle for

Black Suffrage in the Civil War Era (1982) ...................................... 14, 15

I

David Nathaniel Gellman & David Quigley, Jim Crow New York: A

I

Documentary History ofRace and Citizenship, 1777-1877 (NYU Press 2003)............................................................................................... 15

I

John T. Hoffman Address (Jan. 5, 1869) in Messages from the Governor. Vol. 6 (1869-1876) (Charles Z. Lincoln, ed. 1909) .............. 16

I

John T. Hoffman Address (Jan. 1870) in Messages from the

Governor. Vol. 6 (1869-1876) (Charles Z. Lincoln, ed. 1909) .............. 16

I

John T. Hoffman, Speech to Erie County Democrats in Buffalo (Sept.

I

8, 1868) in N.Y. TIMES, Sept. 9,1868 ...................................................... 16

Irish Citizen, October 19, 1867..................................................................... 16

I

Journal ofthe New York State Constitutional Convention Committee,

I

Begun and Held in the Common Council Chamber. in the City of Albany, on the Fourth Day of December, 1872 (Weed, Parsons &

Co., 1873) ................................................................................................ 18

I

Charles Z. Lincoln, The Constitutional History ofNew York from the

I

Beginning of the Colonial Period to the Year 1905. Showing the Origin, Development, and Judicial Construction of the

Constitution (1906) ............................................................................. 16-17

I

David Quigley, Second Founding: New York City, Reconstruction,

I

and the Making of American Democracy (2004).................................... 16

I

I

I
v
I

I

I

PRELIMINARY STATEMENT

I

Plaintiffs have clearly demonstrated that the district court's Rule 12(c)

I

dismissal of their claims challenging New York's felon disfranchisement laws

I

under the Fourteenth and Fifteenth Amendments of the United States Constitution

I

was in error. As a threshold matter, Defendant George Pataki1 concedes that

Plaintiffs meet the basic pleading requirements for an intentional discrimination

I

claim and does not challenge the sufficiency of the pleadings with respect to any of

I

the claims on appeal. Moreover, not only does Defendant Pataki's response2 offer

I

no reliable justification for upholding the decision below, it highlights the

I

searching and exacting factual inquiry merited by Plaintiffs' claims that was

thwarted by the district court's premature dismissal of Plaintiffs' complaint.

I

Defendant attempts to circumvent this inquiry by misleading the court on the

I

content and interpretation of the legislative history at issue and by limiting the

I

analysis of Plaintiffs' claims to the legislative record when a fuller examination is

I

' Defendant George Pataki, Governor of the State of New York, ("Defendant

Pataki" or "Defendant") submitted a brief in response to Plaintiffs' opening brief

I

on appeal on behalf of himself and GlennS. Goard, Commissioner of New York State Department of Correctional Services. Commissioner Goard was dismissed

from this action upon the filing of Plaintiffs' First Amended Complaint ("Amended

I

Complaint") in January 15, 2003. Carol Berman, Chairperson of the New York

State Board of Elections, who is a current Defendant in this lawsuit, did not file a

I

response to Plaintiffs' brief on appeal.

2 Brief for Defendants-Appellees Pataki and Goard [sic] ("Defendant's Response"

I

or "Defs Br.").

I

1

I

I

required. However, Plaintiffs have pleaded sufficient facts that are supported by

I

the legislative record and historical context, to withstand dismissal under Rule

I

12(c). Likewise, Plaintiffs have shown that the disparate application of New York

State's felon disfranchisement statute among persons with felony convictions is
I subject to heightened scrutiny that requires further factual development by the

I

parties. Finally, the intervening petition for rehearing en bane in Muntagim v.

I

Coombe, counsels toward vacating the district court's dismissal of Plaintiffs'

I

Voting Rights Act claims.

I

ARGUMENT

I

I. DEFENDANT, LIKE THE DISTRICT COURT, MISAPPLIES THE

RULE 12(c) STANDARD

I

While it is unclear what standard the district court used in dismissing

I

Plaintiffs' claims, Defendant stipulates that "the complaint's allegations satisfy []

I

minimal pleading requirements." Defs Br. at 12. However, like the district

court's opinion below, Defendant's Response conflates the standard for
I withstanding a Rule 12(c) motion with the standard required to prevail on a Rule

I

56 motion for summary judgment, and urges the Court to engage in an

I

unwarranted investigation of the merits of this case.

I

I

I

2

I

I

As set forth in their opening brief, Plaintiffs' Amended Complaint alleges

I

specific facts demonstrating intentional discrimination and disparate application of

I

New York's felon disfranchisement laws. If construed in the light most favorable

to the Plaintiffs and accepted as true, as required by Rule 12(c), these allegations
I entitle Plaintiffs to relief. DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir.

I

2003)(citing Scuttie Enters. v. Park Place Entm't Com., 322 F.3d 211, 214 (2d Cir.

I

2003)); Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d

I

Cir. 2001)(citing Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.

1998)). By presenting issues of fact that were never raised before the district court,
I and inviting interpretations of legislative history that are at best contested,

I

Defendant seeks to have this Court conduct an evidentiary exercise that is

I

improper at this stage in litigation.

I

Specifically, Defendant suggests that this Court should blindly accept his

I

narrow and misleading interpretation of the legislative history of New York's felon

I

disfranchisement provisions. However, Defendant's argument that the legislative

history of New York's felon disfranchisement provisions "decisively

I

demonstrates," Defs Br. at 9, his position that subsequent re-enactments of the

I

laws removed any discriminatory intent is nothing more than Defendant's opinion

I

about a severely contested factual issue that cannot be resolved without a remand

I

for further discovery. See Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 1999)

I

3

I

I

(vacating a district court judgment and remanding for further proceedings where

I

the administrative record was undeveloped).

I

Defendant asks this Court to take judicial notice of his interpretation of the

I

legislative history of the laws in question. Defs Br. at 12-14. However, the

I

Advisory Committee Notes to Rule 201, Fed. R. Evid., state that the Rule "deals

only with judicial notice of 'adjudicative"' and not "legislative" facts and defines

I

legislative facts as those "which have relevance to legal reasoning and the law-

I

making process, whether in formulation of a legal· principle or [ ] in the enactment

I

of a legislative body." See Fed. R. Evid. 201 Notes of Advisory Committee on

I

Rules citing Kenneth Davis, An Approach to Problems of Evidence in the

Administrative Process, 55 Harv. L. Rev. 364, 404-407 (1942). Defendant admits

I

in his brief that "legislative intent is not an adjudicative fact but a legislative one,"

I

Defs Br. at 14, making it clear that his proffered interpretation of legislative

I

history does not fall under Rule 201. See also United States v. Hemandez-

I

Fundora, 58 F.3d 802, 811 (2d Cir. 1995) ("[R]esolution of the jurisdictional issue

[ ] requires the determination of legislative facts, rather than 'adjudicative facts'

I

within the meaning of Rule 20l(a), with the result that Rule 20l(g) is

I

inapplicable.").

I

I

I

4

I

I

Although courts have taken judicial notice of legislative history showing the

I

reason for the passage of certain legislation, see, ~ Carolene Prod. Co. v. United

I

States, 323 U.S. 18, 28 (1944) ("The trial court took judicial notice, as did the

District Court of the District of Columbia, and as we do, of the reports of the
I committees of the House of Representatives and the Senate which show that other

I

considerations [] influenced the [legislation at issue]."), this Court has held that it

I

may not take notice of legislative facts if those facts are in dispute and especially

I

when they are dispositive and the record is not developed. Landell v. Sorrell, 382

F.3d 91, 135 n.24 (2d Cir. 2004) ("The fact that this Court may ultimately
I undertake de novo review of any legislative facts found by the District Court on

I

remand or that appellate courts take judicial notice of legislative facts under

I

appropriate circumstances, does not mean that we must resolve disputed legislative

I

facts - particularly facts that are dispositive of the case before us - on an

insufficiently developed record."). Indeed, Landell states that the legislative facts
I addressed by this Court have largely dealt with straightforward questions such as

I

geography, jurisdiction, or scientific fact. Id. ("[T]he types of 'legislative facts'

I

that have been addressed most recently in our caselaw deal with much more

I

straightforward questions, U:., geography and jurisdiction or the fact that cocaine

is derived from coca leaves."). Accordingly, this Court should not take judicial
I notice of Defendant's proffered interpretation of the legislative history of New

I

I

5

I

I

York's felon disfranchisement laws, and certainly not in the context of a Rule

I

12(c) determination. Moreover, should this Court determine that judicial notice is

I

appropriate, Plaintiffs must be afforded an adequate opportunity to be heard on this

issue. See Fed. R. Evid. 201(e).
I

I

Plaintiffs' Amended Complaint also sufficiently alleges that New York's

felon disfranchisement provisions, as applied, make impermissible distinctions

I

among persons with felony convictions. Defendant argues that Baker v. Cuomo,

I

58 F.3d 814 (2d Cir. 1995), vacated Qy Baker v. Pataki, 85 F.3d 919 (2d Cir.

I

1996), forecloses Plaintiffs' Equal Protection claim. Def's Br. at 25, 28-29.

I

However, Baker does not foreclose Plaintiffs' argument that this case should be

vacated and remanded for development of a complete factual record necessary to

I

support heightened scrutiny, or a rational basis equal protection analysis, regarding

I

the severity of the crimes committed by individuals sentenced to incarceration or

I

parole (as compared to probationers) and the implications of prohibiting such

I

individuals to exercise their fundamental right to vote. See Baker, 58 F.3d at 818-

819. Therefore, dismissal below should be reversed and this case remanded for

I

further proceedings.

I

I

I

I

6

I

I

II. PLAINTIFFS HAVE ALLEGED SUFFICIENT FACTS OF

INTENTIONAL DISCRIMINATION THAT ARE NOT REFUTED

I

BY DEFENDANT'S MISLEADING INTERPRETATION OF THE

LEGISLATIVE HISTORY OF NEW YORK'S FELON

I

DISFRANCHISMENT LAWS

Against the weight of legislative history to the contrary, Defendant alleges

I

that the "legislative histories of the challenged [felon disfranchisement] provisions

I

demonstrate that the plaintiffs' allegation of discriminatory legislative intent fail

I

[sic] as a matter of law." Defs Br. at 10. To support this assertion, Defendant

I

attempts to divert this Court's attention from the discriminatory origins of New

York's felon disfranchisement statute (the corrosive effects of which endure to this

I

day) by claiming that an alleged "redrafting of the constitutional provisions" more

I

than half a century later in 1874 and "statutory amendments of 1971 and 1973"

I

purged the provisions of their discriminatory intent. ld. "Consequently,"

I

Defendant concludes, "the plaintiff[s] can prove no facts" in support of their

intentional discrimination claim that would entitle them to relief. ld. at 10-11. As

I

we show below, Defendant's argument is factually erroneous because (like the

I

opinion below) it fails to address the naked reality of New York's long history of

I

intentional discrimination against Blacks in voting.

I

Defendant also relies on a misstatement of established legal principle. To

I

satisfy a Rule 12(c) motion, Plaintiffs need only state facts, which taken together as

true, would entitle them to relief under a particular claim. See Patel, 259 F.3d at
I

I

7

I

I

126. Here, Plaintiffs assert that New York's extensive history of intentional racial

I

discrimination in voting dates back to its Constitution in 1777 and spans more than

I

a century. During this time, delegates to Constitutional Conventions and

legislators purposefully erected barriers (culminating in the mandated enactment of
I a felon disqualification statute) that were intended to, and have had the effect of,

I

disfranchising Blacks and other racial minorities. These allegations, taken as true,

I

sufficiently state the basis for this Court to find a violation of the Equal Protection

I

Clause of the Fourteenth Amendment and the Fifteenth Amendment.

I

A. Defendant and the District Court Ignore the Arlington Heights Standard for Pleading Intentional Discrimination that Plaintiffs

I

Have Clearly Met.

By suggesting that Plaintiffs attempted in their Amended Complaint to make

I

a "prima facie case" that New York's felon disfranchisement statute was "enacted

I

with the intent to "disenfranchise [sic] Blacks," Defs Br. at 11, Defendant, like the

I

district court, seeks to heighten the standard for alleging intentional discrimination

I

under the Equal Protection Clause of the Fourteenth Amendment. The appropriate

test for determining whether a facially neutral state law that has a racially disparate

I

impact violates the Equal Protection Clause was outlined by the Supreme Court in

I

Village of Arlington Heights v. Metro. Hous. Dev. Com., 429 U.S. 252 (1977). In

I

Arlington Heights, the Supreme Court held that proof of intent to discriminate can

I

be derived from a contextual analysis of a variety of factors that collectively

I

8

I

I

support an inference of racial animus - including that the impact of an action

I

bears more heavily on one race than another, the historical background of an

I

official decision, and the legislative or administrative history of an official action,

particularly where there are statements by members of the decision-making body.
I 429 U.S. at 266-267 (finding that "whether invidious discriminatory purpose was a

I

motivating factor demands a sensitive inquiry into such circumstantial and direct

I

evidence of intent as may be available").

I

Arlington Heights requires an evaluation ofthese factors taken as a whole-

I

and not in isolation as the Defendant and the district court did here-in order to

I

appreciate the full context of the origin and effect of a challenged law. Contrary to

the holding of Arlington Heights, however, Defendant relies exclusively on limited

I

portrayals of "legislative histories of the most recent substantive amendments to

I

the challenged statutory and constitutional provisions," Def s Br. at 12, to

I

demonstrate a nondiscriminatory legislative intent, and proffers that inadequate,

I

narrow interpretation as the justification for the district court's dismissal.

I

To substantiate their intentional racial discrimination claim, Plaintiffs cited

I

telling portions of the available historical background and legislative history of

New York's felon disfranchisement restrictions, (JA 00105-109 [FAC !jl!fi 39-60]),

I

and their disproportionate impact on Blacks and Latinos. (JA 00109-00111 [FAC

I

I

9

I

I

<JI<JI 61-71 ]). Plaintiffs' Amended Complaint contains numerous, specific

I

allegations that support a complete review by the trial court of the "circumstantial

I

and direct evidence of intent as available," Arlington Heights, 429 U.S. at 266,

regarding the central role of race in the enactment of New York's felon
I disfranchisement laws.

I

Specifically, the Amended Complaint alleges that, in the 18th and 19th

I

centuries, both the Legislature and delegates to the various New York State

I

Constitutional Conventions - intended to, and did, discriminate against Blacks

I

with respect to the franchise and made "explicit statements of [their] intent" to that

I

effect. (JA 00106 [FAC <JI 41]). The Amended Complaint sets forth the

unmistakable, de jure limitations on the ability of Black New Yorkers to vote, (JA

I

00106 [FAC <JI<JI 43-45]), that provided an historical context for the actions taken at

I

the 1821 New York Constitutional Convention- a convention dominated by an

I

express, racist purpose to deprive the vote from "men of color." (JA 00107 [FAC

I

<JI48]). Plaintiffs' Amended Complaint also alleges that Blacks in New York have

been routinely denied suffrage on an equal basis as whites, (JA 00105-107 [FAC

I

cncn 39-50]), were openly regarded by various state legislators and delegates

I

to constitutional conventions as being biologically inferior and, therefore, unfit for

I

suffrage, (JA 00106-107 [FACII'II 46, 51]), and were described as being 13 times as

I

likely as whites to commit infamous crimes. (JA 00107 [FAC <JI51]).

I

10

I

I

Rather than refuting the discernable discriminatory origins of New York's

I

felon disfranchisement regime at the 1821 Constitutional Convention, Defendant

I

assumes, arguendo, that New York's "provision was added in 1821 and then

retained in 1846 with the purpose of disenfranchising [B]lacks." Defs Br. at 18,
I and then asserts that an 1874 amendment, allegedly enacted for "an independent,

I

non-discriminatory purpose," broke the causal chain. Defs Br. at 18. Defendant's

I

attempt to distract the Court by masking the central issue of New York's original

I

discrimination through a tale of revisionist history is unavailing for two reasons.

I

First, contrary to Defendant's and the district court's erroneous conclusions,

I

the allegations contained in Plaintiffs' Amended Complaint are clearly sufficient

under Hunter, and are, as set out in detail in Plaintiffs' opening brief, Pis.' Mem. at

I

18-20, more detailed and specific than those alleged in the complaint in Hunter.

I

Second, Defendant puts forth unsupported assertions that the "extensive

I

redrafting of the constitutional prov1s10ns m 1874," and the "recent statutory

I

amendments of 1971 and 1973 clearly demonstrate a permissible

I

nondiscriminatory intent," Defs Br. at 10, that can cure the invidious intent hat

I

gave rise to New York's original felon disfranchisement provision. These

assertions are not only unsupported, but they are also insufficient under Hunter.

I

Hunter v. Underwood, 471 U.S at 222, 232-33 (1985). There, the Supreme Court

I

I

11

I

I

found that the enactment of Alabama's felon disfranchisement provision in 1901

I

was "motivated by a desire to discriminate against blacks on account of race and

I

the section continue[d] to have that effect" more than 80 years later. Id. "As

such," the Court concluded, "it violates equal protection under Arlington Heights."
I ld. The Supreme Court also upheld the Eleventh Circuit's ruling that, although the

I

current administrators of the law acted in "good faith" and without reference to

I

race, "neither impartiality nor the passage of time . . . can render immune a

I

purposefully discriminatory scheme whose invidious effects still reverberate

today." Underwood v. Hunter, 730 F.2d 614, 621 (11th Cir. 1984)), aff'd, Hunter

I

v. Underwood, 471 U.S. 222 (1985).

I

Plaintiffs' Amended Complaint sufficiently alleges the discriminatory

I

origins of the New York's felon disfranchisement provision, and Defendant has

I

failed to show that the subsequent re-enactments purged New York's felon

I

disfranchisement law of its discriminatory intent or effect. Defendant does not

I

demonstrate that later amendments to the felon disfranchisement laws were guided

by a recognition of the discriminatory origins of the provisions and a purpose to

I

remove the taint of racial bias or to demonstrate, as required by Hunter, 471 U.S. at

I

228, that prior discrimination is not still a motivating or substantial factor behind

I

New York's felon disfranchisement laws. Defendant also ignores that the effects

I

I

12

I

I

of New York's purposefully discriminatory felon disfranchisement law still

I

reverberate today.

I

B. Defendant Misstates the Legislative Record in Support of His Purge

Argument, which Fails Both As A Matter of Law and Fact at This

I

Stage.

I

Even if Defendant properly dealt with the original discrimination that

infected the enactment ofNew York's felon disfranchisement statute, which he did

I

not, there is yet another deeply problematic aspect of Defendant's argument: It

I

misstates the history of New York State between 1867 and 1874 in order to

I

persuade this Court that legislative action in the latter year was nondiscriminatory.

I

Specifically, Defendant asserts that the 1874 amendment to New York's

Constitution, which replaced the permissive "may" with respect to felon

I

disfranchisement laws with the mandatory "shall," was originated by delegates to

I

the 1867 Constitutional Convention who sought not intentionally to

I

"disenfranchise [B]lacks or other minorities, but [acted] as part of a larger project

I

aimed at preventing vote buying and other forms of ballot-box corruption." Defs

Br. at 18-20. Defendant also asserts that "there is strong evidence of a concern to

I

protect the franchise for minorities." Id. However, Defendant's reference is to the

I

proceedings of 1867-68 Constitutional Convention, not the 1872-73 Constitutional

I

Commission and is, therefore, misleading and unreliable. See id.

I

I

13

I

I

Moreover, Defendant completely fails to recogmze or account for the

I

political hurricane that stormed through New York between 1867 and 1874,

I

removing from power the Radical Republicans, who were sympathetic to Black

equal manhood suffrage, in favor of Democrats, who were vehemently opposed to
I the same. This failure on Defendant Pataki' s part obscures rather than facilitates

I

an accurate understanding as to why the "shall" language was adopted in 1874. It

I

is to a discussion of the historical backdrop against which the 1874 amendment

I

was created that we briefly turn?

I

The influence of Radical Republicans, who had a strong presence at the

I

1867-68 Constitutional Convention and opposed the 1821 voting requirement that

conditioned access to the franchise on a requirement that Blacks possess a freehold

I

estate worth $250, was severely weakened by a decisive Democratic victory in the

I

November 1867 elections. Phyllis F. Field, The Politics of Race in New York: The

I

Struggle for Black Suffrage in the Civil War Era (1982). "The overwhelming

I

majority of Democrats, however, were not willing to surrender on the race issue."

I

3 It is important to note that this historical context is evidence that must be

developed through discovery, including expert reports and testimony, and is not

I

required to be proven or alleged in exhaustive detail by Plaintiffs at this stage in the litigation. As in Hunter, Plaintiffs here should be afforded an adequate

I

opportunity to develop their case. Toward that end, Plaintiffs have retained an expert who has conducted substantial research in support of their intentional

discrimination claim. However, the district court dismissed Plaintiffs' claims

I

before discovery was concluded.

I

14

I

I

Id. at 173. Vehemently opposed to removing the racially discriminatory property

I

requirements, Democrats (who were emboldened by victories in the 1867 state

I

elections in which Black suffrage was a critical issue) put the issue to the voters of

New York in 1869, with the express understanding and expectation that New
I Yorkers would oppose such a measure. See id. In 1869, New Yorkers, as

I

expected, voted to maintain the racially discriminatory language of the 1821

I

Constitution. David Nathaniel Gellman & David Quigley, Jim Crow New York: A

I

Documentary History of Race and Citizenship, 1777-1877 293 (NYU Press 2003).

Indeed, it was not until the enactment of the Fifteenth Amendment (which New
I York opposed by attempting to withdraw its earlier ratification of the Amendment,

I

Cong. Globe, 41 51 Cong., 2d Sess. at 1447-81), and the Federal Enforcement Acts

I

of 1870 and 1871, that equal manhood suffrage came to the Empire State, despite

I

the opposition of New York's voters and political leadership, dominated by anti-

Black Democrats in 1870 and 1871. David Quigley, Second Founding: New York
I City, Reconstruction, and the Making of American Democracy Ch. 5 (2004).

I

Moreover, the Governor of New York from 1869-1872 was John T.

I

Hoffman, Mayor of New York City from 1866-1868 and one of the leaders of

I

Manhattan's Tammany Hall. Edwin G. Burrows & Mike Wallace, Gotham: A

I

History of New York City to 1898 927, 1009 (1998). In 1867, as Mayor of New

I

York City, amid the push by some for Black suffrage, Governor Hoffman declared

I

15

I

I

that "the people of the North are not willing . . . that there should be [N]egro

I

judges, [N]egro magistrates, [N]egro jurors, [N]egro legislators, [N]egro

I

Congressmen." Irish Citizen, October 19, 1867, at 5. In Hoffman's first speech of

his gubernatorial campaign in 1868, he declared that "in ten Southern States the
I white man is subject to the domination of the [N]egro. [Applause.] That by an act

I

of Congress [N]egro suffrage is forced upon them, while white men are

I

disfranchised." Hoffman's speech to Erie County Democrats in Buffalo on

I

September 8, 1868, in New York Times, September 9, 1868, at 1. Consistent with

his deeply held racist beliefs, Governor Hoffman opposed the Fifteenth
I Amendment, complaining that it was "another step in the direction of centralized

I

power." Hoffman's Address, January 5, 1869, Messages from the Governor.

I

Volume 6 (1869-1876) (Charles Z. Lincoln, ed. 1909). In 1870, Governor

I

Hoffman wrote: "I protest against the revolutionary course of Congress with

reference to amendments of the Constitution." Hoffman's Address, January 1870,

I

Messages from the Governor. Volume 6 (1869-1876) (Charles Z. Lincoln, ed.

I

1909).

I

Significantly, Governor Hoffman- in conjunction with the state Senate-

I

appointed the members (who are normally elected) to the State Constitutional

I

Commission of 1872-73, which drafted the revisions to the 1874 Constitution at

I

issue here. Charles Z. Lincoln, The Constitutional History of New Yark from the

I

16

I

I

Beginning of the Colonial Period to the Year 1905, Showing the Origin,

I

Development, and Judicial Construction of the Constitution 464-71 (1906).

I

Governor Hoffman's anti-Black Democratic appointees in 1872-73 were not, as the

Defendant suggests, the Radical Republicans who grappled with issues of equal
I manhood suffrage for Blacks at the 1867-68 Constitutional Convention. Indeed,

I

only six (or fewer than 20 percent) of the 32 delegates of the 1872-73 Convention

I

were veterans of the 1867-67 Convention. Id.

I

Though the 1872-73 Constitutional Commission strenuously debated

I

whether to replace the word "may" with "shall" in Article II, Section 2 of New

I

York's Constitution, there was no clear move to embrace the anti-discriminatory

language of the Radical Republicans of 1867. Id. at 22, 96-97, 170. Instead, the

I

1872-73 Constitutional Commission, recognizing the impossibility of erecting

I

explicitly racial barriers in the aftermath of the Fifteenth Amendment, supported a

I

range of barriers- each of which disproportionately impacted New York's Black

I

population.

I

First, as Plaintiffs alleged in their Amended Complaint, "two years after the

passage of the Fifteenth Amendment, an unprecedented committee convened and
I amended the disfranchisement provision of the New York Constitution to require

I

the state legislature, at its following session, to enact laws excluding persons

I

I

17

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I

convicted of infamous cnmes from the right to vote . . . . Theretofore, the

I

enactment of such laws was permissive." (JA 00108 [FAC <J[ 56]). Second, they

I

urged the incorporation of literacy tests for suffrage in New York State. Journal of

the Constitutional Commission of the State of New York. Begun and Held in the

I

Common Council Chamber, in the City of Albany, on the Fourth Day of

I

December, 1872 339-93 (Weed, Parsons & Co. 1873). Third, they proposed a new

I

Article of the Constitution, number XIV, which focused on municipal government

I

and created a new Board of Audit for New York's large cities, id. at 318, 373-74,

397; however, reminiscent ofthe 1821 property requirement that existed for Blacks

I

only until the passage of the Fifteenth Amendment, only voters with $250 in

I

property would be allowed to elect members of such boards. ld. at 282.

I

Against this historical backdrop, Defendant's assertion that the Radical

I

Republicans' concern in 1867-68 to protect the ballot box from fraud "remained

I

the purpose of the amended section 2 when it was ultimately enacted [by anti-

I

Black Democrats] in 1874," Defs Br. at 23, is simply unsupported by a fair and

accurate reading of the historical record. Accordingly, Defendant's conclusion-

I

that "[g]iven the lack of the ambiguity in the published record, this court should

I

conclude that no amount of extrinsic or circumstantial evidence" could provide

I

evidence of discriminatory intent, Def s Br. at 24, is simply unreliable, and is an

I

I

18

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I

unfortunate attempt to preclude New York's historical discrimination against

I

Blacks in voting from coming to light.

I

When read together in the light most favorable to the Plaintiffs, the

I

allegations in the Amended Complaint tell a persuasive story of a pervasive pattern

I

of historical intentional discrimination in voting, including repeated explicit

statements about Blacks' unfitness for suffrage, their perceived criminality, and the

I

codification of mandatory disfranchisement during an unprecedented special

I

session at a time when overt denial of the franchise to Blacks was newly outlawed

I

by the Fifteenth Amendment. These allegations satisfy the Rule 12(c) standard,

I

and justify reversal of the district court's ruling.

I

III. DEFENDANT HAS NOT PROVEN THAT NEW YORK'S FELON DISFRANCHISEMENT LAWS WERE PURGED OF THEIR

I

DISCRIMINATORY TAINT, NOR IS THAT DETERMINATION APPROPRIATE ON A RULE 12(c) MOTION

I

In order to prevail on his argument that New York's felon disfranchisement

laws have been purged of any original discriminatory intent, Defendant has the
I burden of proving that the legislature enacted the 1874 amendment for wholly non-

I

I

I

I

I

19

I

I

discriminatory reasons, notwithstanding the racist ongms of the felon

I

disfranchisement provision.4 Defendant has failed to meet his burden.

I

As the Supreme Court stated in Hunter, proof of discriminatory intent

I

underlying a specific policy in the past raises an inference that the discriminatory

I

purpose continues into the present, the passage of time and subsequent changes to

the policy notwithstanding. Hunter, 471 U.S. at 233. Indeed, as the Court noted,

I

"[o]nce racial discrimination is shown to have been a 'substantial' or 'motivating'

I

factor behind enactment of the law, the burden shifts to the law's defenders to

I

demonstrate that the law would have been enacted without this factor." 471 U.S. at

I

228 (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

I

Here, Plaintiffs have clearly shown the discriminatory origins of the felon

I

disfranchisement provision. Thus, Defendant has the burden of proving that any

subsequent amendment to the law was enacted without a discriminatory intent, to

I

the extent that the amendment so changes the intention of the original enactment

I

that it cleanses it of its original discriminatory purpose. See Personnel Adm'r of

I

Mass. v. Feeney, 442 U.S. 256, 266-70 (1979) (indicating that the gender

I

4 Defendant Pataki further recognizes that "on a 12(c) motion to dismiss the

I

defendants bear the burden of showing that 'it appears beyond doubt that the plaintiffs can prove no set of facts in support of his claim which would entitle rum

to relief.'" Defs Br. at 16 n.1 (quoting Phillip v. Univ. of Rochester, 316 F.3d

I

291, 293 (2d Cir. 2003)).

I

20

I

I

discriminatory purpose of veteran's preference law may be found in its 1896

I

origins, notwithstanding the enactment of a number of subsequent amendments).

I

Indeed, as Justice Thomas noted in his concurring opinion in United States v.

Fordice, once a law is infected with racist intent, it is not easily cleansed: "[G]iven
I an initially tainted policy, it is eminently reasonable to make the State bear the risk

I

of nonpersuasion with respect to intent a some future time, both because the State

I

has created the dispute through its own prior unlawful conduct, and because

I

discriminatory intent does tend to persist through time." United States v. Fordice,

505 U.S. 717, 746-47 (1992) (Thomas, J., concurring). But see Cotton v. Fordice,
I 157 F.3d 388 (5th Cir. 1998) (requiring pro se plaintiff to prove that state enacted

I

amendment with discriminatory purpose).5

I

Likewise, in the context of de jure segregation, courts routinely examine

I

whether race-neutral policies have the effect of perpetuating past intentional racial

I

discrimination. In such cases, courts require that the state show that the original

I

taint of discriminatory intent has been purged and, that the state has taken

affirmative steps to remove the effects of past discrimination. See Fordice, 505

I

5 In Chen v. City of Houston, 206 F.3d 502, 521 (5th Cir. 2000), cert. denied, 532

I

U.S. 1046 (2001), the Fifth Circuit noted that the Cotton decision "broadly stands

for the important point that when a plan is reenacted - as opposed to merely

I

remaining on the books like the provision in Hunter - the state of mind of the reenacting body must also be considered."

I

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21

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U.S. at 729 (reiterating that states have an affrrmative duty to dismantle the

I

vestiges of past de jure desegregation in higher education, which is not satisfied

I

"through the adoption and implementation of race-neutral policies alone"); see also

Knight v. Alabama, 14 F.3d 1534, 1540 (11th Cir. 1994) (requiring state to prove
I that it has dismantled past discrimination "root and branch") (quoting Fordice, 505

I

U.S. at 728).

I

In this context, provmg that an amendment neutralizes the original

I

discriminatory purpose of New York's felon disfranchisement law thus requires a

I

meaningful and demanding inquiry into the legislative history of the amendment.

I

Indeed, in order to neutralize a discriminatory law by showing that "the law would

have been enacted without [the discriminatory motive]," Hunter, 471 U.S. at 228,

I

Defendant must show that the prior discrimination is not still one of the motivating

I

or substantial factors behind the challenged policy. The state cannot merely

I

reenact or amend a purposefully discriminatory policy and thereby perpetuate its

I

prior discrimination. See Ensley Branch, NAACP v. Siebels, 31 F.3d 1548, 1575

(11th Cir. 1994) (noting that, in an employment context, "[p]ublic employers

I

cannot escape their constitutional responsibilities merely by adopting facially-

I

neutral policies that institutionalize the effects of prior discrimination and thus

I

perpetuate de facto discrimination").

I

I

22

I

I

Here, after a long history of using felon disfranchisement to prevent Blacks

I

from voting, New York's legislators sought to amend the state's constitution to

I

mandate such disfranchisement. Defendant takes numerous occurrences and

statements out of context to assert that the justification for the amendment was
I nondiscriminatory. See supra Section II. Defendant's meager evidence, however,

I

fails to prove that the 1874 amendment was enacted with a wholly non-

I

discriminatory purpose. Had Defendant shown, for example, that delegates to the

I

1874 Constitutional Convention were actually aware of the felon disfranchisement

provision's past discriminatory purpose and contemporary effect, but nevertheless
I re-enacted it for a different, bona fide, nondiscriminatory reason, the result might

I

be different. However, Defendant offers no evidence that the legislature

I

acknowledged the discriminatory genesis of the law and adopted the amendment

I

for a wholly different purpose. Defendant does not even offer convincing proof

that the amendment was enacted for the non-discriminatory reasons he states. He
I offers only fragments of ahistorical evidence from a previous constitutional

I

convention, which it contends is incontrovertible proof that the 1874 amendment

I

was enacted for nondiscriminatory reasons. In fact, the amendment can reasonably

I

be interpreted as intending to perpetuate the past discriminatory purpose while at

the same time guaranteeing its continuation. Additionally, Plaintiffs have been
I denied the opportunity to refute Defendant's evidence with historical fact and

I

I

23

I

I

expert opinion. See supra Section I. Thus, Defendant has failed to prove that the

I

1874 amendment to New York's felon disfranchisement scheme adequately

I

cleansed the provision of its discriminatory purpose.

I

Similarly, Defendant's failure to show that the 1874 Constitutional Convention

I

purged the original discriminatory intent of New York's constitutional felon

disfranchisement provision defeats his argument that the 1971 and 1973

I

amendments, which were enacted pursuant to the 1874 Constitutional Convention,

I

do not "contain the slightest hint of discriminatory intent." Defs Br. at 17.

I

Moreover, Defendant's argument regarding the 1971 and 1973 amendments fails to

I

satisfy the standards in Hunter and, therefore, does not provide a basis for

upholding the district court's dismissal of Plaintiffs' intentional discrimination

I

claims.

I

IV. PLAINTIFFS' EQUAL PROTECTION CLAIM IS NOT BARRED

I

BY RICHARDSON OR BAKER NOR IS IT SUBJECT TO RULE 12(c) DISMISSAL WITHOUT FURTHER DEVELOPMENT OF

I

THE RECORD

Plaintiffs allege that New York's felon disfranchisement scheme further

I

violates the Equal Protection guarantees of the Fourteenth Amendment by

I

impermissibly distinguishing between individuals convicted of a felony who are

I

sentenced to incarceration and/or serving a sentence of parole, on the one hand,

and those convicted of a felony who are pardoned, who receive a suspended or
I

I

24

I

I

commuted sentence, or who are sentenced to probation or conditional or

I

unconditional discharge, on the other. In his attempt to skirt any meaningful

I

scrutiny of New York's non-uniform felon disfranchisement scheme, Defendant

incorrectly relies upon a portion of the panel decision in Baker v. Cuomo, which
I applied a wholly deferential rational basis standard of review to a challenge to New

I

York's felon disfranchisement provision by incarcerated individuals. Defendant's

I

contention that the equal protection claims raised by Plaintiffs are foreclosed under

I

Baker fails to recognize key distinctions between the allegations in this case and

those at issue both in Baker and Richardson v. Ramirez, 418 U.S. 24 (1974), upon
I which Defendant also relies.

I

In Richardson, the Supreme Court held that felon disfranchisement is not

I

prohibited under the Equal Protection Clause of the Fourteenth Amendment.

I

Richardson did not, however, foreclose all constitutional challenges to felon

I

disfranchisement provisions. Nor did it, as the panel in Baker incorrectly suggests,

I

mandate that all challenges to disfranchisement schemes--other than those

alleging race or other suspect classifications-be reviewed under a highly

I

deferential rational basis standard of scrutiny. The Richardson Court rejected strict

I

scrutiny analysis only for a facial challenge to laws that disfranchise individuals

I

convicted of an infamous crime.

I

I

25

I

I

Neither the Court in Richardson nor the Second Circuit panel in Baker

I

addressed the Equal Protection issues raised by Plaintiffs in this case. Specifically,

I

neither court addressed whether states and election officials, when enacting and

implementing felon disfranchisement provisions, may disfranchise only some
I individuals with felony convictions but not others--or settled the question whether

I

"rational basis" or "strict scrutiny" review would be applied to such a statute if

I

challenged. Indeed, the Richardson Court noted that it was leaving open to the

I

"alternative contention that there was such a total lack of uniformity in county

election officials' enforcement of the challenged state laws as to work a separate
I denial of equal protection." Richardson, 418 U.S. at 56.

I

In contrast to the wholesale challenge to felon disfranchisement at issue in

I

Richardson, Plaintiffs here challenge specific features of New York's felon

I

disfranchisement scheme: the non-uniform practice of disfranchising persons

I

convicted of a felony who are sentenced to incarceration and/or on parole but

I

allowing those who receive a suspended or commuted sentence, or are sentenced to

probation or conditional or unconditional discharge, to vote. (JA 00112-113

I

I

I

I

I

26

I

I

[Compl. .~~ 79; 82]).6 Richardson does not dispose of these claims or reject

I

application of strict scrutiny to them.

I

In addition and in the alternative, Plaintiffs urge the Court to apply an

I

intermediate level of scrutiny to their equal protection claims. As this Court

I

recently noted in Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003),

intermediate scrutiny, which lies "between [the] extremes of rational basis review

I

and strict scrutiny," 353 F.3d at 175 (quoting Clark v. Jeter, 486 U.S. 456, 461

I

(1988)), is appropriate to review quasi-suspect classifications such as gender or

I

legitimacy, as well as to review "a law that affects 'an important, though not

I

constitutional, right."' 353 F.3d at 175 (quoting United States v. Coleman, 166

F.3d 428, 431 (2d Cir. 1999) (per curiam)).

I

I

Similarly, it has long been recognized that the right to vote is "of the most

fundamental significance under our constitutional structure." Burdick v. Takushi,

I

504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers

I

~' 440 U.S. 173 (1979)); see also Revnolds v. Sims, 377 U.S. 533, 561-562

I

6 Furthermore, Plaintiffs have alleged that as a result of disparities in prosecution,

conviction and sentencing, Blacks and Latinos are sentenced to incarceration at

I

substantially higher rates than whites and sentenced to probation at substantially lower rates than whites. (JA 00108-l 09 [FAC ~~ 60-65]). Plaintiffs contend that

as a result of these racial disparities, as well as the disfranchisement of only certain

I

classes of individuals with felony convictions, Blacks and Latinos collectively

comprise nearly 87% of those currently denied the right to vote pursuant to §5-

I

106(2), (JA 00110 [FAC ~ 67]), which underscores the Equal Protection violation.

I

27

I

I

(1964); Dunn v. Blumstein, 405 U.S. 330, 336 (1972). While the Baker court

I

rejected strict scrutiny to protect the otherwise fundamental right to vote of felons

I

in cases where there was no allegation of discrimination on the basis of race or

other suspect criteria, Baker, 58 F.3d at 820, in this case, which challenges New
I York's felon disfranchisement scheme because it denies the right to vote to persons

I

who are convicted of a felony and sentenced to incarceration and/or parole but not

I

similarly situated individuals who are sentenced to probation, the court should

I

review Plaintiffs' claims under a heightened, intermediate scrutiny standard.

I

However, even assuming, arguendo. that rational basis review applies to

I

Plaintiffs' claims, Defendant nevertheless errs in arguing that Baker controls the

instant case. In Baker, this Court interpreted the plaintiffs' Equal Protection claim

I

as a challenge to the way in which New York disfranchises incarcerated felons but

I

not those who are not incarcerated. Baker, 58 F.3d at 820. Citing Richardson v.

I

Ramirez to reject heightened scrutiny, and relying on its previous decision in

I

Green v. Bd. of Elections, 380 F.2d 445 (2d Cir. 1967), the Court applied rational

basis review and held that such a classification "is not irrational." Id.

I

I

Unlike in Baker, Plaintiffs' Equal Protection claim also focuses on

distinctions among individuals who live in their communities, subject to state

I

supervision. New York's felon disfranchisement scheme distinguishes between

I

I

28

I

I

those individuals living in the community on parole and those on probation. (JA

I

00109 [FAC ~~58-59]). Thus, the Baker Court's determination of the rationality

I

of distinctions between incarcerated felons and felons who are not incarcerated is

not controlling for purposes of disposing of Plaintiffs' claims.
I

I

Moreover, application of rational basis scrutiny need not be wholly

deferential, particularly where the challenged distinction is based solely on the

I

status of the individual-here, whether he or she is convicted of a felony and

I

sentenced to incarceration and/or parole or sentenced to probation. Rather, in such

I

cases, courts may apply rational basis review in such a way as to inquire into "the

I

relation between the classification adopted and the object to be attained." Romer

v. Evans, 517 U.S. 620, 632 (1996). While Baker held that the distinction between

I

incarcerated and non-incarcerated persons with felony convictions was "not

I

irrational," both Baker and of Green, upon which Baker relies, were decided prior

I

to the Supreme Court's decision in Romer v. Evans, 517 U.S. 620 (1996), in which

I

the Court applied a more searching rational basis review. Such review is

warranted here.

I

Thus, even if this court determines that rational basis is the appropriate level

I

of review, the district court still must allow Plaintiffs the opportunity to develop

I

evidence regarding the interests served by the voting ban and whether the

I

I

29

I

I

distinction is, in fact, rational. By dismissing Plaintiffs' claims prematurely, the

I

district court denied Plaintiffs the opportunity to engage in this analysis.

I

V. PLAINTIFFS' VOTING RIGHTS ACT CLAIMS SHOULD BE

PRESERVED PENDING FINAL DISPOSITION IN MUNTAQIM

I

The district court dismissed Plaintiffs' Voting Rights Act claims based upon

I

this Court's intervening ruling in Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.

I

2004), which held that the Voting Rights Act does not apply to New York's felon

disfranchisement laws.7 Subsequently, the plaintiff-appellant in Muntagim filed a
I petition for a writ of certiorari in the United States Supreme Court. Muntagim v.

I

Coombe, 385 F.3d 793 (2d Cir. 2004), pet. for cert. filed, 73 U.S.L.W. 3113 (U.S.

I

July 21, 2004) (No. 04-175). Since Plaintiffs' filed their opening brief in this

I

appeal and while the petition in Muntagim was pending before the United States

I

Supreme Court, this Court, sua sponte, conducted a poll on whether to rehear

Muntagim en bane. Muntagim v. Coombe, 385 F.3d 793 (2d Cir. 2004) (denying

I

petition for rehearing en bane). The suggestion for rehearing did not garner a

I

sufficient number of votes and, therefore, failed. ld. But see id. at 795 (Jacobs, J.,

I

dissenting) ("[A] majority [of this court] now expresses-or signals-an interest in

I

7 Although Plaintiffs disagree with the holding in Muntagim concerning the

I

·application of the Voting Rights Act to felon disfranchisement laws, we recognize that it is the law of this circuit and, therefore, have appealed from the district

court's dismissal of their Voting Rights Act claims to preserve the issue and seek

I

the limited relief described below.

I

30

I

I

hearing this appeal in bane."). The petition for certiorari in Muntagim was

I

subsequently denied and the plaintiff-appellant then petitioned this Court for a

I

rehearing en bane. See Pet. for Reh'g En Bane, in Muntagim v. Coombe, 366 F.3d

102 (2d Cir. 2004) (No. 01-7260) filed Nov. 16,2004.
I The disposition of the pending petition in Muntagim will have a direct

I

bearing on Plaintiffs' Voting Rights Act claims. Accordingly, Plaintiffs request

I

that this Court vacate the judgment below, with instructions to the district court to

I

reconsider its dismissal in light of any action taken by this court in Muntagim.

I

CONCLUSION

I

For the foregoing reasons, the judgment of the district court should be

I

reversed in part, vacated in part, and the case remanded for further proceedings.

I

Dated:

New York, New York December 8, 2004

I

~S.Nelson

I

Theodore M. Shaw

Director-Counsel

I

Norman J. Chachkin Ryan P. Haygood

I

Debo P. Adegbile Alaina C. Beverly

NAACP Legal Defense

I

and Educational Fund, Inc. 99 Hudson Street, Suite 1600

I

New York, NY 10013-2897

I

31

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I

(Tel.) 212-965-2200

(Fax) 212-226-7592

I

jnelson @naacpldf.org

I

Juan Cartagena Risa E. Kaufman

Community Service Society

I

of New York 105 E. 22nd Street

I

New York, NY 10010 (Tel.) 212-614-5462

(Fax) 212-260-6218

I

jcartagena@ cssny .org

I

Joan P. Gibbs Esmeralda Simmons

Center for Law and Social Justice

I

at Medgar Evers College 1150 Carroll Street

I

Brooklyn, NY 11225 (Tel.) 718-270-6296

(Fax) 718-270-6190

I

joan gibbs@ hotmail.com

I

I

I

I

I

I

I

I

32

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RULE 32(a)(7)(B)(ii) CERTIFICATE OF COMPLIANCE

I

The undersigned hereby certifies that this brief complies with the type-

I

volume limitations of Rule 32(a)(7)(B)(ii) of the Federal Rules of Appellate

Procedure. Relying on the word count of the word processing system used to
I prepare this brief, I hereby represent that the brief of the NAACP Legal Defense

I

and Educational Fund, Inc., Community Service Society of New York, and the

I

Center for Law and Social Justice at Medgar Evers College for Plaintiffs-

I

Appellants contains 6,963 words, not including the table of contents, table of

authorities, and certificate of counsel, and is therefore within the word limit for
I 7,000 set forth under Fed. R. App. P. 32(a)(7)(B)(ii).

I

I

I

Janai S. Nelson, Esq.

I

Director of Political Participation

NAACP Legal Defense &

I

Educational Fund, Inc. 99 Hudson Street, Suite 1600

New York, NY 10013

I

jnelson @naacpldf.org

I

I

Dated: December 8, 2004

I I

I

I

CERTFICATE OF SERVICE

I

I certify under penalty of perjury pursuant to 28 U.S.C. § 1746 that on

I

December 8, 2004, I served upon the following, by United States Postal Service

priority mail, postage prepaid, a true and correct copy of the attached REPLY

I

BRIEF FOR PLAINTIFFS-APPELLANTS:

I

Eliot Spitzer

Patricia L. Murray

Attorney General of New York

First Deputy Counsel

I

Michelle Aronowitz Deputy Solicitor General

New York State Board of Elections 40 Steuben Street

I

Gregory Klass Assistant Solicitor General

Albany, New York 12207-0332 Counsel for Defendant Carol Berman

120 Broadway- 24th Floor

I

New York, New York 10271-0332 Counsel for Defendant Governor

I

George Pataki

I

I

by depositing it securely enclosed in a properly addressed wrapper into the custody

I

of the United States Postal Service for priority mail delivery, prior to the latest time

designated by that service.
I

.c:k-

I

d . ; · S . Nelson, Esq.

Director of Political Participation

I

NAACP Legal Defense &

Educational Fund, Inc.

I

99 Hudson Street, Suite 1600 New York, NY 10013

jnelson@ naacpldf.org
I

I

 
 449 F.3d 305 (2006)
Joseph HAYDEN, on behalf of himself and all individuals similarly situated; Lumumba Akinwole-Bandelle, Wilson Andino, Gina Arias, Wanda Best-Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Keran Holmes, III, Chaujuantheyia Lochard, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Lillian M. Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield and Barbara Scott, on behalf of themselves and all individuals similarly situated, Plaintiffs-Appellants,
v. George PATAKI, Governor of the State of New York; Carol Berman, Chairperson, New York
Board of Elections; Glenn S. Goord, Commissioner of New York State Department of Correctional Services, Defendants-Appellees.
Docket No. 04-3886-pr.
United States Court of Appeals, Second Circuit.
Argued: June 22, 2005. Decided: May 4, 2006. Order Clarifying Opinion June 1, 2006.
3067 *306 *307 Janai S. Nelson (Theodore M. Shaw, Norman J. Chachkin, Ryan P. Haygood, Alaina C. Beverly, NAACP Legal Defense & Educational Fund, Inc., Juan Cartagena, Risa Kaufman, Community Service Society of New York, Joan P. Gibbs, Esmeralda Simmons, Center for Law and Social Justice at Medgar Evers College, of counsel), NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Hayden Plaintiffs-Appellants.
Michelle M. Aronowitz, Deputy Solicitor General (Caitlin J. Halligan, Solicitor General, Julie Sheridan, Gregory Klass, Benjamin Gutman, Richard Dearing, Assistant Solicitors General, of counsel, Eliot Spitzer, Attorney General of the State of New York, on the brief), New York, NY, for Defendants-Appellees.
Jessie Allen (Deborah Goldberg, Brennan Center for Justice at New York University School of Law, Julius L. Chambers, Anita Earls, University of North Carolina School of Law Center for Civil Rights, of counsel), Brennan Center for Justice at New York University School of Law, New York, NY, for amici curiae Brennan Center for Justice and the University of North Carolina School of Law Center for Civil Rights in support of PlaintiffsAppellants.
David B. Salmons (Sheldon T. Bradshaw, Principal Deputy Assistant Attorney General, and Cynthia M. McKnight, David K. Flynn, and David White, Attorneys, of counsel, R. Alexander Acosta, Assistant Attorney General, on the brief), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for amicus curiae United States of America in support of Defendants-Appellees.
Peter T. Barbur, Cravath, Swaine & Moore, LLP, New York, NY, for amicus curiae Association of the Bar of the City of New York in support of Plaintiffs-Appellants.
Robert Bloom (Matthew Strugar, of counsel), Center for Constitutional Rights, New York, NY, for amici curiae Center for Constitutional Rights, National Alliance of Formerly Incarcerated Persons, Osborne Association, Coalition for Parole Restoration, Voice of the Ex-Offender, Eleventh Episcopal District Lay Organization, Ordinary People Society, Center for Law and Justice, and Malcolm X Center in support of Plaintiffs-Appellants.
308 *308 Michael L. Foreman (Jon M. Greenbaum, Marcia F. Johnson-Blanco, Jonah H. Goldman, Lawyers' Committee for Civil Rights Under Law, Elliot M. Mincberg, Alma C. Henderson, People for the American Way Foundation, Angela Ciccolo, Interim General Counsel, Victor L. Goode, Assistant General Counsel, National Association for the Advancement of Colored People, Grasford W. Smith, Jr., National Black Law Student Association Northeast Region, of counsel), Lawyers' Committee for Civil Rights Under Law, Washington, DC, for

amici curiae Lawyers' Committee for Civil Rights Under Law, People for the American Way Foundation, National Association for the Advancement of Colored People, and National Black Law Students Association Northeast Region, in support of Plaintiffs-Appellants.
Lawrence S. Lustberg, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., New York, NY, for amici curiae Zachary W. Carter, Veronica Coleman-Davis, Scott Lassar, Leonard Marks, Paul Schechtman, National Black Police Association, National Latino Officers Association of America, and 100 Blacks in Law Enforcement Who Care in support of Plaintiffs-Appellants.
Johanna Schmitt (Jonathan D. Hacker, Derek R.B. Douglas, Charles E. Borden, Scott M. Hammack, Danielle M. Estrada, of counsel), O'Melveny & Myers LLP, New York, NY, for amici curiae Center for Community Alternatives, National Association of Criminal Defense Lawyers, New York Association for Criminal Defense Lawyers, and the Sentencing Project in support of Plaintiffs-Appellants.
Steven R. Shapiro (Arthur N. Eisenberg, New York Civil Liberties Union Foundation, Laughlin McDonald, ACLU Voting Rights Project, of counsel), American Civil Liberties Union Foundation, New York, NY, for amici curiae American Civil Liberties Union and New York Civil Liberties Union in support of Plaintiffs-Appellants.
Derek S. Tarson, Debevoise & Plimpton LLP, New York, NY, for amici curiae certain criminologists in support of Plaintiffs-Appellants.
Brenda Wright (Lisa J. Danetz, of counsel), National Voting Rights Institute, Boston, MA, for amicus curiae National Voting Rights Institute and Prison Policy Initiative in support of Plaintiffs-Appellants.
George T. Conway III (Kenneth K. Lee, Wachtell, Lipton, Rosen & Katz, Kent S. Scheidegger, Criminal Justice Legal Foundation, Roger Clegg, Center for Equal Opportunity, of counsel), Wachtell, Lipton, Rosen & Katz, New York, NY, for amici curiae Diane Piagentini, Mary Piagentini, Deborah Piagentini, The Criminal Justice Legal Foundation, and the Center for Equal Opportunity in support of Defendants-Appellees.
Charles J. Cooper (Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, Litigation, R. Ted Cruz, Solicitor General, Matthew F. Stowe, Deputy Solicitor General, State of Texas, David H. Thompson, Cooper & Kirk, PLLC, of counsel), Cooper & Kirk, PLLC, Washington, DC, for amici curiae States of Texas, Alabama, Arkansas, Colorado, Delaware, Idaho, Michigan, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Utah, Virginia, and Washington in support of Defendants-Appellees.
Mitchell S. Garber (Gregory M. Longworth, of counsel), Worth, Longworth & London, LLP, New York, NY, for amicus curiae Patrolmen's Benevolent Association of the City of New York in support of Defendants-Appellees.
309 *309 Before: WALKER, Chief Judge, JACOBS, CALABRESI, CABRANES, STRAUB, POOLER, SACK, SOTOMAYOR, KATZMANN, PARKER, RAGGI, WESLEY, and HALL, Circuit Judges.[1]
Chief Judge JOHN M. WALKER, JR., concurs in the judgment and in the opinion of the Court and files a separate concurring opinion, joined by Judge JACOBS.
Judge JACOBS concurs in the judgment and in the opinion of the Court and files a separate concurring opinion.
Judge STRAUB concurs in the judgment of the Court and in parts I, II, and IV of the opinion of the Court, and files a separate concurring opinion, joined by Judge SACK.
Judge SACK concurs in the judgment of the Court and in parts I, II, and IV of the opinion of the Court, and files a separate concurring opinion, part I of which is joined by Judge STRAUB.
Judge RAGGI concurs in the judgment and in the opinion of the Court and files a separate concurring opinion, joined by Judge JACOBS.
Judge PARKER dissents, in an opinion in which Judges CALABRESI, POOLER, and SOTOMAYOR concur.
Judge CALABRESI dissents in a separate opinion.

Judge SOTOMAYOR dissents in a separate opinion.
Judge KATZMANN dissents in a separate opinion.
JOSÉ A. CABRANES, Circuit Judge.
We have granted en banc review in order to decide whether plaintiffs can state a claim for violation of Section 2 of the Voting Rights Act ("VRA" or the "Act"), 42 U.S.C. § 1973, based on allegations that a New York State statute that disenfranchises currently incarcerated felons and parolees, N.Y. Election Law § 5-106, results in unlawful vote denial and vote dilution. Muntaqim v. Coombe, 396 F.3d 95 (2d Cir.2004). We consider two cases that were consolidated for the purpose of oral argument: Muntaqim v. Coombe, which was dismissed by the United States District Court for the Northern District of New York (Norman A. Mordue, Judge) on a motion for summary judgment, a decision which was then affirmed by a three-judge panel of this Court, Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.2004); and Hayden v. Pataki, which raises substantially identical claims, was dismissed on the pleadings by the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge), Hayden v. Pataki, No. 00 Civ. 8586(LMM), 2004 WL 1335921 (S.D.N.Y. June 14, 2004), and was consolidated with the Muntaqim en banc without having been considered by a three-judge panel.[2] Simultaneously with the filing of this opinion, the en banc court has (1) entered an order deconsolidating the 310 Muntaqim and Hayden *310 cases, and (2) filed a separate opinion vacating the District Court's opinion in Muntaqim on the ground that the plaintiff in that case lacked standing to bring a claim.
We recognize that this case poses a complex and difficult question that, absent Congressional clarification, will only be definitively resolved by the Supreme Court. Indeed, this is the second time we have considered this question as an en banc court. See Baker v. Pataki, 85 F.3d 919 (2d Cir.1996) (affirming District Court judgment after evenly dividing on the merits); see also Muntaqim, 366 F.3d at 104 (recognizing that "this is a difficult question that can ultimately be resolved only by a determination of the United States Supreme Court"). Nevertheless, the question is now before us, and we hold that the Voting Rights Act does not encompass these felon disenfranchisement provisions, and, consequently, affirm the judgment of the District Court. Our holding is based on our conclusion that Congress did not intend or understand the Voting Rights Act to encompass such felon disenfranchisement statutes, that application of the Voting Rights Act to felon disenfranchisement statutes such as these would alter the constitutional balance between the States and the Federal Government, and that Congress at the very least did not clearly indicate that it intended the Voting Rights Act to alter the federal balance in this way.
I.
Before turning to the substantive questions raised by this case, we summarize the path this case has taken since Muntaqim's complaint was first filed in 1994. We assume familiarity with the panel decision in Muntaqim and will limit our discussion of that opinion to facts necessary to explain our resolution of the present case. We also set forth here the background of the Hayden case, which no three-judge panel of this Court has yet addressed.
Muntaqim is a black inmate at the Shawangunk Correctional Facility in Wallkill, New York, and is currently serving a maximum sentence of life imprisonment after being convicted of two counts of murder in the first degree for killing two New York City police officers on May 21, 1971. On September 26, 1994, he filed a pro se complaint against several officials of the New York State Department of Correctional Services (collectively, "defendants") alleging, inter alia, that New York Election Law § 5-106 violates the Voting Rights Act because it "results in a denial or abridgement of the right . . . to vote on account of race." 42 U.S.C. § 1973(a). On January 24, 2001, upon defendants' motion for summary judgment, the District Court entered judgment in favor of defendants. An appeal followed.
A unanimous panel of this Court issued a decision on April 23, 2004, affirming the District Court's dismissal of the claim. Muntaqim, 366 F.3d at 104. The panel concluded that

in light of recent Supreme Court decisions that have clarified the scope of Congress's

enforcement power under the Reconstruction Amendments, the application of the Voting Rights

Act to felon disenfranchisement statutes such as that of New York would infringe upon the states'

well-established discretion to deprive felons of the right to vote. Because the Supreme Court has

instructed us that statutes should not be construed to alter the constitutional balance between the

states and the federal government unless Congress makes its intent to do so unmistakably clear,

311

we will not construe the Voting Rights Act to extend *311 to New York's felon disenfranchisement

statute.

Id. (footnote omitted).

On October 1, 2004, our Court voted to deny en banc review. Muntaqim v. Coombe, 385 F.3d 793, 793-94 (2d Cir. 2004). Following the Supreme Court's denial of certiorari, 543 U.S. 978, 125 S.Ct. 480, 160 L.Ed.2d 356 (2004), we revisited the case and agreed to rehear the case en banc, pursuant to Fed. R.App. P. 35(a). Muntaqim v. Coombe, 396 F.3d 95, 95 (2d Cir.2004). The en banc proceeding was convened to determine "whether, on the pleadings, a claim that a New York State statute, Section 5-106 of the New York Election Law, that disenfranchises currently imprisoned felons and parolees results in unlawful vote dilution, can state a claim for violation of Section 2 of the Voting Rights Act." Id.

The Hayden plaintiffs filed their initial complaint on November 9, 2000. The complaint names twenty-one plaintiffs, of whom six are currently incarcerated and four are currently on parole. Plaintiffs' amended complaint, filed March 18, 2003, challenges "New York State's unconstitutional and discriminatory practice of denying suffrage to persons who are incarcerated or on parole for a felony conviction and the resulting discriminatory impact that such denial of suffrage has on Blacks and Latinos in the State." Plaintiffs styled their complaint as a class action, with the class to include three subclasses: "(a) Black and Latino prisoners who are of lawful voting age, citizens of the United States, currently incarcerated in New York State as a result of a felony conviction, and otherwise qualified to vote but for their incarceration resulting from a felony conviction; (b) Black and Latino parolees who are of lawful voting age, citizens of the United States, currently on parole in New York State as a result of a felony conviction, and otherwise qualified to vote but for their parole resulting from a felony conviction; and (c) Black and Latino persons who are of lawful voting age, citizens of the United States, qualified to vote and denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement under New York State Election Law § 5-106(2) of Black and Latino persons who are incarcerated or on parole for a felony conviction." Am. Compl. ¶ 29. Plaintiffs allege both vote denial and vote dilution claims under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Id. ¶¶ 87-93.

On June 14, 2004, the District Court issued a Memorandum and Order granting defendants' motion for judgment on the pleadings and dismissing all of plaintiffs' claims. Hayden v. Pataki, No. 00 Civ. 8586(LMM), 2004 WL 1335921, 2004 U.S. Dist. LEXIS 10863 (S.D.N.Y. June 14, 2004). As relevant for this appeal, the District Court summarily dismissed plaintiffs' Voting Rights Act claim in reliance on Muntaqim. The District Court's complete discussion of the issue was as follows:

Plaintiffs' claims under Section 2 of the Voting Rights Act of 1965, codified at 42 U.S.C. §, 1973, must be dismissed in light of the Second Circuit's recent holding in Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.2004). There the Second Circuit held that "§ 1973 cannot be used to challenge the legality of § 5-106." Id. at 104.

Id. at *5, 2004 U.S. Dist. LEXIS 10863 at *16.[3] Plaintiffs timely filed a notice of appeal.

312 *312 After questions arose regarding Muntaqim's standing, we directed the filing of supplemental letter briefs on the question, and on February 24, 2005, we consolidated Hayden with Muntaqim for consideration en banc. Oral argument on the consolidated cases took place before the en banc court on June 22, 2005. In a separate opinion, we are dismissing Muntaqim for lack of standing.

II.
A. Statutory Provisions
Section 5-106 of the New York Election Law provides that no person convicted of a felony "shall have the right to register for or vote at any election" unless he has been pardoned, his maximum sentence of imprisonment has expired, or he has been discharged from parole.[4] Accordingly, no resident of New York State who is presently incarcerated for a felony or is on parole may vote in local, state, or federal elections.[5]
Felon disenfranchisement has a long history in New York. The New York State Constitution of 1821 authorized the state legislature to enact laws disenfranchising those convicted of "infamous crimes." N.Y. Const. of 1821, art II, § 2. The state legislature passed such a law the next year. Act for Regulating Elections, ch. 250, § 25, 1822 N.Y. Laws 280. This law, as revised, has been in effect in the State ever since. It was modified in 1971 to provide that those convicted of felonies would automatically regain the right to vote once their maximum sentence had been served or they had been discharged from parole. Act of May 25, 1971, ch. 310, § 2, 1971 N.Y. Laws 952-53. In 1973, New York again amended the statute to ensure that felons were only disenfranchised if they were 313 sentenced to a term of *313 imprisonment and not if they were sentenced to fines, probation, or conditional discharge. Act of June 11, 1973, ch. 679, §§ 2-5, 1973 N.Y. Laws 2247-48.
Section 2 of the Voting Rights Act, codified at 42 U.S.C. § 1973(a) and originally enacted in 1965, currently provides:
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. . . .
42 U.S.C. § 1973(a).[6] Section 1973(b), originally enacted in 1982, states, in relevant part, that "[a] violation of subsection (a) . . . is established if, based on the totality of circumstances, it is shown that . . . members [of protected minority groups] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).
The current language of § 1973 was enacted by Congress as part of the Voting Rights Act Amendments of 1982, Pub.L. No. 97-205, § 3, 96 Stat. 131, 134, largely in response to the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). In Bolden, a plurality of the Court held that racially neutral state action violates § 1973 only if it is motivated by a discriminatory purpose. 446 U.S. at 62, 100 S.Ct. 1490. The amended version of § 1973 eliminates this "discriminatory purpose" requirement and, instead, prohibits any voting qualification or standard that "results" in the denial of the right to vote "on account of" race.
B. Interpreting the Voting Rights Act
We do not write on a clean slate in addressing the question whether the Voting Rights Act encompasses felon disenfranchisement statutes. We ourselves considered this issue as an en banc court in 1996 but did not definitively resolve the issue at that time because we were evenly divided on the matter. Baker v. Pataki, 85 F.3d 919 (2d Cir.1996) (en banc). The Eleventh Circuit recently considered this question as an en banc court and, in an opinion by Judge Phyllis Kravitch, relying on the canon of statutory construction that counsels avoidance of potential constitutional infirmities, held that the provisions of the Voting Rights Act do not encompass felon disenfranchisement laws. Johnson v. Gov. of State of Florida, 405 F.3d 1214 (11th Cir.2005) (en banc). By contrast, a panel of the Ninth Circuit has determined that the Voting Rights Act does apply to felon disenfranchisement provisions. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003). Over a dissent written by Judge Alex Kozinski and joined by six other judges, the Ninth Circuit denied the defendant's petition for rehearing 314 en banc. See Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir.2004).[7] In light of the *314 lengthy discussions of these cases (except the Johnson en banc) in the panel opinion, see Muntaqim, 366 F.3d at 107-15, we need not elaborate on them here, except as relevant for our analysis.

C. Vote Denial
We thus confront the question whether the VRA applies to a claim that a prisoner disenfranchisement statute such as § 5-106, acting in combination with historic racial discrimination allegedly afflicting the New York criminal justice system as well as society at large, results in the denial to Black and Latino prisoners of the right to vote "on account of race or color."[8] New York's statute, it is important to emphasize, disenfranchises only currently incarcerated prisoners and parolees. N.Y. Election Law § 5-106. In this respect, the statute may not raise the same issues that are implicated by provisions disenfranchising for life those convicted of felonies, such as the provision of the Florida Constitution addressed in the Eleventh Circuit's recent decision in Johnson or by the provision of the Washington Constitution addressed in Farrakhan.
The question whether a prisoner disenfranchisement statute such as New York's can be challenged under § 1973 depends primarily on our interpretation of the Voting Rights Act itself, as we must first determine whether the Act applies to such statutes at all. If the VRA does not encompass such statutes, that would end our inquiry; if, conversely, we conclude that it may apply to felon disenfranchisement laws, we would then need to evaluate such an interpretation of the VRA in light of its implications for our constitutional jurisprudence and the structure of our federal system.[9]
We thus consider the scope of § 1973. As we have noted, "[i]n interpreting a statute, we must first look to the language of the statute itself," and that "[i]f the statutory terms are unambiguous, our review generally ends and 315 the statute is construed *315 according to the plain meaning of its words." Greenery Rehab. Group v. Hammon, 150 F.3d 226, 231 (2d Cir.1998). The Supreme Court has made clear that "[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil, 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). There is no question that the language of § 1973 is extremely broad 0907 any "voting qualification or prerequisite to voting or standard, practice, or procedure" that adversely affects the right to vote 0907 and could be read to include felon disenfranchisement provisions if the phrase is read without the benefit of context and background assumptions supplied by other statutory and Constitutional wording, by history, and by the manifestations of intent by Congress at the time of the VRA's enactment and thereafter.
We are not convinced that the use of broad language in the statute necessarily means that the statute is unambiguous with regard to its application to felon disenfranchisement laws. In any event, our interpretation of a statute is not in all circumstances limited to any apparent "plain meaning." As Justice Holmes has observed, "[i]t is said that when the meaning of language is plain we are not to resort to evidence in order to raise doubts. That is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170 (1928). 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. See Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) ("The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect."). These reasons include (1) the explicit approval given such laws in the Fourteenth Amendment;[10] (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; (6) the enactment of a felon disenfranchisement statute for the District of Columbia by Congress soon after the passage of the 316 Voting Rights Act; and (7) the subsequent passage of statutes designed to facilitate the removal of convicted *316 felons from the voting rolls. We therefore conclude that § 1973 was not intended to 0907 and thus does not 0907 encompass felon disenfranchisement provisions.
D. Felon Disenfranchisement

The starting point for our analysis is the explicit approval given felon disenfranchisement provisions in the Constitution. Section 2 of the Fourteenth Amendment provides that "when the right to vote at any [federal] election . . . is denied to any of the male inhabitants of [a] State . . . or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced. . . ." U.S. Const. amend. XIV, § 2 (emphasis added). The Supreme Court has ruled that, as a result of this language, felon disenfranchisement provisions are presumptively constitutional. Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (rejecting a nonracial Equal Protection challenge to the felon disenfranchisement provision of California's constitution).[11]
Indeed, the practice of disenfranchising those convicted of crimes is of ancient origin. Professor Mirjan R. Damaska of the Yale Law School, among others, has recounted that in ancient Athens, the penalty for certain crimes was placement in a state of "infamy," which entailed the loss of those rights that enabled a citizen to participate in public affairs, such as the rights to vote, to attend assemblies, to make speeches, and to hold public office. Mirjan R. Damaska, Adverse Legal Consequences of Conviction and their Removal: A Comparative Study, 59 J.Crim. L., Criminology & Police Sci. 347, 351 (1968). The Roman Republic also employed infamy as a penalty for those convicted of crimes involving moral turpitude. Id.
The infamy practice in the ancient world over the years evolved into "civil death" laws in Medieval continental countries and into the "attainder" laws of Medieval England, which caused all family and political rights to be forfeited as additional punishment for crimes carrying sentences of death or life imprisonment. Id. The loss of any generally available voting rights was not a prominent focus of these attainder laws, for, as Judge Friendly wryly noted, "with nearly all felonies punishable by death in 18th century England, the voting rights of convicted felons had not been a very live issue there." Green v. Bd. of Elections, 380 F.2d 445, 450 (2d Cir.1967) (citation omitted). In Nineteenth Century Continental Europe, it was not uncommon for penal statutes to prescribe "the deprivation of the right to vote, to elect and to be elected. . . ." Damaska, 59 J.Crim. L., Criminology & Police Sci., at 352-53 (citing statutes from Belgium, Italy, Luxembourg, Monaco, Spain, Egypt, and Chile).
Similar laws disenfranchising felons were adopted in the American Colonies and the Early American Republic as 317 well. In his opinion in Green v. Board of Elections, a 1967 nonracial challenge to New *317 York's felon
disenfranchisement provision (as it was at the time), Judge Friendly noted that "eleven state constitutions adopted between 1776 and 1821 prohibited or authorized the legislature to prohibit exercise of the franchise by convicted felons," Green, 380 F.2d at 450 (footnote omitted), and that "twenty-nine states had such provisions when the Fourteenth Amendment was adopted" in 1868. Id.[12] Today, likewise, every state except Maine and Vermont disenfranchises felons. See Developments in the Law: One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L.Rev.1939, 1942 (2002). As the Eleventh Circuit noted, quoting the panel opinion in Muntaqim, "`considering the prevalence of felon disenfranchisement [provisions] in every region of the country since the Founding, it seems unfathomable that Congress would silently amend the Voting Rights Act in a way that would affect them.'" Johnson, 405 F.3d at 1234 (quoting Muntaqim, 366 F.3d at 123-24). We now proceed to determine whether Congress in fact intended to do so.[13]
E. Congressional Intent in the Voting Rights Act
318 The Voting Rights Act, enacted in 1965, "was designed by Congress to banish *318 the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). "The Act creates stringent new remedies for voting discrimination where it persists on a pervasive scale, and in addition the statute strengthens existing remedies for pockets of voting discrimination elsewhere in the country." Id. By its terms, the 1965 Act, prior to its subsequent amendment in 1982, prohibited States (or their political subdivisions) from imposing or applying any "voting qualification or prerequisite to voting, or standard, practice, or procedure . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color." Id. at 338, 86 S.Ct. 803. It is indisputable that the Congress intended "to give the Act the broadest possible scope." Allen v. State Bd. of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).

We do not believe that this general intent answers the specific question regarding whether the Act covers felon disenfranchisement laws, as it is equally indisputable that Congress did not explicitly consider felon disenfranchisement laws to be covered by the Act and indeed affirmatively stated that such laws were not implicated by provisions of the statute. In discussing Section 4(c) of the Voting Rights Act, 42 U.S.C. § 1973b(c) 0907 which banned any "test or device" that limited the ability to vote to those individuals with "good moral character" 0907 the Senate Judiciary Committee Report stated that the provision "would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony or mental disability." S.Rep. No. 89-162, at 24 (1965), reprinted in 1965 U.S.C.C.A.N. 2508, 2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, Tydings, Dirksen, Hruska, Fong, Scott, and Javits); see also H.R.Rep. No. 89-439, at 25-26 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2457 ("This subsection does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.").[14] Senator Joseph D. Tydings of Maryland "emphasize[d]" on the Senate floor that Section 4(c) was not intended to prohibit "a requirement that an applicant for voting or registration for voting be free of conviction of a felony or mental disability. Those grounds for disqualification are objective, easily applied, and do not lend themselves to fraudulent manipulation." 111 Cong. Rec. S8366 (daily ed. April 23, 1965) (statement of Sen. Tydings).[15]
319 *319 Though these statements were made in the context of a particular VRA provision not at issue here 0907 the provision banning any "test or device" 0907 it is apparent to us that Congress's effort to highlight the exclusion of felon disenfranchisement laws from a VRA provision that otherwise would likely be read to invalidate such laws is indicative of its broader intention to exclude such laws from the reach of the statute. Indeed, the emphatic language chosen to provide assurance that felon disenfranchisement laws remain unaffected by the statute suggests that these statements be read to indicate that "not even this section applies to felon disenfranchisement laws," rather than "this section does not apply to felon disenfranchisement laws, but other sections might," as plaintiffs argue.
Further indications that Congress in 1965 did not intend or understand the Voting Rights Act (or its subsequent amendments) to apply to felon disenfranchisement provisions come from the unsuccessful attempts in the early 1970s to amend the statute to apply to such provisions. Following hearings by the House Judiciary Committee in 1972 to address "The Problems of the Ex-Offender," see Hearings on Corrections, Part VI, Illinois: The Problems of the Ex-Offender, Before Subcomm. No. 3 of the House Comm. on the Judiciary, 92d Cong. (1972), several notable proponents of the VRA, Representatives Robert W. Kastenmeier of Wisconsin, John Conyers, Jr. of Michigan, William Fitts Ryan of New York, Abner J. Mikva of Illinois, and Hamilton Fish, Jr. of New York, jointly introduced a bill designed "[t]o amend the Voting Rights Act of 1970 to prohibit the States from denying the right to vote in Federal elections to former criminal offenders who have not been convicted of any offense related to voting or elections and who are not confined in a correctional institution." H.R. 15049, 92d Cong. (1972). The bill was thus expressly intended to amend the Voting Rights Act to encompass the very laws that plaintiffs in the instant case insist were already covered by the 1965 Act. Apparently, no further action was taken on this bill.
In the next Congress, in 1973, Representative Kastenmeier, a supporter of the Voting Rights Act of 1965 and a "principal architect" of the re-authorization of the Voting Rights Act in 1968 as well as the enactment of the Civil Rights Act of 1964, see 102 Cong. Rec. S18797 (daily ed. Nov. 27, 1991) (statement of Sen. Kohl), introduced a new bill with the identical text. H.R. 9020, 93d Cong. (1973). A hearing on the proposed bill was held before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice (of which Representative Kastenmeier was Chairman) on January 30, 1974 and, as the published transcript indicates, was entirely predicated on the understanding that the Voting Rights Act did not cover felon disenfranchisement laws. Accordingly, the hearing focused on whether such an amendment to the VRA would be constitutional and whether it was sound policy. See Ex-Offenders Voting Rights: Hearing on H.R. 9020 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 93d Cong. 1-38 320 (1974).[16]*320 None of the Representatives who spoke at the hearing so much as intimated that the proposed bill was made unnecessary by the fact that the statute already encompassed felon disenfranchisement laws.
The proposed bills of 1972 and 1973 thus reveal that the law was not understood by those most familiar with it to encompass felon disenfranchisement provisions. Furthermore, because these proposed bills only sought to add

Voting Rights Act coverage to those who were no longer "confined in a correctional institution," it is yet more implausible that the Voting Rights Act was understood to apply to prisoner disenfranchisement statutes. We are mindful, "`[o]f course, [that] the view of a later Congress does not establish definitively the meaning of an earlier enactment, but it does have persuasive value.'" Gozlon-Peretz v. United States, 498 U.S. 395, 406, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991) (quoting Bell v. New Jersey, 461 U.S. 773, 784, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983)). Here, the persuasive value of the subsequent legislative efforts is further enhanced by the temporal proximity of the later Congresses that understood the Voting Rights Act not to apply to felon disenfranchisement provisions and by the related fact that a number of the Representatives involved in the hearings were the very same legislators who had participated in the enactment of the original VRA just a few years earlier.
In this regard, it is also telling that during this same period, Congress affirmatively enacted a felon disenfranchisement statute in the District of Columbia, over which it had plenary power before the conferral of "home rule" in 1974. See Pub.L. No. 92-220, § 4, 85 Stat. 788, 788 (1971).[17] It is highly implausible that shortly after passing a statute (the VRA) purportedly intended to limit such laws, Congress would have enacted for its local jurisdiction a new statute doing exactly what it had supposedly forbidden on a national level.
The 1982 amendment of the Voting Rights Act also gives no indication that the law is to apply to felon disenfranchisement provisions. As noted, this amendment was enacted for the specific purpose of overruling the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). See 321 S.Rep. No. 97-417, at 15-16 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 192-94; see also *321 William N. Eskridge, Jr. et al., Cases and Materials on Legislation 149 (3d ed. 2001) ("The Bolden result in the Supreme Court triggered a firestorm of protest from civil rights advocates and Members of Congress. Hearings in 1981 were replete with testimony that the Court's decision was a departure from earlier Fifteenth Amendment precedents, as Justice Marshall had argued in dissent. A bipartisan coalition voted to amend the Voting Rights Act in 1982 to overrule, in effect, the Bolden decision."). Bolden had concluded that "racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation," Bolden, 446 U.S. at 62, 100 S.Ct. 1490, and held that "the language of § 2 [of the VRA] no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself." Id. at 60-61, 100 S.Ct. 1490. Congress's amendment of the VRA was thus intended to make clear that § 2 covered both vote denial and vote dilution and to reinstate the "results test," which had been the rule developed in the pre-Bolden case law. See, e.g., White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); S.Rep. No. 97-417, at 27 (1982), reprinted in 1982 U.S.C.C.A.N. at 205 ("The `results' standard is meant to restore the pre-Mobile legal standard which governed cases challenging election systems or practices as an illegal dilution of the minority vote. Specifically, subsection (b) embodies the test laid down by the Supreme Court in White.").
In light of this history, it is apparent that Congress's intention in amending § 1973 was to target those electoral laws, practices, and procedures that resulted in diluting the strength of the votes of members of racial and ethnic minorities but did not on their face deny any individuals the vote. See S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-202 (citing Supreme Court cases that addressed apportionment and reapportionment plans). The addition of § 1973(b) further demonstrates that Congress's particular focus was these vote-diluting practices. Section 1973(b) provides that a violation of the VRA can be established if "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation" by members of a protected class of citizens such that "its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b). There is no question that incarcerated persons cannot "fully participate in the political process" 0907 they cannot petition, protest, campaign, travel, freely associate, or raise funds. It follows that Congress did not have this subpopulation in mind when the VRA section at issue took its present form in 1982.[18]
322 *322 We acknowledge that subsection (b) differs from subsection (a). See Chisom v. Roemer, 501 U.S. 380, 395, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) ("The two purposes of the amendment [to Section 2] are apparent from its text. Section (a) adopts a results test, thus providing that proof of discriminatory intent is no longer necessary to establish any violation of the section. Section (b) provides guidance about how the results test is to be applied."). Nevertheless, the fact that the provision specifying how a claim is to be proved could not possibly

apply to prisoners gives rise to greater doubt that Congress intended prisoners to be able to raise such a claim in the first place. We thus conclude that the amendment of subsection (a) to prohibit any "voting qualification or prerequisite to voting or standard, practice, or procedure that results in vote denial or vote dilution on account of race or color" was not contemplated or meant to include longstanding state felon disenfranchisement statutes, the existence and general validity of which were recognized both by the Fourteenth Amendment and in the legislative history of another section of the Voting Rights Act itself.[19]
Subsequent Congressional actions provide additional evidence that Congress has not understood the Voting Rights Act to cover felon disenfranchisement laws. For example, the National Voter Registration Act, enacted in 1993, explicitly provides for "criminal conviction" as a basis upon which voters' names may be removed from lists of eligible voters. See Pub.L. No. 103-31, 107 Stat. 77 (codified at 42 U.S.C. § 1973gg-6(a)(3)(B)). The Help America Vote Act of 2002 directs States to remove disenfranchised felons from their lists of those eligible to vote in federal elections. See Pub.L. No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C. § 15483(a)(2)(A)(ii)(I)). Finally, a number of bills have been proposed in the past several years that would limit States' ability to disenfranchise felons. See Civic Participation and Rehabilitation Act, H.R. 259, 108th Cong. 2(a)-(c) (2003); ExOffenders Voting Rights Act of 2003, H.R. 1433, 108th Cong. (2003); Ex-Offenders Voting Rights Act of 2005, H.R. 663, 109th Cong. (2005); Count Every Vote Act of 2005, S. 450, 109th Cong. (2005). These bills further indicate that Congress itself continues to assume that the Voting Rights Act does not apply to felon disenfranchisement provisions.
In light of this wealth of persuasive evidence that Congress has never intended to extend the coverage of the 323 Voting Rights Act to felon disenfranchisement provisions, we deem this one of the "`rare cases [in *323 which] the
literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'" United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (alteration in original)); cf. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (Scalia, J., concurring in the judgment) ("I think it entirely appropriate to consult all public materials, including . . . the legislative history . . ., to verify that what seems to us an unthinkable disposition . . . was indeed unthought of, and thus to justify a departure from the ordinary meaning of the [statute's text]."). In such cases, the Court has made clear, "the intention of the drafters, rather than the strict language, controls." Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026. As Judge Kozinski noted in his dissent from denial of rehearing en banc in the Ninth Circuit case, "[i]t's thus crystal clear that felon disenfranchisement wasn't one of the practices about which Congress was concerned. We are bound to respect that legislative judgment 0907 not override it." Farrakhan, 359 F.3d at 1121. We accordingly construe the statute to not encompass felon disenfranchisement laws.[20]
III.
A. Clear Statement Rule
Our decision not to apply § 1973 to felon disenfranchisement provisions is confirmed and supported by the operation of the clear statement rule (also known as the "plain statement rule"), a canon of interpretation which requires Congress to make its intent "`unmistakably clear'" when enacting statutes that would alter the usual constitutional balance between the Federal Government and the States. Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)) (internal quotation marks omitted). Accordingly, to the extent that the Voting Rights Act would affect this balance if applied to felon disenfranchisement statutes, we must construe the statute not to encompass such provisions if it is even unclear whether Congress intended the Voting Rights Act to apply to such laws.
The clear statement rule provides that, "[i]f Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.'" Gregory, 501 U.S. at 460-61, 111 S.Ct. 2395 (quoting Atascadero, 473 U.S. at 242, 105 S.Ct. 3142) (internal quotation marks omitted). According to the Supreme Court, "[i]n traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in

324 fact faced, and intended to bring into issue, the critical matters involved in the judicial *324 decision." Id. at 461, 111 S.Ct. 2395 (citations and internal quotation marks omitted) (emphasis added). Thus, we have stated that federal courts will construe a statute to alter the federal balance only when Congress expresses an "affirmative intention" to do so. DeMarco v. Holy Cross High Sch., 4 F.3d 166, 169 (2d Cir. 1993).
For the clear statement rule to apply here in defendants' favor, we would therefore need to conclude (1) that applying § 1973 to prisoner disenfranchisement laws would alter the constitutional balance between the States and the Federal Government and (2) that Congress has not made its intention to alter that balance unmistakably clear.
B. Threshold Question: Does the Clear Statement Rule Apply?
The threshold question to be confronted is whether the clear statement rule applies here at all. Plaintiffs forcefully argue that the clear statement rule only guides our statutory construction when the statutory language is ambiguous, relying on Gregory and post-Gregory decisions by the Supreme Court, and insist that the broad language of the Voting Rights Act is not ambiguous. We are not persuaded by plaintiffs' arguments.
The Gregory Court stated, in describing the operation of the clear statement rule, that "we must be absolutely certain that Congress intended such an exercise [of legislative power]," Gregory, 501 U.S. at 464, 111 S.Ct. 2395, and that "it must be plain to anyone reading the Act that it covers" the issue in question. Id. at 467, 111 S.Ct. 2395. Subsequent to Gregory, the Supreme Court, in BFP v. Resolution Trust Corp., formulated the analysis as follows: "[t]o displace traditional state regulation . . ., the federal statutory purpose must be `clear and manifest.'" 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)).
A few years later, the Supreme Court concluded that the clear statement rule did not apply in two cases. In 1997, in Salinas v. United States, the Court described Gregory as noting that "the principle it articulated did not apply when a statute was unambiguous." 522 U.S. 52, 60, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). The Court stated that "[t]he plain-statement requirement articulated in Gregory . . . does not warrant a departure from the statute's terms. The text of [the statute] is unambiguous on the point under consideration here. . . ." Id. The next term, the Court decided Pennsylvania Department of Corrections v. Yeskey, in which it assumed arguendo that the clear statement rule applied and held that "the requirement of the rule is amply met" because the statute was unambiguous. 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).[21]
325 *325 These statements indicate that the clear statement rule does not require courts engaged in statutory interpretation to search for a construction of the statute that will not affect the federal balance, but rather, reveal the canon to be a default rule: when a particular construction of a statute would alter the federal balance, to the extent there is any doubt about whether Congress intended that construction, courts should assume that Congress did not mean to alter the federal balance. When the terms of a statute admit of no uncertainty, the statute, of course, serves as its own clear statement. In other words, a clear statement is only necessary when the statute does not itself constitute a clear statement on the relevant issue. Therefore, we will apply the clear statement rule when a statute admits of an interpretation that would alter the federal balance but there is reason to believe, either from the text of the statute, the context of its enactment, or its legislative history, that Congress may not have intended such an alteration of the federal balance.
The Court recently addressed the clear statement rule in a different context, but in terms that shed light on its operation here. Spector v. Norwegian Cruise Line, Ltd., 545 U.S. 119, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005). Discussing the "internal affairs" clear statement rule, which concerns "the presumption against applying general statutes to foreign vessels' internal affairs," id. at 2178, the plurality opinion noted that "[i]mplied limitation rules avoid applications of otherwise unambiguous statutes that would intrude on sensitive domains in a way that Congress is unlikely to have intended had it considered the matter," id. at 2182 (plurality opinion of Kennedy, J.) [22] (emphasis added), and that "[t]hese clear statement rules ensure Congress does not, by broad or general language, legislate on a sensitive topic inadvertently or without due deliberation." Id. (emphasis added).
Though the Spector opinion nowhere cites the Gregory case, we note the striking similarity of the language used to describe the clear statement rule in these two areas, with both identifying the "sensitivity" of the area as the

triggering condition for the clear statement rule. See Gregory, 501 U.S. at 461, 111 S.Ct. 2395 ("In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.") (citations and internal quotation marks omitted) (emphasis added). We thus read Spector as providing persuasive authority on the operation of the clear statement rule in the present context as well and as demonstrating that "broad or general language" 0907 as the language of § 1973 might be described 0907 does not necessarily constitute an unambiguous statement.
For the reasons discussed above, we believe Congress's intent regarding the coverage of felon disenfranchisement provisions by the Voting Rights Act is, at the very least, uncertain, despite the "broad and 326 general language" used in that statute. Given the "sensitive topic" at issue, we *326 would expect Congress to have specified that felon disenfranchisement provisions are covered by the Voting Rights Act if that were its intent. Inasmuch as Congress did not do so 0907 and the evidence of Congressional intent suggests that Congress did not in fact intend to cover such provisions 0907 we believe that the statute is sufficiently ambiguous for the clear statement rule to be applied here.
C. Application of the Clear Statement Rule
In applying the clear statement rule, we must first decide whether bringing felon disenfranchisement laws within the scope of the Voting Rights Act 0907 as plaintiffs ask us to do 0907 would "alter the usual constitutional balance between the States and the Federal Government." Gregory, 501 U.S. at 460, 111 S.Ct. 2395 (internal quotation marks omitted). As a preliminary matter, plaintiffs argue that the application of the Voting Rights Act to felon disenfranchisement provisions could not affect the "federal balance" because that balance was already changed by the passage of the Fourteenth and Fifteenth Amendments, and the sole task of the Voting Rights Act is to effectuate those constitutional provisions. Consequently, plaintiffs assert that bringing their claim within the scope of the VRA would not alter the federal balance.
We do not find this argument persuasive, for, while it undoubtedly rings true for the Voting Rights Act in general, Section 2 of the Fourteenth Amendment explicitly leaves the federal balance intact with regard to felon disenfranchisement laws specifically. See U.S. Const. amend. XIV, § 2 ("[W]hen the right to vote at any [federal] election . . . is denied to any of the male inhabitants of [a] state . . . or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced. . . .") (emphasis added). Therefore, extending the coverage of the Voting Rights Act to these provisions would introduce a change in the federal balance not contemplated by the framers of the Fourteenth Amendment.
We have little difficulty concluding that application of the Voting Rights Act to prisoner disenfranchisement provisions like that of New York would effect a change in the federal balance. These laws, applying as they do only to currently incarcerated felons and parolees, implicate no less than three important state interests: (1) the regulation of the franchise; (2) the State's authority to craft its criminal law; and (3) the regulation of correctional institutions. We address each of these interests in turn.
There is no question that regulation of the franchise is an important state interest and that interfering with a State's power to govern this area would disrupt the federal balance. "No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices." Oregon v. Mitchell, 400 U.S. 112, 125, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (opinion of Black, J.). In deciding that the Voting Rights Act did not apply to felon disenfranchisement provisions like that of Florida, the Eleventh Circuit drew an analogy to Gregory v. Ashcroft, which had addressed whether state judges could be subject to the provisions of the Americans with Disabilities Act and had concluded that "the authority of the people of the States to determine the qualifications of their most 327 important government officials . . . lies at the heart of representative government." *327 501 U.S. at 463, 111 S.Ct. 2395. Judge Kravitch, writing for the Eleventh Circuit en banc, noted that "[i]f defining the qualifications of important government officials lies at the heart of representative government, then surely defining who decides what those qualifications will be is equally important." Johnson, 405 F.3d at 1232 n. 35. Indeed, as Judge Mahoney stated the last time we considered this question, "[t]he states have the primary responsibility for regulating the times, places, and manner of conducting federal elections, and even more obviously for regulating

elections to state office." Baker, 85 F.3d at 931 (opinion of Mahoney, J.) (citation omitted). We agree with each of these formulations.
Second, the State of New York has made clear that its statute, § 5-106, constitutes an integral part of its criminal and penal systems. The New York statute, which formerly disenfranchised felons for life, was amended in 1971 to reach only currently incarcerated felons and parolees. See N.Y. Election Law § 5-106. The Bill Memorandum accompanying the amendment focused on the penal goals of the measure and justified the amendment by specifying that a primary concern of the penal system was "the rehabilitation of the offender" and that "[i]t is inconsistent with the general philosophy of corrections to continue punishment after a person has accounted." Bill Memorandum (Feb. 5, 1971), reprinted in Bill Jacket for ch. 310 (1971), at 3. The Model Penal Code likewise considers prisoner disenfranchisement provisions an integral part of the criminal law. See Model Penal Code § 306.3 (proposed official draft 1962). It is undisputed that "[u]nder our federal system, the States possess primary authority for defining and enforcing the criminal law." United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (internal quotation marks omitted). The Supreme Court has acknowledged and restated on numerous occasions "the States' sovereign power to punish offenders." Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also, e.g., Calderon v. Thompson, 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (same); McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (same). Accordingly, applying the Voting Rights Act to prisoner disenfranchisement provisions would intrude on New York's "sovereign power to punish offenders" and would thus alter the federal balance.
Third, as a related yet distinct matter, the State has a powerful interest in the administration of its prisons. Indeed, "[o]ne of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task." Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)). The Supreme Court has gone so far as to say that "`[i]t is difficult to imagine an activity in which a State has a stronger interest.'" Yeskey, 524 U.S. at 209, 118 S.Ct. 1952 (quoting Preiser v. Rodriguez, 411 U.S. 475, 491, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Inasmuch as New York's prisoner disenfranchisement provision is limited to those confined in penal institutions and on parole, applying the Voting Rights Act to the provision would surely affect the State's powers in this area as well.
In light of these three separate compelling state interests, we have little difficulty concluding that construing the 328 VRA to encompass prisoner disenfranchisement provisions like that of New York would unquestionably *328 alter
the federal balance.[23] Accordingly, we proceed to the second prong of the clear statement test, which requires us to determine whether Congress has clearly signaled its intent to alter the federal balance by subjecting state prisoner disenfranchisement laws to the provisions of the Voting Rights Act.
D. Has Congress Made A Clear Statement?
As discussed at greater length above, our review of the legislative history of both the 1965 enactment and 1982 revision of the Voting Rights Act as well as our examination of other proposed legislation on this issue demonstrate Congress's lack of intent to include felon disenfranchisement provisions in the coverage of the Voting Rights Act, and compel us to conclude that Congress unquestionably did not manifest an "unmistakably clear" intent to include felon disenfranchisement laws under the VRA. As a result, we hold that the requirements of the clear statement rule are not met, and we will accordingly not construe the Voting Rights Act to reach these laws.
* * *
We therefore hold that the Voting Rights Act must be construed to not encompass prisoner disenfranchisement provisions like that of New York because (a) Congress did not intend the Voting Rights Act to cover such provisions; and (b) Congress made no clear statement of an intent to modify the federal balance by applying the Voting Rights Act to these provisions. Accordingly, we conclude that plaintiffs' vote denial claim, which seeks to challenge New York's prisoner disenfranchisement statute under the Voting Rights Act, must be dismissed and the judgment of the District Court must be affirmed.[24]

IV.
Vote Dilution Claim
As noted above, plaintiffs have also raised a vote dilution claim based on "the disproportionate disfranchisement under New York State Election Law § 5-106(2) of Black and Latino persons who are incarcerated or on parole for a felony conviction." In light of our conclusion that the Voting Rights Act does not encompass felon disenfranchisement provisions and that plaintiffs thus cannot state a vote denial claim under the statute, it is clear that plaintiffs also cannot state a claim for vote dilution based on the assertion that the denial of the vote to incarcerated felons and parolees dilutes the voting strength of minority communities. Accordingly, this claim is likewise dismissed, and the judgment of the District Court is affirmed.
It is unclear whether plaintiffs' vote dilution claim also encompasses a claim on behalf of plaintiffs who are neither incarcerated nor on parole, that their votes are "diluted" because of New York's apportionment process, see N.Y. 329 Const. art. III, § 4, which counts incarcerated prisoners *329 as residents of the communities in which they are incarcerated, and has the alleged effect of increasing upstate New York regions' populations at the expense of New York City's.[25] Plaintiffs' complaint does not raise this claim explicitly, though it is briefly alluded to in their submissions before this Court. See Plaintiffs' Compl. ¶ 93 ("§ 5-106(2) of New York Election Law serves to dilute the voting strength of Blacks and Latinos and certain minority communities in New York State . . . in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973."); Pet'rs' Br., at 37-38 ("New York State's policy and practice of using Census Bureau data for Congressional, state legislative, and certain municipal redistricting whereby prisoners' residence is assigned to their prison rather than to the prisoners' home address distorts the principle of `one person, one vote' and dilutes the voting strength of prisoners' home communities. . . ."). Inasmuch as this question was neither considered by the District Court nor briefed by defendants, we intimate no view on the question and remand to the District Court to consider whether plaintiffs have indeed properly raised the claim, and, if so, to rule on the merits of the claim.
Conclusion
For the reasons stated above, we conclude that the Voting Rights Act must be construed to not encompass prisoner disenfranchisement provisions such as that of New York because (a) Congress did not intend the Voting Rights Act to cover such provisions; and (b) Congress made no clear statement of an intent to modify the federal balance by applying the Voting Rights Act to these provisions. Accordingly, we dismiss plaintiffs' Voting Rights Act claims challenging New York Election Law § 5-106.
The judgment of the District Court is AFFIRMED and the cause is remanded to the District Court for further proceedings consistent with this opinion.
JOHN M. WALKER, JR., Chief Judge, concurring, with whom Judge Jacobs joins.
As the majority fully explains, Congress never intended the Voting Rights Act ("VRA") to reach felondisenfranchisement statutes. And even if, as the dissent argues, the plain language of the statute by its terms covers New York Election Law Section 5-106 ("Section 5-106"), this case presents the "rare and exceptional circumstance" where the plain meaning of a statute does not dictate the congressional intent nor the proper outcome. Ardestani v. INS, 502 U.S. 129, 135-36, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981)); see also United States v. Ron Pair Enters., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (noting that, when the legislative intent and the plain meaning of a statute contradict, "the intention of the drafter, rather than the strict language, controls"); Griffin v. Oceanic Contractors Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) ("[I]n rare cases 330 the literal application of a statute will produce a result demonstrably at odds with the intentions *330 of its drafters, and those intentions must be controlling.").

Finally, even if Section 2 of the VRA applies to Section 5-106 and no contrary congressional intent were evident, then I believe that, as applied, the VRA would be unconstitutional because Congress would have exceeded its enforcement power under the Reconstruction Amendments. As the majority demonstrates, the case can be resolved without reaching this issue, but I believe it provides yet another sound basis for rejecting the dissent's position.
In a recent series of cases, the Supreme Court has delineated the scope of Congress's enforcement power under the Reconstruction Amendments.[1] These cases teach that Congress is not confined to enacting prohibitions against activity proscribed by the Amendments themselves but also "may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct." Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727-28, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003); accord Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); City of Boerne v. Flores, 521 U.S. 507, 517-18, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Katzenbach v. Morgan, 384 U.S. 641, 658, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). However, Congress's power in this area has limits. Any prophylactic legislation must be an "appropriate remedy for identified constitutional violations, not `an attempt to substantively redefine the States' legal obligations.'" Hibbs, 538 U.S. at 728, 123 S.Ct. 1972 (quoting Kimel, 528 U.S. at 88, 120 S.Ct. 631); Boerne, 521 U.S. at 519, 117 S.Ct. 2157. Determining whether prophylactic legislation is authorized involves 331 three steps: A court first must define "with some precision" the scope of the constitutional right that Congress *331 seeks to enforce, Garrett, 531 U.S. at 365, 121 S.Ct. 955; then the court looks at "whether Congress identified a history and pattern" of unconstitutional violations of that right,[2]id. at 367, 121 S.Ct. 955; and finally, the court must assess the means Congress has chosen to address these violations to determine whether its remedy is a congruent and proportional response to those violations, see Hibbs, 538 U.S. at 728, 123 S.Ct. 1972 (quoting Boerne, 521 U.S. at 520, 117 S.Ct. 2157).
Here, the right that the VRA was enacted to promote is the constitutional prohibition on racial discrimination in voting regulations. It is in the second step of the Court's test that the constitutionality of the VRA, if applied to Section 5-106,[3] founders. There is, quite simply, no evidence in the record before Congress of a history and pattern of invidious felon disenfranchisement by the states.
Only in cases where Congress can point to evidence in the legislative record that establishes a pattern of unconstitutional discrimination involving the particular practices proscribed by the remedial scheme at issue has the Supreme Court upheld legislation as within Congress's enforcement power under the Reconstruction Amendments. For example, in Hibbs, the constitutionality of a provision allowing employees to sue the states for violations of the Family Medical Leave Act ("FMLA") turned on whether the legislative record revealed evidence of a pattern of constitutional violations by the states. 538 U.S. at 729, 123 S.Ct. 1972. This record, consisting of labor surveys and testimony at congressional hearings, showed that state employers' leave policies discriminated between men and women on the basis of gender stereotypes. 538 U.S. at 730-31 & nn. 3-5, 123 S.Ct. 1972. Because Congress made extensive and detailed findings that, when the FMLA was enacted, "States relied on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits," 538 U.S. at 735 n. 11, 123 S.Ct. 1972 (internal quotation and alteration marks omitted), the Court upheld the FMLA as a valid exercise of Congress's Section 5 power. Id. at 740, 123 S.Ct. 1972.
In Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), the Court upheld the application of Title II of the Americans with Disabilities Act of 1990 ("ADA") to the access to state courthouses on a similar basis. The ADA's legislative history includes the results of 13 congressional hearings and the findings of a special task force that gathered evidence from all 50 states. 541 U.S. at 516, 124 S.Ct. 1978. This extensive record revealed pervasive state laws discriminating against the disabled, id. at 524, 124 S.Ct. 1978, "hundreds of examples of unequal treatment of persons with disabilities by States," id. at 526, 124 S.Ct. 1978, the widespread inaccessibility of public services to those with disabilities, id. at 527, 124 S.Ct. 1978, and "numerous examples of the exclusion of persons with disabilities from state judicial services and programs," id. These findings constituted 332 specific evidence that "many individuals, in many *332 States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities." Id. This record evidence before Congress

enabled the Court to hold that applying the ADA to require access to courthouses was a constitutional exercise of Congress's Section 5 powers. Id. at 533-34, 124 S.Ct. 1978.
In both Hibbs and Lane, the Supreme Court was not satisfied simply with evidence of gender discrimination or disability discrimination generally. Prophylactic legislation, to be legitimate, must be supported by record evidence that demonstrates a pattern of pervasive discrimination in the particular area in which Congress is attempting to legislate. So in Hibbs, the necessary evidence was not a widespread pattern of gender discrimination; it was a widespread pattern of gender discrimination in the administration of leave benefits. Hibbs, 538 U.S. at 735 n. 11, 123 S.Ct. 1972. And in Lane, the requisite evidence showed a pattern of discrimination against the disabled specifically in the provision of public services, including access to court proceedings. Lane, 541 U.S. at 527, 124 S.Ct. 1978.
In contrast, the Court has struck down federal legislation unsupported by evidence identifying a pattern of specific unconstitutional state action to be remedied. In Boerne, the Court held that Congress exceeded its Section 5 powers under the Fourteenth Amendment in enacting the Religious Freedom Restoration Act of 1993 ("RFRA") because "RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry." Boerne, 521 U.S. at 530, 117 S.Ct. 2157. Similarly, in Kimel, finding that "Congress never identified any pattern of age discrimination by the States much less any discrimination whatsoever that rose to the level of constitutional violation," the Court held the Age Discrimination in Employment Act of 1967 ("ADEA") unconstitutional as applied to the states, terming it "an unwarranted response to a perhaps inconsequential problem." Kimel, 528 U.S. at 89, 120 S.Ct. 631. And Garrett held that Title I of the ADA was an invalid exercise of Congress's Section 5 powers because "[t]he legislative record of the ADA . . . simply fail[ed] to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled." Garrett, 531 U.S at 368, 121 S.Ct. 955. Garrett acknowledged some anecdotal evidence of constitutional violations, id. at 370, 121 S.Ct. 955; however, "these incidents taken together [fell] far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based," id. at 370, 121 S.Ct. 955. See also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Savs. Bank, 527 U.S. 627, 640, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (noting that Congress could not abrogate state sovereign immunity under its Section 5 powers via the Patent Remedy Act because "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations").[4]
333 The VRA is plainly intended to prohibit not only intentional discrimination but also *333 measures that have discriminatory effects. E.g., 42 U.S.C. § 1973(a) ("No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed . . . in a manner which results in a denial or abridgement of the right . . . to vote. . . .") (emphasis added). But although the VRA reaches much state action that has discriminatory effects on minority voting, it does not encompass all such action. As the precedents above make plain, it can serve to invalidate measures with disparate racial impact only if there is evidence in the congressional record that those measures are part of a history and practice of unconstitutional intentional discrimination. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 117-18, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (upholding the VRA's prohibition on literacy tests but invalidating the provision authorizing 18-year-olds to vote in state and local elections).
Many of the VRA's prophylactic provisions do respond to record evidence of specific unconstitutional discrimination, and the Supreme Court has upheld them. For example, in upholding the VRA's suspension of literacy tests, the Court noted that, despite the fact that literacy tests are not in themselves violations of the Fifteenth Amendment, "the record shows that in most of the States covered by the Act . . . various tests and devices have been instituted with the purpose of disenfranchising Negroes." South Carolina v. Katzenbach, 383 U.S. 301, 333-34, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Similarly, in enacting Section 5 of the VRA, which requires certain jurisdictions to acquire federal approval of any changes in their voting laws, "Congress began work with reliable evidence of actual voting discrimination in a great majority of the States" covered by this requirement, thus justifying the application of that provision to those geographical areas. Id. at 329, 86 S.Ct. 803. And in amending Section 2 to clarify that practices that result in diluting the strength of minority votes are covered by the Act, see S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-201, Congress relied on evidence that specific practices, such as the use of at-large districts and majority voting requirements, perpetuated the effects of past intentional discrimination, id. at 7-10, 36-40, 1982 U.S.C.C.A.N. at 183-187, 214-218. Application of the VRA to these practices, which were facially constitutional but found to be tools of

intentional discrimination against minorities, has been held to be an appropriately congruent and proportional exercise of Congress's enforcement powers under the Reconstruction Amendments.[5]
334 *334 In contrast to those practices targeted by the VRA, no basis exists to conclude that felondisenfranchisement statutes such as New York's are part of the history and pattern of unconstitutional discrimination that the VRA was targeting. Nowhere does the legislative record, compiled when the VRA was enacted in 1965, suggest that felon-disenfranchisement provisions were part of this country's history of intentional discrimination in voting. To the contrary, the legislative record of the VRA and the history of felondisenfranchisement provisions indicate that they played no part in the "unremitting and ingenious defiance," South Carolina v. Katzenbach, 383 U.S. at 309, 86 S.Ct. 803, of the extension of the franchise to racial minorities.
With the exception of a debate regarding Section 4(c) of the VRA, the legislative record is wholly silent on the subject of felon-disenfranchisement provisions, and that lone debate plainly expressed the intent to exclude such provisions from the reach of the statute. As the majority points out, because felon-disenfranchisement statutes are blanket prohibitions and not subject to discretionary enforcement, they do not lend themselves to the discriminatory abuse characteristic of other voter qualification devices. See Maj. Op. at 319, supra. Indeed, New York and many other states enacted and enforced such laws in the early years of the Republic, well before African Americans were part of the voting population. See id. at 316-17, supra. Disenfranchisement for the commission of a crime was fully accepted as a legitimate, constitutional practice at the time the Fourteenth Amendment was drafted and ratified, see id., supra, as reflected in the express reference to felon disenfranchisement in Section 2 of the Fourteenth Amendment. U.S. Const. amend. XIV, § 2; see Richardson v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) ("We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court.").
Nor can the necessary evidentiary record be found at the time Congress amended Section 2 of the VRA in 1982. That legislative record reflects Congress's focus on overruling the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), to allow the VRA to reach vote-dilution practices such as at-large elections. S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-201; see Maj. Op. at 313, 321-22, supra. The 1982 legislative record does not even mention felon-disenfranchisement statutes, much less point to any evidence that these laws were used (either nationally or specifically in New York) as part of a history and pattern of unconstitutional discrimination.
This is not to say that there have not been isolated incidents of criminal-disenfranchisement laws being used invidiously. In Hunter v. Underwood, the Supreme Court struck down a provision of the Alabama Constitution that, among other things, disenfranchised persons convicted of crimes involving "moral turpitude" as determined at the discretion of the Boards of Registrars. 471 U.S. 222, 226, 229-30, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). Though facially race-neutral, the Court found that provision to have been adopted to intentionally disenfranchise 335 African Americans. Id. Significantly, Hunter did not disturb the Alabama disenfranchisement *335 provision as it applied to felons. See id. at 225, 105 S.Ct. 1916. Similarly, the portion of the Mississippi Constitution at issue in Williams v. Mississippi disenfranchised citizens who had committed specific felonies thought to be committed disproportionately by African Americans. 170 U.S. 213, 222, 225 n. 1, 18 S.Ct. 583, 42 L.Ed. 1012 (1898); see also Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir.1998) (stating that Section 241 of the Mississippi Constitution was unconstitutionally discriminatory when first adopted but subsequent amendments and reenactments for nondiscriminatory purposes cured it of its "odious origin"). Notably, the provisions in these cases did not apply to all criminals but were confined to those who had committed only those crimes "believed . . . to be more frequently committed by blacks." Hunter, 471 U.S. at 226-27, 105 S.Ct. 1916. Such selective and discretionary disenfranchisement is much more likely to be applied in a discriminatory manner than blanket provisions that bar all felons from the voting rolls. Measures enacted or administered with discriminatory intent remain unconstitutional and will be struck down when they are found. But as the Court pointed out in Garrett, isolated anecdotal evidence of discrimination is insufficient to support the exercise of Congress's Section 5 power. Garrett, 531 U.S. at 370, 121 S.Ct. 955. Moreover, the plaintiffs' success in Hunter indicates that whenever an isolated instance of unconstitutional criminal disenfranchisement occurs, it can be addressed under existing law.

Isolated occurrences here and there do not provide a basis for invalidating all felon-disenfranchisement statutes nationwide.
Applying the VRA to New York's felon-disenfranchisement statute also runs afoul of the third part of the Supreme Court's test: even where the record establishes a history and pattern of constitutional violations, there "must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Boerne, 521 U.S. at 520, 117 S.Ct. 2157. To ensure congruence and proportionality, Section 5 enforcement measures frequently include geographic restrictions, sunset dates, or other limiting provisions. Boerne, 521 U.S. at 533, 117 S.Ct. 2157. Only statutes with these limitations in scope, specifically targeted to remedy identified patterns of constitutional violations, have been determined to be appropriately congruent and proportional. For example, most provisions in the VRA itself were carefully crafted to address the particular set of voting violations that Congress identified. See Garrett, 531 U.S. at 373, 121 S.Ct. 955 ("[B]efore enacting [the VRA], Congress explored with great care the problem of racial discrimination in voting" and created "a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant exercise of States' systematic denial of those rights was identified.") (quotation marks omitted); see also Lane, 541 U.S. at 531-32, 124 S.Ct. 1978 ("The remedy Congress chose is . . . a limited one. . . . It requires only `reasonable modifications. . . .'"); Hibbs, 538 U.S. at 738-39, 123 S.Ct. 1972 ("[T]he FMLA is narrowly targeted at the fault-line between work and family 0907 precisely where sex-based overgeneralization has been and remains strongest 0907 and affects only one aspect of the employment relationship. . . . We also find significant the many other limitations that Congress placed on the scope of this measure.").
Because the application of the VRA to felon-disenfranchisement statutes would not be a response to specific, 336 identified, unconstitutional wrongdoing, it cannot be *336 congruent and proportional.[6] Legislation unsupported
by a record indicating the need for remedial measures consistently has been held to be "so out of proportion to a supposed remedial or preventive object that it cannot not be understood as responsive to . . . unconstitutional behavior." E.g., Boerne, 521 U.S. at 532, 117 S.Ct. 2157; Kimel, 528 U.S. at 91, 120 S.Ct. 631; Garrett, 531 U.S. at 372, 121 S.Ct. 955; see also United States v. Morrison, 529 U.S. 598, 626-28, 120 S.Ct. 1740, 146 L.Ed.2d 658 ("Congress'[s] findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the § 5 remedy upheld in Katzenbach v. Morgan was directed only to the State where the evil found by Congress existed, and in South Carolina v. Katzenbach, the remedy was directed only to those States in which Congress found that there had been discrimination.") (internal citations omitted). Such statutes overstep Congress's power by attempting to rewrite the substantive provisions of the Constitution. See Boerne, 521 U.S. at 508, 117 S.Ct. 2157. Thus the application of Section 2 of the VRA to Section 5-106, in the absence of any evidence of a history or pattern of discrimination from such a provision, would impermissibly alter the substance of the Reconstruction Amendments.
Nor can statutes that blithely disregard the divide between state and federal power qualify as congruent and proportional. To the contrary, measures passed under Congress's Section 5 power must minimize the extent to which they intrude on "States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." Boerne, 521 U.S. at 534, 117 S.Ct. 2157. Intrusion on a state's traditional regulatory power imposes too high a cost on that state unless there is a pattern or practice of unconstitutional conduct to justify it. Id. And nowhere does a state exercise its sovereignty more plainly than in regulating the sentencing and punishing of criminal offenders. See United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) ("Under our federal system, the States possess primary authority for defining and enforcing the criminal law.") (internal quotation marks omitted). Regulation of the voting franchise is also a traditional function of state government. See U.S. Const. art. I, § 2, cl. 1; Oregon v. Mitchell, 400 U.S. at 125, 91 S.Ct. 260 ("No function is more essential to the separate and independent existence of the states and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices."). Indeed, I am hard pressed to envision any set of circumstances in which a statute that is read to prevent states from engaging in activity expressly approved in the Constitution, such as felon disenfranchisement (see U.S. Const. amend. XIV § 2), could be congruent and proportional. But especially here, where Congress has found no pattern of unconstitutional violations involving New York's felon-disenfranchisement statute, the application of Section 2 of the VRA to Section 5-106 intrudes on New York's sovereignty far in excess of any justification for doing so.

337 Without congruence and proportionality, Section 2 of the VRA as applied *337 to New York's felondisenfranchisement statute exceeds the enforcement power granted to Congress by the Fourteenth and Fifteenth Amendments.
For the reasons expressed both in the majority opinion and in this opinion, I concur in the judgment.
STRAUB, Circuit Judge, with whom Judge SACK joins, concurring in part and concurring in judgment.
We concur in the result reached by the majority and in its reasoning that the evidence of legislative intent weighs decisively against applying the Voting Rights Act to New York Election Law § 5-106. We also, specifically, concur in the majority's limited remand for purposes of determining whether plaintiffs have stated a vote dilution claim on behalf of non-disenfranchised residents, based on New York's system of apportioning electoral districts. We do not join in any holding that a clear statement rule applies here, as we believe such a rule, in addition to being unnecessary to the disposition of this case, would be inappropriate in the voting rights context.
SACK, Circuit Judge, with whom Judge STRAUB joins with respect to Part I, concurring in part and concurring in judgment.
I
I write separately principally to respond to a portion of the dissent of my colleague, Judge Calabresi, in which he concludes that Judge Straub and I, being "motivated in large part by skepticism that Congress could have intended the result that the plaintiffs urge," Dissent of Judge Calabresi, post, at 365-66, have confused the views of the current Congress with that of the Congress that enacted the Voting Rights Act and its 1982 amendments. Judge Calabresi may or may not be right on the merits of this case, but in this respect he is surely wrong. What the current Congress, or a Congress that will next consider voting rights, thinks or will think is Congress's business, not ours. The question here is what the statute means.
It is in response to that question that we join Judge Cabranes's opinion insofar as it concludes that Congress did not intend the Voting Rights Act to encompass the type of felon disenfranchisement law at issue in this case. By amending Section 2 of the Voting Rights Act in 1982, Congress apparently sought to make clear that Section 2 covered both vote denial and vote dilution, and to reinstate the "results test," which Congress found to be the rule developed in the voting rights case law before the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), particularly White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973).[1] Whatever one's view of the uses and misuses of legislative history to enlighten, or even to contradict plain meaning,[2] insofar as the 1982 338 amendment was aimed specifically at overruling Bolden *338 and reinstating previous case law, it is not that difficult to discern what Congress meant to do when it said what it said. See United States v. Rybicki, 354 F.3d 124, 136 (2d Cir.2003) (en banc), cert. denied, 543 U.S. 809, 125 S.Ct. 32, 160 L.Ed.2d 10 (2004) (reasoning that when a statute is adopted for the purpose of overruling a Supreme Court decision which in turn overruled previous law on the subject, Congress likely intended to reinstate the previous law).
The case law that Congress sought to reinstate, so far as we can tell, involved cases in which "designedly or otherwise, an apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." Zimmer, 485 F.2d at 1304 (internal quotation marks omitted; alterations incorporated) (quoted in S. Rep. 97-417 (1982), *23, 1982 U.S.C.C.A.N. 177, **200). As such, the White-Zimmer factors, under which a court assesses the result of a voting law under the totality of the circumstances, seem to us to be particularly suited 0907 even if not exclusively so 0907 to claims of apportionment and legislative districting.[3] In amending the Voting Rights Act in 1982, Congress told the courts to resume doing what they had done in the White-Zimmer cases. There is no indication that any court pre-Bolden thought of using, let alone actually used, the White-Zimmer factors to strike down felon disenfranchisement laws. Cf. Rybicki, 354 F.3d at 138 (explaining that the phrase "intangible right of honest services" should be understood as codifying prior case law, and that "Congress was recriminalizing mail- and wire-fraud schemes to deprive others of that `intangible right of honest services,' which had been protected

before McNally [v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987)], not all intangible rights of honest services whatever they might be thought to be" (emphasis in original)).
339 The plain meaning argument 0907 as articulated by Judge Parker in his powerful *339 opinion 0907 is of course a compelling one. But none of our colleagues yet, so far as we can see, has presented a persuasive reason to think that if the language of section 2 covers felon disenfranchisement laws as applied to persons duly imprisoned, the result was intentional rather than an accident resulting from the breadth and generality of language used to accomplish specific, identifiable goals. At the end of the day, the notion that by using such language Congress "accidentally meant to" address the long-standing, nearly universal felon disenfranchisement laws recognized in the Fourteenth Amendment, just does not make sense to us. "Boggling," perhaps, is in the mind of the beholder. See Dissent of Judge Calabresi, post at 367.
II
Although I don't think it to be dispositive, I am also troubled that the central concern of these plaintiffs, obviously of enormous importance, seems to be tangential at best to the relief they seek under the Voting Rights Act. The plaintiffs assert that, in New York, criminal law-enforcement, prosecution, and punishment are corrupted by a deeply ingrained institutional bias against Blacks and Latinos. They "allege[] that the stark differences in incarceration and probation rates for Blacks and Latinos in New York, as opposed to Whites, have resulted from discrimination in New York's criminal justice system." Dissent of Judge Parker at 343.[4] Perhaps giving the plaintiffs the right to vote from prison would have some positive impact on that system, but it would be a highly unusual remedy, in light of the ubiquitous state felon disenfranchisement laws, addressing the pleaded wrong very indirectly, indeed. It gives me pause: Did Congress mean, through the use of the general language of the Voting Rights Act, to seek to address the problem of racial discrimination in the states' administration of criminal justice?
III
I note, finally, that there may well be important distinctions between the impact of the felon disenfranchisement statute at issue here and those that provide for lifetime disenfranchisement, whether or not the difference matters for purposes of the Voting Rights Act analysis. They appear to me to be very different: One type (the one before us) appears to be connected to the issue of punishment 0907 the removal of criminals from society for a term, for purposes of punishment, the safety of society, "rehabilitation" and the like. The other seems ultimately untethered to punitive segregation, since the disenfranchisement persists long after termination of the segregation, at which point punitive ends seem no longer to be at issue. Today's decision, of course, explicitly leaves the issue open. See Maj. Op. at 314.
RAGGI, Circuit Judge, concurring, with whom Judge JACOBS joins.
340 I fully concur in the majority opinion's thoughtful analysis of the Voting Rights *340 Act ("VRA"), 42 U.S.C. § 1973, and in its conclusion that the law must be construed not to encompass felon disenfranchisement statutes, particularly New York Election Law § 5-106. I write separately only to expand on its discussion of why we require a clear statement of congressional intent to allow plaintiffs to pursue a VRA challenge to § 5-106.
Section 2 of the VRA prohibits the use of any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . 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." 42 U.S.C. § 1973(a). Intentional discrimination is not required to establish a violation. Rather, a factfinder considers "the totality of circumstances," id. at § 1973(b), to determine whether "a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [voters of different races or color] to elect their preferred representatives," Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).
While acknowledging the presumptive validity of felon disenfranchisement laws, see Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (rejecting Equal Protection challenge), plaintiffs and supporting

amici submit that New York's practice of prisoner disenfranchisement violates the VRA because there is a gross racial disparity in the state prison population. If permitted to pursue their claim, they seek to show that this disparity is a product of pervasive racism infecting every part of the New York criminal justice system, from stop and frisk determinations by police officers on the street, to charging decisions by prosecutors, to detention and sentencing rulings by state court judges. In short, plaintiffs propose to use the VRA to indict the New York criminal justice system for racism.
So employed, the VRA would not only significantly intrude on, but also seriously disrupt, the orderly administration of criminal justice in New York, obviously a matter of legitimate state interest. Plaintiffs' suit would effectively impugn the constitutionality of countless state convictions without necessarily proving that any one prosecution or sentence was, in fact, discriminatory. Equally disturbing, the state's criminal justice system could be adjudged discriminatory without New York being required to release, retry, or resentence a single prisoner. New York would just have to give prisoners the vote. Such a result would undoubtedly undermine public confidence in all state criminal proceedings at the same time that it bred cynicism toward federal law for responding to such a serious problem with so ill-fitting a remedy.
Of course, Congress may enact laws that remedy aspects of particular problems 0907 whether voter discrimination or invidious bias in the administration of criminal justice 0907 without offering complete solutions. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). But when, as this case demonstrates, a VRA challenge to § 5-106 would so seriously undermine the legitimacy of the state's criminal justice system, it is appropriate to require a clear statement of congressional intent to have the VRA apply to felon disenfranchisement laws.
In reaching this conclusion, I am mindful that state felons are not without a federal means to challenge race discrimination in state criminal proceedings. They may petition for a writ of habeas corpus. See 28 U.S.C. § 2254. 341 Indeed, § 2254 stands as a clear expression of congressional intent to recalibrate the federal-state *341 balance with respect to criminal justice so as to afford every state prisoner who thinks himself the victim of racial bias in prosecution or sentencing at least one opportunity to be heard in federal court. The law recognizes habeas corpus as "the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release." Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (citing Preiser v. Rodriguez 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Thus, plaintiffs are careful to emphasize that they do not seek immediate or speedier release. Nevertheless, Heck is instructive. There, the Supreme Court ruled that a prisoner cannot use 42 U.S.C. § 1983 as a vehicle to recover money damages on a claim that, at its core, attacks the validity of a conviction that has not been reversed or vacated on direct appeal or by the grant of a petition for a writ of habeas corpus. See id. at 486-87, 114 S.Ct. 2364. So in this case, there is similar reason to proceed cautiously and to require a clear statement of intent by Congress before allowing a class of prisoners to use the VRA to sue for the vote when their claim, at its core, attacks not simply their own unreversed, unvacated individual convictions, but countless unspecified convictions in the state of New York.
In sum, while I fully concur in the judgment of the court for the reasons discussed in the majority opinion, that conclusion is reinforced by the reasons stated in this opinion.
JACOBS, Circuit Judge, concurring.
The Opinion of the Court by Judge Cabranes covers the field, and I concur in it. The Opinion proceeds in the scholarly, systematic way needed to meet and rebut the arguments generated by years of ceaseless effort to enroll felons as members of the electorate. Although it has become necessary to meet these arguments and casuistries laboriously on their own terms, the case can be decided more simply.
Section 1973 is composed of subsections (a) and (b). Subsection (b) references and implements (a); so they must be read together. A reading that puts them at cross-purposes is untenable and cannot be called plain meaning.
The plaintiffs invoke subsection (a) as the premise for a right of felons to join the electorate:

(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 4(f)(2) [42 USCS § 1973b(f)(2)], as provided in subsection (b).
42 U.S.C. § 1973(a) (emphasis added). Subsection (b) expressly furnishes a touchstone for detecting a violation of the right to vote that is protected in subsection (a):
(b) A violation of subsection (a) 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) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. . . .
42 U.S.C. § 1973(b) (emphasis added).
The right to vote in subsection (a) is thus informed by subsection (b): in particular, every "class of citizens 342 protected by subsection (a)" (in this appeal, African-Americans) *342 is composed of citizens who by law may
and should enjoy as full an "opportunity [as] other members of the electorate to participate in the political process." Such a full "opportunity" includes the freedom to ring doorbells, speak on street-corners, assemble and rally, raise contributions (subject to campaign finance rules), and campaign for candidates everywhere the public can be found.
Thus no "class of persons protected by subsection (a)" could include felons who would otherwise be in that class, because some felons (i.e., prisoners) are legitimately deprived by the State of the full opportunity to participate in the political process, and would be so deprived even if they could vote. The enfranchisement of felons can never be a remedy for a violation of subsection (a) because afterward, the "class of citizens protected by subsection (a)" would still include persons who suffer a state-imposed deficit of the "opportunity" enjoyed by "other members of the electorate to participate in the political process. . . ." By the same token, the disenfranchisement of felons cannot be a practice that is limited by subsection (a).
Section 1973, read as a whole, does not allow a reading that would consider felons to be members of any "class of citizens protected by subsection (a)." It follows that no erosion of felon disenfranchisement was intended by the legislative intelligence that drafted and joined together the two complementary subsections.
Judge Parker's dissent (at footnote 1) responds in the words of Chisom v. Roemer, 501 U.S. at 395, 111 S.Ct. 2354, that the "purposes" of Section 2 "are apparent from its text": to adopt a "results test" in Section (a) and to give guidance in Section (b) "about how the results test is to be applied." So far, so good; and Chisom thus reconfirms that (a) and (b) are to be read together. The dissent then goes on, however 0907 "[i]n other words" 0907 to make a point that better serves the dissent's reading. My point remains, unimpaired: Sections (a) and (b), read together and given their plain meaning, reflect a draftsman's assumption that the enactment protects the rights of all who may and should enjoy as full an "opportunity [as] other members of the electorate to participate in the political process" and no one else 0907 not children, not aliens, and not the imprisoned. Section 1973 reads unambiguously as a guarantee of rights for free people, and has nothing to do with the voting of persons who are not permitted to make unmonitored phone calls, or to go at large, or to eat their food with knives and forks.[1] Arguments to the contrary demean the Voting Rights Act.
343 *343 B.D. PARKER, JR., Circuit Judge, dissenting.
The essence of a Section 2 claim under the Voting Rights Act ("VRA"), 42 U.S.C. § 1973, is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality along racial lines in the opportunities of voters to elect their preferred representatives. See Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). The majority, in my view, reaches the wrong result about § 2 for a host of reasons, not the least of which is that it attacks the wrong question. The operative inquiry on this appeal is not whether a historic policy of felon disenfranchisement, read next to odds and ends from legislative

histories, indicates Congress's intention to exclude felon disenfranchisement laws from the coverage of the VRA. Rather, this appeal begins and ends with the simple question of whether we should read an unambiguous remedial statute, intended to have, as the Supreme Court has emphasized, the "broadest possible scope," to allow the Hayden plaintiffs' claims to go forward. Allen v. State Bd. of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). I believe we should.
The amended complaint alleges that the stark differences in incarceration and probation rates for Blacks and Latinos in New York, as opposed to Whites, have resulted from discrimination in New York's criminal justice system. Under New York law, incarcerated felons and felons on parole cannot vote. See N.Y. Election Law § 5-106. Section 2(a) of the VRA provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . 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. . . ." 42 U.S.C. § 1973(a) (emphasis added). New York Election Law § 5-106 imposes a voting qualification. It denies those convicted of felonies the opportunity to vote. The Hayden plaintiffs allege that § 5-106 violates § 2(a) because it results in a denial or dilution of the right to vote on account of race. Because I believe these contentions state a claim upon which relief can be granted, I respectfully dissent.
A.
For purposes of this appeal we must treat as unassailable the Hayden plaintiffs' allegations that New York systematically discriminates against its minority citizens through its felony disenfranchisement law. This case was resolved in the district court on a Rule 12(c) motion for judgment on the pleadings. Consequently, we must accept the allegations in the complaint as true and benefit the plaintiffs with all reasonable inferences. Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir.2005). Under that Rule, the Hayden plaintiffs are entitled to prevail unless it appears beyond doubt that they can prove no facts in support of their claims which would entitle them to relief. Id.
Though the Hayden plaintiffs may have a difficult time mustering sufficient proof, they are, at the very least, entitled to that opportunity. The Supreme Court has left us no room whatsoever to question this approach: "Even if serious problems lie ahead in applying the `totality of circumstances' standard described in [VRA] § 2(b), that task, difficult as it may prove to be, cannot justify a judicially created limitation on the coverage of the broadly worded statute, as enacted and amended by Congress." Chisom v. Roemer, 501 U.S. 380, 403, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991).
344 *344 The majority concludes that felon disenfranchisement laws are immune from VRA scrutiny, no matter how discriminatory the effects of those laws might be. A review of the plaintiffs' allegations, which state a paradigmatic claim of discriminatory disenfranchisement, demonstrates the impropriety of treating this case differently than any other VRA case. Even if the following allegations are true, the majority finds, they do not offend the VRA in the slightest.
The First Amended Complaint is replete with allegations of racial disparities resulting from the operation of New York Election Law § 5-106. It alleges that Blacks and Latinos are prosecuted, convicted, and sentenced to incarceration at rates substantially disproportionate to those of Whites. Hayden First Amended Complaint at ¶ 61. It also alleges that while Blacks and Latinos make up 86% of the total current prison population and 82% of the current parolee population, they comprise only 31% of New York State's overall population. Hayden First Amended Complaint at ¶ 64. It further alleges that Blacks and Latinos are sentenced to incarceration at substantially higher rates than Whites, and Whites are sentenced to probation at substantially higher rates than Blacks and Latinos. Hayden First Amended Complaint at ¶ 66. The collective impact of these statistics, according to the First Amended Complaint, is that Blacks and Latinos comprise nearly 87% of those currently denied the right to vote pursuant to New York Election Law § 5-106. Hayden First Amended Complaint at ¶ 68.
There is no substantive record in this case. None of us knows what reality 0907 if any 0907 exists behind these allegations. Significantly, each of the other circuits that has wrestled with this issue has done so on the basis of a fully-developed summary judgment record, not simply on the pleadings. For instance, in support of their vote denial claim, the plaintiffs in Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003), reh'g en banc denied, 359

F.3d 1116 (9th Cir.2004), presented "statistical evidence of the disparities in arrest, bail and pre-trial release rates, charging decisions, and sentencing outcomes in . . . Washington's criminal justice system," submitted expert declarations, reports, and studies and relied on them to show "the extent to which these disparities could be attributed to racial bias and discrimination," and offered evidence of the "tenuous policy justifications for Washington's felon disenfranchisement law," and of the "discriminatory intent that guided the enactment of these laws." Id. at 1013. The plaintiffs in the Eleventh Circuit presented a similarly robust summary judgment record. See Johnson v. Governor of Fla., 405 F.3d 1214, 1230 n. 31 (11th Cir.2005) (en banc); id. at 1241-42 (Wilson, J., concurring in part and dissenting in part); see also Johnson v. Governor of Fla., 353 F.3d 1287, 1293, 1294-96, 1301-02, 1304-06 (11th Cir.2003) (analyzing the considerable record of statistical evidence and expert reports presented by plaintiffs in support of their claims), vacated by 377 F.3d 1163 (11th Cir.2004).
Here, by contrast, we have no analysis of the disparities in New York's criminal justice system. We have no facts to think about. We have no expert reports or studies on whether these disparities can be attributed to racial bias or to other factors. Consequently, none of us can say with the requisite certainty what actually occurred in New York to create the anomalies catalogued in the First Amended Complaint. The Hayden plaintiffs want the opportunity to eliminate other reasons for these disparities and to prove that their inability to vote is the product of 345 discrimination in the criminal justice system. If they do so, *345 they could well prove a violation of the VRA.
Suppose, for example, they were able to demonstrate that the dramatically different incarceration rates for minorities and Whites in New York were largely driven by drug convictions and reflected the manner in which law enforcement resources were deployed in the "war on drugs." Suppose they showed that law enforcement officials (and task forces) concentrated resources on street-level users/dealers of heroin and crack cocaine in minority neighborhoods (because the problems were worse and arrests were easier in such areas) but, at the same time, devoted comparatively little attention to areas where Whites were abusing those same illegal drugs at the same rates (and powder cocaine at higher rates). Suppose they also showed that Whites received probation three times as frequently as similarly situated Blacks or Latinos for similar crimes. Neither showing is remotely beyond the realm of possibility in New York, and I believe this type of proof could constitute some evidence of a VRA violation. Yet this would be the very type of undertaking that the majority would preclude. Whether or not the Hayden plaintiffs ultimately succeed is, at this point, irrelevant. The issue is whether the VRA affords them the opportunity to make the effort. If the majority is correct, the Congresses that passed the VRA in 1965, and extended it in 1982, did not intend for the statute to reach situations such as these. I do not believe those Congresses intended any such thing; and I reach that conclusion simply by reading the words they used.
No one disputes that states have the right to disenfranchise felons: § 2 of the Fourteenth Amendment makes that clear. See U.S. Const. amend. XIV, § 2 ("when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State . . . or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced. . . ."); see also Richardson v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974).
But, as will be explored below, the fact that felon disenfranchisement statutes may sometimes be constitutional does not mean they are always constitutional. And certainly, the fact that they sometimes may be constitutional does not mean that they are immune from congressional regulation. In any event, this case is largely about the Fifteenth, not the Fourteenth Amendment. Section 1 of the Fifteenth Amendment makes it clear that states may not disenfranchise on the basis of race. See U.S. Const. amend. XV, § 1 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."). Section 2 of the VRA, as amended in 1982, also makes it clear that states may not disenfranchise on the basis of race, even unintentionally. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 482, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) ("When Congress amended § 2 [of the VRA] in 1982, it clearly expressed its desire that § 2 not have an intent component.") (emphasis omitted); Thornburg, 478 U.S. at 43-44, 106 S.Ct. 2752 (explaining that the 1982 amendments to § 2 of the VRA were a rejection of the position of the plurality in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), which "required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters").
346

*346 Thus, as Judge Wilfred Feinberg, writing for half of our evenly divided en banc Court in Baker v. Pataki, 85 F.3d 919 (2d Cir.1996) (en banc), said: "While a State may choose to disenfranchise some, all or none of its felons based on legitimate concerns, it may not do so based upon distinctions that have the effect, whether intentional or not, of disenfranchising felons because of their race." Id. at 937. If the majority is correct, this proposition is false.
B.
In order to justify its failure to apply the plain language of VRA § 2, the majority must find ambiguity in that provision's pellucid language. Tellingly, the majority never attempts to argue that § 2(a) is ambiguous, instead stating that "[w]e are not convinced that the use of broad language in [§ 2(a)] necessarily means that the statute is unambiguous with regard to its application to felon disenfranchisement laws." Maj. Op. at 315. But this statement is not a finding of ambiguity. The majority acknowledges that "there is no question that the language of § 1973 is extremely broad . . . and could be read to include felon disenfranchisement provisions. . . ." Id. The real question is whether it can be read any other way. Conspicuously absent from the majority opinion is so much as a hint of any intelligible reading under which § 5-106 is not a "voting qualification or prerequisite to voting or standard, practice or procedure." (What else on earth could § 5-106 possibly be?)
The majority cites Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), which states that "[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341, 117 S.Ct. 843 (finding that "the term `employees' . . . is ambiguous as to whether it excludes former employees"). Robinson did not suggest that ambiguity could be determined by reference to legislative history or telling silences. More importantly, the majority disregards the stern warning that accompanied the passage it quoted: "Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Id. at 340, 117 S.Ct. 843 (emphasis added) (internal quotation marks omitted). The majority's inquiry plunges ahead with no finding that the statutory language is ambiguous, in direct disregard of the Supreme Court's instructions.
Finding no support in the text and no ambiguity, the majority turns to various secondary and tertiary sources. In each instance, the source is employed to try to show that Congress did not mean what it said. The most prominent of the extra-textual sources enlisted by the majority are "context," "background assumptions supplied by other statutory and Congressional wording," "history," and "manifestations of intent by Congress at the time of the VRA's enactment and thereafter." Maj. Op. at 315. Rather than follow the majority into this slough, I believe we should heed the Supreme Court's instruction that when "the meaning of [a statute's] text is plain and unambiguous, we need not accept [an] invitation to consider the legislative history." Whitfield v. United States, 543 U.S. 209, 215, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005).
To begin, resort to these types of sources is conspicuously inappropriate because the VRA, while broad, is not ambiguous. Tellingly, the very panel that decided Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.2004), conceded 347 this point. The original Muntaqim panel said "section 1973, while vague, does not seem ambiguous." *347 Id. at 128 n. 22 (citing 42 U.S.C. § 1973). Given this concession, our responsibility, as we have been reminded time and time again, is to apply the statute as Congress wrote it. Accordingly, "we begin with the understanding that Congress says in a statute what it means and means in a statute what it says." Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (internal quotation marks omitted). "[I]n interpreting a statute a court should always turn first [to this] one, cardinal canon before all others. . . . When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (internal quotation marks omitted).
The majority's counter-weight to all of this authority is Justice Holmes' language from the 1920s to the effect that the plain meaning of the text does not necessarily "preclude consideration of persuasive evidence if it exists." Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170 (1928). I certainly dispute that the majority's evidence is anything close to "persuasive," but, regardless, this proposition has not been good

law for many years. The modern view is that the "authoritative statement" of Congress's intent is "the statutory text, not the legislative history or any other extrinsic material." Exxon Mobil Corp. v. Allapattah Servs., Inc., ___ U.S. ___, 125 S.Ct. 2611, 2626, 162 L.Ed.2d 502 (2005); see also United States v. Wells, 519 U.S. 482, 509-10, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (Stevens, J., dissenting) ("Congress [in the past] looked to the courts to play an important role in the lawmaking process by relying on common-law tradition and common sense to fill gaps in the law 0907 even to imply causes of action and remedies that were not set forth in statutory text. . . . The Court's approach to questions of statutory construction has changed significantly since that time."). See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L.Rev. 621 (1990). The majority's variation on Justice Holmes' position is its view that it is not bound by the plain language of the VRA because "[t]he plain meaning of legislation should be conclusive, except in the `rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'" United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)); accord Stoltz v. Brattleboro Hous. Auth. (In re Stoltz), 315 F.3d 80, 89 (2d Cir. 2002).
But this case does not present a "rare" or "exceptional" circumstance where following the rules would lead to a result "so bizarre that Congress could not have intended it." Demarest v. Manspeaker, 498 U.S. 184, 191, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991) (emphasis added) (internal quotation marks omitted). Indeed, just the opposite is true. In Allen v. State Board of Elections, supra, the Supreme Court observed that § 2(a) of the VRA, as originally drafted, included only a prohibition against any voting "qualification or procedure." 393 U.S. at 566, 89 S.Ct. 817. After concerns were raised that this language may not be sufficiently expansive to cover all practices that could deny individuals the right to vote on account of their race, Congress expanded the language in the final version to include any "voting qualifications or prerequisites to voting, or standard, practice, or procedure." Id. at 567, 89 S.Ct. 817 (quoting 42 U.S.C. § 1973(a)). The Supreme Court viewed this change as "[i]ndicative of 348 [Congress's] *348 intention to give the Act the broadest possible scope." Allen, 393 U.S. at 566-67, 89 S.Ct. 817.
In keeping with the general principle that courts should interpret the VRA to provide "the broadest possible scope in combating racial discrimination," Chisom, 501 U.S. at 403, 111 S.Ct. 2354 (internal quotation marks omitted), the Supreme Court has interpreted § 2 to apply to a wide variety of election and voting practices. See, e.g., Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993) (holding that VRA should be interpreted broadly to cover single member district plans); Houston Lawyers' Ass'n v. Att'y Gen. of Tex., 501 U.S. 419, 428, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991) (same for the method of electing state trial judges); Chisom, 501 U.S. at 404, 111 S.Ct. 2354 (same for the method of electing state appellate court judges); see also Voinovich v. Quilter, 507 U.S. 146, 154, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (assuming, without deciding, that VRA covers claims of "influence" dilution). Reading the section to cover felon disenfranchisement laws is fully consistent with this line of cases. Since everyone agrees that Congress amended § 2 in 1982 in an express effort to broaden the protection afforded by the VRA, we are hard pressed to understand the majority's conclusion that, at that same time, Congress, without comment, intended to except an important voting test from that protection. See Chisom, 501 U.S. at 403-04, 111 S.Ct. 2354.[1]
Although the majority would prefer to look beyond the plain language of § 2(a), "judicial review must end at the statute's unambiguous terms." Brodie v. Schmutz (In re Venture Mortgage Fund, L.P.), 282 F.3d 185, 188 (2d Cir.2002). Though some may question the wisdom of Congress's decision to enact a statute that permits challenging felon disenfranchisement laws, we are judges, not policy-makers. If different policy-based outcomes are generally desired, Congress may always amend the VRA. But that is its job, not ours.
349 *349 C.
The majority nonetheless concludes that we are relieved of the obligation to respect the text of VRA § 2, and, in construing it, may look behind its words for essentially three reasons: (1) the explicit approval given felon disenfranchisement laws in the Fourteenth Amendment; (2) various pieces of legislative history indicating the VRA was not intended to reach such laws; and (3) the long history and continuing prevalence of felon disenfranchisement provisions throughout the United States. See Maj. Op. at 315-16. The common denominator of each of these reasons is that it is factitious.

1. Section 2 of the Fourteenth Amendment
The primary point of departure for the majority is the mention of felon disenfranchisement in § 2 of the Fourteenth Amendment. U.S. Const. amend. XIV, § 2. The majority's reliance on this provision is misplaced. The Constitution does not endorse felon disenfranchisement when it declines to prohibit that practice, any more than the Constitution endorses felon enslavement when the Thirteenth Amendment states: "Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States. . . ." U.S. Const. amend. XIII, § 1 (emphasis added). Declining to prohibit something is not the same as protecting it.
Nor has the Supreme Court read any special immunity for felon disenfranchisement into the Fourteenth Amendment. In Richardson, the Court considered a claim that § 1 of the Fourteenth Amendment prohibited felon disenfranchisement altogether. 418 U.S. at 33, 94 S.Ct. 2655. The Court rejected this claim on the reasonable basis that the Fourteenth Amendment would not need an exception for felon disenfranchisement in § 2 if it intended to prohibit it altogether in § 1. Id. at 43. Richardson did not grant felon disenfranchisement immunity against any other ground of invalidity; it simply held that denying the vote to felons was not a per se violation of the Fourteenth Amendment.
Unquestionably, Richardson did not authorize the use of felon disenfranchisement for discrimination, as the Supreme Court made clear in Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). See Baker, 85 F.3d at 937. Hunter involved an attack under 42 U.S.C. § 1981 and § 1983 on a provision in the Alabama Constitution of 1901 that intentionally disenfranchised Blacks. Hunter, 471 U.S. at 223-24, 105 S.Ct. 1916. The Supreme Court unanimously held that the provision was unconstitutional, and in so doing addressed the relationship between § 2 of the Fourteenth Amendment and felon disenfranchisement as follows:
The single remaining question is whether [the Alabama provision] is exempted from the operation of the Equal Protection clause of § 1 of the Fourteenth Amendment by the "other crime" provision of § 2 of that Amendment. . . . [W]e are confident that § 2 was not designed to permit the purposeful racial discrimination attending the enactment and operation of [the Alabama provision] which otherwise violates § 1 of the Fourteenth Amendment.
Hunter, 471 U.S. at 233, 105 S.Ct. 1916. As Judge Feinberg so correctly observed: "[b]efore Hunter, it might have been plausibly argued that § 2 of the Fourteenth Amendment carves all aspects of felon disenfranchisement out of the purview of the Equal Protection Clause, which is in the very same amendment." Baker, 85 F.3d at 936. But 350 because the "other crimes" provision of § 2 of the Fourteenth Amendment *350 did not foreclose the Equal Protection challenge to Alabama's felon disfranchisement law in Hunter, it necessarily follows that Congress also has the power under the Fourteenth Amendment to regulate potentially discriminatory felon disenfranchisement statutes, as it did when it passed the VRA.
More to the point, § 2 of the Fourteenth Amendment 0907 which expressly contemplated and essentially sanctioned racially discriminatory voting qualifications 0907 in no way diminishes Congress's power to enforce the Fifteenth Amendment. The majority fails to appreciate that the operative provisions of the VRA were enacted pursuant to Congress's power under the Fifteenth Amendment. See Chisom, 501 U.S. at 383, 111 S.Ct. 2354 ("The preamble to the Voting Rights Act of 1965 establishes that the central purpose of the Act is to enforce the fifteenth amendment to the Constitution of the United States.") (internal quotation marks omitted); see also South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) ("Congress assumed the power to prescribe these remedies from § 2 of the Fifteenth Amendment, which authorizes the National Legislature to effectuate by `appropriate' measures the constitutional prohibition against racial discrimination in voting.").[2]
Moreover, when it added the results test of VRA § 2 in 1982, Congress invoked its powers to enforce by "appropriate legislation" both the Fifteenth Amendment's guarantee that no citizen will be denied the right to vote on account of race and the Fourteenth Amendment's guarantee of racial equality. See S.Rep. No. 97-417, at 27, 39 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 205, 217. Thus, the results test is grounded in both the Fourteenth and the Fifteenth Amendments. In most instances, it is immaterial whether Congress's enforcement powers are grounded in one amendment or the other. This case, however, is different.

Congress's enforcement powers under the Fourteenth and Fifteenth Amendments overlap in certain areas. Nevertheless, the Fifteenth Amendment provides a separate, distinct source of congressional power to regulate racially discriminatory voting restrictions. See, e.g., Rice v. Cayetano, 528 U.S. 495, 522, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000) (holding that a voting qualification that satisfies the Fourteenth Amendment's one-person, one-vote rule may nevertheless violate the Fifteenth Amendment's "race neutrality command," because the "Fifteenth Amendment has independent meaning and force"); see also Neal v. Delaware, 103 U.S. 370, 389, 26 L.Ed. 567 (1881) ("Beyond question the adoption of the Fifteenth Amendment had the effect, in law, to remove from the State Constitution, or render inoperative, that provision which restricts the right of suffrage to the white race."); United States v. Reese, 92 U.S. 214, 218, 23 L.Ed. 563 (1876) ("[T]he [Fifteenth] amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.").
While § 2 of the Fourteenth Amendment permitted states to deny voting rights to their citizens (but threatened to reduce their representation if they did), the Fifteenth Amendment took a more sweeping approach: It expressly 351 prohibited *351 states from abridging the right to vote "on account of race." U.S. Const. amend. XV § 1. Even if the reference to criminal disenfranchisement in § 2 of the Fourteenth Amendment could somehow be construed to limit Congress's power under that Amendment to reach criminal disenfranchisement laws with racially discriminatory results, the Fifteenth Amendment's later, comprehensive ban on race discrimination in voting could not possibly be reasonably read in that way, since it is unqualified.
The text and the legislative history of the Fifteenth Amendment demonstrate that it did not simply mimic § 2 of the Fourteenth Amendment, but, instead, broke new ground by instituting a ban on any disenfranchisement based on race.[3] Recall that § 2 of the Fourteenth Amendment was a structural successor to the Three-Fifths Clause of the original Constitution. See Richardson, 418 U.S. at 43-45, 94 S.Ct. 2655; see also U.S. Const. art. I, § 2, cl. 3 ("Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons . . . three fifths of all other Persons."), amended by U.S. Const. amend. XIV, § 2. The concern of the Republican legislators who drafted § 2 of the Fourteenth Amendment was that, with the slaves emancipated, the Three-Fifths Compromise would be inoperative, freedmen would therefore be counted fully in decennial censuses, and the former slave states would soon be entitled to enough additional representatives to threaten Republican control of the federal government. See Richardson, 418 U.S. at 73-74, 94 S.Ct. 2655 (Marshall, J., dissenting); Foner, supra note 3, at 251-61. Section 2 of the Fourteenth Amendment explicitly contemplated that states would deny voting rights to their citizens, including through race-based disenfranchisement, and therefore adjusted the states' representation in Congress to ensure that Southern White Democrats could not control the national government by disenfranchising Blacks. See Foner, supra note 3, at 252, 255, 259. As the Supreme Court observed, the framers of § 2 of the Fourteenth Amendment "were primarily concerned with the effect of reduced representation upon the States, rather than with the two forms of disenfranchisement which were exempted from that consequence." Richardson, 418 U.S. at 43, 94 S.Ct. 2655.
352 *352 In practice, § 2 of the Fourteenth Amendment was immediately succeeded by the Military Reconstruction Acts of 1867, which essentially prohibited any state from reentering the Union if it barred Blacks from voting in state constitutional conventions. See, e.g., An Act To Provide for the More Efficient Government of the Rebel States, ch. 153, § 5, 14 Stat. 428, 429 (Mar. 2, 1867) (effectively enfranchising "male citizens of said State, twenty-one years old and upward, of whatever race, color or previous condition, who have been resident in said State for one year previous to the day of such election, except as may be disenfranchised for participation in the rebellion or for felony at common law" to elect delegates for state constitutional conventions). In effect, by means of the Military Reconstruction Acts of 1867, Southern states that denied the franchise to Blacks would be denied any representation in Congress. Then, with Southern Blacks voting in large numbers by the election of 1868, Congress enacted the Fifteenth Amendment to enfranchise Blacks in Northern and border states, entrench the franchise for Black males nationwide, and prevent any future retrenchment. See generally Gillette, supra note 3. The Fifteenth Amendment thus provided an additional tool for rooting out discrimination in voting.

In sum, the Fifteenth Amendment was enacted, among other reasons, precisely because the Fourteenth Amendment 0907 including § 2 0907 did not prohibit states from disenfranchising Blacks.[4] Section 2 of the Fourteenth Amendment, after all, expressly contemplates that a state might bar Blacks from the polls; it simply exacts a price in reduced representation. The Supreme Court in United States v. Reese, supra, writing only five years after the ratification of the Fifteenth Amendment, put it simply: "Previous to this [Fifteenth] amendment, there was no constitutional guaranty against this discrimination: now there is." 92 U.S. at 218.
The Fifteenth Amendment was thus not an extension or continuation of § 2 of the Fourteenth Amendment. It took a diametrically different approach and conferred a right not previously secured by the Constitution. While the Supreme Court has not found felon disenfranchisement laws to be per se unconstitutional under the Fourteenth Amendment, it has never suggested that they are insulated from challenges under a statute passed to enforce the Fifteenth Amendment's ban on racial discrimination in voting. The claim at issue in this case is, therefore, firmly imbedded in the Fifteenth Amendment and cannot be made to disappear by citing § 2 of the Fourteenth Amendment.
2. Legislative history of the VRA
"Judicial investigation of legislative history has a tendency to become . . . an exercise in looking over a crowd and picking out your friends." Allapattah Servs., 125 S.Ct. at 2626 (internal quotation marks omitted). The majority is no exception, having drafted a number of "friends" to help it around unambiguous statutory language. See Maj. Op. at 317-23. However, even assuming justification exists for disregarding the language of a statute 0907 a proposition I disfavor 0907 the committee reports, floor debates, and stray comments cited by the majority do not, in my view, trump the text of VRA § 2(a).
The majority first looks to the legislative history of § 4 of the VRA, for assistance in explicating § 2(a) of the Act. 353 See Maj. Op. at 318-19. The probability of useful results *353 from such an exercise is nearly always extremely
low because the legislative history of one section of an expansive statute such as the VRA is typically of no value in understanding another, entirely different section. Section 4(a) of the VRA banned the use, in jurisdictions with a demonstrated history or racial discrimination, of "any test or device" to limit the ability to vote in order to "assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color." 42 U.S.C. § 1973b(a)(1).[5] Section 4(c) defined the phrase "test or device" as
any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.
42 U.S.C. § 1973b(c).
Thus, § 4 and § 2(a) employ starkly different language that dramatically distinguishes their scope. Section 4's use of the narrow terms "any test or device," 42 U.S.C. § 1973b(a)(1), is not comparable to § 2(a)'s use of the broad language "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure." 42 U.S.C. § 1973 (a). Second, § 4 and § 2 serve separate functions and operate differently. Section 4 imposes an outright ban on tests or devices, see 42 U.S.C. § 1973b(a)(1), while § 2(a) creates a "results" test, which requires investigating and weighing numerous factors. See 42 U.S.C. § 1973(b). Given this outright ban, one can understand why Congress would want to narrow the category of voting mechanisms falling under § 4(c) relative to § 2(a), where a plaintiff need only demonstrate discriminatory results. Third, the legislative history of one provision enacted in 1965 (§ 4) has nothing to say about Congress's intentions when amending a different provision (§ 2), seventeen years later in 1982. Equivocal fragments from legislative history should not obscure the fact that, from its inception and particularly through its amendment in 1982, Congress intended that § 2, unlike § 4, be given the broadest possible reach, as the text it chose makes clear. See Chisom, 501 U.S. at 403, 111 S.Ct. 2354; Allen, 393 U.S. at 566-67, 89 S.Ct. 817.

Not only is the majority's reliance on the legislative history of § 4 problematic, its reliance on floor statements concerning § 4(c) compounds the problems. See Maj. Op. at 318-19. Floor statements are among the most dangerous and least reliable forms of legislative history. As the Supreme Court has warned, floor statements from a handful of Senators "cannot amend the clear and unambiguous language of a statute," and there is "no reason to give greater weight to the views of two Senators than to the collective votes of both Houses, which are memorialized in the unambiguous statutory text." Barnbart v. Sigmon Coal Co., 534 U.S. 438, 457, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002); see also Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 390-91, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (Scalia, J., concurring in the judgment) ("[T]he statements of individual Members of 354 Congress (ordinarily addressed to a virtually empty floor) . . . [are not] a reliable indication of what a *354 majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intent 0907 the only thing we know for sure can be attributed to all of them 0907 is the words of the bill that they voted to make law.").
The danger lies in allowing "clear statutory language to be materially altered by such colloquies [by individual Congressmen], which often take place before the bill has achieved its final form," because this might "open the door to the inadvertent, or perhaps even planned, undermining of the language actually voted on by Congress and signed into law by the President." Regan v. Wald, 468 U.S. 222, 237, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984). Finally, when compared to committee reports that arguably "represent[] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation," floor statements "reflect at best the understanding of individual Congressmen." Zuber v. Allen, 396 U.S. 168, 186, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969); see also Fidelity Fin. Servs., Inc. v. Fink, 522 U.S. 211, 220, 118 S.Ct. 651, 139 L.Ed.2d 571 (1998) ("Whatever weight some Members of this Court might accord to floor statements about proposals actually under consideration, remarks that purport to clarify `related' areas of the law can have little persuasive force, and in this case none at all."); 2A Sutherland Statutory Construction § 48.13 ("Statements by individual members of the legislature about the meaning of provisions in a bill . . . are generally held not to be admissible as aids in construing the statute. . . . ").
In addition to looking at the legislative history from 1965 of another portion of the VRA, the majority also relies on Congress's silence on felon disenfranchisement in the legislative history of the 1982 amendments to § 2. See Maj. Op. at 320-21. The majority's use of silence is even worse than its use of floor debates, and the Supreme Court has repeatedly cautioned against drawing inferences from silence. See, e.g., Whitfield, 543 U.S. at 216, 125 S.Ct. 687; Wells, 519 U.S. at 497, 117 S.Ct. 921; Harrison v. PPG Indus. Inc., 446 U.S. 578, 592, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980). As we opined in Lander v. Hartford Life & Annuity Insurance Co., 251 F.3d 101 (2d Cir.2001), "`[i]t would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute.'" Id. at 110 n. 5 (quoting United States v. Koh, 199 F.3d 632, 636-37 (2d Cir.1999)); see also Harrison, 446 U.S. at 592, 100 S.Ct. 1889 ("In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark.") (citing Arthur Conan Doyle, The Silver Blaze, in The Complete Sherlock 355 Holmes (1938)).[6] Contrary to the majority's assertion, *355 therefore, there is nothing especially telling about Congress's silence. Moreover, Congress was neither silent nor subtle on the main question that concerns us here: whether it intended to permit discrimination in voting in any circumstance. The purpose of VRA § 2, as amended, is "to prohibit any voting practice, or procedure [that] results in discrimination." S.Rep. No. 97-417, at 2 (1982), 1982 U.S.C.C.A.N. at 179 (emphasis added). Congress could hardly have been clearer that its intention was to pass a broad remedial statute that guaranteed that no discriminatory law or device could escape scrutiny. As the Supreme Court has noted, "Congress enacted the Voting Rights Act of 1965 for the broad remedial purpose of ridding the country of racial discrimination in voting." Chisom, 501 U.S. at 403, 111 S.Ct. 2354 (internal quotation marks omitted). The legislative intent that matters here is Congress's intent for § 2 to apply as broadly as possible.
3. Historical anecdotes
Nor does the fact that felon disfranchisement has been a long-standing and widely-used device (it all started in Athens, we are told) mean that VRA § 2(a) does not apply. See Maj. Op. at 316-17. For starters, this is an odd argument indeed, since the very purpose of § 2(a) was to address long-standing, widely-used devices that

impacted minority voting. Felon disenfranchisement laws are not the only voting qualification that existed before the Civil War; so did poll taxes, property requirements, and literacy tests to name just a few. See generally Keyssar, supra note 3, at 53-76. The majority's arguments about felon disenfranchisement apply equally to each of them. Since no one would doubt that VRA § 2(a) encompasses these voting qualifications, I am at a loss to understand why felon disenfranchisement should be treated differently.
The VRA, as remedial legislation, was purposefully broad and flexible to accommodate changing circumstances impacting minority voting. This country's more recent history of exploding prison populations and dramatically rising incarceration rates is such a circumstance. The Bureau of Justice Statistics issues reports on state and federal prison populations. See Bureau of Justice Statistics, Prisoners Under State or Federal Jurisdiction 1977-2004, from National Prisoner Statistics data series (NPS-1) (updated Dec. 6, 2005), at http:// www.ojp.usdoj.gov/bjs/data/corpop02.csv. These reports show dramatic trends in the last thirty years. In New York, for example, the state and federal prison population at the end of 1977 was 19,367 persons. Id. At the end of 1999, only twenty-two years later, New York's state and federal prison population was more than three and one-half times larger, at 72,899 persons.[7]Id. The national trends are even more dramatic. Nationwide, the state and federal prison population has increased from 300,024 persons at the end of 1977, to 1,496,629 persons at 356 the *356 end of 2004 0907 nearly five times larger in only twenty-seven years.[8]Id. Researchers estimate that the total disenfranchised population has more than doubled from 1976 to 2000. See Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 Am. Soc. Rev. 777, 782 (2002).
When viewed against this historical backdrop, Congress's general silence on felon disenfranchisement with respect to VRA § 2(a) makes perfect sense. The relationship between felon disfranchisement and minority voting is fundamentally different now than forty years ago when the VRA was originally passed, or even almost twentyfive years ago when the 1982 amendments were passed. The stray comments in legislative history on which the majority heavily relies are typically pulled from the 1960s and 1970s. Nearly all predate the 1982 amendments to the VRA, and nearly all were generated well before the explosive growth in this nation's prison population. It is hardly surprising that legislators did not focus on felon disfranchisement and minority voting during the debates surrounding the passage of the VRA, or even during its amendment in 1982, since the problem as it currently manifests itself did not exist.
And again, while Congress may not have given much thought to the specific question of felon disenfranchisement, it certainly made clear its intent to outlaw any practice that resulted in discrimination in voting. To demand, as the majority does, that Congress mention every possible application of a statute in the legislative history is to prohibit Congress from passing broad remedial statutes that protect against methods of discrimination yet to be invented. The Congresses that created the VRA knew that discrimination takes many forms, and that only broad statutes 0907 statutes that do not enumerate, in their text or in their history, every form of discrimination against which they protect 0907 can be flexible enough to address new challenges. See H.R. Rep. No. 89-439, at 10 (1965), as reprinted in 1965 U.S.C.C.A.N. 2437, 2441 ("[E]ven after apparent defeat resisters seek new ways and means of discriminating. Barring one contrivance too often has caused no change in result, only in methods.").
D.
Next, a minority of this Court turns to the clear statement rule. This canon of interpretation requires Congress to make its intention "unmistakably clear" when enacting statutes that would alter the usual constitutional balance between the federal government and the states. The minority's concern is that application of the VRA to New York Election Law § 5-106 would intrude into three important state functions: (1) the regulation of the franchise; (2) the state's authority to craft its criminal law; and (3) the regulation of correctional institutions. See Min. Op. at 326. The minority reasons that, to the extent the VRA would affect this balance if applied to felon 357 disenfranchisement statutes, it must be construed not to encompass such provisions if it is unclear whether *357 Congress intended the VRA to apply to such laws.

For several reasons, the clear statement rule does not apply. First, for it to apply, ambiguity must exist, and § 2(a) is unambiguous. See, e.g., Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) ("in the context of an unambiguous statutory text," arguments concerning whether Congress has made its intention clear are "irrelevant"); Salinas v. United States, 522 U.S. 52, 60, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) ("Gregory itself . . . noted [that] the principle it articulated did not apply when a statute was unambiguous.") (citing Gregory v. Ashcroft, 501 U.S. 452, 467, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)); Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197, 206, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991) (citing Supreme Court cases that "describe the plain statement rule as a rule of statutory construction to be applied where statutory intent is ambiguous") (internal quotation marks omitted).
Second, even if VRA § 2(a) were ambiguous, the clear statement rule would still not apply because the provision is broadly worded, and the rule does not apply to broadly worded remedial statutes. As the Supreme Court has made clear, a broad statute satisfies the clear statement rule even though it does not enumerate all of its intended applications: "[T]he fact that a statute can be `applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.'" Yeskey, 524 U.S. at 212, 118 S.Ct. 1952 (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). Congress used language in § 2 that was deliberately broad and generic. It is well-settled that "[a] statute can be unambiguous without addressing every interpretive theory offered by a party. It need only be `plain to anyone reading the Act' that the statute encompasses the conduct at issue." Salinas, 522 U.S. at 60, 118 S.Ct. 469 (quoting Gregory, 501 U.S. at 467, 111 S.Ct. 2395). Congress could hardly have been expected to have enumerated every conceivable voting qualification, prerequisite, practice, or procedure to which the statute could apply in the text, or even the legislative history, of § 2(a). To do so would have left the states free to devise new means to discriminate that were not listed. To hold that Congress did not intend the VRA to cover felon disenfranchisement statutes is to hold that Congress actually intended to allow some forms of race-based voter disenfranchisement. Such a result I find improbable 0907 indeed inconceivable.
Third, the clear statement rule cannot be justified by contending that unless it is applied, the VRA would improperly interfere with "sensitive domains" such as the core state function of regulating the franchise. See Min. Op. at 325, 326-27. This contention overlooks the quite obvious fact that the very purpose of the VRA was to impose Congressional regulation on the traditional state function of regulating voting. See Lopez v. Monterey County, 525 U.S. 266, 284-85, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999) ("In short, the Voting Rights Act, by its nature, intrudes on state sovereignty. The Fifteenth Amendment permits this intrusion, however. . . ."). Time and time again, the Supreme Court has held that state voting requirements are comfortably within Congress' reach under the VRA. See id. at 278, 119 S.Ct. 693 (holding that VRA's pre-clearance requirement could be applied to voting changes adopted by a non-covered state if the changes had an effect on a covered county); Young v. Fordice, 520 U.S. 273, 283-84, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997) (holding that state's new plan for 358 separate state and federal voter registration *358 was a discretionary change and therefore required preclearance under the VRA); Bush v. Vera, 517 U.S. 952, 976, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (applying VRA to state's drawing of voting districts); Chisom, 501 U.S. at 403-04, 111 S.Ct. 2354 (holding that § 2(a) of the VRA applies to state laws regarding election of state court judges); Katzenbach v. Morgan, 384 U.S. 641, 658, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (holding that state's English literacy voting requirement could not be enforced to the extent it was at odds with the VRA). Felon disenfranchisement is no more a core state function than any of these examples.
Fourth, while it is correct that the states possess the primary authority for defining and enforcing the criminal law, United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the short 0907 and conclusive 0907 answer is that New York Election Law § 5-106 is not a criminal law. It is a voting law found in New York's Election code, not among its criminal laws. As Judge Friendly pointed out, "[d]epriving convicted felons of the franchise is not a punishment but rather is a `nonpenal exercise of the power to regulate the franchise.'" Green v. Bd. of Elections, 380 F.2d 445, 450 (2d Cir.1967) (quoting Trop v. Dulles, 356 U.S. 86, 97, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)). See also N.Y. Election Law § 1-102 ("This chapter shall govern the conduct of all elections at which voters of the state of New York may cast a ballot for the purpose of electing an individual to any party position or nominating or electing an individual to any federal, state, county, city, town or village office, or deciding any ballot question submitted to all the voters of the state or the voters of any county or

city, or deciding any ballot question submitted to the voters of any town or village at the time of a general election."); N.Y. Penal Law § 1.05 ("The general purposes of the provisions of this chapter are: . . . To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests. . . . ").
Fifth, the clear statement rule is particularly inappropriate in the context of the VRA, which was enacted and amended pursuant to Congress's powers under both the Fourteenth and Fifteenth Amendments, as explained in Part C.1, supra. Contrary to the suggestion of some members of this Court, see Min. Op. at 326, the seismic shift created by the Fourteenth and Fifteenth Amendments clearly altered the federal-state balance in an attempt to address a truly compelling national interest 0907 namely, reducing racial discrimination perpetuated by the states. Indeed, these Amendments "were specifically designed as an expansion of federal power and an intrusion on state sovereignty." Gregory, 501 U.S. at 468, 111 S.Ct. 2395 (quoting City of Rome v. United States, 446 U.S. 156, 179, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980)); see also Mitchum v. Foster, 407 U.S. 225, 238 & n. 28, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (recognizing the "basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment" such as the Fourteenth and Fifteenth Amendments). In sum, any shift in the federal-state balance of power that would purportedly result from applying VRA § 2 to New York Election Law § 5-106 would not occur as a result of the resolution of this case. That shift occurred more than 130 years ago when the Reconstruction Amendments were passed and ratified.
Finally, were a clear statement required, VRA § 2(a) supplies it: "No voting qualification or prerequisite to voting 359 or standard, practice, or procedure shall be imposed or applied by any State or political *359 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. . . ." 42 U.S.C. § 1973(a). Since § 2(a) covers all voting qualifications, it indisputably covers felon disenfranchisement laws like New York Election Law § 5-106. If anything is clear from the legislative history of the VRA it is that Congress intended to eliminate all race-based disfranchisement, no matter the means by which it was achieved.
E.
Next, I address Judge Walker's effort to import the Supreme Court's City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), line of cases to § 2 of the Fifteenth Amendment, and to issues of race and voting. This effort hinges on an erroneous belief that courts must first define with "precision" the scope of the constitutional right that Congress seeks to enforce. See Concurring Op. of Judge Walker at 330. His concurrence contends that, if taken at its word, VRA § 2(a) would be unconstitutional, and that a plain reading of the statute should be avoided for that reason. He believes, after defining "with precision" the constitutional right at issue, the reviewing court would look to see whether Congress explicitly identified a history and pattern of unconstitutional violations of that particular, precisely defined right, and finally, the court would assess Congress's chosen means of addressing these violations to determine whether its remedy was a congruent and proportional response to those violations. See Concurring Op. of Judge Walker at 330.
With all due respect, this "define with precision" test as applied to issues like voting and race was invented from whole cloth. It finds no analogue in jurisprudence, and no grounding in Boerne and its progeny. This is so for a number of reasons. First, Judge Walker cites Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), in support of his "define with precision" test. See Concurring Op. of Judge Walker at 330. Garrett actually stated that courts should "identify with some precision the scope of the constitutional right at issue." 531 U.S. at 365, 121 S.Ct. 955 (emphasis added). In Garrett, this process required the Supreme Court to "examine the limitations § 1 of the Fourteenth Amendment places upon States' treatment of the disabled." Id. If we were to actually follow the Supreme Court's guidance in Garrett, we would examine the limitations § 1 of the Fourteenth Amendment and § 1 of the Fifteenth Amendment place on a state's treatment of race and voting. When this is done, it is clear that the scope of Congress's enforcement authority is at its zenith when protecting against discrimination based on suspect classifications (such as race), or when protecting fundamental rights (such as voting). Unlike the rights of the disabled at issue in Garrett, the scope of the constitutional rights at issue here are expansive, and not subject to artificial narrowing.

The "define with precision" test is an invitation for judges to impress their subjective judgments on statutory texts. Accordingly, in this case, Judge Walker has chosen to narrowly define (to define away?) the right at issue as the right of state prisoners and parolees to vote. See Concurring Op. of Judge Walker at 330-31. Contrary to this reading of the Boerne cases, the scope of the right that Congress seeks to enforce should come from the text of 360 the statute, not from the air or from a judge's preferences. Thus, in stark contrast to Judge Walker, Congress *360 itself defined the right as the right to be free from any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . imposed or applied by any State . . . 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. . . ." 42 U.S.C. § 1973(a) (emphasis added).
If a statute is unambiguous, a judge's role is to read and to apply it, not to rewrite it through an illusory and subjective search for "precision." If judges are free to search broad, remedial statutes for "precision" and enforce them according to what they think they find, then the coverage of such statutes is in the hands of judges, not legislators. If taken seriously, this "define with precision" test would call into question Congress's ability to pass most types of broad remedial legislation. If that test were the standard, Congress, to insulate an enactment from constitutional objection, would have to anticipate and document the need for virtually all applications of a remedial statute. This approach is, of course, completely contrary to what remedial legislation is intended to do: protect rights from encroachment by unforeseen as well as by known means.
Fortunately, the "define with precision" test has no takers. The Supreme Court has affirmed that "Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct." Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727-728, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Moreover, when Congress "seeks to remedy or prevent unconstitutional discrimination," § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment authorize Congress "to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent." Tennessee v. Lane, 541 U.S. 509, 520, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). The Supreme Court has repeatedly referred to this enforcement power as a "broad power indeed." Lane, 541 U.S. at 518, 124 S.Ct. 1978 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 732, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)) (citing Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879)).
Obviously, this broad power is not without limits. Since its 1997 decision in Boerne, the Supreme Court has issued several decisions concerning the scope of Congress's authority to enact prophylactic legislation under § 5 of the Fourteenth Amendment. The Supreme Court has held, for example, that Congress lacked the power under § 5 to abrogate state sovereign immunity to suit for discrimination on the basis of disability, age, and religion. See Garrett, 531 U.S. at 374, 121 S.Ct. 955 (disability); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (age); Boerne, 521 U.S. at 536, 117 S.Ct. 2157 (religion). The Supreme Court's decisions turned on a lack of "congruence and proportionality," id. at 530, 117 S.Ct. 2157; in other words there was insufficient evidence of discrimination to justify federal intrusion into matters traditionally regulated by the states.
By contrast, despite any number of opportunities, the Supreme Court has never questioned the constitutionality of the VRA. Indeed, the Supreme Court has referred to it as the paradigm of appropriate remedial legislation. See Hibbs, 538 U.S. at 738, 123 S.Ct. 1972 (upholding the FMLA and likening it to the VRA, which the Court described as a "valid exercise[] of Congress' § 5 power"); Garrett, 531 U.S. at 373, 121 S.Ct. 955 ("The ADA's constitutional shortcomings are apparent when the Act is compared to Congress' efforts in the Voting Rights Act 361 of 1965 to *361 respond to a serious pattern of constitutional violations."); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 640, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (distinguishing the Patent Remedy Act from the VRA on account of the "undisputed record of racial discrimination confronting Congress in the voting rights cases"); Boerne, 521 U.S. at 518, 117 S.Ct. 2157 ("[M]easures protecting voting rights are within Congress' power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures place[ ] on the States.").
The distinction between the VRA and other remedial legislation rests on three obvious and interrelated factors: One, the right to vote free of racial discrimination is a "fundamental principle" of the Constitution. Rice, 528 U.S. at 512, 120 S.Ct. 1044; see Morgan, 384 U.S. at 654, 652, 86 S.Ct. 1717 (describing the right to vote as

"precious and fundamental" and "the right that is preservative of all rights") (internal citations omitted). Two, the country's long and persistent history of discrimination gives Congress much greater latitude in fashioning appropriate remedies for racial discrimination in voting than for other types of discrimination. See Boerne, 521 U.S. at 526, 117 S.Ct. 2157 (acknowledging "the necessity of using strong remedial and preventive measures to respond to the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination"); see also Lane, 541 U.S. at 518-19 & n. 4, 124 S.Ct. 1978 (recounting that federal legislation meant to remedy racial discrimination in voting has repeatedly withstood federalism-related scrutiny); id. at 561, 124 S.Ct. 1978 (Scalia, J., dissenting) ("Giving § 5 more expansive scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctively violative of the principal purpose of the Fourteenth Amendment a priority of attention that this Court envisioned from the beginning, and that has repeatedly been reflected in our opinions."); Kimel, 528 U.S. at 83, 120 S.Ct. 631 (distinguishing age discrimination from racial discrimination because "[o]lder persons . . . unlike those who suffer discrimination on the basis of race . . . have not been subjected to a history of purposeful unequal treatment") (internal quotation marks omitted).
And three, it is easier for Congress to show a pattern of state constitutional violations when the remedial legislation is targeted at a classification that is subject to heightened judicial scrutiny, such as race. See Hibbs, 538 U.S. at 736, 123 S.Ct. 1972 ("Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational-basis test . . . it was easier for Congress to show a pattern of state constitutional violations. Congress was similarly successful in South Carolina v. Katzenbach, where we upheld the Voting Rights Act of 1965: Because racial classifications are presumptively invalid, most of the States' acts of race discrimination violated the Fourteenth Amendment.") (citing Katzenbach, 383 U.S. at 308, 86 S.Ct. 803) (internal citation omitted); see also Lane, 541 U.S. at 529, 124 S.Ct. 1978. Thus Congress was comfortably within its expansive enforcement powers when enacting VRA § 2(a).
Nor is the fact that Congress did not make specific findings of racial discrimination through felon disenfranchisement persuasive. Congress specifically found that racial discrimination in voting has proven resilient in the face of narrow prohibitions, in light of the ingenuity of state and local efforts to erect novel and subtle barriers to minority voting. See S.Rep. No. 97-417 at 6, 1982 U.S.C.C.A.N. at 183 ("The ingenuity of such 362 schemes seems endless."); *362 H.R.Rep. No. 89-439, at 10 (1965), as reprinted in 1965 U.S.C.C.A.N. 2437, 2441 ("[E]ven after apparent defeat resisters seek new ways and means of discriminating. Barring one contrivance too often has caused no change in result, only in methods."). Congress determined that it was necessary to enact broad and flexible remedies to eliminate discrimination that persisted for more than 100 years after the ratification of the Fifteenth Amendment. It therefore provided that "[n]o voting qualification . . . shall be imposed" if it "results" in the abridgement of the right to vote on account of race or color. 42 U.S.C. § 1973(a).
To require Congress to catalogue a history of discrimination by specifically enumerating every conceivably discriminatory practice in order to regulate it would run directly counter to the purpose of the VRA, which was to ban discrimination not only by currently used means, but by any others that could be devised by the states. See Allen, 393 U.S. at 566, 89 S.Ct. 817 (noting that Congress expanded the language of the Act to give it "the broadest possible scope" in response to the concern that an earlier draft "was not broad enough to cover various practices that might effectively be employed to deny citizens their right to vote"). Accordingly, Congress has never been required to find that a particular voting practice had resulted in discrimination before it could ban or regulate such a practice, and the VRA has been properly applied to many discriminatory voting devices and practices that were not mentioned in the VRA's legislative history. See, e.g., Harris v. Graddick, 593 F.Supp. 128, 132-33 (M.D.Ala.1984) (applying VRA § 2 to state's hiring of a disproportionately small number of Black poll workers); Brown v. Dean, 555 F.Supp. 502, 504-06 (D.R.I. 1982) (applying VRA § 2 to location of state's polling places and finding a "constructive disenfranchisement" of minority voters); Brown v. Post, 279 F.Supp. 60, 64 (W.D.La.1968) (applying VRA § 2 to state's failure to provide voters with absentee ballots).
In sum, Judge Walker's view that Congress lacks the authority to reach felon disenfranchisement statutes that result in the denial of the right to vote on account of race is wrong. To adopt that view is to conclude that there are some forms of race-based voter discrimination that are beyond Congress's reach, a proposition that, as we have seen, is not correct.

* * *
For these reasons, I respectfully dissent.[9]
CALABRESI, Circuit Judge, dissenting.
The majority opinion is learned, thoroughly researched, well-written, and restrained 0907 but it is almost totally irrelevant to the question presented in this case. The majority demonstrates beyond peradventure that Congress 363 did not intend the *363 Voting Rights Act to prohibit felon disenfranchisement categorically, as that statute categorically prohibits, for instance, the use of literacy tests and "good moral character" requirements in certain jurisdictions. See 42 U.S.C. §§ 1973b(a), (c). And if the plaintiffs were, in fact, arguing that the Voting Rights Act erects a per se ban on felon disenfranchisement, I would readily join the majority. But, of course, this is not the plaintiffs' position. Rather, they contend that the Voting Rights Act prohibits felon disenfranchisement laws that result in the denial or dilution of voting rights on the basis of race. Their complaint alleges that New York Election Law § 5-106 has precisely this result, and, as Judge Parker notes in his dissent, we are bound to accept this allegation as the gospel truth for purposes of New York's motion for judgment on the pleadings. Nothing in the majority opinion 0907 nor, for that matter, in the concurrences[1] 0907 gives a single reason to suggest that Congress did not intend the Voting Rights Act to do what its plain language says and bar felon disenfranchisement statutes that result in racial discrimination. I, therefore, see no basis for depriving the plaintiffs of the right to prove their allegations.
364 I join Judge Parker's well-reasoned dissent.[2] I write separately simply to emphasize *364 how completely, in my view, the majority's analysis misses the actual issue of the case, and to muse as to what could have led my learned colleagues to affirm the district court when, as Judge Parker's dissent demonstrates, all of the canonical indicators of legislative intent 0907 statutory text, context, and legislative history 0907 so clearly point in the opposite direction.
I
The bulk of the majority opinion[3] is devoted to discussing (1) congressional statements that § 4(c) of the Voting Rights Act (which bans some practices outright) did not reach felon disenfranchisement,[4] (2) failed efforts to amend the statute to ban felon disenfranchisement outright, and (3) congressional actions that presuppose the validity of felon disenfranchisement in some circumstances. Whatever interest such subjects may hold in the abstract, they have no more bearing on the issue at hand than do the punitive practices of ancient Greeks or medieval Britons, which the majority opinion also canvasses.
The majority's discussion of § 4(c) illustrates the point. That provision categorically forbids the use of "any test or device," including "good moral character" requirements, in covered jurisdictions.[5]See 42 U.S.C. § 1973b(c). In other words, such tests and devices are forbidden whether or not they can be shown to have discriminatory results. The majority makes much of legislative history showing that Congress did not intend § 4(c) to forbid felon disenfranchisement. True enough. Felon disenfranchisement is not prohibited in the absence of a showing that it brings about discriminatory results. But the statements in legislative history that felon disenfranchisement is not banned by § 4(c) cannot be taken to imply a wholesale carve-out that exempts felon disenfranchisement from Voting Rights Act scrutiny altogether, as the majority asserts. Rather, such legislative statements simply make the 365 uncontroversial point that felon disenfranchisement laws are not "good moral character" requirements *365 within the meaning of § 4(c). That, however, is not the issue before us. The fact that race-neutral felon disenfranchisement is permissible under § 4(c) tells us nothing at all about whether § 2 allows racially discriminatory felon disenfranchisement. And, as Judge Parker shows, the language of § 2(a) makes perfectly plain that such discriminatory disenfranchisement is barred.
The majority also tells us that some members of Congress tried, unsuccessfully, to amend the Voting Rights Act "to prohibit the States from denying the right to vote in Federal elections to former criminal offenders who have

not been convicted of any offense related to voting or elections and who are not confined in a correctional institution." Maj. Op. at 319 (quoting H.R. 15049, 92d Cong. (1972)). Once again, this does indeed imply that the Voting Rights Act does not, of itself, prohibit all felon disenfranchisement 0907 a fact that no one disputes. How the majority moves from the fact that Congress declined to proscribe race-neutral felon disenfranchisement to the conclusion that Congress intended to exempt racially discriminatory felon disenfranchisement from the coverage of the Voting Rights Act is beyond me. It is perfectly clear that voting practices and procedures that are not per se impermissible under the Voting Rights Act 0907 at-large voting and multi-member districts, for instance 0907 violate the statute when they produce discriminatory results. See Thornburg v. Gingles, 478 U.S. 30, 48, 80, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (recognizing that "[m]ultimember districts and at-large election schemes . . . are not per se violative of minority voters' rights," but affirming the district court's conclusion that the multimember electoral structure at issue did violate § 2 because it resulted in racially discriminatory vote dilution) (internal quotation marks and alteration omitted). And so it is with felon disenfranchisement laws. The majority has shown that some members of Congress thought felon disenfranchisement to be so inimical to voting rights as to try to forbid the practice even in the absence of discriminatory effects. The idea that such congressional efforts somehow imply the existence of a "safe harbor" for felon disenfranchisement statutes that do result in racially discriminatory denials or dilutions of voting rights is, it seems to me, risible.
Nor do subsequent enactments that presuppose the validity of felon disenfranchisement laws (e.g., a provision of the Help America Vote Act of 2002, 42 U.S.C. § 15483(a)(2)(A)(ii)(I)), or bills that seek to limit felon disenfranchisement (e.g., the Ex-Offenders Voting Rights Act of 2005, H.R. 663, 109th Cong. (2005)), suggest in the slightest that Congress understands discriminatory felon disenfranchisement to be consistent with the Voting Rights Act.
Still, the majority concludes, largely based on the statutory history recounted above, that "the Voting Rights Act does not apply to felon disenfranchisement provisions." Maj. Op. at 322. What is behind this remarkable decision to buck text, context, and legislative history in order to insulate a particular racially discriminatory practice from an anti-discrimination rule of general applicability?
II
I believe the majority opinion and, perhaps especially, the concurrence of Judges Straub and Sack are motivated 366 in large part by skepticism that Congress could have intended the result that the plaintiffs *366 urge.[6], But it is
important here, in talking about congressional intent, to distinguish between the enacting Congress and the current Congress. It is, of course, the legislative intent of the enacting Congress 0907 not the current Congress 0907 that is controlling. See, e.g., European Cmty. v. RJR Nabisco, Inc., 355 F.3d 123, 136 (2d Cir.2004) ("[E]xpressions of legislative intent made years after the statute's initial enactment are entitled to limited weight under any circumstances. . . ."), rev'd on other grounds, 544 U.S. 1012, 125 S.Ct. 1968, 161 L.Ed.2d 845 (2005); see also United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968) ("[T]he views of one Congress as to the construction of a statute adopted many years before by another Congress have very little, if any, significance.") (internal quotation marks omitted). And I see no reason to think that the 97th Congress, which was responsible for the "dramatic substantive transformation" of the Voting Rights Act in 1982, meant the expansive prohibition of discriminatory results it enacted to apply in any other way than 367 precisely as written. Thomas M. Boyd & Stephen J. Markman, *367 The 1982 Amendments to the Voting Rights Act: A Legislative History, 40 Wash. & Lee L.Rev. 1347, 1347 (1983). The fact that the 109th Congress in the year 2006, if asked, might very well choose not to invalidate felon disenfranchisement laws that produce discriminatory results in no way indicates that the very different Congress of a generation ago made, or would now make, the same choice.
It may be that the current Congress would rather not see state felon disenfranchisement statutes invalidated under the Voting Rights Act even when these resulted in racial discrimination. And some scholars, myself included, have suggested that it might be a good idea if, as a starting point, in certain circumstances, courts were permitted to read the law according to what they perceived to be the will of the current Congress, rather than that of a long-gone-by one. See Guido Calabresi, A Common Law for the Age of Statutes (1982); see also William N.

Eskridge, Jr., Dynamic Statutory Interpretation (1994). But whatever the merits of such an arrangement in the abstract, it is simply not a part of our legal system.
Moreover, the only justification for such statutory updating, even in theory, is that the legislature may be stalled by inertia, with the result that an outmoded and antimajoritarian statutory scheme becomes fixed in stone. See Calabresi, A Common Law for the Age of Statutes 120-21. This is hardly the case here, for important portions of the Voting Rights Act will be before Congress next year for reauthorization. See 42 U.S.C. §§ 1973b(a)(8), 1973aa-1a(b)(1). The reauthorization process removes most inertial barriers to lawmaking, so that if a majority in Congress wishes to amend the statute to permit even discriminatory felon disenfranchisement, it will be able to do so easily.[7]Cf. William N. Eskridge, Jr., et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 66-67 (2001) (discussing procedural obstacles that ordinarily can prevent the enactment of laws that have the support of a legislative majority).
Significantly, any such amendment will take effect long before Hayden and the other class plaintiffs, whose case is only at the pleading stage, ever reach a ballot. Thus, the fact that Congress will soon take up the Voting Rights Act removes even the most academic of reasons for the Court to take the matter into its own hands and impose a statutory construction deeply at odds with the language of the statute and with the intention of the original enacting Congress "to give the Act the broadest possible scope." Allen v. State Bd. of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). Our unwillingness to let the statute apply as it is written unless and until Congress changes it in 2007 is, to me, mind-boggling. Accordingly, I respectfully dissent.
SOTOMAYOR, Circuit Judge, dissenting.
I join in Judge Parker's dissent, and write this separate opinion only to emphasize one point. I fear that the many pages of the majority opinion and concurrences 0907 and the many pages of the dissent that are necessary to explain why they are wrong 0907 may give the impression that this case is in some way complex. It is not.
368 It is plain to anyone reading the Voting Rights Act that it applies to all "voting *368 qualification[s]." And it is equally plain that § 5-106 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 322, 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.
KATZMANN, Circuit Judge, dissenting.
As a matter of public policy, I do not doubt that it may well be rational for the state to enact laws 0907 applied fairly and equally, regardless of race, creed, color, religion or gender 0907 that deprive felons of the right to vote while serving their sentences. At the same time, I am mindful that the task of a court is not to make policy or to substitute its views for that of political branches, but rather to be faithful to the words of a statute. In the case at hand, Congress stated:
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 . . . as provided in subsection (b) of this section.
42 U.S.C. § 1973(a). I believe that this language of the Voting Rights Act is facially unambiguous and that New York Election Law § 5-106 imposes a "voting qualification or prerequisite to voting or standard, practice, or procedure." In my view, the plain text of the Voting Rights Act therefore encompasses the claim that appellants

have pleaded, and thus allows appellants to try to show a violation. But in construing a broad, unambiguous statute, my inquiry as to its meaning does not necessarily end with the text.
To be sure, in the ordinary course, caselaw instructs that courts should be loathe to go beyond the text of an unambiguous statute. See, e.g., Lee v. Bankers Trust Co., 166 F.3d 540, 544 (2d Cir.1999) ("It is axiomatic that the plain meaning of a statute controls its interpretation and that judicial review must end at the statute's unambiguous terms.") (internal citations omitted). However, that is not to say that a court must always and slavishly look only to the text of a statute when seeking to understand its meaning, just because the text is seemingly clear in isolation. A statute that is broadly worded, albeit facially unambiguous, can be reasonably construed in a variety of ways consistent with its text, but construing text without context can lead to results that Congress did not intend or that are even absurd. I am of the view that legislative history 0907 in reliable form, such as conference committee reports and the floor statements of managers 0907 can be useful in discerning legislative meaning when the statutory text is susceptible to different interpretations and the plain language alone yields results that are surprising or absurd (of course, where further investigation reveals that Congress did intend such 369 results, courts must be *369 faithful to Congress's meaning). See William N. Eskridge, Jr., et al., Legislation and Statutory Interpretation 300-01 (2000); Robert A. Katzmann, Courts and Congress 62-68 (1997).
Thus, although we agree as to the outcome, I part company with Judge Parker's powerful dissent as to interpretive method. That is, I do not agree that the majority engages in an improper inquiry by examining the legislative history of the Voting Rights Act with respect to felon disenfranchisement policies, notwithstanding that the broadly worded and facially unambiguous text of 42 U.S.C. § 1973(a) literally covers such policies as readily as it does any others that result in the denial of the right to vote on account of race or color. Because § 1973(a) does not speak specifically to the question we address today, if I saw clear evidence in the authoritative legislative history that the Congress that enacted it intended to exclude felon disenfranchisement policies from its reach, I would so construe it. But when we look to the authoritative legislative history of § 1973(a)'s enactment in 1982 0907 the materials directly relevant to our present inquiry, under conventional methods of statutory analysis 0907 or even to activity in the immediately preceding Congress, we find complete silence as to whether Congress intended to exclude felon disenfranchisement policies from its reach. Surely, the silence of enacting legislators cannot overcome the unambiguous and broadly worded provisions of a statute that was meant to apply to a multitude of state policies not specifically enumerated in its text 0907 notwithstanding the majority's references to congressional activity in legislative sessions far removed from the Congress that enacted § 1973(a) in 1982, as well as to Congress's assumptions in enacting unrelated legislation.
I see no precedent for not following the plain language under these circumstances. What we have here cannot be that rare situation where "the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters," United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (internal quotations omitted), because we have literally no evidence as to the intention of the drafters of the 1982 provision specifically with respect to felon disenfranchisement policies. Moreover, because reasonable people can differ over the wisdom of extending the Act's coverage to felon disenfranchisement policies, such a result cannot be considered "absurd" or "unthinkable." See Green v. Bock Laundry Machine Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 104 L.Ed.2d 557 (Scalia, J., concurring). If Congress has a different view, then it is free to amend § 1973(a) accordingly. But this court has no license on its own to do so.
Cases of statutory interpretation are sometimes decided by judges' differing views as to when it is appropriate to look beyond the plain text of the statute and examine authoritative legislative history, but this is not such a case. Whether one stops with the plain language of an unambiguous provision, as Judge Parker advocates, or looks at the authoritative legislative history in addition, as I do, the result should be the same.
Order Clarifying Opinion
June 1, 2006.
PER CURIAM:

We write nostra sponte to clarify further proceedings contemplated by the mandate of the en banc Court in this matter. See Hayden v. Pataki, 449 F.3d 305, 2006 WL 1169674 (2d Cir. May 4, 2006).
370 *370 Plaintiffs-appellants filed a class action complaint pursuant to 42 U.S.C. § 1983 that sought to invalidate the felon disenfranchisement provisions found in New York Constitution Article II, § 3 and New York Election Law § 5-106. Plaintiffs-appellants claimed that these provisions violated their rights under the First, Fourteenth, and Fifteenth Amendments, Section 2 of the Voting Rights Act of 1965 (codified at 42 U.S.C. § 1973), the Civil Rights Acts of 1957 and 1960 (codified at 42 U.S.C. §§ 1971(a)(1), 1971(a)(2)(A) & 1971(a)(2)(B)), and certain treaties and customary international law. On June 14, 2004, the District Court issued a memorandum and order granting defendants-appellees' motion for judgment on the pleadings and dismissing all of plaintiffs-appellants' claims. See Hayden v. Pataki, No. 00 Civ. 8586(LMM), 2004 WL 1335921 (S.D.N.Y. June 14, 2004). On June 16, 2004, the District Court entered judgment on behalf of defendants-appellees.
On July 13, 2004, plaintiffs-appellants filed a timely Notice of Appeal in the District Court, a copy of which was received and docketed by the Court of Appeals on July 23, 2004. The parties then submitted briefs according to the following schedule: on September 27, 2004, plaintiffs-appellants filed an opening brief, on November 24, 2004, defendants-appellees filed a response brief; and on December 8, 2004, plaintiffs-appellants filed a reply brief. However, at the instruction of Chief Judge Walker on February 17, 2005, this case was held in abeyance and not assigned to a three-judge panel, pending a determination by the Court whether to consolidate the case with Muntaqim v. Coombe, No. 01-7260, see Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.2004), in which an en banc proceeding was then pending.
By order of the en banc Court on February 24, 2005, this case was then consolidated with Muntaqim, and accepted for appeal directly to the en banc Court for consideration of the single "common issue of law" presented in both Muntaqim and Hayden 0907 namely, "whether, on the pleadings, a claim that a New York State statute, Section 5-106 of the New York Election Law, that disenfranchises currently imprisoned felons and parolees results in unlawful vote denial and/or vote dilution can state a claim for violation of Section 2 of the Voting Rights Act." Order of Feb. 24, 2005.
The en banc Court deconsolidated Muntaqim by order of May 4, 2006, and entered a judgment of dismissal of Muntaqim's claims for want of standing. See Muntaqim v. Coombe, 449 F.3d 371, 2006 WL 1359890 (2d Cir. May 4, 2006) (per curiam). Then, in this case, the en banc Court proceeded to answer the question noted above in the negative, in an opinion filed May 4, 2006. See Hayden v. Pataki, 449 F.3d 305, 2006 WL 1169674 (2d Cir. May 4, 2006). The en banc Court expressly did not consider, much less decide, whether plaintiffs-appellants had also stated a claim on behalf of plaintiffs who are neither incarcerated nor on parole that their votes are "diluted" because of New York's apportionment process, "which counts incarcerated prisoners as residents of the communities in which they are incarcerated, and has the alleged effect of increasing upstate New York regions' populations at the expense of New York City's." Id. at *15; see also id. at *45 n. 9 (B.D. Parker, J., dissenting) (indicating that "the Hayden plaintiffs deserve the opportunity to fully brief and undertake to prove their additional claim that New York's apportionment process 0907 which counts incarcerated felons as residents of the communities 371 in which they are incarcerated 0907 results in dilution of minority *371 votes in violation of the VRA"). The en banc Court remanded Hayden to the District Court to consider, in the first instance, "whether plaintiffs have indeed properly raised the claim, and, if so, to rule on the merits of the claim." Id. at *15. In doing so, we stressed that because the apportionment issue "was neither considered by the District Court nor briefed by defendants, we intimate no view on the question." Id.
In order to enhance the orderly and efficient administration of justice, we continue to believe that the proper course of action is for the District Court to address this possible vote dilution claim before a regular three-judge panel considers the other federal constitutional, statutory, and international law arguments raised by plaintiffsappellants in their original appeal from the District Court's ruling (which were not addressed in the en banc Court's ruling on plaintiff-appellants' VRA claim). By proceeding in this manner, we hope to avoid multiple appeals in the future.
Thus, to clarify, the Clerk of Court is directed to issue the mandate for this case forthwith and remand this case to the District Court for the limited purpose of considering whether plaintiffs-appellants properly stated a vote dilution

claim based on New York's apportionment process, and, if so, to rule on the merits of that claim. However, the Court of Appeals will retain jurisdiction over the remaining claims raised by plaintiffs-appellants in their original briefs on appeal, which will continue to be held in abeyance until after the District Court addresses this vote dilution issue on remand. Any party seeking appellate review of the decision of the District Court on remand shall so inform the Clerk of this Court within 30 days of that decision. Jurisdiction will then automatically be restored to the Court of Appeals without the need for an additional notice of appeal, and in the normal course the matter will be referred to a regular three-judge panel, to be heard along with the remaining claims raised by plaintiffsappellants in their original briefs on appeal. Cf. United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994).
[1] Senior Circuit Judges Thomas J. Meskill and Richard J. Cardamone were part of the Muntaqim en banc court because they were on the three-judge panel that originally heard the case. See 28 U.S.C. § 46(c). They were not on the Hayden en banc court. Because we have vacated the panel decision in Muntaqim on jurisdictional grounds, Judges Meskill and Cardamone have played no role in the decision of this matter.
[2] The Hayden plaintiffs raise a number of other constitutional and statutory claims, which are not before the en banc court and which will be considered by a three-judge panel in the normal course.
[3] Because it dismissed all of plaintiffs' claims on the merits, the District Court denied plaintiffs' motion for class certification as moot. Hayden, 2004 WL 1335921, at *8 n. 5, 2004 U.S. Dist LEXIS 10863, at *24 n. 5.
[4] New York Election Law § 5-106(2)-(5) states:
2. No person who has been convicted of a felony pursuant to the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has expired, or he has been discharged from parole. The governor, however, may attach as a condition to any such pardon a provision that any such person shall not have the right of suffrage until it shall have been separately restored to him.
3. No person who has been convicted in a federal court, of a felony, or a crime or offense which would constitute a felony under the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the president of the United States, or his maximum sentence of imprisonment has expired, or he has been discharged from parole.
4. No person who has been convicted in another state for a crime or offense which would constitute a felony under the laws of this state shall have the right to register for or vote at any election in this state unless he shall have been pardoned or restored to the rights of citizenship by the governor or other appropriate authority of such other state, or his maximum sentence has expired, or he has been discharged from parole.
5. The provisions of subdivisions two, three and four of this section shall not apply if the person so convicted is not sentenced to either death or imprisonment, or if the execution of a sentence of imprisonment is suspended.
[5] Although § 5-106 disenfranchises felons on parole as well as incarcerated felons, for ease of reference we refer to the class of felons disenfranchised by § 5-106 as "incarcerated felons." Cf. Dixon v. Miller, 293 F.3d 74, 78 (2d Cir.2002) (noting that a convict released on parole is still treated for habeas purposes as if he were "in custody") (quoting Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)).
[6] Before its amendment in 1982, § 1973 provided: "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." City of Mobile v. Bolden, 446 U.S. 55, 60, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980).
[7] As we note below, the New York provision at issue here is considerably narrower in its reach than those of Florida and Washington, at issue in Johnson and Farrakhan, respectively. In referring generally to statutes that deny the franchise to felons (during and after incarceration and parole), we will refer to "felon disenfranchisement statutes"; in referring to New York's narrower version of the species, we refer to its "prisoner disenfranchisement statute."

[8] We note that, despite plaintiffs' claim that racial discrimination infects the whole of the criminal justice system such that non-racially motivated felon disenfranchisement laws violate the VRA, counsel for plaintiffs insisted at oral argument that they do not allege any discrimination in plaintiffs' particular convictions. They did well not to make this claim, for such an assertion might have raised questions under the doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which provides that "[i]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87, 114 S.Ct. 2364. Here, clearly, none of the plaintiffs could make this showing.
[9] Judge Parker's dissent emphasizes that because defendants prevailed below on a motion for judgment on the pleadings and because "[t]here is no substantive record in this case," "[n]one of us knows what reality 0907 if any 0907 exists behind these allegations." Dissent of Judge Parker at 344. The dissent further underscores that "each of the other circuits that has wrestled with this issue has done so on the basis of a fully-developed summary judgment record, not simply on the pleadings." Id. at 344. These observations have no bearing on the question whether Congress intended the Voting Rights Act to encompass prisoner disenfranchisement statutes such as the one at issue here. Accordingly, notwithstanding the dissent's effort to construct a hypothetical record based on its own suppositions about what is or is not "beyond the realm of possibility in New York," id. at 345, we focus on the question of statutory interpretation presented.
[10] Contrary to the suggestion of our colleagues in dissent, we do not rely on the Fourteenth Amendment for the proposition that felon disenfranchisement statutes are "always constitutional" or somehow "immune from congressional regulation." Dissent of Judge Parker, at 345. Nor do we suggest that the Voting Rights Act was enacted pursuant to Congress's power under the Fourteenth Amendment, rather than the Fifteenth Amendment. Cf. Dissent of Judge Parker at 350 ("The majority fails to appreciate that the operative provisions of the VRA were enacted pursuant to Congress's power under the Fifteenth Amendment."). Instead, our inquiry into Congressional intent is simply informed by the historic nature of felon disenfranchisement statutes and by the Fourteenth Amendment's explicit approval of such laws.
[11] The Fourteenth Amendment, as interpreted by the Supreme Court, does not completely insulate felon disenfranchisement provisions from constitutional scrutiny. It is clear, for example, that if a State disenfranchises felons "with the intent of disenfranchising blacks," that State has run afoul of Section 1 of the Fourteenth Amendment. See Hunter v. Underwood, 471 U.S. 222, 229, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (invalidating disenfranchisement provision of Alabama Constitution passed with discriminatory intent). Our conclusion that § 1973 does not encompass prisoner disenfranchisement laws such as that of New York thus does not mean that there is no remedy for laws of this type that were passed with the intent to disenfranchise members of minority groups, as these laws are already unconstitutional under the Fourteenth Amendment.
[12] Va. Const. Art. 3, § 1 (1776); Ky. Const. Art. 8, § 8 (1799); Ohio Const. Art. 4, § 4 (1802); La. Const. Art. 6, § 4 (1812); Ind. Const. Art. 6, § 4 (1816); Miss. Const. Art. 6, § 5 (1817); Conn. Const. Art. 6, § 2 (1818); Ill. Const. Art. 2, § 30 (1818); Ala. Const. Art. 6, § 5 (1819); Mo. Const. Art. 3, § 14 (1820); N.Y. Const. Art. 2, § 2 (1821); Del. Const. Art. 4, § 1 (1831); Tenn. Const. Art. 4, § 2 (1834); Fla. Const. Art. 6, § 4 (1838); R.I. Const. Art. 2, § 4 (1842); N.J. Const. Art. 2, § 1 (1844); Tex. Const. Art. 7, § 4 (1845); Iowa Const. Art. 2, § 5 (1846); Wise. Const. Art. 3, § 2 (1848); Calif. Const. Art. 2, § 5 (1849); Md. Const. Art. 1, § 5 (1851); Minn. Const. Art. 7, § 2 (1857); Ore. Const. Art. 2, § 3 (1857); Kan. Const. Art. 5, § 2 (1859); W.Va. Const. Art. 3, § 1 (1863); Nev. Const. Art. 2, § 1 (1864); S.C. Const. Art. 4, § 1 (1865); Ga. Const. Art. 2, § 6 (1868); N.C. Const. Art. 6, § 5 (1868) (cited in Green, 380 F.2d at 450 nn. 4-5).
[13] Our dissenting colleagues dismiss our analysis of the historical origins of felon disenfranchisement statutes as mere "[h]istorical anecdotes," Dissent of Judge Parker at 355, likening such statutes to other longstanding voting qualifications such as literacy tests and poll taxes. Yet we do not suggest that felon disenfranchisement laws fall outside the scope of the Voting Rights Act simply because they are deeply rooted in American history and in the Western tradition more broadly. Rather, we argue that it is unlikely that Congress would have

invalidated such laws 0907 which have been widely-used since the origins of the Republic 0907 without any discussion of the matter.
By contrast, section 4(c) of the Voting Rights Act explicitly prohibits literacy tests by defining the statutory term "[t]est or device" to mean "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." 42 U.S.C. § 1973b(c). As noted, this provision specifically exempts felon disenfranchisement provisions.
Likewise, in 1964, a year prior to Congress's passage of the Voting Rights Act, poll taxes had been expressly forbidden by the 24th Amendment, which provides, in relevant part, that "[t]he right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax." U.S. Const. amend. XXIV, § 1.
The explicit treatment, either in the Voting Rights Act or in the Constitution, of other similarly longstanding and widely-practiced voting qualifications only serves to confirm our view that Congress did not amend the Voting Rights Act in a way that brought felon disenfranchisement laws within its purview.
[14] Our dissenting colleagues acknowledge that Committee Reports such as these "`represent[] the considered and collective understanding of those Congressmen involved in drafting and studying the proposed legislation.'" Dissent of Judge Parker, at 354 (quoting Zuber v. Allen, 396 U.S. 168, 186, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969)).
[15] In criticizing our reference to this statement by Senator Tydings 0907 the only floor statement to which we cite 0907 the dissent quotes selectively from volume 2A of "Sutherland Statutory Construction § 48.13." In fact, the authority on which the dissent relies concludes:
Now the federal courts hold that statements by any members during legislative debates may be considered in the interpretation of a statute where they show a common agreement in the legislature about the meaning of an ambiguous provision. Statements made by individual legislators during floor debates are also considered, along with information about contemporary conditions and events, when they establish what problems or evils the legislature was trying to remedy.
2A C. Sands, Sutherland Statutory Construction § 48.13 at 356 (5th ed.1992).
[16] An example of the viewpoint of proponents of the legislation was offered by John A. Buggs, the Staff Director of the U.S. Commission on Civil Rights, at the hearing on H.R. 9020. Mr. Buggs stated:
We support H.R. 9020 because the denial of the right to vote to citizens who have been convicted of a criminal offense remains as one of the last major obstacles to the full enjoyment of that right by all citizens of the United States. Through passage of constitutional amendments subsequently ratified by the States, Congress has eliminated voter qualifications based on race, sex, and wealth and has extended the right to vote to all citizens 18 years old or older. Through passage of the Voting Rights Act of 1965 and the Voting Rights Amendments of 1970 the Congress has enacted legislation whose objective is the enforcement of these constitutionally protected rights. It is now most appropriate for Congress to and the denial of the right to vote to former criminal offenders.
Ex-Offenders Voting Rights: Hearing on H.R. 9020 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 93d Cong. 10 (1974) (remarks of John A. Buggs, Staff Director, U.S. Commission on Civil Rights) (emphasis added). These remarks, and those of other proponents of H.R. 9020, leave no doubt of the general understanding that the Voting Rights Act did not encompass felon disenfranchisement laws, and the course of the hearings indicates that the Subcommittee shared this understanding.
[17] After the enactment of home rule legislation for the District of Columbia in 1974, which gave the D.C. Council plenary powers, subject to Congressional review, see D.C.Code Ann. § 1-207.52, § 1-206.02(c)(1), the D.C.

Council revised the election code to disenfranchise only prisoners, rather than felons who had completed their sentences. Id. §§ 1-1001.02(7)(A)-(B); 1-1001.07(k)(1), (3)-(4).
[18] In his separate dissent, Judge Calabresi concedes that the Voting Rights Act did not erect "a per se ban on felon disenfranchisement," but insists that "[n]othing in the majority opinion . . . gives a single reason to suggest that Congress did not intend the Voting Rights Act to do what its plain language says and bar felon disenfranchisement statutes that result in racial discrimination." Dissent of Judge Calabresi, at 363-64 (emphasis in original). Our argument cannot be reduced, however, to the assertion that the 1982 Congress could not have intended to expand the Voting Rights Act to encompass felon disenfranchisement provisions simply because, in 1965, § 4(c) of the Voting Rights Act included no categorical ban on felon disenfranchisement statutes, or because more recent congressional actions presuppose the general validity of felon disenfranchisement statutes. Rather, taking account of the long-standing acceptance of felon disenfranchisement laws and the fact that Congress's only recorded decisions respecting such laws in the context of the Voting Rights Act were designed to assuage concerns about their continued vitality, we conclude that Congress could not have intended in 1982 to authorize challenges to such laws on the basis that they "result in racial discrimination" without some more specific indication to that effect. See note 19, post. Indeed, in light of the historic treatment of such laws discussed above, Judge Calabresi's analogy to at-large districts, which are neither constitutionally sanctioned nor explicitly excluded from a separate section of the Act, is entirely inapposite.
[19] In this regard, we note that the 1982 revisions focused only on the means of proving a violation 0907 changing subsection (a) from "to deny or abridge the right of any citizen of the United States to vote on account of race or color" to "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" and adding subsection (b). The 1982 revisions did not address the first part of subsection (a), dealing with the voting provisions subject to the Act, and there is no basis upon which we could conclude that the intent of the 1982 Congress with regard to coverage was any different than that of the 1965 Congress.
[20] Our dissenting colleagues oversimplify matters when they argue that "[T]o hold that Congress did not intend the VRA to cover felon disenfranchisement statutes is to hold that Congress actually intended to allow some forms of race-based voter disenfranchisement." Dissent of Judge Parker at 357. Congress's decision not to extend the Voting Rights Act to felon disenfranchisement statutes can surely not be construed as Congress's intent to permit "race-based voter disenfranchisement." First, by the dissent's own admission, it remains unproven whether felon disenfranchisement statutes indeed constitute "race-based voter disenfranchisement" in New York. Second, felon disenfranchisement statutes, while exempt from the reach of the VRA, may still be subject to Fourteenth Amendment challenge. See note 11, ante.
[21] Plaintiffs argue that Yeskey governs this case, as the Court, in addressing whether the Americans with Disabilities Act ("ADA") covers inmates in state prisons, noted there that "the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt." Yeskey, 524 U.S. at 209, 118 S.Ct. 1952. As such, the Court concluded that the general language of the ADA constituted a sufficiently clear statement of Congress's intent for the purposes of the clear statement rule.
We believe Yeskey is easily distinguishable from this case. There was no reason to believe that Congress, in enacting the ADA, had given any thought whatsoever to the coverage of prisons. In light of the broad language of the ADA, and the absence of any exception from its coverage of state institutions, there was no basis on which to conclude that Congress had meant to exempt prisons. The present situation is substantially different. Here, for the reasons stated at length above, there is a significant amount of evidence that Congress did not intend the VRA to encompass felon disenfranchisement laws, and, at the very least, was convinced it had not done so. Accordingly, the broad language of the VRA notwithstanding, it is not entirely clear that Congress meant to alter the federal balance by encompassing felon disenfranchisement laws within the coverage of the VRA, and the clear statement rule must therefore be applied.
[22] This part of Justice Kennedy's opinion for the Court was joined by Justices Stevens, Souter, and Thomas.
[23] By contrast with New York's prisoner disenfranchisement provision, felon disenfranchisement provisions like that of Florida, which permanently denies the vote to those convicted of felonies, may not as clearly implicate the

State's interest in the administration of prisons. We express no opinion on the legal implications, if any, that follow from this difference.
[24] Because we conclude that the Voting Rights Act should not be construed to apply to prisoner disenfranchisement provisions like that of New York, we need not address the constitutional avoidance canon relied upon by the Eleventh Circuit in its decision in Johnson. We express no view on whether applying the protections of the Voting Rights Act to prisoner disenfranchisement provisions gives rise to any constitutional difficulties under the Fourteenth or Fifteenth Amendments.
[25] The United States Census Bureau counts inmates of correctional institutions as residents of the institution, and notes the "usual residence" at which it counts people "is not necessarily the same as the person's voting residence or legal residence." U.S. Census Bureau, Plans and Rules for Taking the Census, at §§ 2, 11, available at http://www.census.gov/population/www/censusdata/resid_rules.html (last viewed Sept. 26, 2005); see also Dist. of Columbia v. United States Dept. of Commerce, 789 F.Supp. 1179, 1180 (D.D.C.1992).
[1] It is true that the cases that define the limits of Congress's enforcement power have focused primarily on that power as granted by Section 5 of the Fourteenth Amendment, whereas the VRA is an exercise of both Section 5's enforcement power and the enforcement power granted by Section 2 of the Fifteenth Amendment. H.R.Rep. No. 89-439 (1965), reprinted in 1965 U.S.C.C.A.N. 2437; S.Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177. However, there is no significant reason to conclude that the scope of the enforcement power under the two amendments is different. First, the language of these two clauses is substantially identical: Congress has the power to "enforce" the provisions of the respective amendments "by appropriate legislation." U.S. Const. amend. XIV, § 5; id. amend. XV, § 2. Second, the Supreme Court has equated Congress's enforcement power under the two amendments. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 373 n. 8, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (noting that "Section 2 of the Fifteenth Amendment is virtually identical to § 5 of the Fourteenth Amendment"); City of Boerne v. Flores, 521 U.S. 507, 517-18, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (describing Congress's power under the Fourteenth Amendment as "parallel" to that under the Fifteenth Amendment); Katzenbach v. Morgan, 384 U.S. 641, 650-51, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (describing Congress's power under the Fourteenth Amendment as "similar" to that under the Fifteenth Amendment). Third, the cases interpreting Congress's power under Section 5 of the Fourteenth Amendment consistently refer to cases concerning the VRA, a statute enacted pursuant to the power of both amendments, in an attempt to explicate the proper parameters of Congress's powers. E.g., Tennessee v. Lane, 541 U.S. 509, 520 n. 4, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004); Garrett, 531 U.S. at 373, 121 S.Ct. 955; United States v. Morrison, 529 U.S. 598, 626, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); Boerne, 521 U.S. at 526, 117 S.Ct. 2157. There is no indication in Supreme Court precedent, or in logic, that the Congress and the legislatures that enacted and ratified the Fourteenth and Fifteenth Amendments intended that they be "enforced" in different ways.
[2] It is insufficient for a court to make a finding of a history and pattern of unconstitutionality in the absence of a congressional finding to the same effect. The Supreme Court has never relied on a judicial finding alone to sustain prophylactic legislation.
[3] New York Election Law Section 5-106 disenfranchises prisoners and parolees. The statutory permanent disenfranchisement of felons, upheld against a similar challenge in Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir.2003), while it would be covered by the same analysis, is not directly at issue in this case.
[4] As the dissent suggests, when the alleged constitutional violation at issue involves a suspect class such as race, more rigorous scrutiny of government action is appropriate, and it is therefore easier for Congress to establish a pattern of constitutional violations. See Hibbs, 538 U.S. at 736, 123 S.Ct. 1972; Lane, 541 U.S. at 522-23, 124 S.Ct. 1978. But a pattern of violations must nonetheless be established. In this case, there is simply no evidence that banning felon-disenfranchisement laws would be an appropriate means of remedying intentional discrimination in voting.
[5] Contrary to the dissent's implication, we have no quarrel with the Supreme Court decisions holding that, in many respects, the VRA is a model of congruent and proportional prophylactic legislation. E.g., South Carolina v. Katzenbach, 383 U.S. at 337, 86 S.Ct. 803. Nothing in these holdings, however, guarantees that every possible application of the statute will be constitutional. Indeed, more than one member of the Supreme Court has left

open the possibility that the entirety of Section 2, as amended, is constitutionally infirm. See Bush v. Vera, 517 U.S. 952, 990, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (O'Connor, J., concurring) ("In the 14 years since the enactment of § 2(b), we have interpreted and enforced the obligations that it places on States in a succession of cases, assuming but never directly addressing its constitutionality."); Chisom v. Roemer, 501 U.S. 380, 418, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (Kennedy, J., dissenting) ("Nothing in today's decision addresses the question whether § 2 of the Voting Rights Act of 1965 . . . is consistent with the requirements of the United States Constitution."). Here, I do not question the constitutionality of Section 2 as a whole. But I do believe that, under the dissent's interpretation of Section 2 as applying to New York's felon and parolee disenfranchisement statute, Section 2 exceeds constitutional limits.
[6] The dissent suggests that my view leads to the inevitable conclusion that Congress lacks the authority to remedy race-based voter discrimination. See Dissent of Judge Parker at 362, infra. Not so. Congress may restrict the use of any device that results in discrimination against minority voters. To do so, however, it must first demonstrate that the device is part of a history and pattern of intentional racial discrimination.
[1] As the Senate Report declared: "This Amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of section 2. It thereby restores the legal standards, based on the controlling supreme Court precedents, which applied in voting discrimination claims prior to the litigation involved in Mobile v. Bolden. The Amendment also adds a new subsection to Section 2 which delineates the legal standards under the results test by codifying the leading pre-Bolden vote-dilution case, White v. Regester." See S.Rep. No. 97-417 (1982), *2, 1982 U.S.C.C.A.N. 177, **179 (footnotes omitted).
[2] Compare Dissent of Judge Parker, post, at 346-48, with Dissent of Judge Katzmann, post, at 368-69.
[3] These factors, summarized in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), are:
1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction.
Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:
whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.
whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
S. Rep., at 28-29, U.S.Code Cong. & Admin. News 1982, pp. 206-207.
Thornburg, 478 U.S. at 36-37, 106 S.Ct. 2752.

[4] In statistical terms, the plaintiffs' First Amended Complaint "alleges that Blacks and Latinos are prosecuted, convicted, and sentenced to incarceration at rates substantially disproportionate to those of Whites. It also alleges that while Blacks and Latinos make up 86% of the total current prison population and 82% of the parolee population, they comprise only 31% of New York State's overall population. It further alleges that Blacks and Latinos are sentenced to incarceration at substantially higher rates than Whites, and Whites are sentenced to probation at substantially higher rates than Blacks and Latinos." Dissent of Judge Parker at 344. At this stage of the proceedings, of course, we take those allegations to be true. See, e.g., Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir.2002).
[1] Judge Calabresi points out in response that Hayden is on parole and therefore has the capacity to participate fully in the political process even though he cannot vote. The issue, however, is whether Congress intended the Voting Rights Act to enfranchise felons, a population that necessarily includes those who are incarcerated. That population includes, for example, Jalil Abdul Muntaqim, the plaintiff whose case we originally agreed to hear when we undertook to review this issue en banc. Muntaqim cannot fully participate in the political process for the very good reason that he is being incarcerated long-term for having murdered two police officers.
Judge Calabresi's second point is that felon disenfranchisement laws motivated by intentional discrimination are unconstitutional under the Fourteenth Amendment, by virtue of Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). But nothing in Hunter v. Underwood applies to the intent of Congress in enacting Section 1973. As to that intent, I agree with Judge Calabresi that the present Congress would not enfranchise Death Row; I do not share his apparent belief that some earlier Congress thought this would be a good idea.
[1] I fully recognize that a statute's unambiguous terms must be read in the context of its surrounding statutory provisions. See Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."). However, whatever ambiguity Judge Jacobs' concurrence seeks to create by reference to potentially ambiguous terms in § 2(b) of the VRA is, I believe, illusory. See Concurring Op. of Judge Jacobs at 341-42; see also Maj. Op. at 321-22. As the Supreme Court explained in Chisom v. Roemer, supra,
[t]he two purposes of the amendment [to § 2 of the VRA] are apparent from its text. Section (a) adopts a results test, thus providing that proof of discriminatory intent is no longer necessary to establish any violation of the section. Section (b) provides guidance about how the results test is to be applied.
501 U.S. at 395, 111 S.Ct. 2354. In other words, § 2(b) explains how plaintiffs may prove the existence of a violation after it is established that they have stated a claim under § 2(a). Thus any possible ambiguity in § 2(b) regarding the meaning of the term "to participate in the political process," 42 U.S.C. § 1973(b), does not somehow infect the clear, unambiguous meaning of the term "to vote," as used in VRA § 2(a). That section clearly and unequivocally prohibits any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . 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." 42 U.S.C. § 1973(a) (emphasis added).
Moreover, the inability of a potential voter to participate in "physical" aspects of the political process (ringing doorbells, passing out leaflets, standing on soap boxes, and the like) should not be grounds to exempt lessmobile groups (the handicapped, nursing home residents, shut-ins, soldiers serving in Iraq, or United States citizens living abroad) from the protections of the VRA.
[2] I note, in passing, that § 4(e) of the VRA, 42 U.S.C. § 1973b(c), was enacted to enforce the Equal Protection Clause of the Fourteenth Amendment. See Katzenbach v. Morgan, 384 U.S. 641, 652, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).
[3] When attempting historical analysis, judges are prone to oversimplify complex legislative and political problems. Limitations in the adversary process mean sacrificing nuance and detail for brevity, as I have done. For those in search of additional information on the evolution of the Reconstruction Amendments, I note that I have found the scholarship on the period to be both rich and extensive. The most comprehensive treatment of the subject remains Eric Foner's Reconstruction: America's Unfinished Revolution (1863-1877) (1988). Other solid,

helpful works include David Herbert Donald et al., The Civil War and Reconstruction (2001), Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (2000), John Hope Franklin, Reconstruction After the Civil War (2d ed.1994), Robert M. Goldman, Reconstruction and Black Suffrage: Losing the Vote in Reese and Cruikshank (2001), and William Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment (1969). Useful articles in legal periodicals include Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259 (2004), Henry L. Chambers, Jr., Colorblindness, Race Neutrality, and Voting Rights, 51 Emory L.J. 1397 (2002), and Xi Wang, Black Suffrage and the redefinition of American Freedom 1860-1870, 17 Cardozo L.Rev. 2153 (1996). Suffice it to say that these suggestions do not begin to exhaust the source materials available.
[4] Some scholars even suggest that the Fifteenth Amendment effectively repealed § 2 of the Fourteenth Amendment. See, e.g., Chin, 92 Geo. L.J. at 272-87.
[5] In 1970, Congress added a new provision to extend the ban on such tests and devices nationwide for a period of five years, and in 1975, Congress amended that provision to make the ban permanent. See 42 U.S.C. 1973aa; see also Pub.L. No. 94-73, § 102, 89 Stat. 400, 400 (Aug. 6, 1975); Pub.L. No. 91-284, § 6, 84 Stat. 314, 315 (June 22, 1970).
[6] This "strange" canon of statutory construction, too often applied to contradict the text of a statute, was described by Justice Scalia in his dissent in Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 125 S.Ct. 460, 160 L.Ed.2d 389 (2004), as follows:
I have often criticized the Court's use of legislative history because it lends itself to a kind of ventriloquism. The Congressional Record or committee reports are used to make words appear to come from Congress's mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists). The Canon of Canine Silence that the Court invokes today introduces a reverse 0907 and at least equally dangerous 0907 phenomenon, under which courts may refuse to believe Congress's own words unless they can see the lips of others moving in unison.
Id. at 73-74, 125 S.Ct. 460 (Scalia, J., dissenting) (emphasis in original); see also Small v. United States, 544 U.S. 385, 125 S.Ct. 1752, 1765, 161 L.Ed.2d 651 (2005) (Thomas, J., dissenting) ("Reliance on silence in the history is a new and even more dangerous phenomenon.").
[7] Since then, New York's state and federal prison population has fallen to 63,751 at the end of 2004 (the last date for which data is available from the Bureau of Justice Statistics), though this is still over three times the state and federal prison population in New York at the end of 1977. See Bureau of Justice Statistics, Prisoners Under State or Federal Jurisdiction 1977-2004, from National Prisoner Statistics data series (NPS-1) (updated Dec. 6, 2005), at http://www.ojp.usdoj.gov/bjs/data/corpop02.csv.
[8] Even if you select 1982 as the baseline 0907 i.e., the year when VRA § 2 was amended 0907 the numbers are still dramatic. In New York, the state and federal prison population grew by more than two and one-half times (from 27,945 persons at the end of 1982 to 72,899 persons at the end of 1999). Nationwide, the state and federal prison population grew by more than three and one-half times (from 413,806 persons at the end of 1982 to 1,496,629 persons at the end of 2004). See Bureau of Justice Statistics, Prisoners Under State or Federal Jurisdiction 1977-2004, from National Prisoner Statistics data series (NPS-1) (updated Dec. 6, 2005), at http:// www.ojp.usdoj.gov/bjs/data/corpop02.csv.
[9] For the same reasons that the Hayden plaintiffs' vote denial claims should go forward, I believe that their vote dilution claims also should go forward. Because felon disenfranchisement statutes clearly can be scrutinized under VRA § 2, the Hayden plaintiffs deserve the opportunity to present facts and try to prove their claim that New York's felon disenfranchisement law dilutes the voting strength of minority communities through out New York State. See Hayden First Amended Complaint at ¶¶ 92-93. Moreover, the Hayden plaintiffs deserve the opportunity to fully brief and undertake to prove their additional claim that New York's apportionment process 0907 which counts incarcerated felons as residents of the communities in which they are incarcerated 0907 results in

dilution of minority votes in violation of the VRA. (In this regard, and in this regard only, I agree with the majority. See Maj. Op. at 329.)
[1] Three of the concurrences 0907 Chief Judge Walker's, Judge Jacobs's, and Judge Raggi's 0907 offer additional arguments in support of affirmance. I join fully in Judge Parker's analysis and rejection of those arguments.
I would, however, make a couple of additional comments on the position Judge Jacobs takes. First, it is worth noting that the lead plaintiff in this case, Joseph Hayden, is on parole, as are some of the other named plaintiffs. As a result, as far as this law concerns these plaintiffs, none of the horribles that Judge Jacobs raises apply. Mr. Hayden, and others like situated, can, as far as I know, pass out leaflets, make public speeches about candidates, and eat with a knife and fork.
Second, and more important, no one seems to doubt that felon disenfranchisement based on intentional discrimination, rather than discriminatory results, is prohibited by the Voting Rights Act. Cf. Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). And yet precisely the same supposed anomaly on which Judge Jacobs erects his argument 0907 i.e., the prospect of felons participating in those parts of the political process that would require them to move about freely 0907 would apply in that situation. Does anyone think that felons who were intentionally 0907 and hence, manifestly improperly 0907 barred from voting on racial grounds, would, as a result of that intentional wrong, be permitted to petition, go door to door, or otherwise participate fully in the political process? Not if such felons were still in jail they couldn't. Judge Jacobs proves too much.
* * *
In the last sentence of his footnote answering my dissent, my learned colleague and friend, Judge Jacobs, lets the cat out of the bag. He reveals why he, and perhaps some others in the majority, read this statute as he does. He feels so strongly that barring prisoners from voting 0907 regardless of discriminatory results 0907 is correct that he cannot imagine a legislature, present or past, thinking otherwise; he believes that would defy common sense. I don't agree. Still, that is his intuition. Some have suggested that such an intuitional basis for judicial decisionmaking is appropriate in the slow articulation of the common law. But projecting current judges' feelings onto a past legislature, and, on that basis, rewriting a statute 0907 without any support in text, context, or even legislative history 0907 is both inappropriate and highly dangerous.
[2] While I agree wholeheartedly with Judge Parker's dissent in every other respect, my own view of the permissibility of using "extrinsic aids" like context in statutory interpretation is closer to Judge Katzmann's than to Judge Parker's. To understand what words mean, it is sometimes necessary to understand the situations in which they are used. (Thus, "`[y]ou should have passed, dummy,' means something entirely different at a bridge table from what it means on Superbowl Sunday." Peterson Marital Trust v. Comm'r, 78 F.3d 795, 796 (2d Cir.1996)). In particular, knowing the circumstances that led to a law's enactment may be helpful, or even essential, in understanding the meaning of the statutory text. And so it was that English courts, although forbidden to consult Hansard (i.e., the parliamentary debates) in construing statutes, regularly interpreted a statute's language in light of "the mischief" the law was enacted to cure. See Gorris v. Scott, 9 L.R. Exch. 125 (1874).
Here, the language of § 2(a) that we are asked to apply was adopted in 1982 in order to override the Supreme Court's holding in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), that § 2 violations require proof of discriminatory purpose. That is, the context of the amended statute before us is Congress's insistence that the Voting Rights Act encompass practices that produce discriminatory results 0907 which, again, is exactly what the plaintiffs allege with respect to felon disenfranchisement. Hence, the statute's context, like its text, clearly points towards allowing the plaintiffs' case to proceed.
[3] In referring to the "majority opinion," I exclude those portions of Judge Cabranes's opinion that seek to apply a "clear statement rule," as those portions only command the support of a minority of the Court.
[4] The majority makes a point of distinguishing between "felon disenfranchisement statutes" (which continue to bar voting after sentence has been served) and "prisoner disenfranchisement statutes" (which block voting only during incarceration and parole). Because no argument has been advanced for why the two sorts of statutes should be treated differently under the Voting Rights Act, I refer to both as "felon disenfranchisement statutes."

[5] To be precise, § 4(a) prohibits "any test or device," and § 4(c) defines what is covered under that ban (including, inter alia, good moral character requirements). See 42 U.S.C. §§ 1973b(a), (c).
[6] In a characteristically thoughtful opinion, Judge Sack expressly denies that he is moved at all by what the current Congress thinks the statute should mean. He is joined in this respect by Judge Straub. I cannot, of course, traverse that statement. But I still can find no other justification for the position he adopts.
Judge Sack admits that the language of the 1982 amendments would seem to apply to the Voting Rights Act. So much for text. But he bases his argument firmly on context, claiming that when context is sufficiently clear, it can trump text. Perhaps. But the context of the 1982 amendments does not provide support for Judge Sack's position.
We can all agree that the immediate motivation for the 1982 amendments was City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), in which the Supreme Court had held that § 2 barred only those voting measures motivated by a discriminatory purpose, and not those that only produced discriminatory results. Bolden had over-turned a number of lower court decisions that had held plaintiffs could make out a violation of the Voting Rights Act by showing discriminatory results. See, e.g., Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (en banc). All these cases dealt with discriminatory vote dilution claims relating to legislative redistricting plans. Congress responded by pronouncing, in the broadest and most general of terms, that voting measures that result in discrimination do, in fact, violate the Voting Rights Act.
The applicable context for the 1982 amendments, then, is quite simple. (1) The Supreme Court had rejected a results standard for the Voting Rights Act, and (2) Congress, in turn, reinstated a results standard in clear language. Judge Sack agrees that Congress reinstated a results standard, but contends that the scope of that results standard is limited.
Does Judge Sack mean to argue that, except as to cases involving dilution in redistricting, the amended Voting Rights Act is only violated by intentional discrimination, rather than discriminatory results 0907 that is, that the Voting Rights Act requires a discriminatory intent in all the myriad other situations to which it applies? I very much doubt it. It would appear, then, to be his position that the amendments do impose a results standard beyond the specific context of Bolden 0907 but just not for felon disenfranchisement. But if this is the line that Judge Sack would draw, he gives no reason for it. Indeed, even if one were to understand the 1982 amendments to impose a results standard only for vote dilution claims 0907 a restrictive reading for which I find no justification 0907 it is worth noting that the plaintiffs here do allege dilution, as well as denial (and not only dilution resulting from New York's system of apportioning electoral districts, as to which the majority is remanding).
In fact, context provides no good reason for any restrictive reading of § 2. Congress could have said that redistricting plans that result in discriminatory vote dilution (i.e., the specific circumstances of Bolden) violate the Act. But it didn't. And nothing in the history of the 1982 amendments supports any conclusion other than that Congress said exactly what it meant.
[7] Some may anticipate 0907 and fear 0907 that a decision in Hayden's favor would prompt Congress to respond by amending the Voting Rights Act in ways that would limit its scope markedly. However justified these concerns may be, they cannot form a basis for ignoring clear statutory text.
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