214 F.Supp.2d 1333 (2002)
Thomas JOHNSON, et al. Plaintiffs, v.
Jeb BUSH, et al., Defendants.
No. 00-3542-CIV.
United States District Court, S.D. Florida, Miami Division.
July 18, 2002.
1334 *1334 Nancy Northup, Brennan Center for Justice at N.Y.U. School of Law, New York City, James K. Green, James K. Green, P.A., West Palm Beach, Anita Hodgkiss, Lawyers' Committee for Civil Rights under Law, Washington, DC, for Plaintiffs.
Hamish Hume, Cooper & Kirk, PLLC, Washington, DC, Ronald A. Labasky, Skelding, Labasky & Cox, Tallahassee, Michael D. Cirrullo, Jr., Josias, Goren, Cherof, et al., Fort Lauderale, Betsy M. Steg, Office of the Pinellas County Attorney, Clearwater, Jeffrey P. Ehrlich, Assistant Miami-Dade County Attorney, Miami, Paul Hancock, Office of the Attorney General, Tallahassee, David Wagner, Alachua County Litigation Attorney, Gainesville, FL, H. Ray Allen, III, Hillsborough County Attorney, Tampa, FL, Robert C. Buschel, Ferrero, Buschel, Carter, et al., Ft. Lauderdale, FL, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
JAMES LAWRENCE KING, District Judge.
THIS CAUSE is before the Court on Defendants' Motion for Summary Judgment filed January 4, 2002. Plaintiffs 1335 filed a Corrected Response and Cross-Motion for Summary Judgment on January 25, *1335 2002. Defendants
filed a Corrected Reply on January 29, 2002. Plaintiffs filed a Reply on February 1, 2002. The Court heard argument on the cross-motions on May 24, 2002.
I. BACKGROUND
A. Lead Plaintiffs and Plaintiff Class
Plaintiff Thomas Jefferson is a 51-year-old African American male living in Gainesville, Florida with his wife and five children. He is the executive director of a non-profit Christian organization that runs a residential program for recently released offenders. Prior to moving to Gainesville in 1996, this Plaintiff lived in New York City where, after his release from a New York felony conviction in 1992, he worked for a homeless mission and a New York City transit agency. He has not had his civil rights restored and, thus, is ineligible to register and vote under Florida law. Mr. Johnson's life background is similar to the other seven lead Plaintiffs, five of whom are African American, one is a Hispanic and one is Caucasian. All have been convicted of felonies; all have successfully completed their terms of incarceration or probation; and all have not had restoration of their civil rights to register and vote.
Plaintiffs, on behalf of all Florida citizens convicted of felonies who have completed their sentences but nonetheless remain ineligible to vote, challenge Florida's disenfranchisement law. They allege that the disenfranchisement law arbitrarily and irrationally denies them the right to vote because of race, discriminate against them on account of race, and impose an improper poll tax and wealth qualification on voting in violation of

the First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to the United States Constitution and §§ 2 and 10 of the Voting Rights Act of 1965, codified at 42 U.S.C. § 1973 et seq., and 42 U.S.C. § 1983.
B. Florida's Disenfranchisement Law
Florida's disenfranchisement of criminals can be traced back to its first constitution. The 1838 Constitution provided that: "The General Assembly shall have the power to exclude from ... suffrage, all persons convicted of bribery, perjury, or other infamous crime .... Laws shall be made by the General Assembly to exclude from ... suffrage, those ... convicted of bribery, perjury, forgery, or other high crime, or misdemeanor ...." Fla. Const. art. VI, §§ 4, 13 (1838). This disenfranchisement provision remained unchanged by Florida's 1861 Constitution, Fla. Const. art. VI, §§ 2, 9 (1861), and essentially unchanged by Florida's 1865 Constitution,[1] Fla. Const. art. VI, §§ 2, 9 (1865).
Florida's constitutional convention of 1868 made many changes to the suffrage and eligibility provisions from previous constitutions, including recognizing right of suffrage for African Americans. The disenfranchisement provision was amended to state: "nor shall any person convicted of a felony be qualified to vote at any election unless restored to civil rights.... The Legislature shall have power and shall enact the necessary laws to exclude from ... suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime ...." Fla. Const. art. XIV, §§ 2, 4 (1868). The disenfranchisement provision remained essentially unchanged by the 1885 Constitution, except for reference to persons convicted "by a court of record." Fla. Const. art. VI, §§ 4-5 (1885).
The current version of Florida disenfranchise law was adopted by the Florida legislature in 1968. Florida's 1968 1336 Constitution *1336 includes a felon disenfranchisement provision that states: "No person convicted of a felony, or
adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability." Fla. Const. art. VI, § 4.
C. Restoration of Rights and Removal of Disability
Individuals disenfranchised by the felon disenfranchised provision of the 1968 Constitution may seek restoration of their civil rights, including the right of vote, by application to the state Clemency Board. The Clemency Board consists of the Governor and the members of the Cabinet. Fla. R. Exec. Clem. 1. Under Florida's Rule of Executive Clemency, an individual convicted of a felony may have his or her civil rights, excluding the right to own, possess, or use firearms, automatically restored without a hearing after completing and satisfying all sentences and all conditions of supervision if certain additional requirements have been met. These additional requirements include: no conviction for a capital or life felony; no restoration of the individual's civil rights nor granting of the individual a pardon within the past 10 years by the Clemency Board; and no declaration that the individual is (1) a habitual felony offender, (2) a habitual violent offender, (3) a three-time violent offender, (4) a violent career criminal or (5) a prison release re-offender.
At the time Plaintiffs filed their Complaint, applicants for restoration of civil rights were additionally prohibited from "hav[ing] any outstanding detainers, or any pecuniary penalties or liabilities, which total more than $1,000 and result from any criminal conviction or traffic infraction." Pre-6/01 Fla. R. Exec. Clem. 5(II). Though that condition has been removed and the Clemency Board no longer requires applicants to have paid fines totaling over $1,000, the Clemency Board does continue to require applicants to pay all victim restitution prior to being eligible for restoration of civil rights. See Fla. R. Exec. Clem. 9(A)(2). Thus, disenfranchised felons are ineligible to receive restoration of their civil rights without having paid off any pecuniary liabilities or having paid the full amount of restitution to victims even though the sentence of imprisonment and supervision has been completed by rule of the Clemency Board.
The Clemency Board has the authority to investigate, review, and hold hearings with respect to all clemency applications, and has the final authority on whether to grant an application for restoration of civil rights. If an individual wishes to apply for clemency even though he or she does not satisfy the eligibility requirements, including payment of victim restitution, he or she may apply for a waiver of these requirements.

II. STANDARD OF REVIEW
Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted). The Court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. If the movant meets this burden, the burden then shifts to the nonmoving party to establish that a genuine dispute of 1337 material fact exits. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993). *1337 If the evidence relied on is such that a reasonable jury could return a verdict in favor of the nonmoving party, then the Court should refuse to grant summary judgment. See id. at 919. A mere scintilla of evidence in support of the nonmoving party's position, however, is insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. If the evidence is merely colorable or is not significantly probative, summary judgment is proper. See id. at 249-50, 106 S.Ct. 2505.
III. DISCUSSION
A. Plaintiffs' Equal Protection and Due Process Claim of the Fourteenth Amendment
Plaintiffs' most basic assertion is that Florida's disenfranchisement law violates the substantive due process and equal protection under the 14th Amendment. They contend that permanent disenfranchisement of felons has no justifiable purpose, but instead is arbitrary and irrational. However, Plaintiffs' arguments fails in the face of clear precedent established by this Court and the Supreme Court of the United States. Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974); Beacham v. Braterman, 300 F.Supp. 182 (S.D.Fla.1969).
In Beacham v. Braterman, a three judge district court held that the felon disenfranchisement provision at issue does not violate the Equal Protection nor the Due Process Clause of the Constitution of the United States. 300 F.Supp. 182. The Beacham court considered a class action challenging Florida's constitutional and statutory provisions disenfranchising convicted felons and the discretionary exercise of pardon power by the executive branch of the state government. It concluded that a state may constitutionally exclude from the franchise persons otherwise qualified to vote who have been convicted of a felony. See id. at 184 ("[T]he propriety of excluding felons from a franchise has been so frequently recognized 0907 indeed put forward by the Justices to illustrate what the states may properly do 0907 that such expressions cannot be dismissed as unconsidered dicta."). The Beacham court specifically declared that it is not a denial of equal protection of law or due process of law for the state to restore discretionarily the right to vote to some felons and not to others.
The Supreme Court summarily affirmed that decision, 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). Beacham, therefore, is binding precedent upon this Court. See, e.g., Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) ("[L]ower courts are bound by summary decisions by this Court ...."); 18 James Wm. Moore, et al., Moore's Federal Practice, § 1304[5] (3d ed. 1999) ("The Supreme Court treats its own summary affirmance of an appeal from a three-judge district court as precedent to be followed."). Accordingly, Plaintiffs' Equal Protection and Due Process arguments are foreclosed by Beacham. In addition, the Supreme Court of the United States has also weighed in on this issue. In Richardson v. Ramirez, the Court held that a State may, consistent with the Constitution of the United States, prohibit felons from voting under the Fourteenth Amendment. It explained that a blanket disenfranchisement provision does not violate the Equal Protection Clause of the Fourteenth Amendment because such a provision expressly finds "an affirmative sanction in § 2 of the Fourteenth Amendment." 418 U.S. at 53-4, 94 S.Ct. 2655. The Richardson Court held that subsequent jurisprudence interpreting the Equal Protection Clause has not altered the "settled historical and judicial 1338 understanding" *1338 that felon disenfranchisement provisions do not violate the United States Constitution. Id.

at 54, 94 S.Ct. 2655. Thus, Plaintiffs' arguments fly in the face of clear Supreme Court precedent which held that felon disenfranchisement laws cannot be in violation of Fourteenth Amendment to the Constitution, either under the Equal Protection or Due Process Clause.
Plaintiffs' efforts to distinguish the Court's holding in Ramirez and call for this Court to overrule Ramirez are unpersuasive. Plaintiffs argue that Ramirez does not stand for the proposition that every possible felon disenfranchisement law is constitutional. They cite Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) and the Court's decision in Ramirez to remand the case to the California Supreme Court to determine whether the respondents have a valid claim that the county election officials' enforcement of the valid felon disenfranchisement violates the equal protection clause to support their contention that there all felony disenfranchisement laws are constitutional. However, this Court is bound by the Supreme Court's decision in Ramirez which holds that ex-felons exclusion from not voting does not violate the Equal Protection Clause of the Constitution. 418 U.S. at 56, 94 S.Ct. 2655. Thus, the Court grants summary judgement to the State on Plaintiffs Equal Protection claim under the Fourteenth Amendment.
B. Plaintiffs' Claim that Felon Disenfranchisement Violates the First Amendment
Plaintiffs also contend that the felon disenfranchisement provision violates the First Amendment as well. However, it is clear that the First Amendment does not guarantee felons the right to vote. See Howard, No. 99-2285, 2000 WL 203984, at *2 ("The First Amendment creates no private right of action for seeking reinstatement of previously cancelled voting rights."); see also, Farrakhan v. Locke, 987 F.Supp. 1304 (E.D.Wash.1997) (holding that to hold the same Constitution that specifically recognizes felon disenfranchisement under § 2 of the Fourteenth Amendment but also prohibits disenfranchisement under another amendment would be to interpret the Constitution in an inconsistent manner). This Court agrees with the holding of Howard and concludes that Plaintiffs do not have a cause of action under the First Amendment.
C. Plaintiffs' Claim of Intentional Race Discrimination
Plaintiffs also claim that Florida's felon disenfranchisement law violates the Equal Protection Clause of the Fourteenth Amendment by intentionally discriminating against them because of their race. To succeed on this claim, Plaintiffs must establish that the Florida felon disenfranchisement provision was framed and ratified with a discriminatory purpose. See e.g., Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976) ("basic equal protection principle [is] that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.") "Discriminatory purpose" implies more than intent as volition or intent as awareness of consequences; it implies that the decision maker selected a particular course of action at least in part "because of," not merely, "in spite of," its adverse effects upon an identifiable group. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (footnote and citation omitted). To this end, Plaintiffs have presented to this Court an abundance of expert testimony about the 1339 historical background of Florida's *1339 felon disenfranchisement scheme as historical evidence that the policy was enacted originally in 1868 with the particular discriminatory purpose of keeping blacks from voting.
As a matter of law, however, the re-enactment of the felon disenfranchisement provision in 1968 cleansed Florida's felon disenfranchisement scheme of any invidious discriminatory purpose that may have prompted its inception in Florida's 1868 Constitution. The Fifth Circuit holding in Cotton v. Fordice, 157 F.3d 388 (5th Cir.1998) is persuasive. In Cotton, the Fifth Circuit dismissed a constitutional challenge to the felon disenfranchisement provision of Mississippi's Constitution. The Cotton plaintiff argued that the provision was unconstitutional because it was originally drafted with the intent to disenfranchise blacks and was motivated by the desire to discriminate against blacks on account of race. While this Court has been vocal in its condemnation of any law created with the invidious purpose to discriminate against minorities, it agrees with the Fifth Circuit that "a facially neutral provision ... might overcome its odious origin." Id. at 391. Further, a new provision may supersede the previous provision and remove the discriminatory taint associated with the original version.

Plaintiffs, nonetheless, urge this Court to look at the intent of those enacting the felon disenfranchisement provision of the 1868 Constitution. They argue that an Equal Protection analysis should not allow a discriminatory law to evade scrutiny merely because it is re-enacted by a later legislative body with mere cosmetic changes and without any comment or legislative consideration. According to Plaintiffs, the felon disenfranchisement provision have not been adequately deliberated since 1868 and all revisions to it have been stylistic rather than substantive. To an extent, Plaintiffs are correct. A subsequent re-enactment of a discriminatory law can only be cleansed if the re-enacted law emerges from a deliberative process. See id. However, the Court finds that the record surrounding the re-enactment of Florida's felony disenfranchisement provision in 1968 clearly indicates that significant deliberations and substantive changes were made by the Florida legislature to the felon disenfranchisement provision in 1968.

It is undisputed that in 1965, Florida's Legislature created a Constitutional Revision Committee (the "CRC") to consider and devise recommendations for revisions to Florida's Constitution. The 1968 revision process was designed to completely overhaul the state constitution. App. 3 (Scher Rep. 3). The CRC, in turn, formed a Subcommittee on Suffrage and Elections which had authority for over the felon disenfranchisement provision. The Subcommittee met twelve times before proposing a revised felon disenfranchisement provision. See App. To Defs' Mot. Dismiss 795, 803 (Scher Dep. 11-2; 42-3). Both houses of the Florida legislature approved the revised Constitution as proposed by the CRC and placed the document on the 1968 ballot. The Constitution proposed by the CRC was then approved by Florida's electorate in November of 1968, fourteen months after adoption by the legislature. Thus, the record suggests that the adoption of felon disenfranchisement provision only came about after significant deliberation.

There is a public record of the Subcommittee considering the provision on February 2 and 3, 1966 that support the conclusion of significant deliberation of this provision by the Constitutional Revision Committee of 1965. The relevant minutes of the meetings state:

1340

*1340 Mr. Earle moved that Article VI, Section 4 be adopted by the Committee on Suffrage and Elections. The motion was seconded.

Mr. Pettigrew moved to amend Mr. Earle's motion by striking "judicially determined to be of unsound mind, or under judicial guardianship because of mental disability" and to substitute therefor "persons adjudicated mentally incompetent." This motion was seconded and passed.

Mr. Pettigrew moved to further amend Section 4 by adding to his previous amendment: "in this or any other state and who have not had their competency judicially restored." This amendment was seconded and also passed.

After considerable discussion, Mr. Pettigrew moved that Section 4 be deleted and the following inserted: "The Legislature may by law establish disqualifications for voting for mental incompetency or conviction of a felony." The motion was seconded.

Mr. Goodrich offered the following substitute motion to Mr. Pettigrew's motion: Delete Section 4 and insert: "The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution." After discussion, Mr. Goorich's [sic] motion failed for lack of a second.

The vote was taken on Mr. Pettigrew's motion, but it failed adoption.

Mr. Goodrich moved that the word "felony" in line 2 of Section 4 be changed to "crime." The motion failed for lack of a second.

The Committee adopted Section 4 of Article VI with no further amendments. (Suffrage and Elections Committee Meeting, February 2 and 3, 1966, pp. 6-7.)

The felon disenfranchisement provision that was passed by the Subcommittee after significant consideration, accepted by the legislature after deliberations between legislators, and ultimately adopted by Florida's voters without any evidence of discussion of discriminatory intent based upon race.

The provision of 1968 did more than reflect mere "cosmetic" changes but contained substantially revisions to the 1885 law. The framers and ratifiers of the 1968 Constitution deliberately chose to change the prohibition on voting by felons in order to achieve a different and new result in terms of the persons who would be disqualified. The 1968 Constitution altered Article VI, Section 4, of the 1885 Constitution to categorically disqualify felons not only from voting but also from holding office. Additionally, it changed Article VI, Section 5, of the 1885 Constitution by deleting specific crimes that would have triggered disqualification included some misdemeanors. See, e.g., State ex rel. Jordan v. Buckman, 18 Fla. 267 (1881) (holding misdemeanor conviction for petty larceny triggered disenfranchisement). Thus, the legislature in 1986 disqualified a different category of person than its predecessors.
Plaintiffs at most have presented evidence to suggest that Florida's felon disenfranchisement policies were racially motivated in 1868. However, they have not presented any evidence that the legislature that enacted the felon disenfranchisement provision in 1968 did so to discriminate against African Americans. Without any evidence that Florida's disenfranchisement law enacted in 1968 was motivated by racial animus and with evidence that Florida's legislature significantly deliberated and substantively revised to the Florida's 1868 1341 disenfranchisement law, the Court grants summary judgement in favor of the *1341 State on Plaintiffs' claim of intentional racial discrimination.
D. Plaintiffs' Claim of Violation of Section 2 of the Voting Rights Act
Plaintiffs claim that Florida's felon disenfranchisement provision violates Section 2 of the Voting Rights Act of 1982, 42 U.S.C. § 1973 by denying African Americans suffrage based on their race and color. Section 2 prohibits the State from enforcing any "qualification or prerequisite to voting or standard, practice, or procedure" that "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). Under this "results" standard, Plaintiffs do not need to prove that the felon disenfranchisement provision was adopted with a racially discriminatory purpose, see Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), but that under the totality of the circumstances, the political process are not equally open to participation by members of a protected class in that its members have less opportunity than other members of the electorate to participate in the political process. See Burton v. City of Belle Glade, 178 F.3d 1175, 1198 (11th Cir.1999)(quoting 42 U.S.C. § 1973(b)).
The Court finds Wesley v. Collins, 605 F.Supp. 802 (M.D.Tenn.1985) to be instructive. In Wesley, the pro se plaintiff brought suit in federal court under the Voting Rights Act challenging a Tennessee law that deprived him of his right to vote while he served a plea-bargained suspended sentence. The Wesley court dismissed the plaintiff's claim on the grounds that the pro se plaintiff had failed to show a causal connection between the indicia of historically-rooted discrimination and the statute disenfranchising felons. See id. at 812. Therefore, to establish a Voting Rights Act violation, there must be a nexus between the discriminatory exclusion of blacks from the political process and the disenfranchisement of felons.
Furthermore, the Eleventh Circuit indicated that the existence of some form of racial discrimination remains the cornerstone of section 2 claims. See Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir.1994) (en banc) (Tjoflat, C.J., plurality opinion). Judge Tjoflat recognized that the deprivation of a minority group's right to equal participation in the political process must be on account of a classification, decision, or practice that depends on race or color, not on account of some other racially neutral cause. See Solomon v. Liberty County Comm'rs, 221 F.3d 1218, 1225 (11th Cir.2000) (en banc) (quoting Nipper, 39 F.3d at 1515). Thus, no Section 2 violation occurs when factors other than race caused election results with a disparate impact on minorities. See Southern Christian Leadership Conference v. Sessions, 56 F.3d 1281, 1293 (11th Cir.1995) (en banc).
Here, it appears that African American ex-felons in Florida have less opportunity than similarly situation nonminorities on account of a racially neutral cause. The African American ex-felon Plaintiffs have not been denied the right to vote because an immutable characteristic but because of their own criminal acts. This is also true of the non-African American class members. Thus, it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection

and punishment. See Wesley v. Collins, 605 F.Supp. 802, 813 (M.D.Tenn.1985) aff'd 791 F.2d 1255 (6th Cir.1986) .
Plaintiffs point to the statistics of Florida's criminal justice system as evidence that it is infected by racism. While 1342 this court decries any racism that exists with *1342 Florida's criminal justice system, the case law indicates that
this evidence of disproportionate impact is irrelevant to the voting rights challenge. In Farrakhan v. Locke, No. 96-76-RHW (E.D.Wash.2000), the court held that even compelling evidence of bias in the administration of the criminal justice system failed to establish a claim for vote denial because even if the disproportionate numbers of minorities disenfranchised were the product of discriminatory animus on the part of prosecutors and judicial officials, Washington's felon disenfranchisement scheme would not violate Section 2 because it is discrimination in the criminal justice system, not the disenfranchisement provision itself, that causes the vote denial. See id. at *6.("At most, this establishes a flaw with the criminal justice system, not with the disenfranchisement provision."). "The mere fact that many incarcerated felons happen to be black and Latino is insufficient grounds to implicate the Fifteenth Amendment or the Voting Rights Act." Id. In rejecting a similar claim, the Sixth Circuit stated that "it is well-settled ... that a showing of disproportionate racial impact alone does not establish a per se violation of the Voting Rights Act." Wesley, 791 F.2d at 1260-61.
The Court thus finds that Plaintiffs have failed to make the requisite showing that they are denied the right to vote on account of race rather than some racially neutral cause. See Solomon, 221 F.3d at 1225. Plaintiffs have, in effect, disenfranchised themselves by committing a felony. See Wesley, 605 F.Supp. at 813 ("The law presumes that all men know its sanctions. Accordingly, the performance of a felonious act carries with it the perpetrator's decision to risk disenfranchisement."). Therefore, the State is entitled to summary judgement in their favor on Plaintiffs' Section 2 claim.
E. Plaintiffs' Poll Tax and Wealth Qualification Claims
Plaintiffs' final claims allege that the requirement of the Clemency Board for applicants to pay all victim restitution, to be eligible for restoration of civil rights, constitutes an impermissible poll tax. At the time this case was filed, the State's rules predicated clemency on payment of criminal fines in excess of $1,000, and on payment of all victim restitution. In June, 2001, the Clemency Rules were modified to eliminate the prerequisite that fines in excess of $1,000 be paid prior to restoration of civil rights but retained the requirement that victim restitution be paid before clemency can be granted and voting rights restored.
Plaintiffs argue that the Fourteenth and Twenty-Fourth Amendments to the United States Constitution and section 10 of the Voting Rights Act, 42 U.S.C. § 1973h, do not permit the State to use ex-felon's financial status to deny them the right to vote, regardless of the other requirements that the state may require before granting restoration of civil rights. They assert that the imposition of financial conditions on regaining the right to vote constitutes a practical equivalent of a poll tax.
Plaintiffs correctly argue that access to the franchise cannot be made to depend upon an individual's financial resources. The Supreme Court has struck down numerous voting qualifications that conditioned voting or other political participation on payment of special fees, see Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) (candidate filing fee); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) ($1.50 poll tax); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965) 1343 (certificate of residence or poll tax), or holding of property, *1343 see Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975)(property available for taxation); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969)(striking property ownership requirement for utility bond election). These qualifications constituted unconstitutional poll taxes by placing barriers on persons qualified to vote and their actual exercise of their right to vote.
An unconstitutional poll tax, like those in the cases cited by the Plaintiffs, pertain to a tax (or the functional equivalent in the case of property ownership) directly burdens the exercise of an individual's proper exercise of their right to vote. As previously stated in this order, the State has permissibly stripped Plaintiffs of their right to vote along with other civil rights pursuant to their felony convictions. The State is not constitutionally obligated to

return this right to them on completion of their sentence.[2] The victim restitution requirement, then, does not unduly burden the exercise of their right to vote given that that right has already been stripped from them. The victim restitution requirement is not a special fee that they must pay in order to exercise a right already existing in them, but a requirement made within the authority of the State to begin the process of having their civil rights fully restored. See Howard v. Gilmore, No. 99-2285, 2000 WL 203984, at *2 (4th Cir. Feb 23, 2000)(affirming the dismissal of a claim that Virginia's practice of requiring felons to pay a $10 fee to the Circuit Court of Richmond in order to begin the process of having his civil rights restored did not constitute an unconstitutional poll tax in violation of the Twenty-Fourth Amendment). It is not Plaintiffs' right to vote which payment of a victim restitution is being conditioned but rather it is the restoration of his civil rights which is being conditioned. See id.
Moreover, the State of Florida has created an administrative mechanism through which disenfranchised felons who are unable to satisfy the prerequisites for restoration of their civil rights, including restoration of their right to vote, may obtain a waiver of this prerequisite. An applicant for restoration of civil rights can request a waiver of this condition. See Fla. R. Exec. Clem. 8. Thus, Plaintiffs' right to vote is not necessarily "denied or abridged ... by reason of failure to pay any poll tax or other tax." U.S. Const. amend. XXIV.
The Court finds that victim restitution is a crucial part of the debt the convicted felon owes to both the victim and society. Payment of that debt is directly related to the question of the applicant's rehabilitation and readiness to return to the electorate. The Clemency Board's requirement that applicants pay all victim restitution furthers rehabilitation and readiness for return to the electorate. Plaintiffs must complete their sentences, including payment of restitution, or seek a waiver, before being restored to the electorate. Accordingly, the State is entitled to summary judgement in their favor on Plaintiffs' poll tax claims.
IV. CONCLUSION
After a careful review of the record and the Court being otherwise fully advised, it is
ORDERED, ADJUDGED and DECREED that Defendants' Motion for Summary Judgment be, and the same is 1344 hereby, *1344 GRANTED. The above-styled case is DISMISSED with prejudice.
[1] Florida's Constitution of 1865 removed the comma after the words "high crime".
[2] In fact, the court notes that at least 12 states offer ex-felons no opportunity or avenue by which they can have their voting rights restored to them. McGrath v. United States, 60 F.3d 1005, 1008 (2d Cir.1995).
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 Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 1 of 34

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THOMAS JOHNSON; DERRICK ANDRE THOMAS; ERIC ROBINSON; OMALI YESHITELA; ADAM HERNANDEZ; KATHRYN WILLIAMS-CARPENTER; JAU'DOHN HICKS; and JOHN HANES in their own right and as representatives of all ex-felon citizens of Florida,
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PRELIMINARY STATEMENT 1. This action is brought by Plaintiffs on behalf of all Florida citizens who have been convicted of felonies and fully completed the periods of incarceration and/or supervision to which they were sentenced ("ex-felons''), but nonetheless remain ineligible to
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Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 2 of 34
register or vote because a felony conviction results in permanent disenfranchisement under Florida's Constitution and statutes. The permanent disenfranchisement of felons in Florida was initially adopted to discriminate Jga.inst Afri~:au-American voters and continues to have a significant discriminatory impact. In 1998, ex-felons disenfranchised under these provisions represented approximately 15% of the African-American male voting age population in Florida. Moreover, although convicted felons can apply to Florida's Clemency Board for restoration of the right to vote, many ex-felons are denied restoration or are not eligible for restoration because they owe monetary penalties. Plaintiffs contend that Florida's disenfranchisement and clemency provisions violate the First, Fourteenth, Fifteenth and Twenty-Fourth Amendments of the United States Constitution, Sections 2 and 10 of the Voting Rights Act of 1965, codified at 42 U.S.C. § 1973 et seq., and 42 U.S.C. § 1983.
JURISDICTION 2. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343; 42 U.S.C. §§ 1973h and 1983; and the First, Fourteenth, Fifteenth, and Twenty-Folll1h Amendments to the United States Constitution. 3. Plaintiffs' action for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202: and by Rules 57 and 65 ofthe Federal Rules of Civil Procedure.
VENUE 4. Venue is proper pursuant to 28 U.S. C. § 1391 (b) because Defendants CARROLL and LEAHY reside in this district and the state Defendants may be found in this district.
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PARTIES The Plaintiffs 5. Plamntt 1HOMAS JOHNSON is a 51 year old African-American male who lives in Gainesville in Alachua County, Florida. He is married and the father of five children. Since 1996, JOHNSON has been the executive director of a non-profit Christian organization that runs a residential program for recently released offenders. The program assists recently released offenders in reintegrating into society by providing a place they can live as they transition out of prison, helping them get jobs, and linking them with mentors and role models. Each year the program works with between 20 to 25 former offenders. Prior to 1996, JOHNSON lived in New York City, where he worked for a homeless mission and New York City transit agency. JOHNSON also studied at Long Island University for two and a half years. In 1992, JOHNSON was convicted of a felony in New York, and served eight months in prison. He was released in November 1992 without any period of supervision. As he has a felony conviction and has not had his rights restored, JOHNSON is ineligible to register and vote under Florida law. Prior to his conviction, JOHNSON was registered and regularly voted in New York. JOHNSON is eager to gain the right to vote because his work is significantly etlected by political developments and the willingness of local and slate government to suppmt his organization's efforts. 6. Plaintiff DERRICK ANDRE THOMAS is a 34 year old African-American male who lives in Miami in Miami-Dade County, Florida. Over the last ten years, THOMAS worked in human resources and for several life and health insurance companies, and is cUITently employed as an implementation manager with responsibility for large health insurance policies. A high school graduate, THOMAS attended college for three years prior to his employment in
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msurance. In 1990, THOMAS was convicted of two felonies, one under federal law and one under state law. He was sentenced to probation on the federal convictions and ten months impnsonrnent on his Florida state conviction. In 1999, THOMAS applied for restoration of his civil rights. The Florida Office of Executive Clemency returned his application because $225 in penalties remain outstanding. As a convicted felon who has not had his rights restored, THOMAS is ineligible to register and vote under Florida law. THOMAS is eager to gain his right to vote so that he can become an active citizen in society.
7. Plaintiff ERIC ROBINSON is a 30 year old African-American male who lives in Miramar in Broward County, Florida. A high school graduate, ROBINSON has worked as a truck driver since 1996, when he attended a training program and obtained his commercial driver's license. Previously, he worked in maintenance for six years. ROBINSON is an active member of the 93rd Community Church in Miami and the father of three children. In 1989, he was convicted of a felony in Florida and sentenced to four years' probation. In 1997, he was convicted oftwo felonies and served six months' work release, which he completed on June 25, 1998. ROBINSON has not had his rights restored and therefore is ineligible to register and vote under Florida law. ROBINSON applied for restoration of his civil rights in September 1999. In October 1999, he was infom1ed that he had $623 outstanding in pecuniary penalties, which made him ineligible for clemency. As a result, his application for restoration of rights \vas returned. ROBINSON is eager to be able to vote and participate in the political life of his community.
8. PlaintiffOMALI YESHITALA (born as Joseph Waller, Jr.) is a 48 year old African-American male who lives in St. Petersburg in Pinellas County, Florida. YESHITELA lives with his wife and two sons. Since 1972, YESHITELA has been chainnan of the National African Peoples Socialist Party, known in Florida as the Uhura Movement.
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YESHITELA's felony conviction dates back nearly thirty-five years and arose out of an act of political protest in 1966 in which he removed a canvas mural caricaturing African-Americans from the St. Petersburg City Hall. YESHITELA was convicted of a felony and served 30 months in prison. As a convicted felon who has not had his rights restored, YESHITELA is ineligible to register and vote under Florida law. In December 1998, YESHITELA applied for a pardon for his convictions, and, in 2000, he filed a separate application for restoration of his civil rights. Both applications are pending and no hearings have been held. YESHITELA is eager to be able to vote as an additional avenue through which to push for political reform.
9. Plaintiff ADAM HERNANDEZ is a 50 year old Latino male who lives in Opa Locka in Miami-Dade County, Florida. HERNANDEZ became a naturalized United States citizen in 1971, at which time he enlisted in the United States Army. Until 1991. when he suffered a work-related incident, HERNANDEZ worked as an electrician and a jc\Yelry salesman. He has been disabled and unable to work since that time. In 1985, HERNANDEZ was convicted of two felonies in federal court in Missouri and served four years in prison. He successfully completed probation in 1996. As a convicted felon who has not had his rights restored, HERNANDEZ is ineligible to register and vote under Florida law. HERNANDEZ is eager to be able to vote so that he can have a say in his local government.
10. PlaintiffKATHRYN WILLIAMS-CARPENTER is a 44 year old AfricanAmerican female who lives in Miami in Miami-Dade County, Florida. From 1978 to 1994, WILLIAMS-CARPENTER worked in Miami, including as a cashier, telemarketer, and factory worker. Since 1994. she has been on disability due to blindness from diabetes and hepatitis. She is married and has two children and eight grandchildren. WILLIAMS-CARPENTER's felony conviction occurred over twenty-five years ago. In 1971, she was convicted of a felony under
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Florida law, for which she served six months in county jail. Because WILLIAMS-CARPENTER was unaware that her felony conviction made her ineligible to vote under Florida law unless her rights were restnred, she registered tv vult: in 1973. She voted regularly for over twenty-five years until the beginning of2000, when she was informed that she was being removed from the rolls of registered voters because she was a convicted felon and had not had her rights restored. In May 2000, WILLIAMS-CARPENTER applied to have her civil rights restored, and the application is still pending. WILLIAMS-CARPENTER is eager to be able to regain her right to vote and to exercise her political rights as a citizen.
11. Plaintiff JAU'DOHN HICKS is a 31 year old African-American male who lives in Orlando in Orange County, Florida. A high school graduate, over the past four years HICKS has also successfully completed training as an emergency medical first responder and as a firefighter, been certified as an emergency medical technician, and completed a course in pediatric advanced life support, advanced life support, and paramedic skills. He is currently enrolled in classes to learn computer engineering. From 1998 to 2000, HICKS worked as an emergency medical technician and, as of January 2000, he has worked as a paramedic for the same medical company. In 1986. HICKS served three months in prison for a felony conviction. HICKS also served nineteen months in prison from 1989 to 1991 on a second conviction. In October 1999, HICKS applied for restoration ofhis civil rights. His application vvas returned to him because of money still 0\Ved on a $3,500 public defender lien against him. As a convicted felon who has not had his rights restored, HICKS is ineligible to register and vote under Florida law. HICKS desires to vote so that he can take part in the political process.
12. Plaintiff JOHN HANES is a 48 year old white male who lives in Tampa in Hillsborough County, Florida. Since 1996, HANES has worked as a sentencing guidelines
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consultant, investigating factual issues and guidelines questions for criminal defense lawyers. From 1979 to 1989, HANES worked as a sales representative for tour companies in several states, eventually owning :md op;.:rJting a twvd agency m Tampa from 1985 to 1989. HANES was convicted on two connected felonies under federal law, one in 1989 and the other in 1990, and served seven years in prison. He was released in May 1996 and successfully satisfied his term of supervised release in January 1997. HANES lives with and takes care ofhis mother, who is a diabetic. He is an active member of the Tampa chapter of a national organization, Families Against Mandatory Minimums (FAMM), which lobbies politically on criminal sentencing issues. HANES has not had his rights restored and therefore is ineligible to register and vote under Florida law. He applied for restoration of his civil rights in the spring of 1999, and was mformed in July 1999 that the Clemency Board objected to his being granted restoration of his civil rights without a hearing, as authorized under Fla. R. Exec. Clemency 9(A). Prior to his conviction, HANES was a registered voter and voted regularly. HANES is eager to be able to vote and participate in the political process again.
The Defendants Tlte State Defe11da11ts 13. Defendant JEB RUSH is Governor of the State of Florida. He is sued in his official capacity in connection with actions taken under color of state law. As Governor, Defendant BUSH has the duty to support the Constitution and laws of the State of Florida, including those provisions disenfranchising felons, and to take care that these laws are faithfully executed. See Fla. Const. art. IV, § 1. In addition, Florida's Constitution places the clemency power in the control of the Governor, and Defendant BUSH's approval is required in order for a convicted felon to have his or her civil rights restored or for the Clemency Board to adopt or alter
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mles governing clemency. See id. art. IV,§ 8; Fla. Stat. Ann.§ 940.01(1) (1999); Fla. R. Exec. Clemency 1-2 (Fla. Clemency Bd., eff. 111/2000).
14. Dc:ftmdant KAl HERlNE HARRIS is the Secretary of State ofFlorida. She is sued in her official capacity in connection with actions taken under color of state law. As Secretary of State, Defendant HARRIS is the chief election officer of the State of Florida and has responsibility for general supervision and administration of the election laws. including those provisions disenfranchising felons. See Fla. Stat. Aim. §§ 15.13, 97.012. In addition, as Secretary of State she is in charge of the Division of Elections of Florida's Department of State, which is responsible for notifying each county supervisor of elections of any convicted felon who has not had his or her civil rights restored and who is a registered voter in the supervi.;;or's county. See id. § 98.0975. Defendant HARRIS is also a member of the Florida Cabinet, see Fla. Const. art. IV,§ 4, and therefore a member of the Clemency Board of Florida. As a member of the Clemency Board, Defendant HARRIS has the power to restore civil rights and to adopt or alter the mles governing clemency, with the approval of the Governor. See Fla. Const. art. IV, § 8; Fla. Stat. Atm. § 940.01(1) (1999); Fla. R. Exec. Clemency 1-2.
15. Defendants ROBERT BUTTERWORTH, ROBERT l'v11LLIGAN, WILLIAM NELSON. ROBERT CRAWFORD, and THOMAS GALLAGHER are members of the Florida Cabinet, see Fla. Const. art. IV,§ 4, and thus members of Florida's Clemency Board. Defendant BUTTERWORTH is Attorney General ofthe State ofFlorida, Defendant MILLIGAN is Comptroller of the State of Florida, Defendant NELSON is Treasurer of the State of Florida, Defendant CRAWFORD is Commissioner of Agriculture of the State of Florida and Defendant GALLAGHER is Commissioner of Education ofthe State ofFlorida. They are sued in their official capacities in connection with actions taken under color of state law. As members of the
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Clemency Board, these Defendants have the power to restore civil rights and to adopt or alter the rules governing clemency, with the approval ofthe Governor. See Fla. Const. art. IV,§ 8; Fla. Stat. Ann. § 940.01 (1) ( 1999); Fla. R. Exec. Clemency 1-2.
The County Defendants 16. Defendants BEVERLY HILL, JANE CARROLL, PAM IORIO, DAVID C. LEAHY, WILLIAM COWLES and DEBORAH CLARK are the county supervisors of elections for Alachua, Broward, Hillsborough, Miami-Dade, Orange and Pinellas counties, respectively. They are sued in their official capacities in connection with actions taken under color of state law and as representatives of the class of all county supervisors of elections for all counties in the State of Florida. The county supervisors of elections are the official custodians of the registration books in Florida and have exclusive control of matters pertaining to registration of electors. See Fla. Stat. Ann.§ 98.015. Under Florida statutes, the county supervisors of elections are responsible for removing from the registration books the names of registered voters who have been convicted of a felony and not had their right to vote restored. See id. § 98.093.
CLASS ACTION ALLEGATIONS 17. The named Plaintiffs bring this action on their own behalf and on behalf of all others similarly situated against the state Defendants and against the county Defendants individually and as representatives of their class pursuant to Rule 23 of the Federal Rules of Civil Procedure. 18. The Plaintiff class includes all ex-felons in Florida, with ex-felons being persons who have completed the periods of incarceration and/or supervision to which they were sentenced, but have not had their rights restored and thus remain ineligible to register or vote under Florida's Constitution and statutes. The Plaintiff class includes approximately 525,000
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members. 19. The county Defendant class includes all county election supervisors in the
State of Florida. There is one county election supervisor for each of the 67 counties in Florida. Given the vast number of disenfranchised ex-felons in Florida, members of the Plaintiff class reside in every Florida county and thus every election supervisor exercises control over the ability of some members of the Plaintiff class to register and vote.
20. The prerequisites of subsections (a) and (b)(2) ofRule 23 are satisfied in regard to these classes. The members of the Plaintiff and Defendant classes are so numerous as to make it impracticable to bring them all before this Court. The named Plaintiffs are ex-felons who reside in Florida who have completed the periods of incarceration or supervision to which they were sentenced but have not had their rights restored and therefore are not able to register or vote. In addition, there are common questions of law and fact regarding the rights of citizens to register and to vote and Plaintiffs are not seeking monetary relief that would require consideration of individual circumstances. Because the claims of the named Plaintiffs rely on questions of law and fact common to the Plaintiff class and the relief sought wi II accrue to the benefit of all Plaintiff class members. they can adequately and fairly represent the interests of the PlaintitTclass. Finally, the defenses ofthe named Defendants are typical ofthe defenses ofthe classes as a whole and the Defendants have refused to allow the named Plaintiffs to register or vote on grounds generally applicable to the class, namely the Plaintiffs' felony convictions and the prohibition in Florida's laws on voting by convicted felons who have not had their civil rights restored. As a result, Defendants can adequately and fairly represent the interests of the Defendant class, and declaratory and injunctive relief with respect to the Plaintiff and Defendant class as a whole is appropriate.
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THE CHALLENGED CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS
21. Section 4(a) of Article VI ofthe Florida f'nn<:tit11ti0n pr0vic!es: "No person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights or removal of disability." According to section 10 of Article X ofthe Florida Constitution, "[t]he term 'felony' as used herein and in the laws of this state shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or by imprisonment in the state penitentiary."
22. The disqualification of convicted felons from voting is repeated in § 944.292 of Florida Statutes, which provides: "(I) Upon conviction of a felony as defined in s. 10, .\.rt. X vf tht Si<tic: Constimrion. the CIVIl nghts of the person convicted shall be suspended in Florida until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV ofthe State Constitution."
23. Other statutes provide that convicted felons are not eligible to register to vote and require that every county supervisor of elections be notified of persons convicted of felonies. Section 97.041 (2) of Florida Statutes states: "The following persons, who might be otherwise qualified, are not entitled to register or vote: ... (b) A person who has been convicted of any felony by any court of record and who has not had his or her right to vote restored pursuant to law." Section 104.15 of Florida Statutes makes it a third degree felony for a convicted felon to vote if aware that he or she is not qualified to vote.
24. Meanwhile, under§ 98.093(2) "[e]ach clerk ofthe circuit court shall, at least once each month, deliver to each supervisor of elections a list ... [identifying] each person convicted of a felony during the preceding calendar month who was a resident of that
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supervisor's county." In addition, state officials are required to fmward infom1ation on persons convicted in federal court to county supervisors of elections. See§ 98.093(3). "Upon receipt of any such list, the superv1sor shall remove from the registration books the name of any person listed who is ... convicted of a felony.... A person ... who has had his or her right to vote restored after conviction of a felony shall be required to reregister." !d. § 98.093(4). Finally, under§ 98.0975 of Florida Statutes, the state Division of Elections is required to provide each county supervisor of elections a list identifying every person included in the state's central voter file as a registered voter in the supervisor's county who "has been convicted of a felony and has not had his or her civii rights restored."
25. Restoration of civil rights, which includes restoration of the right to vote. is treated under Florida law as part of the clemency power. Clemency is addressed by section 8 of Article IV of the Florida Constitution, which provides:
(a) Except in cases oftreason and in cases where impeachment results in conviction, the governor may, by executive order filed with the custodian of state records, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses. This language is repeated nearly vt:rbatim at§ 940.01(1) of Florida Statutes.
26. The Governor and the members of the Cabinet collectively constitute the
Clemency Board, which has issued Rules of Executive Clemency. See Fla. R. Exec. Clemency l-2. Under the Rules of Executive Clemency, "[a] person may not apply for the restoration of his or her civil rights unless he or she has completed all sentences imposed and all conditions of supervision have expired or been completed." Fla. R. Exec. Clemency 5(l)(E).
27. The Rules of Executive Clemency further provide that to be eligihle for 12

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clemency, "[a]n applicant may not have any outstanding detainers, or any pecuniary penalties or liabilities, which total more than $1,000 and result from any criminal conviction or traffic infraction." Fla. R. Exec. Clemency 5(II). This rule allowing individuals to apply for clemency ifthey owe monetary penalties under $1,000 was adopted on January 1, 2000; previously, an applicant was not eligible for clemency if he or she owed over $275 in monetary penalties.
28. Applicants for restoration of civil rights may seek a waiver of these eligibility requirements. Such a waiver can only be granted by the Governor with approval of two members of the Cabinet. See Fla. R. Exec. Clemency 8.
29. The Rules of Executive Clemency authorize a procedure whereby applicants can have their rights to vote restored without a hearing, provided three members of the Clemency Board do not object. However, applicants can use this procedure only if, among other requirements: (1) they have no amounts outstanding in victim restitution and no more than $1,000 outstanding in other pecuniary penalties or liabilities, including traffic fines; (2) they have had no previous Clemency Board action; (3) they have no more than two felony convictions of record; (4) they have no conviction for a capital or life felony or for a number of specified felonies; and (5) they have no outstanding detainers or criminal charges. See Fla. R. Exec. Clemency 9(A).
FACTS Historv of Florida's Use of Felon Disenfranchisement
to Limit the Ability of African-Americans to Vote 30. Although Florida disenfranchised individuals convicted of a few specific crimes from its inception as a Territory in 1838, the scope of such disenfranchisement was significantly expanded in 1868, after the Civil War. Section 2 of Article XIV of the 1868
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Constitution added mandatory disenfranchisement of all convicted felons, stating that "[n]o person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election, nor shall any person convicted of felony be qualified to vote at any election unless restored to civil rights." In addition, section 4 of the same article added larceny to the list of specific disenfranchising crimes contained in earlier Constitutions, which previously had only included bribery, perjury and other infamous crime. Section 4 provided:
The Legislature shall have power to and shall enact the necessary laws to exclude ... from the right of suffrage, all persons convicted of bribery, petjury, larceny, or of infamous crime, or who shall make or become, directly or indirectly interested in any bet or wager, the result of which shall depend upon any election; or who shall hereafter fight a duel, or send or accept a challenge to fight, or who shall be a second to either partv, or be the hearer of such challenge or acceptance. Fla. 1868 Canst., art. XIV, § 4. 31. The broad disenfranchisement of every convicted felon in Florida's 1868 Constitution and the addition of larceny as a disenfranchising crime were enacted with the intention of restricting the voting rights of Florida's newly freed black population. White Floridians were strongly opposed to black suffrage after the Civil War. Blacks were finally given the right to vote in the 1868 Constitution so that Florida could gain readmission to the Union. However, the 1868 Constitution contained several measures in addition to the felon and specific crime disenfranchisement provisions that were adopted to limit the power of black votes. Further measures to restrict black suffrage were adopted as part of the 1885 Constitution. The discriminatory intent behind the disenfranchisement provisions is demonstrated by the history of the 1865, 1868, and 1885 Constitutions as well as Florida's use of criminal laws to control
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former slaves and create a low-wage labor force to replace that lost by the abolishment of slavery.
The 1865 Constitution and the Black Codes 32. The 1865 Constitution ended slavery but, like those before it, only granted the suffrage to white men. The provisional governor of Florida, William Marvin, argued at the 1865 convention that while slavery was abolished and blacks were now free, that freedom did not need to include the right to vote: "The governing power is in the hands of the white race, but the colored race is to be free and the government is to be administered in such a manner as not to infringe on that freedom." Journal of the Constitutional Convention of 1865 at 9. The 1865 Constitution used the antebellum three-fifths formula for counting blacks for apportionment provided that blacks could testify only in cases involving blacks, and authorized the arrest of vagrants who could be fined up to $500 or sold for labor for up to a year. See Fla. 1865 Canst., Ord. 4; Fla. 1865 Canst., Res. 4. 33. The 1865 constitutional convention also created a committee to propose amendments to Florida's laws to ensure these laws confom1ed to the new Constitution, in particular "the altered condition of the colored race.'' 1865 Fla. House J. 58. In order to deal with "the great increase of minor offences, which may be reasonably anticipated from the emancipation ofthe fom1er slaves," the committee recommended creation of a more local criminal court, id. at 39, and the legislature responded by creating county criminal courts with jurisdiction over a variety of crimes, including larceny, malicious mischief, vagrancy, and "all offences against Religion, Chastity, Morality, and Decency." 1865 Fla. Laws ch. l ,465. The committee also proposed the following measures: creation of a new kind of larceny to include theft of agricultural products, which had previously been a civil matter and handled by slave
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masters; punishment of vagrancy; and adoption of corporal punishment as an alternative for fine and imprisonment, in the belief that "[t]o fine and imprison a colored man in his present pecuniary condition, is to punish the State instead of the individual." 1865 Fla. House J. 62-63. The legislature similarly followed these recommendations. It added corporal punishment as an alternative for a list of crimes, provided that "severance from the freehold of any agricultural production or fixture, or any part thereof, and the felonious taking and carrying away of the same, shall be deemed and held to be larceny," and authorized the arrest of able-bodied persons with no visible means of support who could be sentenced to a year of labor or impriso1m1ent. 1865 Fla. Laws ch. I ,466. These and other discriminatory measures intended to regulate the newly freed blacks came to be known as the Black Codes.
34. Florida's opposition to black suffrage continued after 1865. David Walker, elected Governor in 1865, indicated his opposition to granting the right to vote to black men at his opening address to the 1865 legislature: "Of course we could never accede to the demand for negro suffrage, should it be made.... [W]e could not give either an honest or a conscientious assent to negro suffrage.'' 1865 Fla. House J. 39-41. In 1866, the Florida Legislature rejected the Fourteenth ,1\mendment. A legislative committee established to review the Amendment condenmed the provision that congressional representation would be reduced in proportion to the number of adult men denied the right to vote, stating: "We must be shom of our representation or give the inferior and unintelligent race the supremacy in the State government." 1866 Fla. House J. 77.
The 1868 Constitutional Convention and the Adoption ofthe Felon Disenfranchisement Provision
35. In the aftennath of the Civil War, divisions arose between President
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Johnson and moderate Republicans who sought to impose few conditions on former confederate states as a prerequisite for readmittance to the Union, and radical Republicans who sought to obtain greater concessions. The ascendancy of radical Republicans in Congress in 1867 Jed to enactment oflegislation putting Florida and other former confederate states under military control and making extension ofthe suffrage to all adult men as well as ratification of the Fourteenth Amendment prerequisites for readmittance to the Union. The Republican Party in Florida was similarly divided between more moderate Republicans, led by businessmen, and a more radical group which was supported by a large majority of the black population, newly enfranchised under military rule.
36. In Florida, military authorities oversaw registration ofvotf'rs, inrlnrli!lg black men, to vote on whether to hold a new constitutional convention. Most fanner supporters of the Confederacy, now calling themselves Conservatives, boycotted the election. As a result, the vote in November 1867 was overwhelmingly in favor of holding a new constitutional convention,
37. The convention met in Tallahassee tram the end of January 1868 through the middle of Febmary 1868. Initially, only 41 of the 46 elected delegates attended. Conllicts over black voting rights and political power Jed to a split in the convention, with 19 moderate Republican delegates leaving the convention and proceeding to meet separately in a nearby town where they conferred with Conservative leaders. The remaining group of 22 delegates, which included 15 of the 18 black delegates, supported the radical Republican leaders. After the moderate Republican delegates left the convention, the remaining delegates voted that they constituted a quomm of those elected delegates who had attended the convention and drafted a constitution to submit to Congress. This draft constitution contained no provision for felon

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disenfranchisement, and instead granted the right to vote to all males except those who had held either federal or state office and then participated in the Confederacy. It also provided for equal legislative apportionment based on population, and made state and county offices elective. See H.R. Misc. Doc. 40-109, at 25-44 (1868). Shortly thereafter the moderate Republican delegates, who had been joined by three additional delegates (two Conservatives, and one moderate Republican), returned. They took control of the convention, removed four radical Republican delegates and replaced them with moderate Republicans, and oversaw adoption of an alternative version of the constitution.
38. This alternative constitution, which became the 1868 Constitution, similarly provided for grant of suffrage men over the age of 21 without regard to r;Jc'P, 0.s w~ts required for readmittance. But it also contained several provisions intended to restrict the power of black voters. Anyone convicted of a felony was permanently disenfranchised, and larceny was added to the list of disenfranchising crimes. On the other hand, individuals who had participated in the Confederacy were not disqualified from voting, and the legislature was authorized to impose educational qualifications for voting that would go into effect in 1880, with anyone who had voted before that point being exempted. In addition, measures were adopted to ensure that blacks were not able to take political control of the state legislature or in the more populous northern Florida counties where they were often a majority. Specifically, limits were placed on popular representation, with each county getting at least one and no more than four representatives regardless of population, and local officials were appointed by the Governor. See 1868 Const. art. I, § 15; id. art. VI, § 19; id. art. XIV. A majority of delegates signed this version of the Constitution, and it was the version ultimately accepted by Congress. Radical Republicans opposed the Constitution, which was ratified by the voters by a vote of 14,520 in
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favor to 9,491 against in May, 1868. 39. The drafting ofthe suffrage article ofthe 1868 Constitution, Article XIV,
was particularly controversial. Towards the end of the convention a version of this article was proposed by Radical Republican and Moderate Republican delegates which provided that the list of registered voters prepared by military authorities for the vote on whether to call a constitutional convention would be used for one year after ratification. As a result, the numerous white men who had not registered to vote in 1867 would be prevented from voting in the initial elections. It further provided that "[n]o idiot or insane person, or person convicted of infamous crime, shall be entitled to the privileges of an elector, except when such convicted person shall be pardoned." Journal ofthe Proceedings of the Constitutional Convention ofthe St::~te nfFl•)rid::! 89-90 (Tallahassee, Edward M. Cheney 1868) ("1868 Constitutional Convention"). Four days later, just before the convention adjourned, ,~·hat became the final version of the suffrage article was offered as a substitute. This version provided that every male above 21 was entitled to vote, disqualified anyone convicted of a felony, and also disqualified all those convicted of bribery, perjury, larceny, or infamous crime. It was adopted by a 26 to 15 vote, with moderate Republicans and Consen'ative delegates voting in favor and radical Republicans voting against.
The Impact ofthe Felon Disenfranchisement Provision 011 African-Americans in the Period After Its Adoption 40. In 1868, the legislature adopted legislation defining what crimes would be felonies and misdemeanors. Larceny involving more than $20 was a felony, as was a second conviction for larceny regardless of amount. See 1868 Fla. Laws ch. 1,367. Conviction for misdemeanor larceny still led to disenfranchisement because the 1868 Constitution added larceny as a disenfranchising crime. In addition, vagrancy was included as a crime against chastity,
1C)

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 20 of 34
morality and decency, see id. ch.13. 41. In the period after the Civil War, Florida used its criminal laws as a means
of controlling its former slaves. One example of this is the enactment or expansion of certain criminal offenses, such as vagrancy and larceny, in order to target Florida's black population. Similarly, the unfair treatment of blacks in the county criminal courts created in 1865 led to reimposition of martial law in several north Florida counties in 1866. This discriminatory treatment continued over the ensuing years. Although black convicts represented a small percentage of Florida's prison population before the Civil War, this situation was reversed in the post-war period. For example, in 1869 and the period 1872 to 1888, black men represented between 77% and 88% of those added to or in the state prison inmate population every year (lJlrl black convicts comprised the vast majority of criminals sent to work under Florida's convict leasing program. Between 51% to 60% of individuals incarcerated in the state prisons during the period 1872 to 1878 were convicted of larceny or felony theft.
42. There were also massive disqualifications of voters based on the criminal disenfranchisement provisions. Many ofthese disqualifications were on the grounds of petty larceny, and Republicans claimed that Democrats \Vere using the criminal disenfranchisement provisions of the 1868 Constitution to reduce the number of black and thus Republican voters. This use of the criminal disenfranchisement provisions, combined with other types of voter fraud, refusal by commissioners to register black voters, violence against prominent black citizens and Republicans, and voter intimidation, dramatically increased the power of white Conservatives, who became the Democratic Party. By 1872, their representation in Florida's legislature was equal to that of the Republicans and by 1875 they claimed a majority. In 1876 the Democrats gained the govemorship and ended Reconstruction in Florida.
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Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 21 of 34
Subsequent Constitutional Amendments 43. In 1885, Florida voters approved a new constitution. In response to pressure from white majority counties, the 1885 Constitution made almost all local officials elective. However, in order to preserve limits on black political power it retained appointment of county commissioners and reduced the maximum legislative representation for each county from four representatives to three. More importantly, the 1885 Constitution authorized the Legislature to impose a poll tax. The criminal disenfranchisement provisions of the 1868 Constitution were retained essentially verbatim, the only change being the addition of the requirement that the felony conviction leading to disenfranchisement be "by a court of record." This addition apparently resulted from the creation of a new Countv Criminal Court of Recorrl which was authorized to try felony cases. In 1887, the Legislature enacted an act requiring' oter registration for the first time, 1887 Fla. Laws ch. 3,704, and in the act provided for disenfranchisement of persons "convicted of felony by any court of record" as well as persons "convicted ofbribery, perjury, or oflarceny or of infamous crime." !d. ch. 3,705. 44. In 1968, the list of disqualifying offenses originally enacted in Aliicle XIV,§ 4 ofthe 1868 Constitution, and continued in the 1885 Constitution, was removed. However, the broad disenfranchisement of all convicted felons contained in section 2 of that article was retained. The language of the felon disenfranchisement provision contained in Article VI, § 4 of the 1968 Revision is nearly identical to the language in Article XIV, § 2 of the 1868 Constitution, and provides: "No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office unti I restoration of civil rights."
71

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 22 of 34
The Disproportionate Impact of Felon Disenfranchisement on African-Americans in Florida Today
45. The disenfranchisement of C'onviC'terl felons rontained in .'\.-tid;,: \'I, ~ 4(a) ofFlorida's Constitution and repeated in statutory provisions has resulted in the disenfranchisement of a substantial number of Florida citizens. As of 1998, there were approximately 525,000 former felons in Florida who have completed their sentences and periods of supervision yet remained disenfranchised. This represents a little over 4.6% of Florida's 1998 estimated voting age population of 11,383,000.
46. The impact that Florida's felon disenfranchisement laws have on AfricanAmericans, and in particular African-American men, is especially severe. According to the same uata, in 1998 rhere were approximately 139,000 black ex-felons in Florida, of which approximately 107,000 were black men. These figures mean that 9% of Florida's voting-age African-American population and 15% ofFlorida's voting-age African-American male population are disenfranchised as a result of a felony conviction.
47. In addition, there are approximately 63,000 African-American male felons currently in prison or under supervision. When the total black male felon population is considered, approximately 170,000 male African-American Florida citizens or 24% of Florida's voting-age African-American male population is disenfranchised as a result of a felony conviction.
48. Similarly, African-Americans represent a disproportionate number of the ex-felons who are disenfranchised by Florida's permanent disenfranchisement laws. The 139,000 black ex-felons disenfranchised under these laws represent approximately 20% of Florida's disenfranchised ex-felon population of 525,000. When current felons are included, the
22

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 23 of 34
disproportionate impact on African-Americans increases still further. Of the approximately 710,000 Florida citizens disenfranchised by Florida's disenfranchisement laws (including exfelons and current felons), nearly 30% or 211 ,000 are African-American. Florida's population is approximately 15% African-American.
49. The number of ex-felons disenfranchised by Florida's disenfranchisement laws has dramatically increased over the last 25 years. In 1976, approximately 61,000 ex-felons were disenfranchised. By 1984, this number had increased to 91 ,000, by 1992 it was approximately 406,000, and by 1998 nearly 525,000 were disenfranchised. Where in 1976 disenfranchised ex-felons represented 1% of Florida's voting age population, by 1998 they represented approximately 4.6%.
50. The percentage of African-/\merican ex-felons who are disenfranchised as a result of the provision also has increased significantly. In 1976, approximately 13,000 black ex-felons were disenfranchised as a result ofthe provisions. In 1984 this figure was approximately 18,000; in 1992 it was 109,000; and in 1998 it was 139,000.
51. Criminal convictions in Florida display racial amplification, in that African-Americans are convicted at a suhstantially greater rate than their proportion in the population and than whites arrested for similar crimes. In addition, arrest data overstate the involvement of African-Americans in crime relative to whites. Moreover, African-Americans continue to be disproportionately affected by limited education and employment opportunities, poverty, and residency in depressed areas, all of which are positively correlated with arrest and incarceration.
52. Very few fanner felons successfully regain the right to vote through the clemency process. According to data from the Office of Executive Clemency, Florida granted
?1

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 24 of 34
restoration of rights to only 1,400 people in 1997, and has granted restoration to fewer than 2,500 ex-felons a year over the last decade.
53. The requirement in the Rules of Executive Clemency that convicted felons must not have more than $1,000 outstanding in fines or other monetary penalties in order to have their right to vote restored constitutes a significant obstacle for many convicted felons. According to data from Florida's Department of Education, on average less than a third of prisoners released from June 1995 to June 1998, or 31. 7%, found jobs and are working. Only 15.5% of released prisoners are working full-time, while 7.3% ofprisoners released during 19951998 are currently receiving public assistance. See Fla. Educ. & Training Placement Info. Prog. (FETPIP), Annual Outcomes Report: Fall 1998 Data 192-194. In addition, most fom1er prisoners lack job skills. According to Florida Department of Corrections data, 65% of cunent inmates have only basic literacy skills and are at an eighth grade or below education level.
Nearly 50% ofblack inmates are only at a sixth grade or below education level. See Fla. Dep't
Corrections, 1997-98 Annual Report 97 (1998). Data complied by the federal government in 1991 indicates that the average ammal income prior to arrest for state prison inmates in the southern part ofthe United States \vas less than $16,000 (in constant 1991 dollars). Over 60% of these inmates are parents, many with small children. See Bureau of Justice Statistics, Sun'e_l' of State Prison Inmates (1991).
54. Although the Rules of Executive Clemency provide that the requirement that monetary penalties be paid can be waived, in practice the Clemency Board has granted very few waivers of this requirement.
55. Florida does not maintain separate voter registration rolls for state and federal elections. As a result, the disenfranchisement of convicted felons contained in Florida's
?4

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 25 of 34
Constitutions and statutes serves to prevent convicted felons from voting in federal as well as state and local elections.
56. Florida's constitutional and statutory provisions disenfranchise all convicted felons, regardless ofthe nature of their specific offenses, when they committed the offense, or the length and severity of their sentence. These provisions also apply to felons convicted in federal court and in the courts of other states.
Racial Polarization in Florida 57. Elections within Florida are characterized by patterns of racial bloc voting. African-American voters in Florida are politically cohesive. African-American candidates for public office generally receive substantial support from black voters, but such candidates often are not successful in obtaining election because of a lack of support from other voters. 58. Historically, African-Americans have been the victims of official discrimination perpetrated by the State of Florida and local governments in Florida. Such discrimination has included discrimination touching on the right ofblack citizens to register, vote, and participate in the political process. 59. Socio-economic statistics demonstrate that African-Americans in Florida continue to bear the effects of discrimination in such areas as education, employment, income and housing. The depressed socioeconomic status of blacks has a disparate and injurious effect on the ability of African-American citizens to participate equally in the political process. 60. For these and other reasons, the political processes in Florida are not equally open to participation by African-American citizens and African-Americans have less opportunity than others of the electorate to participate in the process and elect representatives of their choice.
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Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 26 of 34
Impact on Ri~hts Protected by 42 U.S.C. § 1983 61. By reason of the foregoing, Defendants, acting under color of state law, have deprived Plaintiffs ofth~ righls, privileges, and immunities secured to them under the First, Fourteenth, Fifteenth and Twenty-Fourth Amendments to the United States Constitution and section 1983 of Title 42 of the United States Code to participate in the democratic process free from unreasonable impediments. 62. Plaintiffs have no adequate remedy at law for such deprivation of their rights, privileges and immunities.
CI..AIMS FOR RELIEF FIRST CLAIM FOR RELIEF 63. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 62 above. 64. The permanent disenfranchisement of all convicted felons in Florida contained in section 4(a) of Article VI of the Florida Constitution was specifically adopted out of an intent to disenfranchise African-Americans. 65. At1icle VI, section 4(a) of the Florida Constitution, along with the statutory provisions that disenfranchise convicted felons, Fla. Stat. Ann.§§ 97.041(2), 98.093, 98.0975 and 944.292, currently have a significantly disproportionate impact on AfricanAmericans, particularly black men. 66. The disenfranchising provisions contained in Article VI, section 4(a) of the Florida Constitution and Fla. Stat. Ann.§§ 97.041(2), 98.093, 98.0975 and 944.292, represent intentional racial disctimination in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution.
26

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 27 of 34
SECOND CLAIM FOR RELIEF 67. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 62 above. 68. The permanent disenfranchisement of convicted felons contained in Florida's Constitution and statutes is not only intentionally discriminatory, but also has a significant disproportionate impact on African-Americans, particularly black men. 69. The discriminatory impact of Florida's felon disenfranchisement laws, combined with the racial polarization in Florida, means that African-Americans have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 70. As a result, the permanent disenfranchisement of convicted felons, contained in Article VI, section 4(a) ofthe Florida Constitution and Fla. Stat. Ann. §§ 97.041(2), 98.093, 98.0975 and 944.292, serves to deny Plaintiffs the right to vote on account ofrace, in violation of section 2 ofthe Voting Rights Act, 42 U.S.C. § 1973.
THIRD CLAIM FOR REI"IEF 71. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 62 above. 72. The permanent disenfranchisement of convicted felons in Florida serves no legitimate governmental purpose as applied to the Plaintiff class of ex-felons. As ex-felons, Plaintiffs have fully completed any periods of imprisonment and/or supervision to which they were sentenced. Florida therefore no longer has any legitimate interest in punishing those members of the Plaintiff class who were convicted of felonies under Florida law. Moreover, Florida permanently disenfranchises all felons, without regard to facts of their offense, when it
27

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 28 of 34
was committed, or the sentence they received. 73. Some members of the Plaintiff class, such as named Plaintiffs Thomas
JOHNSON, Adam HbRNANDEZ, and Jack HANES, were convicted under the law of other states or under federal law. Florida never has had any legitimate interest in punishing these convicted felons as they did not violate Florida law.
74. Florida does not limit its disenfranchisement of ex-felons to individuals convicted of election-related crimes, such as election fraud, or crimes that strike at the heart of government, such as treason or bribery of election officials. Florida's permanent disenfranchisement of ex-felons thus does not serve any state interest in protecting the integrity of its electoral processes.
75. Ex-felons have reintegrated into society and are indistinguishable from other members of their communities- they work, support their families and are involved in churches and community groups. Florida has no legitimate interest in denying ex-felons basic political rights when it otherwise treats them as ordinary citizens.
76. As applied to ex-felons, Florida's felon disenfranchisement laws are status-based enactments that serve no purpose other than to burden and disadvantage ex-felons because they are unpopular.
77. As a result, the permanent disenfranchisement of convicted felons contained in Article VI, section 4(a) ofthe Florida Constitution and Fla. Stat. Aru1. §§ 97.041(2), 98.093, 98.0975 and 944.292, is arbitrary and irrational and violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.
28

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 29 of 34
FOURTH CLAIM FOR RELIEF 78. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 62 above. 79. Through its felon disenfranchisement laws, Florida singles out a group of its citizens and permanently denies them the fundamental political right to vote, even after they have completed any period of imprisonment and/or supervision to which they were sentenced. 80. The percentage of Florida's voting-age population prohibited from voting by Florida's felon disenfranchisement laws has grown substantially over the last quarter-century, notwithstanding the substantial increase in Florida's population over this period. Ex-felons who have fully served any periods of imprisonment and/or supervision to which they were sentenced but are still prohibited from voting currently represent approximately 4.6% of Florida's votingage population. 81. The denial of the right to vote and the resultant disenfranchisement of a substantial portion of Florida's electorate caused by Article VI, section 4(a) of the Florida Constitution and Fla. Stat. Ann. §§ 97.041(2), 98.093, 98.0975 and 944.292, violate the protections of the right to vote contained in the First and Fourteenth .1\rnendments to the United States Constitution.
FIFTH CLAIM FOR RELIEF 82. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 62 above. 83. Under the Rules of Executive Clemency, convicted felons must not have outstanding monetary penalties above $1,000 in order to be eligible for restoration of civil rights or processing of their applications for restoration without a hearing. However, several ex-felons,
29

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 30 of 34
including named Plaintiffs THOMAS and ROBINSON have been told that they are ineligible for restoration when they have less than $1,000 outstanding. In practice, therefore, ex-felons with monetary penalties outstanding are unable to obtain restoration of their civil rights.
84. These requirements impose financial conditions on regaining the right to vote that are the practical equivalent of a poll tax and mean that ex-felons' ability to regain the right to vote depends on their financial resources.
85. As a result, these requirements, contained in Fla. R. Exec. Clemency 5(I)(E), 5(II), 9(A)(2) and 9(A)(3), violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution and the Twenty-Fourth Amendment to the United States Constitution.
SIXTH CLAIM FOR RELIEF 86. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 62, 83 and 84 above. 87. As a result, these requirements, contained in Fla. R. Exec. Clemency 5(I)(E), 5(II), 9(A)(2) and 9(A)(3), violate section 10 ofthe Voting Rights Act, 42 U.S.C. § 1973h.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask this Court: (l) To certify the Plaintiff class of all Florida citizens who have been convicted of felonies and fully completed any periods of incarceration and/or supervision to which they were sentenced, but nonetheless remain ineligible to register or vote; (2) To certify the Defendant class of county election supervisors; (3) To enter a judgment declaring and determining that Article VI,§ 4(a) of
30

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 31 of 34
the Florida Constitution, Fla. Stat. Ann. §§ 97.041 (2), 98.093, 98.0975, and 944.292, and Fla. R. Exec. Clemency 5(I)(E), 5(Il), 9(A)(2) and 9(A)(3), are in violation ofthe United States Constitution, hoth facially and as applit:J tu Plaintifts and the Plaintiff class, insofar as they deny ex-felons the right to register and vote,
(4) To grant injunctive relief enjoining Defendants from implementing and enforcing Article VI,§ 4(a) ofthe Florida Constitution, Fla. Stat. Ann.§§ 97.041(2)(b), 98.093, 98.0975 and 944.292, and Fla. R. Exec. Clemency 5(l)(E), 5(ll), 9(A)(2) and 9(A)(3 ), against Plaintiffs and the Plaintiff class, insofar as they deny ex-felons the right to register and vote,
(5) 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. §§ 19731 and 1988; and
(6) To award such other equitable and further relief as the Court deems just and proper.
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Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 32 of 34

DATE: 'J(~t(O,;

LLY SUBMITTED,

Nina Z llo Florid Bar Number: 779570 JAMES K. GREEN, P.A. 250 Australian Ave So., Suite 1602 West Palm Beach, FL 33401 (561) 659-2029 fax: (561) 655-1357
Nancy Northup Gilian E. Metzger Philip G. Gallagher BRE~'NAN CENTER FOR JUSTICE at Nc·.v Yud., university School ofLaw 161 Avenue of the Americas, 5th Floor New York, NY 10013 (212) 998-6730 fax: (212) 995-4550 Lead Counsel for Plaintiffs
Edward Still Lori Outzs Borgen LAWYERS' COMMITTEE FOR ClVIL RIGHTS
LJNDERLAW 1401 New York Ave., NW, Suite 400 Washington, DC 20005-2124 (202) 662-8600 fax: (202) 783-5130

C:\My Documents\BRENNAN\tla complaint tinall.wpd
32

Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 33 of 34
I.(c) Plaintiffs' Attorneys:
NANCY NORTHUP (nancy.northup@nyu.edu) GILLIAN F f\1ETZGER (:silliau.metzger(fYnyu.edu) PHILIP GALLAGHER (philip.gallagher@nyu.edu) Brennan Center for Justice at New York University School of Law 161 Avenue ofthe Americas, 5th Floor New York, NY 10013 (212) 998-6730 fax: (212) 995-4550 Lead Counsel
EDWARD STILL (lborgen@lawyerscomm.org) LORJ OUTZ BORGEN (estill@lawyerscomm.org) Lawyers' Committee for Civil Rights
Under Law 1401 New York Ave., NW, Suite 400 Washington, DC 20005-2124 t2U2) 662-8600 fax: (202) 783-5130
JA.MES GREEN Florida Bar Number: 229466 NINA ZOLLO Florida Bar Number: 779570 Law Offices ofJames K. Green, P.A. (flalaw@compuserve.com) 250 Australian Ave So., Suite 1602 West Palm Beach, FL 33401 (561) 659-2029 fax: (561) 655-1357
ll:\Public\La\\suits\Felon .Fiorida,complaint\lla complaint draft)!. wpd
32

CIVIL COVER SHEET . . Case 1:00-cv-03542-JLK Document 1 Entered on FLSD Docket 09/22/2000 Page 34 of 34

:O,.O,f ~rsis ~ed . rho JS-44 civil cover sheet and ltle lnformallon oontalned her!lin neither replace nor supplement lhe filing.

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I (a) PLAINTIFFS

DEFENDANTS

Thomas Johnson, Derrick Thomas, Eric Robinson, Jeb Bush, Katherine Ba~ris, Robert Butterworth,

Omali Yeshitela, Adam Hernandez, Kathryn
Williams-Carpenter, Jau'dohn Hicks, and Jack Banes

Robert Milligan, William Nelson, Robert Crawford J
Thomas Gallagher, Beverly Hill, Jane Carroll, Pam
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Clark.

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Attorney General, State of Flotlda

Tallahassee, FL 32399-1050

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 Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 1 of 36
U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:00−cv−03542−JLK

CLOSED

Johnson, et al v. Governor of Florida, et al Assigned to: Senior Judge James Lawrence King Demand: $0 Case in other court: 11th Circuit Court of Appeals,
07−11767−H
07−12773−A
02−14469−C
02−14469−C
06−14962−D Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/21/2000 Date Terminated: 07/18/2002 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Thomas Johnson

represented by Anita Hodgkiss Lawyers Committee for Civil Rights 1401 New York Avenue NW Suite 400 Washington, DC 20005 202−662−8600 Fax: 783−5130 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Still Lawyers Committee for Civil Rights 1401 New York Avenue NW Suite 400 Washington, DC 20005 202−662−8320 Fax: 318−2493 TERMINATED: 03/21/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gillian E. Metzger Brennan Center for Justice 161 Avenue of the Americas 12th Floor New York, NY 10013−1205 212−998−6730 Fax: 995−4550 TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Kellogg Green James K. Green 222 Lakeview Avenue Suite 1650 Esperante West Palm Beach, FL 33401 561−659−2029 Fax: 655−1357 Email: jameskgreen@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessie Allen Brennan Center for Justice

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161 Avenue of the Americas 12th Floor New York, NY 10013−1205 212−998−6730 Fax: 995−4550 TERMINATED: 03/14/2008 LEAD ATTORNEY

Lori Outzs Borgen Lawyers Committee for Civil Rights 1401 New York Avenue NW Suite 400 Washington, DC 20005 202−662−8600 Fax: 783−5130 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Northup Brennan Center for Justice 161 Avenue of the Americas 12th Floor New York, NY 10013−1205 212−998−6730 Fax: 995−4550 TERMINATED: 03/14/2008 LEAD ATTORNEY

Nina Zollo James K. Green 222 Lakeview Avenue Suite 1650 Esperante West Palm Beach, FL 33401 561−659−2029 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip Gallagher Brennan Center for Justice 161 Avenue of the Americas 12th Floor New York, NY 10013−1205 212−998−6730 Fax: 995−4550 TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Derrick Andre Thomas

represented by Anita Hodgkiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Still (See above for address) TERMINATED: 03/21/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gillian E. Metzger (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

James Kellogg Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessie Allen (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY

Lori Outzs Borgen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Northup (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY

Philip Gallagher (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Eric Robinson

represented by Anita Hodgkiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Still (See above for address) TERMINATED: 03/21/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gillian E. Metzger (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Kellogg Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessie Allen (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY

Lori Outzs Borgen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Northup (See above for address) TERMINATED: 03/14/2008

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LEAD ATTORNEY

Philip Gallagher (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Omali Yeshitela TERMINATED: 01/17/2001

represented by Edward Still (See above for address) TERMINATED: 03/21/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gillian E. Metzger (See above for address) TERMINATED: 01/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Kellogg Green James K. Green 222 Lakeview Avenue Suite 1650 Esperante West Palm Beach, FL 33401 561−659−2029 Fax: 655−1357 TERMINATED: 01/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessie Allen (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY

Lori Outzs Borgen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Northup (See above for address) TERMINATED: 01/17/2001 LEAD ATTORNEY

Philip Gallagher (See above for address) TERMINATED: 01/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Adam Hernandez

represented by Anita Hodgkiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Still (See above for address) TERMINATED: 03/21/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Kathryn Williams−Carpenter

Gillian E. Metzger (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Kellogg Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessie Allen (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY
Lori Outzs Borgen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Northup (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY
Philip Gallagher (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anita Hodgkiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Still (See above for address) TERMINATED: 03/21/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gillian E. Metzger (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Kellogg Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessie Allen (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY
Lori Outzs Borgen (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Nancy Northup (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY

Philip Gallagher (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jau'dohn Hicks

represented by Anita Hodgkiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Still (See above for address) TERMINATED: 03/21/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gillian E. Metzger (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Kellogg Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessie Allen (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY

Lori Outzs Borgen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Northup (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY

Philip Gallagher (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
John Hanes in their own right and as representatives of all ex−felon citizens of Florida

represented by Anita Hodgkiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Still

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(See above for address) TERMINATED: 03/21/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gillian E. Metzger (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Kellogg Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessie Allen (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY
Lori Outzs Borgen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Northup (See above for address) TERMINATED: 03/14/2008 LEAD ATTORNEY
Philip Gallagher (See above for address) TERMINATED: 09/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Governor of the State of Florida Jeb Bush

represented by Charles J. Cooper Cooper &Kirk, PLLC 555 11th Street N.W. Suite 750 Washington, DC 20004−1315 202−220−9652 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David H. Thompson Cooper Carvin &Rosenthal 1500 K Street NW Suite 200 Washington, DC 20005 202−220−9652 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Lee Waas Attorney General Office Department of Legal Affairs The Capitol PL−01 Tallahassee, FL 32399−1050 850−414−3662

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Fax: 488−4872 Email: george_waas@oag.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hamish Hume Cooper &Kirk 1500 K Street NW Suite 200 Washington, DC 20005 202−220−9600 Fax: 220−9601 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin Jones Day Reavis &Pogue 51 Louisiana Avenue NW Washington, DC 20001−2113 202−879−7643 Fax: 626−1700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel L. Brand Cooper Carvin &Rosenthal 1500 K Street NW Suite 200 Washington, DC 20005 202−220−9652 TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Secretary of the State of Florida Katherine Harris

represented by Alvin F. Lindsay , III Hogan Lovellus US LLP 1111 Brickell Avenue Suite 1900 Miami, FL 33131 305−459−6500 Fax: 305−459−6550 Email: alvin.lindsay@hoganlovells.com TERMINATED: 05/16/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul F. Hancock KLGates LLP 200 S. Biscayne Boulevard Suite 3900 Miami, FL 33131−2399 305−539−3300 Fax: 358−7095 Email: paul.hancock@klgates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Wayne Pittman Squire Sanders &Dempsey LLP Wachovia Financial Center 200 S Biscayne Boulevard 40th Floor Miami, FL 33131−2398 305−577−7037 Fax: 577−7001 Email: rpittman@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Walter James Harvey Gray Robinson. LLP 1221 Brickell Avenue Suite 1650 Miami, FL 33131 305−416−6880 Fax: 305−416−6887 Email: walter.harvey@gray−robinson.com TERMINATED: 05/16/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Robert Butterworth in their roles as members of the Clemency Board of Florida

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Robert Milligan in their roles as members of the Clemency Board of Florida
Defendant William Nelson in their roles as members of the Clemency Board of Florida
Defendant

Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

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Robert Crawford in their roles as members of the Clemency Board of Florida

Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Thomas Gallagher in their roles as members of the Clemency Board of Florida

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Beverly Hill Alachua County Election Supervisor

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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David Wagner Alachua County Attorney's Office PO Box 2877 Gainesville, FL 32602 352−374−5218 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert M. Ott Alachua County Attorney's Office PO Box 2877 Gainesville, FL 32602 352−374−5218 Fax: 374−5216 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald Albert Labasky Young Van Assenderp PA 225 S Adams Street Suite 200 Tallahassee, FL 32301 850−222−7206 Fax: 561−6834 Email: rlabasky@yvlaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jane Carroll Broward County Election Supervisor

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hamish Hume (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael David Cirullo , Jr. Goren Cherof Doody &Ezrol P.A. 3099 East Commercial Boulevard Suite 200

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Fort Lauderdale, FL 33308−4311 954−771−4500 Fax: 771−4923 Email: mcirullo@cityatty.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Craig Buschel Buschel Gibbons, P.A. 100 S.E. 3rd Avenue Suite 1300 Fort Lauderdale, FL 33394 954−530−5301 Fax: 954−320−6932 Email: buschel@bglaw−pa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald Albert Labasky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Stuart Goren Goren Cherof Doody &Ezrol P.A. 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308−4311 954−771−4500 Email: sgoren@cityatty.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Pam Iorio Hillsborough County Election Supervisor

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danna Wysong Hillsborough County Attorney's Office 601 E Kennedy Boulevard 27th Floor Tampa, FL 33602 813−272−5670 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Herbert Raymond Allen , II Hillsborough County Attorney's Office 601 E Kennedy Boulevard 27th Floor Tampa, FL 33602

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813−272−5670 Fax: 272−5846 Email: rallen@carltonfields.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Helen Campbell Hillsborough County Attorney's Office 601 E Kennedy Boulevard 27th Floor Tampa, FL 33602 813−272−5670 Fax: 272−5231 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald Albert Labasky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
David C. Leahy Miami−Dade County Election Supervisor

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Edward Bloch Dade County Attorney's Office Metro Dade Center 111 NW 1st Street Suite 2810 Miami, FL 33128−1993 305−375−5151 Fax: 375−5611 TERMINATED: 03/25/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeff Erlich Dade County Attorney's Office Metro Dade Center 111 NW 1st Street Suite 2810 Miami, FL 33128−1993 305−375−5151 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant
William Cowles Orange County Election Supervisor

Jeffrey Paul Ehrlich U.S. Department of Justice Civil Division, Torts Branch P.O. Box 888 Ben Franklin Station Washington, DC 20044 202−353−2574 Fax: 202−616−5200 Email: jeff.ehrlich@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. Ginsburg Dade County Attorney's Office Metro Dade Center 111 NW 1st Street Suite 2810 Miami, FL 33128−1993 305−375−5151 Fax: 375−5634 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Albert Labasky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William X. Candela Dade County Attorney's Office Metro Dade Center 111 NW 1st Street Suite 2810 Miami, FL 33128−1993 305−375−5151 Fax: 375−5634 TERMINATED: 03/25/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Betsy M. Steg Pinellas County Attorney's Office 315 Court Street Clearwater, FL 33756 727−464−3354 Fax: 464−4147 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles J. Cooper (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael David Cirullo , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel L. Brand (See above for address) TERMINATED: 11/01/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald Albert Labasky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Deborah Clark Pinellas County Election Supervisor TERMINATED: 01/17/2001

represented by Betsy M. Steg (See above for address) TERMINATED: 01/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Carvin (See above for address) TERMINATED: 01/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Broward County Supervisor of Elections Miriam Oliphant also known as Jane Carroll

represented by Robert Craig Buschel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/21/2000
09/21/2000

# Docket Text
1 COMPLAINT filed; FILING FEE $150.00 RECEIPT # 828654; A−7; JJO (Former Deputy Clerk) (Entered: 09/22/2000)
Magistrate identification: Magistrate Judge John J. O'Sullivan (Former Deputy Clerk) (Entered: 09/22/2000)

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09/21/2000
09/21/2000 09/21/2000
09/21/2000 09/21/2000
09/21/2000 09/26/2000 09/26/2000 09/26/2000 11/02/2000 11/02/2000 11/02/2000 11/02/2000 11/14/2000 11/16/2000 11/27/2000 11/27/2000 11/27/2000
11/27/2000

2 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Gillian E. Metzger to appear pro hac vice (Former Deputy Clerk) (Entered: 09/22/2000)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 828653 (Former Deputy Clerk) (Entered: 09/22/2000)
3 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Nancy Northup to appear pro hac vice (Former Deputy Clerk) (Entered: 09/22/2000)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 828652 (Former Deputy Clerk) (Entered: 09/22/2000)
4 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Phillip G. Gallagher to appear pro hac vice (Former Deputy Clerk) (Entered: 09/22/2000)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 828651 (Former Deputy Clerk) (Entered: 09/22/2000)
5 ORDER granting [4−1] motion for Phillip G. Gallagher to appear pro hac vice ( Signed by Judge James Lawrence King on 9/25/00) CCAP [EOD Date: 9/27/00] (Former Deputy Clerk) (Entered: 09/27/2000)
6 ORDER granting [3−1] motion for Nancy Northup to appear pro hac vice ( Signed by Judge James Lawrence King on 9/25/00) CCAP [EOD Date: 9/27/00] (Former Deputy Clerk) (Entered: 09/27/2000)
7 ORDER granting [2−1] motion for Gillian E. Metzger to appear pro hac vice ( Signed by Judge James Lawrence King on 9/25/00) CCAP [EOD Date: 9/27/00] (Former Deputy Clerk) (Entered: 09/27/2000)
8 MOTION by Deborah Clark for Betsy M. Steg to appear pro hac vice (Former Deputy Clerk) (Entered: 11/03/2000)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 831147 (Former Deputy Clerk) (Entered: 11/03/2000)
9 MEMORANDUM by Deborah Clark in support of [8−1] motion for Betsy M. Steg to appear pro hac vice (Former Deputy Clerk) (Entered: 11/03/2000)
10 MOTION by Deborah Clark for waiver of rule to have local counsel (Former Deputy Clerk) (Entered: 11/03/2000)
11 ORDER granting [8−1] motion for Betsy M. Steg to appear pro hac vice ( Signed by Judge James Lawrence King on 11/9/00) CCAP [EOD Date: 11/15/00] (Former Deputy Clerk) (Entered: 11/15/2000)
12 SUMMONS(ES) issued for Thomas Gallagher (Former Deputy Clerk) (Entered: 11/17/2000)
13 JOINT MOTION by All Plaintiffs, All Defendants to enter scheduling order (Former Deputy Clerk) (Entered: 11/28/2000)
14 MOTION by Deborah Clark to extend time to answer or other responsive pleading to the complaint (Former Deputy Clerk) (Entered: 11/28/2000)
15 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Lori Outzs Borgen to appear pro hac vice (Former Deputy Clerk) (Entered: 11/28/2000)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 832172 (Former Deputy Clerk) (Entered: 11/28/2000)

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11/27/2000
11/27/2000 11/28/2000
11/29/2000 11/29/2000 12/01/2000 12/01/2000 12/01/2000 12/05/2000 12/05/2000 12/05/2000 12/05/2000 12/13/2000 12/13/2000 12/13/2000 12/13/2000 12/13/2000 12/13/2000

16 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Edward Still to appear pro hac vice (Former Deputy Clerk) (Entered: 11/28/2000)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 832172 (Former Deputy Clerk) (Entered: 11/28/2000)
17 SCHEDULING ORDER FOR ANSWERS AND MOTIONS TO DISMISS reset answer or motions to dismiss dur for 1/5/01 for Deborah Clark, for William Cowles, for David C. Leahy, for Pam Iorio, for Jane Carroll, for Beverly Hill, for Thomas Gallagher, for Robert Crawford, for William Nelson, for Robert Milligan, for Robert Butterworth, for Secretary of State, for Governor of Florida , and Response to motion to dismiss is due bye 1/26/01 (Signed by Judge James Lawrence King on 11/28/00) CCAP [EOD Date: 11/29/00] (Former Deputy Clerk) (Entered: 11/29/2000)
18 ORDER granting [15−1] motion for Lori Outzs Borgen to appear pro hac vice ( Signed by Judge James Lawrence King on 11/29/00) CCAP [EOD Date: 11/30/00] (Former Deputy Clerk) (Entered: 11/30/2000)
19 ORDER granting [16−1] motion for Edward Still to appear pro hac vice (Signed by Judge James Lawrence King on 11/29/00) CCAP [EOD Date: 11/30/00] (Former Deputy Clerk) (Entered: 11/30/2000)
20 Waiver of service executed by William Cowles 9/26/00 Answer due by 11/25/00 for William Cowles (Former Deputy Clerk) (Entered: 12/05/2000)
21 Waiver of service executed by Jane Carroll 9/26/00 Answer due by 11/25/00 for Jane Carroll (Former Deputy Clerk) (Entered: 12/05/2000)
22 Waiver of service executed by Pam Iorio (Attorney−Mary Helen Campbell) 9/26/00 Answer due by 11/25/00 for Pam Iorio (Former Deputy Clerk) (Entered: 12/05/2000)
23 MOTION by Beverly Hill for Robert M. Ott to appear pro hac vice (Former Deputy Clerk) (Entered: 12/06/2000)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 832758 (Former Deputy Clerk) (Entered: 12/06/2000)
24 MOTION by Beverly Hill for waiver of Local Rule 4B requiring designation of local counsel (Former Deputy Clerk) (Entered: 12/06/2000)
25 MEMORANDUM by Beverly Hill in support of [23−1] motion for Robert M. Ott to appear pro hac vice (Former Deputy Clerk) (Entered: 12/06/2000)
26 RETURN OF SERVICE executed as to Robert Crawford By Serving: Richard Tritschler 11/28/00 Answer due on 1/27/01 for Robert Crawford (Former Deputy Clerk) (Entered: 12/14/2000)
27 RETURN OF SERVICE executed as to Thomas Gallagher By Serving: Mike Olenick as General Counsel 11/28/00 Answer due on 1/27/01 for Thomas Gallagher (Former Deputy Clerk) (Entered: 12/14/2000)
28 RETURN OF SERVICE executed as to Secretary of State By Serving: Gerald York 11/22/00 Answer due on 1/21/01 for Secretary of State (Former Deputy Clerk) (Entered: 12/14/2000)
29 RETURN OF SERVICE executed as to Governor of Florida By Serving: Daniel Woodring (assistant General Counsel) 11/22/00 Answer due on 1/21/01 for Governor of Florida (Former Deputy Clerk) (Entered: 12/14/2000)
30 RETURN OF SERVICE executed as to Robert Milligan By Serving: Rob Beitler (General Counsel) 11/22/00 Answer due on 1/21/01 for Robert Milligan (Former Deputy Clerk) (Entered: 12/14/2000)
31 RETURN OF SERVICE executed as to William Nelson 11/28/00 Answer due on 1/27/01 for William Nelson (Former Deputy Clerk) (Entered: 12/14/2000)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 19 of 36

12/13/2000
12/15/2000 12/15/2000 12/20/2000
12/26/2000 12/26/2000 12/26/2000 12/29/2000
12/29/2000 01/02/2001 01/02/2001 01/02/2001 01/03/2001 01/04/2001
01/04/2001 01/05/2001
01/05/2001 01/05/2001

32 ORDER granting [24−1] motion for waiver of Local Rule 4B requiring designation of local counsel, granting [23−1] motion for Robert M. Ott to appear pro hac vice ( Signed by Judge James Lawrence King on 12/13/00) CCAP [EOD Date: 12/14/00] (Former Deputy Clerk) (Entered: 12/14/2000)
33 NOTICE of attorney appearance for Secretary of State by Alvin F. Lindsay III., Robert Wayne Pittman, Walter James Harvey (Former Deputy Clerk) (Entered: 12/18/2000)
34 AGREED MOTION by Secretary of State to extend time to serve response to the complaint (Former Deputy Clerk) (Entered: 12/18/2000)
35 ORDER granting [34−1] motion to extend time to serve response to the complaint reset answer due for 1/4/01 for Secretary of State (Signed by Judge James Lawrence King on 12/20/00) CCAP [EOD Date: 12/21/00] (Former Deputy Clerk) (Entered: 12/21/2000)
36 MOTION by All Plaintiffs for class certification (Former Deputy Clerk) (Entered: 12/27/2000)
37 MOTION by All Plaintiffs to dismiss Omali Yeshitela from this action as a Plaintiff and Deborah Clark as a named defendant (Former Deputy Clerk) (Entered: 12/27/2000)
38 MEMORANDUM by All Plaintiffs in support of [37−1] motion to dismiss Omali Yeshitela from this action as a Plaintiff and Deborah Clark as a named defendant (dr, Deputy Clerk) (Entered: 12/27/2000)
39 MOTION by Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher, Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles, Deborah Clark for Charles J. Cooper to appear pro hac vice (Former Deputy Clerk) (Entered: 01/02/2001)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 834221 (Former Deputy Clerk) (Entered: 01/02/2001)
40 MOTION by Deborah Clark to dismiss the case (Former Deputy Clerk) (Entered: 01/03/2001)
41 MEMORANDUM by Deborah Clark in support of [40−1] motion to dismiss the case (Former Deputy Clerk) (Entered: 01/03/2001)
42 ANSWER to Complaint by David C. Leahy (Attorney Jason Edward Bloch) (Former Deputy Clerk) (Entered: 01/03/2001)
43 ORDER granting [39−1] motion for Charles J. Cooper to appear pro hac vice (Signed by Judge James Lawrence King on 1/3/01) CCAP [EOD Date: 1/4/01] (Former Deputy Clerk) (Entered: 01/04/2001)
44 MOTION by David C. Leahy to Adopt Motion of Other Defendants; Deborah Clark, Supervisor of Elections of Pinellas County, Florida's motion to dismiss and Clemency Board of Florida's motion to dismiss (Former Deputy Clerk) (Entered: 01/05/2001)
45 MOTION by William Nelson to dismiss the case (Former Deputy Clerk) (Entered: 01/05/2001)
46 MOTION by Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher, Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles, Deborah Clark for David H. Thompson to appear pro hac vice (Former Deputy Clerk) (Entered: 01/08/2001)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 834420 (Former Deputy Clerk) (Entered: 01/08/2001)
47 MOTION by Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher, Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles, Deborah Clark for Rachel L. Brand to appear pro hac vice (Former Deputy Clerk) (Entered: 01/08/2001)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 20 of 36

01/05/2001 01/05/2001
01/05/2001 01/05/2001 01/05/2001 01/05/2001 01/05/2001 01/05/2001 01/05/2001 01/05/2001 01/05/2001 01/05/2001
01/09/2001
01/11/2001
01/16/2001 01/17/2001
01/24/2001 01/24/2001

Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 834422 (Former Deputy Clerk) (Entered: 01/08/2001)
48 MOTION by Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher, Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles, Deborah Clark for Michael Carvin to appear pro hac vice (Former Deputy Clerk) (Entered: 01/08/2001)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 834421 (Former Deputy Clerk) (Entered: 01/08/2001)
49 CLEMENCY BOARD MEMBERS' MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher to dismiss the case pursuant to Rule 12(b)(6) (Former Deputy Clerk) (Entered: 01/08/2001)
50 NOTICE of joinder of [49−1] motion to dismiss the case pursuant to Rule 12(b)(6) by Jane Carroll (Former Deputy Clerk) (Entered: 01/08/2001)
51 NOTICE of Joinder of [49−1] motion to dismiss the case pursuant to Rule 12(b)(6) by William Cowles (Former Deputy Clerk) (Entered: 01/08/2001)
52 NOTICE of joinder of [40−1] motion to dismiss the case by William Cowles (Former Deputy Clerk) (Entered: 01/08/2001)
53 NOTICE of joinder of [40−1] motion to dismiss the case by Jane Carroll (Former Deputy Clerk) (Entered: 01/08/2001)
54 NOTICE of attorney appearance for Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher by Charles J. Cooper, Michael A. Carvin, and Rachel L. Brand (Former Deputy Clerk) (Entered: 01/08/2001)
55 CLEMENCY BOARD MEMBERS' MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher to dismiss the case pursuant to Rule 12(b)(6) (Former Deputy Clerk) (Entered: 01/08/2001)
56 MOTION with memorandum in support by Beverly Hill to dismiss the complaint (Former Deputy Clerk) (Entered: 01/08/2001)
57 MEMORANDUM by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher in support of Defendants' unopposed motion for extension of page limits of memoranda supporting and opposing defendants' motion to dismiss (not filed) (Former Deputy Clerk) (Entered: 01/08/2001)
58 ORDER that the page limit for Defendants' memorandum supporting thei motion to dismiss shall be extendedto 30 pages; it is further ORDERED that the page limit for plaintiffs' memorandum opposing Defendants' motion to dismiss shall be extended to 35 pages (Signed by Judge James Lawrence King on 1/9/01) CCAP [EOD Date: 1/10/01] (Former Deputy Clerk) (Entered: 01/10/2001)
59 ORDER granting [44−1] motion to Adopt Motion of Other Defendants; Deborah Clark, Supervisor of Elections of Pinellas County, Florida's motion to dismiss and Clemency Board of Florida's motion to dismiss ( Signed by Judge James Lawrence King on 1/9/01) CCAP [EOD Date: 1/12/01] (Former Deputy Clerk) (Entered: 01/12/2001)
60 RESPONSE by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher in opposition to [36−1] motion for class certification (Former Deputy Clerk) (Entered: 01/17/2001)
61 ORDER granting [37−1] motion to dismiss Omali Yeshitela from this action as a Plaintiff and Deborah Clark as a named defendant, denying [40−1] motion to dismiss the case ( Signed by Judge James Lawrence King on 1/16/01) CCAP [EOD Date: 1/18/01] (Former Deputy Clerk) (Entered: 01/18/2001)
62 REPLY by All Plaintiffs to response to [36−1] motion for class certification (Former Deputy Clerk) (Entered: 01/25/2001)
70 NOTICE of attorney appearance for William Cowles by Michael David Cirullo Jr. (Former Deputy Clerk) (Entered: 01/29/2001)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 21 of 36

01/24/2001 01/25/2001 01/25/2001 01/25/2001 01/25/2001 01/25/2001 01/25/2001 01/25/2001 01/26/2001
01/26/2001
01/30/2001
02/02/2001
02/02/2001 02/09/2001 02/12/2001 02/22/2001 02/27/2001 02/28/2001

71 NOTICE of attorney appearance for Jane Carroll by Michael David Cirullo Jr. (Former Deputy Clerk) (Entered: 01/29/2001)
63 NOTICE of attorney appearance for Deborah Clark by Betsy M. Steg (tb, Deputy Clerk) (Entered: 01/26/2001)
64 MOTION by Deborah Clark for joinder in defendant, Clemency Board of Florida's motion to dismiss (tb, Deputy Clerk) (Entered: 01/26/2001)
65 ORDER granting [48−1] motion for Michael Carvin to appear pro hac vice ( Signed by Judge James Lawrence King on 1/22/01) CCAP [EOD Date: 1/26/01] (wc, Deputy Clerk) (Entered: 01/26/2001)
66 ORDER granting [47−1] motion for Rachel L. Brand to appear pro hac vice ( Signed by Judge James Lawrence King on 1/23/01) CCAP [EOD Date: 1/26/01] (wc, Deputy Clerk) (Entered: 01/26/2001)
67 ORDER granting [46−1] motion for David H. Thompson to appear pro hac vice ( Signed by Judge James Lawrence King on 1/23/01) CCAP [EOD Date: 1/26/01] (wc, Deputy Clerk) (Entered: 01/26/2001)
68 MEMORANDUM by All Plaintiffs in opposition to [55−1] motion to dismiss the case pursuant to Rule 12(b)(6) (tb, Deputy Clerk) (Entered: 01/26/2001)
69 UNOPPOSED MOTION by All Plaintiffs that the Court deem timely filed their reply memorandum in support of motion for class certification (tb, Deputy Clerk) (Entered: 01/26/2001)
72 ORDER granting [69−1] motion that the Court deem timely filed their reply memorandum in support of motion for class certification ( Signed by Judge James Lawrence King on 1/26/01) CCAP [EOD Date: 1/29/01] (Former Deputy Clerk) (Entered: 01/29/2001)
73 ORDER Motion hearing before Judge James Lawrence King set for 9:00 2/2/01 for [36−1] motion for class certification ( Signed by Judge James Lawrence King on 1/26/01) CCAP [EOD Date: 1/29/01] (Former Deputy Clerk) (Entered: 01/29/2001)
74 ORDER denying [55−1] motion to dismiss the case pursuant to Rule 12(b)(6), denying [49−1] motion to dismiss the case pursuant to Rule 12(b)(6); Defendants shall file answers to the complaint within Thirty (30) days hereof ( Signed by Judge James Lawrence King on 1/29/01) CCAP [EOD Date: 1/31/01] (Former Deputy Clerk) (Entered: 01/31/2001)
75 Minutes of Motion Hearing, on Plaintiff's motion for class action certification; Motion is granted, Judge king will issue an order; held before Judge James Lawrence King on 2/2/01; Court Reporter Name or Tape #: Robin Carbonello (Former Deputy Clerk) (Entered: 02/06/2001)
Motion hearing re: [36−1] motion for class certification Motion hearing held (Former Deputy Clerk) (Entered: 02/06/2001)
77 ORDER granting [36−1] motion for class certification ( Signed by Judge James Lawrence King on 2/9/01) CCAP [EOD Date: 2/16/01] (tb, Deputy Clerk) (Entered: 02/16/2001)
76 Transcript filed re: Motion for Class Action Cert held 2/2/01 before Judge James Lawrence King Pages: 1−40; Court Reporter: Robin Marie Carbonello. (gp, Deputy Clerk) (Entered: 02/13/2001)
78 Answer and affirmative defenses by Pam Iorio (Attorney Herbert Raymond Allen II), (Former Deputy Clerk) (Entered: 02/23/2001)
79 ANSWER to Complaint by Beverly Hill (Former Deputy Clerk) (Entered: 02/28/2001)
80 ANSWER to Complaint by Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher (Attorney George Lee Waas) (Former Deputy Clerk) (Entered: 03/06/2001)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 22 of 36

03/02/2001 03/05/2001 03/07/2001 03/09/2001 03/16/2001 03/20/2001 03/21/2001
03/26/2001 03/26/2001 04/02/2001 04/04/2001
04/04/2001 05/10/2001 05/15/2001 05/16/2001
06/04/2001 06/04/2001

81 Answer and affirmative defenses by William Cowles (Attorney ), (Former Deputy Clerk) (Entered: 03/06/2001)
82 ANSWER/NOTICE OF ADOPTING ANSWERS OF NAMED DEFENDANTS by Deborah Clark (Former Deputy Clerk) (Entered: 03/06/2001)
83 Joint Scheduling Report of Scheduling Meeting by All Plaintiffs, All Defendants (Former Deputy Clerk) (Entered: 03/08/2001)
84 ORDER Setting Hearing set scheduling conference for 9:30 4/2/01 before Judge James Lawrence King ( Signed by Judge James Lawrence King on 3/8/01) CCAP [EOD Date: 3/12/01] (Former Deputy Clerk) (Entered: 03/12/2001)
85 ANSWER to Complaint by David C. Leahy (Attorney William X. Candela) (Former Deputy Clerk) (Entered: 03/19/2001)
86 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Edward Still to withdraw as attorney (Former Deputy Clerk) (Entered: 03/21/2001)
87 ORDER granting [86−1] motion for Edward Still to withdraw as attorney (Terminated: attorney Edward Still for John Hanes, attorney Edward Still for Jau'dohn Hicks, attorney Edward Still for Kathryn Williams−Carpenter, attorney Edward Still for Adam Hernandez, attorney Edward Still for Omali Yeshitela, attorney Edward Still for Eric Robinson, attorney Edward Still for Derrick Andre Thomas, attorney Edward Still for Thomas Johnson ( Signed by Judge James Lawrence King on 3/21/01) CCAP [EOD Date: 3/22/01] (Former Deputy Clerk) (Entered: 03/22/2001)
Text not available. (Entered: 03/27/2001)
88 NOTICE of attorney appearance for Miriam Oliohant by Robert Craig Buschel (Former Deputy Clerk) (Entered: 03/30/2001)
Scheduling conference held before Judge James Lawrence King (Former Deputy Clerk) (Entered: 04/05/2001)
89 ORDER SETTING PRE−TRIAL CONFERENCE AND TRIAL DATE set pretrial conference for 9:00 12/14/01 before Judge James Lawrence King , and set pretrial stipulation due for 12/7/01 , and set Jury trial for 1/14/02 before Judge James Lawrence King , and set calendar call for 1/10/02 before Judge James Lawrence King ( Signed by Judge James Lawrence King on 4/4/01) CCAP [EOD Date: (Former Deputy Clerk) (Entered: 04/05/2001)
90 Minutes of Scheduling Conference held before Judge James Lawrence King on 4/2/01; Court Reporter Name or Tape #: Robin Carbonello (Former Deputy Clerk) (Entered: 04/05/2001)
91 STIPULATED PROTECTIVE ORDER (refer to order for further details) (Signed by Judge James Lawrence King on 5/9/01) CCAP [EOD Date: 5/11/01] (Former Deputy Clerk) (Entered: 05/11/2001)
92 AGREED MOTION by Secretary of State for Alvin F. Lindsay, III and Walter J. Harvey to withdraw as attorney (Former Deputy Clerk) (Entered: 05/16/2001)
93 ORDER granting [92−1] motion for Alvin F. Lindsay, III and Walter J. Harvey to withdraw as attorney (Terminated: attorney Alvin F. Lindsay for Secretary of State, attorney Walter James Harvey for Secretary of State (Signed by Judge James Lawrence King on 5/16/01) CCAP [EOD Date: 5/17/01] (sn, Deputy Clerk) (Entered: 05/17/2001)
94 MOTION by Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles for Ronald Albert Labasky to appear pro hac vice (Former Deputy Clerk) (Entered: 06/12/2001)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 842905 (Former Deputy Clerk) (Entered: 06/12/2001)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 23 of 36

06/07/2001 06/13/2001 06/13/2001 06/15/2001 09/10/2001 09/17/2001
09/19/2001 09/19/2001 10/02/2001 10/02/2001 10/31/2001
11/01/2001 12/03/2001 12/03/2001 12/06/2001 12/11/2001

95 ORDER granting [94−1] motion for Ronald Albert Labasky to appear pro hac vice ( Signed by Judge James Lawrence King on 6/7/01) CCAP [EOD Date: 6/12/01] (Former Deputy Clerk) (Entered: 06/12/2001)
96 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Anita Hodgkiss to appear pro hac vice (Former Deputy Clerk) (Entered: 06/15/2001)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 843687 (Former Deputy Clerk) (Entered: 06/15/2001)
97 ORDER granting [96−1] motion for Anita Hodgkiss to appear pro hac vice ( Signed by Judge James Lawrence King on 6/15/01) CCAP [EOD Date: 6/18/01] (Former Deputy Clerk) (Entered: 06/18/2001)
98 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Gillian E. Metzger and Philip G. Gallagher to withdraw as attorney (Former Deputy Clerk) (Entered: 09/13/2001)
101 ORDER granting [98−1] motion for Gillian E. Metzger and Philip G. Gallagher to withdraw as attorney (Terminated: attorney Philip Gallagher for John Hanes, attorney Gillian E. Metzger for John Hanes, attorney Philip Gallagher for Jau'dohn Hicks, attorney Gillian E. Metzger for Jau'dohn Hicks, attorney Philip Gallagher for Kathryn Williams−Carpenter, attorney Gillian E. Metzger for Kathryn Williams−Carpenter, attorney Philip Gallagher for Adam Hernandez, attorney Gillian E. Metzger for Adam Hernandez, attorney Philip Gallagher for Eric Robinson, attorney Gillian E. Metzger for Eric Robinson, attorney Philip Gallagher for Derrick Andre Thomas, attorney Gillian E. Metzger for Derrick Andre Thomas, attorney Philip Gallagher for Thomas Johnson, attorney Gillian E. Metzger for Thomas Johnson ( Signed by Judge James Lawrence King on 9/14/01) [EOD Date: 9/21/01] (Former Deputy Clerk) (Entered: 09/21/2001)
99 UNOPPOSED MOTION by Thomas Johnson for continuance of trial date (Former Deputy Clerk) (Entered: 09/20/2001)
100 DECLARATION by Thomas Johnson Re: [99−1] motion for continuance of trial date (Former Deputy Clerk) (Entered: 09/20/2001)
102 STIPULATION by Broward County for substitution of Counsel (Former Deputy Clerk) (Entered: 10/03/2001)
102 ORDER granting [102−1] stipulation ( Signed by Judge James Lawrence King on 9/2/01) [EOD Date: 10/3/01] (Former Deputy Clerk) (Entered: 10/03/2001)
103 ORDER granting [99−1] motion for continuance of trial date reset pretrial conference for 10:30 2/15/02 before Judge James Lawrence King , and reset pretrial stipulation due for 2/8/02 , and reset Jury trial for 3/18/02 before Judge James Lawrence King , and reset calendar call for 2:00 3/14/02 before Judge James Lawrence King ( Signed Judge James Lawrence King on 10/31/01) [EOD Date: 11/1/01] (Former Deputy Clerk) (Entered: 11/01/2001)
Attorney Rachel L. Brand terminated, no longer with law firm. (Former Deputy Clerk) (Entered: 11/01/2001)
104 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Jessie Allen to appear pro hac vice (Former Deputy Clerk) (Entered: 12/04/2001)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 853684 (Former Deputy Clerk) (Entered: 12/04/2001)
105 ORDER granting [104−1] motion for Jessie Allen to appear pro hac vice (Signed by Judge James Lawrence King on 12/5/01) [EOD Date: 12/10/01] (Former Deputy Clerk) (Entered: 12/10/2001)
106 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 24 of 36

12/11/2001 12/11/2001
12/11/2001 12/13/2001 12/14/2001 12/14/2001 12/17/2001 12/17/2001 12/17/2001 12/20/2001
12/21/2001
12/24/2001 01/03/2002 01/04/2002 01/04/2002 01/04/2002 01/04/2002

Hanes for Kim Barry to appear pro hac vice (Former Deputy Clerk) (Entered: 12/12/2001)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 854036 (Former Deputy Clerk) (Entered: 12/12/2001)
107 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for Michelle N. Kim to appear pro hac vice (Former Deputy Clerk) (Entered: 12/12/2001)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 854037 (Former Deputy Clerk) (Entered: 12/12/2001)
108 MOTION by Thomas Johnson for clarification of [103−5] order (Former Deputy Clerk) (Entered: 12/14/2001)
109 ORDER granting [107−1] motion for Michelle N. Kim to appear pro hac vice ( Signed by Judge James Lawrence King on 12/13/01) [EOD Date: 12/17/01] (Former Deputy Clerk) (Entered: 12/17/2001)
110 ORDER granting [106−1] motion for Kim Barry to appear pro hac vice ( Signed by Judge James Lawrence King on 12/13/01) [EOD Date: 12/17/01] (Former Deputy Clerk) (Entered: 12/17/2001)
111 MOTION by Thomas Johnson to compel production of documents (Former Deputy Clerk) (Entered: 12/18/2001)
112 MEMORANDUM by Thomas Johnson in support of [111−1] motion to compel production of documents (Former Deputy Clerk) (Entered: 12/18/2001)
113 DECLARATION by Thomas Johnson Re: [111−1] motion to compel production of documents (Former Deputy Clerk) (Entered: 12/18/2001)
114 ORDER OF REFERENCE Referring Motion(s) [111−1] motion to compel production of documents referred to Magistrate Judge John J. O'Sullivan ( signed by Judge James Lawrence King on 12/19/01) [EOD Date: 12/21/01] (Former Deputy Clerk) (Entered: 12/21/2001)
115 ORDER granting [108−1] motion for clarification of [103−5] order; The Parties are hereby noticed that all discovery must be completed five (5) days prior to the pre−trial conference date of 2/15/02 (Signed by Judge James Lawrence King on 12/21/01) [EOD Date: 12/26/01] (Former Deputy Clerk) (Entered: 12/26/2001)
116 UNOPPOSED MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford to extend time limitations for summary judgment (Former Deputy Clerk) (Entered: 01/03/2002)
117 ORDER granting [116−1] motion to extend time limitations for summary judgment ( Signed by Judge James Lawrence King on 1/3/02) [EOD Date: 1/4/02] (tb, Deputy Clerk) (Entered: 01/04/2002)
119 MEMORANDUM by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in support of [118−1] motion for summary judgment pursuant to Rule 56(B) (Former Deputy Clerk) (Entered: 01/08/2002)
120 EXHIBITS VOLUME I to: [118−1] motion for summary judgment pursuant to Rule 56(B) by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford (Former Deputy Clerk) (Entered: 01/08/2002)
121 EXHIBITS Volume II to: [118−1] motion for summary judgment pursuant to Rule 56(B) by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford (Former Deputy Clerk) (Entered: 01/08/2002)
122 EXHIBITS to: [118−1] motion for summary judgment pursuant to Rule 56(B) by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford (Former Deputy Clerk) (Entered: 01/08/2002)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 25 of 36

01/04/2002 01/04/2002 01/04/2002 01/07/2002 01/14/2002 01/16/2002 01/16/2002 01/16/2002 01/16/2002 01/16/2002 01/16/2002 01/16/2002 01/16/2002 01/17/2002
01/17/2002 01/18/2002 01/18/2002 01/18/2002

123 MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford for summary judgment pursuant to Rule 56 (B) (Former Deputy Clerk) (Entered: 01/09/2002)
124 Statement of undisputed facts by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in support of [118−1] motion for summary judgment pursuant to Rule 56(B) (Former Deputy Clerk) (Entered: 01/09/2002)
125 REQUEST by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford for Hearing on [118−1] motion for summary judgment pursuant to Rule 56(B) (Former Deputy Clerk) (Entered: 01/09/2002)
118 MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford for summary judgment pursuant to Rule 56(B) (Former Deputy Clerk) (Entered: 01/08/2002)
126 MOTION with memorandum in support by Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles to abate matters in this case related to the Supervisors' of elections' (Former Deputy Clerk) (Entered: 01/15/2002)
127 Statement certifying attempt to confer with opposing counsel to resolve motion in limine by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford (Former Deputy Clerk) (Entered: 01/17/2002)
128 MOTION with memorandum in support by Thomas Johnson in limine to exclude Lance DeHaven−Smith (Former Deputy Clerk) (Entered: 01/17/2002)
129 NOTICE of filing exhibits to Plaintiff's motion to exclude Lance DeHaven−Smith (attached) by Thomas Johnson (Former Deputy Clerk) (Entered: 01/17/2002)
130 MOTION with memorandum in support by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in limine to exclude the expert report and testimony of Jerrell Shofner (Former Deputy Clerk) (Entered: 01/17/2002)
131 MOTION with memorandum in support by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in limine to exclude the expert report and testimony of Richard Scher (Former Deputy Clerk) (Entered: 01/17/2002)
132 MOTION with memorandum in support by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in limineto exclude the expert report and testimony of Chritopher Uggen (Former Deputy Clerk) (Entered: 01/17/2002)
133 MOTION with memorandum in support by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in limineto exclude the expert report and testimony of Theodore Chiricos (Former Deputy Clerk) (Entered: 01/17/2002)
134 MOTION with memorandum in support by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in limine to exclude the expert report and testimony of Richard Engstrom (Former Deputy Clerk) (Entered: 01/17/2002)
135 MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford for leave to file Substitute version of motion in limine to exclude the expert report and testimony of Jerrell Shofner (Former Deputy Clerk) (Entered: 01/18/2002)
136 MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in limine to exclude the expert report and testimony of Jerrell Shofner (Former Deputy Clerk) (Entered: 01/18/2002)
137 Certification of service to the original notice of filing exhibits to Plaintiffs' motion to exclude Lance deHaven−Smith by Thomas Johnson (Former Deputy Clerk) (Entered: 01/22/2002)
138 NOTICE of filing exhibits to Plaintiffs' motion to exclude Lance deHaven−Smith by Thomas Johnson (Former Deputy Clerk) (Entered: 01/22/2002)
139 CROSS MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for summary judgment pursuant to Rule 56(A) (Former Deputy Clerk) (Entered: 01/22/2002)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 26 of 36

01/18/2002 01/18/2002 01/18/2002 01/18/2002 01/18/2002 01/18/2002 01/18/2002 01/18/2002 01/18/2002 01/18/2002 01/25/2002 01/25/2002 01/25/2002 01/25/2002 01/25/2002 01/25/2002

140 MEMORANDUM by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes in support of [139−1] cross motion for summary judgment pursuant to Rule 56(A) (Former Deputy Clerk) (Entered: 01/22/2002)
141 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for leave to file overlength Statement of undisputed facts in support of summary judgment (Former Deputy Clerk) (Entered: 01/22/2002)
142 Statement of undisputed material facts by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes re: [139−1] cross motion for summary judgment pursuant to Rule 56(A) (Former Deputy Clerk) (Entered: 01/22/2002)
143 Certification of service by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes (Former Deputy Clerk) (Entered: 01/22/2002)
144 RESPONSE by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes in opposition to [127−1] Statement of (Former Deputy Clerk) (Entered: 01/22/2002)
140 RESPONSE by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes to [118−1] motion for summary judgment pursuant to Rule 56(B) (Former Deputy Clerk) (Entered: 01/22/2002)
146 EXHIBITS TO VOLUME I: [140−1] motion response by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Williams−Carpenter, Jau'dohn Hicks, John Hanes (Former Deputy Clerk) (Entered: 01/22/2002)
147 EXHIBITS VOLUME II TO: [140−1] motion response by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes (Former Deputy Clerk) (Entered: 01/22/2002)
148 EXHIBITS VOLUME III: [140−1] motion response by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes (Former Deputy Clerk) (Entered: 01/22/2002)
145 Docket Entry Number Skipped in Error (Former Deputy Clerk) (Entered: 10/09/2002)
149 REPLY by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford to response to [123−1] motion for summary judgment pursuant to Rule 56 (B) (Former Deputy Clerk) (Entered: 01/28/2002)
150 EXHIBITS to: [149−1] response reply by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford (Former Deputy Clerk) (Entered: 01/28/2002)
151 RESPONSE by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford in opposition to [142−1] Statement of (Former Deputy Clerk) (Entered: 01/28/2002)
152 MEMORANDUM by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes in support of [139−1] cross motion for summary judgment pursuant to Rule 56(A) (Former Deputy Clerk) (Entered: 01/28/2002)
153 Certification of Service by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes (Former Deputy Clerk) (Entered: 01/28/2002)
154 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for leave to file corrected version of memorandum in support of Plaintiffs' cross−motion for summary judgment (Former Deputy Clerk) (Entered: 01/28/2002)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 27 of 36

01/29/2002
01/30/2002 01/31/2002
01/31/2002 02/01/2002 02/01/2002 02/01/2002 02/01/2002 02/01/2002
02/01/2002 02/01/2002 02/04/2002 02/04/2002 02/04/2002 02/05/2002 02/05/2002 02/05/2002 02/06/2002

155 UNOPPOSED MOTION by Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher, Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles, Broward County for leave to file corrected version of reply brief in support of Defendants Clemency Board Members; motion for summary Judgment (ATTACHED) (Former Deputy Clerk) Modified on 01/30/2002 (Entered: 01/30/2002)
156 Certificate as to motion to exclude Lance deHaven−Smith by Thomas Johnson (Former Deputy Clerk) (Entered: 01/31/2002)
157 UNOPPOSED MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford for leave to file out−of−time Defendants' motion to exclude Plaintiffs' witnesses and evidence identified out of time (Former Deputy Clerk) (Entered: 02/01/2002)
158 MOTION with memorandum in support by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford to exclude Plaintiffs' witnesses and evidence Identified out−of−time (Former Deputy Clerk) (Entered: 02/01/2002)
159 MOTION by Beverly Hill for waiver of Special Rule 4b requiring designation of local counsel (Former Deputy Clerk) (Entered: 02/04/2002)
160 MOTION by Beverly Hill for William E. Harlan, Jr. to appear pro hac vice (Former Deputy Clerk) (Entered: 02/04/2002)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 856632 (Former Deputy Clerk) (Entered: 02/04/2002)
161 MEMORANDUM by Beverly Hill in support of [160−1] motion for William E. Harlan, Jr. to appear pro hac vice (Former Deputy Clerk) (Entered: 02/04/2002)
162 ORDER granting [155−1] motion for leave to file corrected version of reply brief in support of Defendants Clemency Board Members; motion for summary Judgment ( Signed by Judge James Lawrence King on 2/1/02) [EOD Date: 2/4/02] (Former Deputy Clerk) (Entered: 02/04/2002)
163 REPLY by Thomas Johnson to response to [139−1] cross motion for summary judgment pursuant to Rule 56(A) (Former Deputy Clerk) (Entered: 02/04/2002)
164 RESPONSE by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford to [126−1] motion to abate matters in this case related to the Supervisors' of elections' (Former Deputy Clerk) (Entered: 02/04/2002)
165 NOTICE of Unavailability by William Cowles for dates of: 5/9/02 − 5/13/02 (Former Deputy Clerk) (Entered: 02/05/2002)
166 RESPONSE by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford to [128−1] motion in limine to exclude Lance DeHaven−Smith (Former Deputy Clerk) (Entered: 02/05/2002)
167 EXHIBITS to: [166−1] motion response by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford (Former Deputy Clerk) (Entered: 02/05/2002)
168 RESPONSE by Thomas Johnson to [126−1] motion to abate matters in this case related to the Supervisors' of elections' (Former Deputy Clerk) (Entered: 02/06/2002)
169 MOTION by All Plaintiffs for leave to file corrected version of motion for leave to file an overlength brief (Former Deputy Clerk) (Entered: 02/06/2002)
170 MOTION by Thomas Johnson for leave to file an overlength brief in opposition to Defendants' motions in limine to exclude the expert reports and testimony (Former Deputy Clerk) (Entered: 02/06/2002)
171 MOTION by Thomas Johnson for leave to file an overlength brief in opposition to Defendants' motions in limine to exclude the expert reports and testimony (Former Deputy Clerk) (Entered: 02/07/2002)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 28 of 36

02/06/2002 02/06/2002 02/06/2002 02/06/2002 02/07/2002 02/08/2002 02/08/2002 02/08/2002
02/11/2002
02/12/2002

172 RESPONSE by William Cowles to [126−1] motion to abate matters in this case related to the Supervisors' of elections' (Former Deputy Clerk) (Entered: 02/07/2002)
173 RESPONSE by Thomas Johnson in opposition to [136−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner, [131−1] motion in limine to exclude the expert report and testimony of Richard Scher, [132−1] motion in limineto exclude the expert report and testimony of Chritopher Uggen, [134−1] motion in limine to exclude the expert report and testimony of Richard Engstrom, [133−1] motion in limineto exclude the expert report and testimony of Theodore Chiricos (Former Deputy Clerk) (Entered: 02/07/2002)
176 ORDER granting [160−1] motion for William E. Harlan, Jr. to appear pro hac vice ( Signed by Judge James Lawrence King on 2/6/02) [EOD Date: 2/12/02] (Former Deputy Clerk) (Entered: 02/12/2002)
177 ORDER granting [171−1] motion for leave to file an overlength brief in opposition to Defendants' motions in limine to exclude the expert reports and testimony ( Signed by Judge James Lawrence King on 2/6/02) [EOD Date: 2/12/02] (Former Deputy Clerk) (Entered: 02/12/2002)
179 ORDER granting [175−1] motion for leave to file an over length reply brief in support of motions in limine to exclude plaintiffs' expert witness ( Signed by Judge James Lawrence King on 2/7/02) [EOD Date: 2/12/02] (Former Deputy Clerk) (Entered: 02/12/2002)
174 JOINT PRETRIAL STIPULATION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes, Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles, Broward County, Edward Still (Former Deputy Clerk) (Entered: 02/11/2002)
175 UNOPPOSED MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford for leave to file an over length reply brief in support of motions in limine to exclude plaintiffs' expert witness (Former Deputy Clerk) (Entered: 02/11/2002)
178 REPLY by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford to response to [158−1] motion to exclude Plaintiffs' witnesses and evidence Identified out−of−time, [136−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner, [134−1] motion in limine to exclude the expert report and testimony of Richard Engstrom, [133−1] motion in limineto exclude the expert report and testimony of Theodore Chiricos, [132−1] motion in limineto exclude the expert report and testimony of Chritopher Uggen, [131−1] motion in limine to exclude the expert report and testimony of Richard Scher, [130−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner (Former Deputy Clerk) Modified on 02/21/2002 (Entered: 02/12/2002)
180 ORDER Setting Hearing and cancelling the Pre−Trial Conference scheduled for 2/15/02, to be reset by the Court. This case is removed from the Court's 3/18/02,trial calendar Motion hearing before Judge James Lawrence King set for 9:00 3/13/02 for [128−1] motion in limine to exclude Lance DeHaven−Smith, set for 9:00 3/13/02 for [136−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner, set for 9:00 3/13/02 for [130−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner, set for 9:00 3/13/02 for [133−1] motion in limineto exclude the expert report and testimony of Theodore Chiricos, set for 9:00 3/13/02 for [134−1] motion in limine to exclude the expert report and testimony of Richard Engstrom, set for 9:00 3/13/02 for [132−1] motion in limineto exclude the expert report and testimony of Chritopher Uggen (REFER TO ORDER FOR DETAILS) (Signed by Judge James Lawrence King on 2/12/02) [EOD Date: 2/13/02] (Former Deputy Clerk) (Entered: 02/13/2002)
181 JOINT PRETRIAL STIPULATION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes, Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Beverly Hill, Jane Carroll,

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 29 of 36

02/12/2002
02/13/2002 02/13/2002 02/13/2002 02/13/2002
02/14/2002 02/15/2002 02/15/2002 02/15/2002 02/15/2002 02/19/2002 02/19/2002 02/25/2002

Pam Iorio, David C. Leahy, William Cowles, All Plaintiffs, All Defendants, Broward County, Edward Still (Former Deputy Clerk) (Entered: 02/13/2002)
182 NOTICE of filing Joint Pre−Trial Stipulation (attached within notice Plaintiff's trial exhibit list by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes, Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Beverly Hill, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles, All Plaintiffs, All Defendants, Broward County, Edward Still (Former Deputy Clerk) (Entered: 02/13/2002)
183 MOTION by Governor of Florida for Hamish Hume to appear pro hac vice (Former Deputy Clerk) (Entered: 02/14/2002)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 857337 (Former Deputy Clerk) (Entered: 02/14/2002)
184 ORDER granting [126−1] motion to abate matters in this case related to the Supervisors' of elections' ( Signed by Judge James Lawrence King on 2/12/02) [EOD Date: 2/14/02] (Former Deputy Clerk) (Entered: 02/14/2002)
185 ORDER granting [135−1] motion for leave to file Substitute version of motion in limine to exclude the expert report and testimony of Jerrell Shofner, granting [141−1] motion for leave to file overlength Statement of undisputed facts in support of summary judgment, granting [154−1] motion for leave to file corrected version of memorandum in support of Plaintiffs' cross−motion for summary judgment, granting [169−1] motion for leave to file corrected version of motion for leave to file an overlength brief, granting [170−1] motion for leave to file an overlength brief in opposition to Defendants' motions in limine to exclude the expert reports and testimony, granting [175−1] motion for leave to file an over length reply brief in support of motions in limine to exclude plaintiffs' expert witness ( Signed by Judge James Lawrence King on 2/12/02) [EOD Date: 2/14/02] (Former Deputy Clerk) (Entered: 02/14/2002)
186 ORDER granting [183−1] motion for Hamish Hume to appear pro hac vice ( Signed by Judge James Lawrence King on 2/14/02) [EOD Date: 2/15/02] (Former Deputy Clerk) (Entered: 02/15/2002)
187 MOTION by Thomas Johnson to reschedule hearings on Evidentiary motions (Former Deputy Clerk) (Entered: 02/19/2002)
188 MEMORANDUM by Thomas Johnson in opposition to [158−1] motion to exclude Plaintiffs' witnesses and evidence Identified out−of−time (Former Deputy Clerk) (Entered: 02/19/2002)
189 DECLARATION of Jessie Allen by Thomas Johnson (Former Deputy Clerk) (Entered: 02/19/2002)
190 APPENDIX to: [188−1] opposition memorandum by Thomas Johnson (Former Deputy Clerk) (Entered: 02/19/2002)
191 RESPONSE by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford to [187−1] motion to reschedule hearings on Evidentiary motions (Former Deputy Clerk) (Entered: 02/20/2002)
191 NOTICE of Unavailability by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford for dates of: 3/18/02 − 3/22/02, 3/28/02 − 3/29/02, 4/1/02, and 4/2/02 (Former Deputy Clerk) (Entered: 02/20/2002)
192 ORDER granting [187−1] motion to reschedule hearings on Evidentiary motions Motion hearing before Judge James Lawrence King set for 10:00 4/5/02 for [136−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner, set for 10:00 4/5/02 for [134−1] motion in limine to exclude the expert report and testimony of Richard Engstrom, set for 10:00 4/5/02 for [133−1] motion in limineto exclude the expert report and testimony of Theodore Chiricos, set for 10:00 4/5/02 for [132−1] motion in limineto exclude the expert report and testimony of Chritopher Uggen, set for 10:00 4/5/02 for [131−1] motion in limine to exclude the expert report and testimony of Richard Scher, set for 10:00 4/5/02

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 30 of 36

02/25/2002 02/25/2002 02/26/2002 03/11/2002 03/11/2002 03/19/2002 03/25/2002
03/25/2002
03/25/2002 03/27/2002 03/27/2002 03/28/2002 04/02/2002 04/04/2002

for [130−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner, set for 10:00 4/5/02 for [128−1] motion in limine to exclude Lance DeHaven−Smith ( Signed by Judge James Lawrence King on 2/25/02) [EOD Date: 2/25/02] (Former Deputy Clerk) (Entered: 02/25/2002)
193 MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford for leave to file an overlength reply brief in support of motion to exclude Plaintiffs' witnesses and evidence out−of−time (Former Deputy Clerk) (Entered: 02/26/2002)
194 REPLY by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford to response to [158−1] motion to exclude Plaintiffs' witnesses and evidence Identified out−of−time (Former Deputy Clerk) (Entered: 02/26/2002)
195 ORDER denying [111−1] motion to compel production of documents ( Signed by Magistrate Judge John J. O'Sullivan on 2/25/02) [EOD Date: 2/27/02] (Former Deputy Clerk) (Entered: 02/27/2002)
196 ORDER granting [159−1] motion for waiver of Special Rule 4b requiring designation of local counsel ( Signed by Judge James Lawrence King on 3/11/02) [EOD Date: 3/13/02] (Former Deputy Clerk) (Entered: 03/13/2002)
197 ORDER granting [157−1] motion for leave to file out−of−time Defendants' motion to exclude Plaintiffs' witnesses and evidence identified out of time ( Signed by Judge James Lawrence King on 3/11/02) [EOD Date: 3/13/02] (Former Deputy Clerk) (Entered: 03/13/2002)
198 ORDER granting [193−1] motion for leave to file an overlength reply brief in support of motion to exclude Plaintiffs' witnesses and evidence out−of−time ( Signed by Judge James Lawrence King on 3/18/02) [EOD Date: 3/20/02] (Former Deputy Clerk) (Entered: 03/20/2002)
199 Minutes of Motion Hearing on motion to exclude Lance Dehaven−Smith, Clemency Boards motion to exclude Jerrell Shofner &Richard Scher, Court heard oral argument, motions taken under advisement; held before Judge James Lawrence King on 3/25/02; Court Reporter Name or #: Robin Dispenzieri (Former Deputy Clerk) (Entered: 03/26/2002)
Motion hearing re: [136−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner Motion hearing held, [131−1] motion in limine to exclude the expert report and testimony of Richard Scher Motion hearing held, [130−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner Motion hearing held, [128−1] motion in limine to exclude Lance DeHaven−Smith Motion hearing held (Former Deputy Clerk) (Entered: 03/26/2002)
200 NOTICE of Reassignment of Attorney. Terminated attorney William X. Candela for David C. Leahy, attorney Jason Edward Bloch for David C. Leahy Added Jeffrey Paul Ehrlich (dg, Deputy Clerk) (Entered: 03/26/2002)
201 MOTION by All Defendants regarding Daubert hearing on historical experts (tb, Deputy Clerk) (Entered: 03/28/2002)
202 MOTION by All Defendants for leave to file out of time defendants' post−argument motion regarding Daubert hearing on historical experts (tb, Deputy Clerk) (Entered: 03/28/2002)
203 RESPONSE by All Plaintiffs to scheduling request made in [201−1] motion regarding Daubert hearing on historical experts (wc, Deputy Clerk) (Entered: 03/29/2002)
204 Transcript filed re: motion to exclude held 3/25/02 @ 10:00 a.m. before Judge James Lawrence King Pages: 1−99 (ga, Deputy Clerk) (Entered: 04/02/2002)
205 ORDER granting [158−1] motion to exclude Plaintiffs' witnesses and evidence Identified out−of−time ( Signed by Judge James Lawrence King on 4/4/02) [EOD Date: 4/8/02] (Former Deputy Clerk) (Entered: 04/08/2002)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 31 of 36

04/05/2002 04/05/2002 04/08/2002 04/15/2002 04/17/2002 04/18/2002
04/18/2002 04/19/2002 04/19/2002 04/19/2002 04/19/2002 04/19/2002 04/19/2002 04/19/2002 04/22/2002
04/23/2002
04/24/2002
04/24/2002 04/26/2002

206 MOTION by Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes for James E. Johnson to appear pro hac vice (Former Deputy Clerk) (Entered: 04/08/2002)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 860360 (Former Deputy Clerk) (Entered: 04/08/2002)
207 ORDER granting [206−1] motion for James E. Johnson to appear pro hac vice ( Signed by Judge James Lawrence King on 4/8/02) [EOD Date: 4/9/02] (Former Deputy Clerk) (Entered: 04/09/2002)
208 MEMORANDUM by All Plaintiffs in opposition to [201−1] motion regarding Daubert hearing on historical experts (Former Deputy Clerk) (Entered: 04/16/2002)
209 Transcript filed re: motion to exclude held 4/5/02 @ 10:00 a.m. before Judge James Lawrence King Pages: 1−99 (ga, Deputy Clerk) (Entered: 04/17/2002)
210 ORDER granting in part, denying in part [134−1] motion in limine to exclude the expert report and testimony of Richard Engstrom ( Signed by Judge James Lawrence King on 4/18/02) [EOD Date: 4/19/02] (Former Deputy Clerk) (Entered: 04/19/2002)
211 ORDER granting [131−1] motion in limine to exclude the expert report and testimony of Richard Scher ( Signed by Judge James Lawrence King on 4/18/02) [EOD Date: 4/19/02] (Former Deputy Clerk) (Entered: 04/19/2002)
212 ORDER denying [133−1] motion in limineto exclude the expert report and testimony of Theodore Chiricos ( Signed by Judge James Lawrence King on 4/19/02) [EOD Date: 4/22/02] (Former Deputy Clerk) (Entered: 04/22/2002)
213 MOTION by All Plaintiffs to reconsider in part [205−1] order (Former Deputy Clerk) (Entered: 04/22/2002)
214 MEMORANDUM by All Plaintiffs in support of [213−1] motion to reconsider in part [205−1] order (Former Deputy Clerk) (Entered: 04/22/2002)
215 APPENDIX to: [214−1] support memorandum by All Plaintiffs (Former Deputy Clerk) (Entered: 04/22/2002)
216 Decalration of James E. Johnson by All Plaintiffs (Former Deputy Clerk) (Entered: 04/22/2002)
217 Certificate as to Plaintiff's motion to reconsider in part Order of 4/4/02 by All Plaintiffs (Former Deputy Clerk) (Entered: 04/22/2002)
218 MOTION by All Plaintiffs for Hearing on [213−1] motion to reconsider in part [205−1] order (Former Deputy Clerk) (Entered: 04/22/2002)
219 ORDER denying [128−1] motion in limine to exclude Lance DeHaven−Smith, denying [130−1] motion in limine to exclude the expert report and testimony of Jerrell Shofner ( Signed by Judge James Lawrence King on 4/19/02) [EOD Date: 4/23/02] (Former Deputy Clerk) (Entered: 04/23/2002)
220 REPLY by Governor of Florida, Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher to response to [201−1] motion regarding Daubert hearing on historical experts (Former Deputy Clerk) (Entered: 04/24/2002)
221 UNOPPOSED MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher for leave to corrected version of reply memorandum in support of motion regarding Daubert Hearing on historical experts (Former Deputy Clerk) (Entered: 04/25/2002)
222 REPLY by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher to response to [201−1] motion regarding Daubert hearing on historical experts (Former Deputy Clerk) (Entered: 04/25/2002)
223 MOTION by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher for leave to file amended version of reply memorandum in support of motion regarding Daubert hearing on historical experts

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 32 of 36

04/26/2002 05/02/2002 05/08/2002 05/08/2002 05/08/2002 05/09/2002
05/09/2002 05/23/2002
05/23/2002 05/23/2002
05/28/2002
05/30/2002
06/13/2002 06/13/2002 06/27/2002 07/18/2002

(Former Deputy Clerk) (Entered: 04/29/2002)
224 AMENDED REPLY by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher to response to [201−1] motion regarding Daubert hearing on historical experts (Former Deputy Clerk) (Entered: 04/29/2002)
225 RESPONSE by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher to [213−1] motion to reconsider in part [205−1] order (Former Deputy Clerk) (Entered: 05/03/2002)
226 ORDER denying [213−1] motion to reconsider in part [205−1] order ( Signed by Judge James Lawrence King on 5/8/02) [EOD Date: 5/9/02] (Former Deputy Clerk) (Entered: 05/09/2002)
227 REPLY by All Plaintiffs to response to [213−1] motion to reconsider in part [205−1] order (Former Deputy Clerk) (Entered: 05/09/2002)
228 NOTICE of Unavailability of Defedants' expert witnesses by Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher (Former Deputy Clerk) (Entered: 05/09/2002)
229 ORDER Motion hearing before Judge James Lawrence King set for 10:00 5/16/02 for [139−1] cross motion for summary judgment pursuant to Rule 56(A) (Signed by Judge James Lawrence King on 5/9/02) [EOD Date: 5/10/02] (Former Deputy Clerk) (Entered: 05/10/2002)
230 REPLY by All Plaintiffs to response to [213−1] motion to reconsider in part [205−1] order (Former Deputy Clerk) (Entered: 05/13/2002)
231 MOTION by All Plaintiffs for leave to file out of time Plaintiff's motion to supplement the record with documents regarding Florida's 1968 reenactment of Felon disenfranchisement in light of exclusion of Plaintiffs' expert Richard K. Scher (Former Deputy Clerk) (Entered: 05/24/2002)
232 MOTION by All Plaintiffs to supplement the record with documents regarding Florida's 1968 reenactment of Felon disenfranchisement in light of exclusion of Plaintiffs' expert Richard K. Scher (Former Deputy Clerk) (Entered: 05/24/2002)
233 Certification of as to Plaintiffs' motion to supplement the record with documents regarding Florida's 1968 reenactment of Felon disenfranchisement in light of exclusion of Plaintiffs' expert Richard K. Scher by All Plaintiffs (Former Deputy Clerk) (Entered: 05/24/2002)
234 RESPONSE by Secretary of State, Robert Butterworth, Robert Milligan, William Nelson, Robert Crawford, Thomas Gallagher in opposition to [232−1] motion to supplement the record with documents regarding Florida's 1968 reenactment of Felon disenfranchisement in light of exclusion of Plaintiffs' expert Richard K. Scher (Former Deputy Clerk) (Entered: 05/29/2002)
235 ORDER denying [232−1] motion to supplement the record with documents regarding Florida's 1968 reenactment of Felon disenfranchisement in light of exclusion of Plaintiffs' expert Richard K. Scher ( Signed by Judge James Lawrence King on 5/30/02) [EOD Date: 5/31/02] (Former Deputy Clerk) (Entered: 05/31/2002)
236 Certification as to Plaintiffs' motion regarding wealth discrimination, and incorporated memorandum by All Plaintiffs (Former Deputy Clerk) (Entered: 06/14/2002)
237 MOTION with memorandum in support by All Plaintiffs regarding wealth discrimination (Former Deputy Clerk) (Entered: 06/14/2002)
238 Transcript filed re: scheduling conference held 4/2/01 before Judge James Lawrence King Pages: 1−46 (ga, Deputy Clerk) (Entered: 07/03/2002)
239 ORDER granting [123−1] motion for summary judgment pursuant to Rule 56 (B); The case is DISMISSED with prejudice (Signed by Judge James Lawrence King on 7/18/02) [EOD Date: 7/19/02] (Former Deputy Clerk) (Entered: 07/19/2002)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 33 of 36

07/18/2002 08/09/2002 08/09/2002
08/20/2002 09/16/2002 10/10/2002
10/10/2002
10/21/2002 11/18/2002 09/01/2005 11/22/2005 08/14/2006 08/18/2006 09/07/2006 09/08/2006 09/20/2006 09/25/2006

CASE CLOSED. Case and Motions no longer referred to Magistrate. (Former Deputy Clerk) (Entered: 07/19/2002)
240 Transcript filed re: Motions for Summary Judgment held May 24, 2002 before Judge James Lawrence King Pages: 1−117 (hh, Deputy Clerk) (Entered: 08/12/2002)
241 NOTICE OF APPEAL by All Plaintiffs of [239−1] order EOD Date: 7/19/02; [235−1] order EOD Date: 5/31/02; [226−1] order EOD Date: 5/8/02; [219−1] order EOD Date: 4/23/02;1 [211−1] order EOD Date: 4/19/02; [210−1] order EOD Date: 4/19/02; [205−1] order EOD Date: 4/8/02; Filing Fee: $ 105.00; Receipt #: 867205 Copies to USCA and Counsel of Record. (Former Deputy Clerk) (Entered: 08/13/2002)
242 Transcript Information Form re: as to All Plaintiffs [241−1] appeal by All Plaintiffs. All necessary transcripts are on file. (Former Deputy Clerk) (Entered: 08/21/2002)
NOTICE of Receipt of Notice of Appeal Transmittal Letter from USCA on 8/6/02 Re: [241−1] appeal by All Plaintiffs USCA NUMBER: 02−14469−C (Former Deputy Clerk) (Entered: 09/17/2002)
243 Certificate of readiness as to Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams−Carpenter, Jau'dohn Hicks, John Hanes transmitted to USCA Re: [241−1] appeal by All Plaintiffs USCA NUMBER: 02−14469−C (Former Deputy Clerk) (Entered: 10/10/2002)
Transmitted record on appeal as to All Plaintiffs to U.S. Court of Appeals (MIAMI OFFICE): [241−1] appeal by All Plaintiffs consisting of 6 volumes of pleadings, 5 volumes of transcripts and 6 accordion folders with docket entries #119, 120, 121, 122, 129, 130, 131, 132, 133, 134, 136, 137, 146, 147, 148, 158, 173, 215 &225 USCA # 02−14469−C (Former Deputy Clerk) Modified on 10/10/2002 (Entered: 10/10/2002)
ACKNOWLEDGMENT of receipt by U.S.C.A. of: COR on 10/15/02; U.S.C.A. # 02−14469−CC (Former Deputy Clerk) (Entered: 10/22/2002)
244 MOTION by All Plaintiffs for Lori Outzs Borgen to withdraw as attorney (Former Deputy Clerk) (Entered: 11/19/2002)
245 Record on appeal returned from U.S. Court of Appeals: [241−1] appeal by All Plaintiffs USCA #: 02−14469−CC (ga, Deputy Clerk) (Entered: 09/07/2005)
246 ORDER from The Supreme Court of the United States DENYING petition for writ of certiorari ( signed on 11/14/05) [EOD Date: 11/29/05] Supreme Court #05−212; USCA# 02−14469−CC (ga, Deputy Clerk) (Entered: 11/29/2005)
247 MOTION with memorandum in support by Vincent F. Rivera (Attorney ) to reopen the judgment (ct, Deputy Clerk) (Entered: 09/08/2006)
248 ORDER denying [247−1] motion to reopen the judgment ( Signed by Judge James Lawrence King on 08/18/06) [EOD Date: 8/21/06] (nt, Deputy Clerk) (Entered: 08/21/2006)
249 NOTICE OF APPEAL by Vincent F. Rivera of [248−1] order EOD Date: 8/21/06; Filing Fee: $ (FEE NOT PAID); Copies to USCA and Counsel of Record. (nc, Deputy Clerk) (Entered: 09/08/2006)
Certified copies of Notice of Appeal, Docket, and Order under appeal to USCA: [249−1] appeal by Vincent F. Rivera (nc, Deputy Clerk) (Entered: 09/08/2006)
250 NOTICE of Receipt of Notice of Appeal Transmittal Letter from USCA on 09/15/06 Re: [249−1] appeal by Vincent F. Rivera USCA NUMBER: 06−14962−D (mp, Deputy Clerk) (Entered: 09/21/2006)
251 Transcript Information Form re: as to Vincent F. Rivera [249−1] appeal by Vincent F. Rivera . No transcript requested. (pc, Deputy Clerk) (Entered: 09/26/2006)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 34 of 36

10/11/2006 10/17/2006
10/17/2006 11/15/2006 12/01/2006 12/15/2006 12/19/2006 04/24/2007 04/25/2007 05/01/2007 05/14/2007
05/14/2007 05/17/2007 05/18/2007 05/21/2007 06/06/2007 06/07/2007 06/12/2007 06/12/2007 06/22/2007

252 Mail returned undeliverable to Hamish Hume. (pc) (Entered: 10/13/2006)
253 ORDER of Dismissal from USCA for want of prosecution because the appellant has failed to pay the filing fees with the district court within the time fixed by the rules as to 249 Notice of Appeal filed by Vincent F. Rivera,in re: USCA NUMBER: 06−14962−D (copies sent to chambers) (nc) (Entered: 10/17/2006)
254 ORDER Denying Motion for Certificate of Appealability and Motion to Proceed In Forma Pauperis re 249 Notice of Appeal filed by Vincent F. Rivera. Signed by Judge James Lawrence King on 10/17/2006. (jw) (Entered: 10/17/2006)
255 MOTION for Reconsideration re 254 Order by Vincent F. Rivera. (pc) (Entered: 11/16/2006)
256 ORDER denying 255 Motion for Reconsideration . Signed by Judge James Lawrence King on 12/1/06. (lc2) (Entered: 12/01/2006)
257 MOTION for Reconsideration re 1 Complaint by Vincent F. Rivera. (pa) (Entered: 12/15/2006)
258 NOTICE OF APPEAL as to 256 Order on Motion for Reconsideration by Thomas Johnson. (No fee paid) (de) (Entered: 04/13/2007)
259 ORDER denying 257 Motion for Certificate of Appealability Signed by Judge James Lawrence King on 4/24/2007. (lc2) (Entered: 04/24/2007)
260 USCA Case Number USCA Case Number:07−11767−H for 258 Notice of Appeal filed by Thomas Johnson,. (pc) (Entered: 04/25/2007)
261 TRANSCRIPT INFORMATION FORM by Vincent F. Rivera re 258 Notice of Appeal. No Transcript Requested. (pc) (Entered: 05/02/2007)
262 ORDER of dismissal (certified copy) dismissing 258 appeal for want of prosecution because the appellant has failed to pay the filing fee to the district court clerk within the time fixed by the rules. USCA #: 07−11767−H USCA Order Date: 5/8/07 (hh) (Entered: 05/15/2007)
263 MOTION for Reconsideration re 259 Order on Motion for Reconsideration by Vincent F. Rivera. (hh) (Entered: 05/15/2007)
264 ORDER denying 263 Motion for Reconsideration re 259 Order on Motion for Reconsideration Signed by Judge James Lawrence King on 5/16/2007. (jw) Modified judge signature date on 5/23/2007 (dg). (Entered: 05/17/2007)
Notice of Undeliverable Mail re 259 Order on Motion for Reconsideration US Mail returned for: return to sender forward time expired unable to forward. atty info was update to reflect current address for: Charles J. Cooper (rb) (Entered: 05/18/2007)
Notice of Undeliverable Mail re 259 Order on Motion for Reconsideration US Mail returned for: return to sender− moved − unable to forward for: David H. Thompson (rb) (Entered: 05/21/2007)
265 NOTICE OF APPEAL by Vincent F. Rivera as to 264 Order on Motion for Reconsideration. Filing Fees: (FEE NOT PAID). (pc) (Entered: 06/11/2007)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 265 Notice of Appeal (pc) (Entered: 06/11/2007)
Notice of Undeliverable Mail re 264 Order on Motion for Reconsideration US Mail returned for: return to sender not deliverable as addressed unable to forward for: Charles J. Cooper (rb) (Entered: 06/12/2007)
Notice of Undeliverable Mail re 264 Order on Motion for Reconsideration US Mail returned for: return to sender not deliverable as addressed unable to forward Email returned for: David H. Thompson (rb) (Entered: 06/12/2007)
266 USCA Case Number USCA Case Number:07−12773−A for 265 Notice of Appeal filed by Vincent F. Rivera,. (pc) (Entered: 06/22/2007)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 35 of 36

06/26/2007 07/13/2007 07/31/2007 08/01/2007
08/03/2007 10/03/2007 04/07/2008 04/18/2008 04/18/2008 04/28/2008 04/29/2008 04/29/2008 05/02/2008 05/02/2008 05/15/2008 05/16/2008 05/16/2008 05/22/2008
06/11/2008 06/12/2008

267 TRANSCRIPT INFORMATION FORM by Vincent F. Rivera re 265 Notice of Appeal. No Transcript Requested. (pc) (Entered: 06/27/2007)
268 MOTION to reinstate case and memorandum of law by Vincent F. Rivera. (bs) (Entered: 07/16/2007)
269 MOTION for Reinstate the case and memorandum of law, by Vincent F. Rivera. (lk) (Entered: 08/02/2007)
270 DISMISSAL OF USCA this appeal is hereby dismissed for want of prosecution because the appellant has failed to pay the filing fees to the district court clerk within the time fixed by the rules. As to 265 Notice of Appeal filed by Vincent F. Rivera. USCA NUMBER: 07−12773−A. (pc) (Entered: 08/02/2007)
271 MOTION to Reopen Case by Vincent F. Rivera. (pa) (Entered: 08/03/2007)
272 MOTION to Reinstate Case with Memorandum of Law by Vincent F. Rivera. (ail) (Entered: 10/04/2007)
273 ORDER denying 272 Motion to Reopen Case Signed by Judge James Lawrence King on 4/7/08. (md) (Entered: 04/07/2008)
274 NOTICE OF APPEAL by Vincent F. Rivera as to 273 Order on Motion to Reopen Case. Filing Fee: (FEE NOT PAID)(abd) (Entered: 04/21/2008)
Transmission of Notice of Appeal, Docket Sheet and Order under appeal to US Court of Appeals re 274 Notice of Appeal (abd) (Entered: 04/21/2008)
275 DUPLICATE NOTICE OF APPEAL by Vincent F. Rivera as to 273 Order on Motion to Reopen Case. FILING FEE: (FEE NOT PAID) (abd) (Entered: 04/29/2008)
Transmission of Duplicate Notice of Appeal and Docket Sheet to US Court of Appeals re 275 Notice of Appeal (abd) (Entered: 04/29/2008)
276 ORDER re 274 Notice of Appeal/Motion for Certificate of Appealability filed by Vincent F. Rivera, Signed by Judge James Lawrence King on 4/29/2008.(jw) (Entered: 04/29/2008)
277 ACKNOWLEDGEMENT OF RECEIPT FROM USCA re 275 Notice of Appeal, 274 Notice of Appeal receipt of: NOA Transmittal date received by USCA 4/25/2008 USCA number 08−12124−A (abd) (Entered: 05/05/2008)
278 TRANSCRIPT INFORMATION FORM by Vincent F. Rivera re 275 Notice of Appeal, 274 Notice of Appeal. No Transcript Requested. (abd) (Entered: 05/05/2008)
279 MOTION for Reconsideration re 276 Order by Vincent F. Rivera. (tb) (Entered: 05/15/2008)
280 ACKNOWLEDGEMENT OF RECEIPT FROM USCA re 275 Notice of Appeal receipt of: Duplicate NOA transmittal date received by USCA 5/5/2008 USCA number 08−12124−A (abd) (Entered: 05/16/2008)
281 ORDER denying 279 Motion for Reconsideration re 276 Order Signed by Judge James Lawrence King on 5/16/2008. (jw) (Entered: 05/16/2008)
282 ORDER from the 11th Circuit, this appeal is hereby dismissed for want of prosecution because the appellant has failed to pay the $450 docketing and $5 filing fees ($455) to the district court clerk within the time fixed by the rules, re 275 Notice of Appeal filed by Vincent F. Rivera,, 274 Notice of Appeal filed by Vincent F. Rivera, USCA #08−12124−A. Copy sent to judge (abd) (Entered: 05/22/2008)
283 NOTICE OF APPEAL by Vincent F. Rivera as to 281 Order on Motion for Reconsideration. Filing Fee: (FEE NOT PAID)(abd) (Entered: 06/12/2008)
Transmission of Notice of Appeal, Docket Sheet and Order under appeal to US Court of Appeals re 283 Notice of Appeal (abd) (Entered: 06/12/2008)

Case: 1:00-cv-03542-JLK As of: 03/02/2012 10:29 PM EST 36 of 36

06/23/2008 06/27/2008 07/14/2008
12/01/2008

284 ACKNOWLEDGEMENT OF RECEIPT FROM USCA re 283 Notice of Appeal receipt of: NOA Transmittal date received by USCA 6/16/2008 USCA number 08−13406−A (abd) (Entered: 06/24/2008)
285 TRANSCRIPT INFORMATION FORM by Vincent F. Rivera re 283 Notice of Appeal. No Transcript Requested. (abd) (Entered: 06/30/2008)
286 ORDER of DISMISSAL from USCA, this appeal is hereby dismissed for want of prosecution because the appellant has failed to pay the $450 docketing and $5 filing fees ($455) to the district court clerk within the time fixed by the rules, re 283 Notice of Appeal filed by Vincent F. Rivera. USCA #08−13406−A (abd) (Entered: 07/15/2008)
287 Notice of Undeliverable Mail: * re 273 , 281 . US Mail returned for: Return to sender. Not deliverable as addressed. Unable to forward, returned for: Hamish Hume. * re 273 , 281 . US Mail returned for: David H. Thompson. Notice not delivered by other means for this event. (jmd) (Entered: 12/01/2008)

 
 No. 05-
IN THE
Supreme Court of the United States

THOMAS JOHNSON, et al., Petitioners,
v. JEB BUSH, Governor of Florida, et al.,
_______________________________ Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Of Counsel:
JAMES E. JOHNSON CAROLINE H. MOUSTAKIS PHILIP ROHLIK GREGORY A. DIAMOND SHANYA DINGLE DEBEVOISE & PLIMPTON LLP
919 Third Avenue New York, NY 10022 (212) 909-6000

CATHERINE WEISS Counsel of Record
BURT NEUBORNE DEBORAH GOLDBERG JENNIFER WEISER JUSTIN LEVITT BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW
161 Sixth Avenue, 12th Floor New York, NY 10013 (212) 998-6730

Counsel for Petitioners [Additional counsel listed on inside cover]

195662

A
((800) 274-3321 • (800) 359-6859

Of Counsel:

ANITA S. EARLS UNC SCHOOL OF LAW CENTER FOR CIVIL RIGHTS
CB No. 3380 Chapel Hill, NC 27599 (919) 843-7896

JESSIE ALLEN NYU SCHOOL OF LAW
40 Washington Square South New York, NY 10012 (212) 998-6449

JON M. GREENBAUM CARA FINEMAN LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
1401 New York Ave, NW Suite 400 Washington, DC 20005 (202) 662-8600

- 1-
QUESTIONS PRESENTED
1. Is a permanent felony disenfranchisement provision like all other voting qualifications - subject to challenge under Section 2 of the Voting Rights Act on the ground that it results in a denial of the right to vote on account of race?
2. When a provision was enacted by a state for the purpose of disqualifying otherwise eligible black voters, and it has disenfranchised blacks at twice the rate of others for more than one hundred years, does the state bear the evidentiary burdens of production and persuasion in proving that it reenacted the provision for an independent, nondiscriminatory reason sufficient to purge its unconstitutional taint?

- 11 -
PARTIES TO PROCEEDING
Petitioners are eight Florida citizens -Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, 1 Adam Hernandez, Kathryn Williams-Carpenter, Jau'dohn Hicks, and John Hanes - who were plaintiffs in the district court. They brought this suit in their own right and as representatives of a certified class. The class consists of more than 613,000 Florida citizens who have fully served sentences of incarceration, probation, or parole on felony convictions, but who, under Florida's felony disenfranchisement provision, remain barred from voting for life or until granted discretionary executive clemency.
The State Respondents are the members of Florida's Clemency Board - Jeb Bush, Governor; Katherine Harris, Secretary of State; Robert Butterworth, Attorney General; Robert Milligan, Comptroller; William Nelson, Treasurer; Robert Crawford, Commissioner of Agriculture; and Thomas Gallagher, Commissioner of Education - in their official capacities. They were defendants in the district court and appellees in the court of appeals. The County Defendants are Beverly Hall, Jane Carroll, Pam Iorio, David C. Leahy, William Cowles, and Deborah Clark, the county supervisors of elections for Alachua, Broward, Hillsborough, MiamiDade, Orange, and Pinellas counties, respectively, in their official capacities. The district court certified a defendant class of county election supervisors, who abated their participation in the case pending the determination of liability.
On January 17, 2001, the district court dismissed Omali Yeshitela, whose civil rights had been restored.

- 111 -
TABLE OF CONTENTS
Questions Presented ............................................................ i
Parties to Proceeding .......................................................... ii
Table of Authorities............................................................ v
Petition for a Writ of Certiorari.......................................... 1
Opinions Below.................................................................. 1
Jurisdiction ......................................................................... 1
Constitutional and Statutory Provisions Involved .............. 1
Introduction ... .. .. ... ... .. .. .. ... .. .. .. ... .. .. ... .. .. .. .. .. .. .. ... .. .. ... .. ... .. .. . 2
Statement of the Case ......................................................... 4
Reasons for Granting the Petition .......... ...... .. .. .......... ..... 10
I. The Court Should Grant the Petition to Resolve the Split in the Circuits on Whether Section 2 of the VRA May Be Applied to Felony Disenfranchisement Laws .. ...... ...... .......... 10 A. The Circuits Are Split on the Question Whether Felony Disenfranchisement Laws Are Subject to Challenge Under Section 2 of the VRA .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 10

- lV-
B. The Decision Below Rests on a Fundamental Misreading of the Constitution That Calls for this Court's Correction.................................................... 13
C. This Case Is a Good Vehicle for Resolving the Question Presented............... 19
II. The Court Should Grant the Petition to Make Clear That the State Bears the Burden of Proving a Legitimate Purpose for Reenacting a Provision Originally Enacted with Discriminatory Intent ........................................... 21
A. This Court Has Followed a Consistent Approach to Assessing the Constitutionality of the Reenactment of Policies Tainted by an Impermissible Purpose ........................................................ 22
B. The Lower Courts Are Not Following this Court's Approach, or Arty Coherent Approach, in Assessing the Constitutionality of the Reenactment of Policies Tainted by an Impermissible Purpose ........................................................ 27
Conclusion ........................................................................ 30

- v-

TABLE OF AUTHORITIES

Cases:

Page(s)

Ayers v. Allain, 914 F.2d 676 (5th Cir. 1990) (en bane), vacated sub nom. United States v. Fordice, 505 U.S. 717 (1992) ........................... 23, 24

Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996) (en bane) ........................................................................... 12

Brown v. Bd. of Sch. Comm 'rs, 542 F. Supp. 1078 (S.D. Ala. 1982), aff'd, 706 F.2d 1103 (11th Cir. 1983) .......................................................... 29

Brown v. State, 733 So. 2d 1128 (Fla. Dist. Ct. App. 1999) ............................................................................. 6

Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000) ........................................................................... 28

Chisom v. Roemer, 501 U.S. 380 (1991) .................... 17, 18

City ofBoerne v. Flores, 521 U.S. 507 (1997) ................ 16

Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998).............. 28

Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004) (dissent from denial ofrehearing en bane)....... 11

Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert. denied sub nom. Locke v. Farrakhan, 125 S. Ct. 477 (2004) .......... 11, 18

Foster v. State, 732 So. 2d 22 (Fla. Dist. Ct. App. 1999) ............................................................................. 6

Howard v. Gilmore, No. 99-2285, 2000 WL 203984 (4th Cir. Feb. 23, 2000) .............................................. 12

Hunter v. Underwood, 471 U.S. 222 (1985) ............ passim

- Vl-
Cases - Continued:
In re England, 375 F.3d 1169 (D.C. Cir. 2004), cert. denied sub nom. Chaplaincy of Full Gospel Churches v. England, 125 S. Ct. 1343 (2005) ........... 18
Irby v. Va. State Bd. of Elections, 889 F.2d 1352 (4th Cir. 1989) ...................................................... 27,28
Johnson v. Bush, 214 F. Supp. 2d 1333 (S.D. Fla. 2002) ................................................................. 1, 3, 5, 7
Johnson v. Bush, 353 F.3d 1287 (11th Cir. 2003) ...... 1, 7, 8
Johnson v. Bush, 377 F.3d 1163 (11th Cir. 2004) (en bane) ................................................................... 1, 8
Johnson v. Bush, 405 F.3d 1214 (11th Cir. 2005) (en bane) .............................................................. passim
Knight v. Alabama, 14 F.3d 1534 (11th Cir. 1994) .... 28, 29
Lopez v. Monterey County, 525 U.S. 266 (1999) ............ 16
McCreary County v. ACLU ofKentucky, 125 S. Ct. 2722 (2005) .......................................................... 25, 26
Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962) ............... 23
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) ............................................. 23, 26
Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.), cert. denied, 125 S. Ct. 480, and reh 'g en bane granted, 396 F.3d 95 (2d Cir. 2004) ..................... 11, 12
NAACP v. Gadsden County Sch. Bd., 691 F.2d 978 (11th Cir. 1982) ......................................................... 20
Nev. Dep 't of Human Res. v. Hibbs, 538 U.S. 721 (2003) ......................................................................... 16
Pa. Dep 't ofCorrs. v. Yeskey, 524 U.S. 206 (1998)... 16, 17 Richardson v. Ramirez, 418 U.S. 24 (1974) ..... 8, 13, 14, 15

- Vll-
Cases - Continued: Solomon v. Liberty County, 899 F.2d 1012
(11th Cir. 1990) ......................................................... 20 Spencer v. State, 545 So. 2d 1352 (Fla. 1989) ................... 6 Tennessee v. Lane, 541 U.S. 509 (2004) .......................... 16 Thornburg v. Gingles, 478 U.S. 30 (1986) ..... 17, 19, 20, 21 United States v. Fordice, 505 U.S. 717 (1992) ......... passim Village of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252 (1977) .................................. 22,26 Washington v. Davis, 426 U.S. 229 (1976) ...................... 22 Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986) ............ 12
Federal Constitutional Provisions: U.S. Const. amend. XIV ............................................ passim U.S. Const. amend. XV ............................................. passim
Federal Statutory Provisions & Rules: 28 U.S.C. § 1254(1)............................................................ 1 28 U.S.C. § 1331 ................................................................ 1 28 U.S.C. § 1343(a)(4) ....................................................... 1 Voting Rights Act of 1965, 42 U.S.C. §§ 1973
et seq. ................................................................... passim 4th Cir. R. 36(c) ................................................................ 12
State Constitutional & Statutory Provisions: Fla. Const. art. VI, § 4 (1968) ........................................ 2, 9 Fla. Const. of 1868, art. XIV,§ 2 .................................. 2, 9

- V111 -
State Constitutional & Statutory Provisions - Continued: Fla. Canst. of 1868, art. VI,§ 5 (1885) .......................... 2, 9 Fla. Stat. ch. 98.0975 (repealed 2001) .............................. 20
Legislative Materials: 67 H.R.J. 232 (1869) ........................................................ 15 Cong. Globe, 40th Cong., 3d Sess. 724 (1869) ................ 15 J. Proc. Canst. Convention St. Fla., Feb. 20, 1868 ............. 4 S. Rep. No. 97-417 (1982), reprinted in
1982 U.S.C.C.A.N. 177 et seq. ...................... 17, 18, 19
Miscellaneous: David A. Bositis, Black Elected Officials: A
Statistical Summary 2001 (Joint Ctr. for Political & Econ. Studies 2003), available at http://www .jointcenter.org/publications 11 publication-PDFs/BEO-pdfs/2001-BEO.pdf ............. 20 Marc Mauer & Tushar Kansal, Barred for Life: Voting Rights Restoration in Permanent Disenfranchisement States (2005), at http:// www. sentencingproj ect.org/pdfs/ barredforlife.pdf ........................................................ 13 The Sentencing Project, Felony Disenfranchisement Laws in the United States (2005), at http://www. sentencingproject.org/pdfs/1 046.pdf......... 3 Jerrell H. Shofner, The Constitution of I 868, Florida Hist. Q., Apr. 1963, at 374 .......................................... 4 U.S. Comm'n on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, ch. 5 (2001), available at http://www. usccr.gov/pubs/vote2000/report/main.htm ................ 20

- 1-
PETITION FOR A WRIT OF CERTIORARI
Thomas Johnson et al. respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case.
OPINIONS BELOW
The opmwn of the en bane United States Court of Appeals for the Eleventh Circuit is reported at 405 F.3d 1214 (11th Cir. 2005) (en bane) (Appendix to Petition ("App.") at la). The panel opinion that was vacated by the en bane court is reported at 353 F.3d 1287 (11th Cir. 2003) (App. 86a), vacated by 377 F.3d 1163 (11th Cir. 2004) (en bane) (App. 84a). The opinion of the district court is reported at 214 F. Supp. 2d 1333 (S.D. Fla. 2002) (App. 150a).
JURISDICTION
The Court of Appeals entered judgment on April 12, 2005. This Court has jurisdiction to review the judgment under 28 U.S.C. § 1254(1). The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). On July 1, 2005, Justice Kennedy granted petitioners' motion to extend their time to file this petition to and including August 10, 2005.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fourteenth and Fifteenth Amendments to the United States Constitution are reproduced in the Appendix (App. 186a-88a).
Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, is reproduced in the Appendix (App. 189a).
Three provisions of various Florida Constitutions are reproduced m the Appendix: the current felony

-2 -
disenfranchisement provision, Fla. Const. art. VI, § 4 (1968) (App. 192a); its predecessor provision, Fla. Const. of 1868, art. XIV, § 2 (App. 190a); and an additional provision pertaining to criminal disenfranchisement that was omitted in 1968, Fla. Const. of 1868, art. VI,§ 5 (1885) (App. 191a).
INTRODUCTION
This is a class action on behalf of more than 613,000 citizens of Florida who are barred from voting unless and until they receive discretionary clemency, although they have served their felony sentences. Petitioners challenge the Florida Constitution's felony disenfranchisement provision under the Voting Rights Act ("VRA") and the Fourteenth and Fifteenth Amendments to the United States Constitution. The United States District Court for the Southern District of Florida granted summary judgment in favor of the State on both the statutory and the constitutional claims. A divided panel of the Court of Appeals for the Eleventh Circuit reversed, but the en bane court later vacated the panel opinion and affirmed summary judgment for the State. Two issues are presented: (1) whether Florida's felony disenfranchisement provision, which has disproportionately denied the right to vote to African-Americans for more than one hundred years, is subject to challenge under the VRA; and (2) whether the constitutional challenges to the provision survive, despite its reenactment without explanation in 1968, because it was originally enacted for the purpose of suppressing black political participation and has consistently achieved that result.
In 1868, following the Civil War, the abolition of slavery, and Florida's readmission to the Union, Florida enacted a new constitution. A crucial component of this constitution was a provision permanently disenfranchising people with felony convictions unless their civil rights were restored through an executive act of grace. Fla. Const. of

-3 -

1868, art. XIV, § 2 (App. 190a). Petitioners presented what the district court characterized as "an abundance of expert testimony about the historical background of Florida's felon disenfranchisement scheme," including "that the policy was enacted originally in 1868 with the particular discriminatory purpose of keeping blacks from voting." Johnson v. Bush, 214 F. Supp. 2d 1333, 1338-39 (S.D. Fla. 2002) (App. 159a); see, e.g., Expert Report of Jerrell H. Shofner, Ph.D. ("Shofner Rep.") (App. 197a). The en bane court of appeals assumed an original discriminatory purpose, acceding to the requirement that it read the record in the light most favorable to petitioners before affirming summary judgment against them. Johnson v. Bush, 405 F.3d 1214, 1223 (11th Cir. 2005) (en bane) (App. 18a).

In 1968, faced with an upsurge in black political

participation triggered by Congress's adoption of the VRA in

1965, Florida reenacted its permanent felony

disenfranchisement provision, even though the policy had

disenfranchised blacks at twice the rate of others throughout

its hundred-year history. Deposition of Lance deHaven

Smith at 173, 181-83 ("deHaven Smith Dep."); Expert

Report of Christopher Uggen, Ph.D. ("Uggen Rep."), at 3, 22

(App. 259a-60a, 296a-97a); Christopher Uggen, Addendum,

Florida Disenfranchised Felon and Ex-Felon Populations

(Best Estimates for 1967 and 1968) ("Uggen Add.") (App.

301a-02a). Florida did not articulate a reason for continuing

to disenfranchise first-time offenders for life. This policy is

now shared by only three other states: Alabama, Kentucky,

and Virginia.

The Sentencing Project, Felony

Disenfranchisement Laws in the United States (2005), at

http://www. sentencingproj ect.org/pdfs/1046.pdf.2

The Sentencing Project lists Iowa as an additional permanent disenfranchisement state but notes that the Governor recently issued an executive order restoring voting rights to all people in the state who have completed their criminal sentences. !d.

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Florida's permanent felony disenfranchisement provision remains in force today. Its application to those who have completed their sentences denies the franchise to 5.2% of Florida's total voting-age population. Uggen Rep. at 1, 22 (App. 256a, 296a-97a). One of the starkest consequences of the provision is its disproportionate disenfranchisement of African-Americans, effectuating the State's 1868 intent. Excluding those who are still serving felony sentences, the law disenfranchises 10.5% of votingage African-Americans (approximately 167,000 men and women), as compared to 4.4% of the non-African-American voting-age population. !d.
STATEMENT OF THE CASE
By the close of discovery, petitioners had produced expert evidence that four provisions of the 1868 constitution relevant to the franchise were "intentionally racially discriminatory." Shofuer Rep. at 2 (App. 199a). These provisions apportioned representation so as to dilute black political power; gave the governor the power to appoint most local officials, thereby depriving majority-black localities of the power to elect their leaders; enfranchised exConfederates; and disenfranchised people with felony convictions. The "Radical" Republicans, whose primary goal was to empower newly freed slaves, opposed all four provisions, but an alliance of "Moderate" Republicans and ex-Confederates excluded the "Radicals" from the 1868 Constitutional Convention. !d. Some of the authors of the 1868 constitution later boasted that they had helped "prevent a negro legislature," id. at 16 (App. 224a), and had kept Florida from being "niggerized," Jerrell H. Shofner, The Constitution of 1868, Florida Hist. Q., Apr. 1963, at 374 (App. 305a). More such evidence might exist today had the members of the 1868 Convention not voted to purge the official record. J. Proc. Const. Convention St. Fla., Feb. 20, 1868, at 48-49 (App. 306a-08a).

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With regard to the 1968 reenactment of the felony disenfranchisement provision, Florida adopted a policy of silence, creating no official record of the reasoning underlying the decision to perpetuate permanent felony disenfranchisement. Thus, the parties in this case stipulated that "[t]here is no evidence in the R.H. Gray state archives (Florida's primary archival depository] showing that any[one] ... associated with the 1968 constitutional revision process ever considered the racial implications or consequences of the felon disenfranchisement provision." Joint Pretrial Stipulation of the Parties at 22. Of course, there is also no evidence in the current record that the decision to reenact was untainted by the State's racial motives.3 The district court admitted only one document related to the 1968 reenactment - the minutes of the Suffrage and Elections Committee Meeting of February 2 and 3, 1966, offered by the State. Neither this document nor any other in the record nor any improperly excluded document reveals a legitimate reason for the legislature's decision in 1968 to continue to disenfranchise people with felony convictions for life.
The discriminatory impact of the 1868 provision has persisted for over a century, disenfranchising blacks at far higher rates than others. At the end of the nineteenth century, approximately 48% of Florida's general population was of African descent, deHaven Smith Dep. at 173, while at least 82% of Florida's prison population was AfricanAmerican, id. at 180-83. From the 1968 revision to the present, African-Americans have been disenfranchised because of felony convictions at more than twice the rate of
The district court improperly excluded petitioners' expert report on the history of the 1968 reenactment, 4/18/02 Order Granting Mot. to Exclude Expert Richard Scher (App. 179a-85a), excluded the archival documents that informed the report, 5/30/02 Order Denying Pls.' Mot. to Supplement Record (App. 171a-72a), and then relied on portions of the excluded report in its summary judgment decision, Johnson, 214 F. Supp. 2d at 1339 (App. 160a-61a).

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others. Uggen Rep. at 3, 22 (App. 259a-60a, 296a-97a); Uggen Add. (App. 30la-02a).
This disproportionate disenfranchisement is not simply the result of higher crime rates in the black community. Petitioners introduced evidence that Florida used its criminal justice system to subjugate black citizens from the early days of emancipation until well into the twentieth century. The Black Codes of the late 1860s defined a host of crimes including assault on a white female, vagrancy, and larceny (amended to include the taking of cotton, com, and other agricultural products) - in a manner that targeted ex-slaves. Shofner Rep. at 6-7 (App. 206a-08a). Conviction of these and other "infamous crimes" resulted in disenfranchisement under the 1868 constitution. Id. at 18-19 (App. 229a-30a).
More than a century later, blacks were still systematically excluded from criminal juries, see, e.g., Spencer v. State, 545 So. 2d 1352, 1354-55 (Fla. 1989), and the use of peremptory challenges to exclude blacks from juries continued longer still, see, e.g., Brown v. State, 733 So. 2d 1128, 1129-30 (Fla. Dist. Ct. App. 1999); Foster v. State, 732 So. 2d 22, 23-24 (Fla. Dist. Ct. App. 1999). Thousands of members of the plaintiff class were convicted during the 1960s and 1970s when these practices were commonplace.
And still today in Florida, African-Americans are convicted of felonies at a rate far higher than can be explained by their relative participation in crime. Among those who commit crimes, blacks are disproportionately likely to be arrested and, once arrested, they are disproportionately likely to be convicted. Indeed, at least 2536% of the racial disparity in felony convictions cannot be attributed to differential involvement in criminal activity. Expert Report of Theodore Chiricos, Ph.D. ("Chiricos Rep."), at 7-13, 18-20 & tbls. 2, 3, 4, 9 (App. 320a-27a, 332a-35a, 356a-60a). The discretionary clemency process exacerbates these racial disparities because the rightsrestoration rate is significantly lower for African-American

-7 -
applicants than for others. Uggen Rep. at 5-11 (App. 263a70a); Supplement to Uggen Rep. at 1-8 ("Uggen Supp.") (App. 361a-73a).4
Based on this evidence, petitiOners cross-moved for summary judgment on January 18, 2002; the State had moved for summary judgment two weeks earlier. The district court granted the State's summary judgment motion on all claims on July 18, 2002. Johnson, 214 F. Supp. 2d 1333 (App. 150a). Petitioners appealed to the Court of Appeals for the Eleventh Circuit.
On December 19, 2003, a divided panel of the Eleventh Circuit reversed the district court's grant of summary judgment. Johnson v. Bush, 353 F.3d 1287 (lith Cir. 2003) (App. 86a). With regard to the claim under Section 2 of the VRA, the court ruled that the district court had failed both to apply the proper standard and to consider the relevant evidence under the totality of circumstances test. !d. at 130306 & n.25 (App. 112a-21a & n.25). Viewing the evidence in the light most favorable to petitioners, the court found genuine issues of material fact and remanded for trial on a full evidentiary record. Id. at 1306 (App. 118a-20a). The majority also concluded that petitioners' extensive evidence of the discriminatory intent behind Florida's 1868 felony disenfranchisement provision had created a genuine issue of fact sufficient to withstand summary judgment on their
4 Petitioners' additional evidence of racial bias in Florida's criminal justice system- five reports of the Florida Supreme Court's Racial and Ethnic Bias Study Commission and expert testimony concerning the tendency of Florida's discretionary law enforcement practices to target African-American communities - was erroneously excluded by the district court as untimely based on an ambiguous order. 4/4/02 Order Granting in Part Mot. to Exclude Out-of-Time Evidence (App. 183a-85a). The district court also erroneously excluded as irrelevant an expert report detailing racially polarized voting patterns and analyzing their interaction with Florida's felony disenfranchisement policy. 4/18/02 Order Granting in Part Mot. to Exclude Expert Richard Engstrom (App. 173a-78a).

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Fourteenth and Fifteenth Amendment claims. !d. at 1295-96 (App. 94a-97a). The burden then shifted to the State either to rebut that showing or to prove that the provision was "subsequently reenacted on the basis of an independent, nondiscriminatory purpose." !d. at 1301 (App. 106a-07a). The court remanded for further discovery and trial of these claims. !d. at 1302 & n.19 (App. 11 Oa-11 a & n.19).
On July 20, 2004, the Eleventh Circuit vacated the panel's decision and ordered rehearing en bane. Johnson v. Bush, 377 F.3d 1163 (11th Cir. 2004) (en bane) (App. 85a). On April 12, 2005, the en bane court of appeals affirmed the district court's grant of summary judgment to the State. Johnson, 405 F.3d 1214 (App. 1a). Explicitly acknowledging that "[t]he Circuits are split on this issue," id. at 1227 (App. 25a), the majority held that Section 2 of the VRA has no application to felony disenfranchisement, id. at 1234 (App. 43a). The court reasoned, based on this Court's decision in Richardson v. Ramirez, 418 U.S. 24 (1974), that the Penalty Clause in Section 2 of the Fourteenth Amendment guarantees "Florida's discretion to deny the vote to convicted felons," Johnson, 405 F.3d at 1228-29 (App. 29a-30a). "[I]nterpreting Section 2 of the Voting Rights Act to deny Florida the discretion to disenfranchise felons" would therefore "allow[ ] a congressional statute to override the text of the Constitution." !d. at 1229 (App. 30a). To avoid what it perceived as the consequent "grave constitutional concerns," id. at 1234 (App. 43a), the court read felony disenfranchisement out of the otherwise comprehensive "voting qualification[s] or prerequisite[s] to voting" covered by Section 2 of the VRA, 42 U.S.C. § 1973(a). Having held the VRA inapposite, the court did not determine the sufficiency of petitioners' evidence of the totality of the circumstances in which Florida's felony disenfranchisement law interacts with racial bias in the criminal justice system and the lingering effects of other racial exclusion to result in the disproportionate disenfranchisement of African-

-9 -
Americans. But cf Johnson, 405 F.3d at 1230 n.31 (discounting, in dicta, evidence submitted by petitioners).
As to the constitutional claims, the court of appeals "assume[d], without deciding, that racial animus motivated the adoption of Florida's 1868 disenfranchisement law." Johnson, 405 F.3d at 1223 (App. 18a). Focusing instead on Florida's 1968 reenactment of the provision, the majority emphasized two facts: first, the mere existence of a fourstage revision process; and second, the elimination of a distinct but largely redundant provision of the Florida Constitution that specified crimes triggering disenfranchisement, including certain misdemeanors. !d. at 1220-22 (App. lla-15a) (citing Fla. Const. of 1868, art. VI,§ 5 (1885)). Although both before and after the 1968 reenactment the Florida Constitution disenfranchised people with felony convictions unless and until they received clemency, the court of appeals deemed the 1968 reenactment a substantive alteration.5 Id. The court then concluded that this reenactment, made without explanation of its purpose, eliminated the taint from the discriminatory 1868 provision. !d. at 1224 (App. 20a-21a). The Eleventh Circuit rejected petitioners' argument that under this Court's holding in United States v. Fordice, 505 U.S. 717 (1992), Florida has the burden of establishing a decisive break with the discriminatory origins of its felony disenfranchisement law. Johnson, 405 F.3d at 1225-26 (App. 22a-25a).
The 1868 provision read, in relevant part: "[N]or shall any person convicted of felony be qualified to vote at any election unless restored to civil rights." Fla. Const. of 1868, art. XIV, § 2 (App. 190a). The 1968 provision reads, in relevant part: "No person convicted of a felony ... shall be qualified to vote ... until restoration of civil rights ...." Fla. Const. art. VI,§ 4 (1968) (App. 192a).

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REASONS FOR GRANTING THE PETITION
The Court should grant this petition for two reasons. First, the Court should resolve the split between the Eleventh and Ninth Circuits on the question whether Section 2 of the VRA applies to felony disenfranchisement laws. The answer to this question will determine what redress is available to the hundreds of thousands of minority citizens who now have no say in who governs them. Second, the lower courts are in disarray regarding the evidentiary rules to be followed in the many cases that involve an inquiry into improper governmental purpose. The Court should make explicit its consistent approach: that the state bears the evidentiary burdens of production and persuasion, and must present evidence sufficient to prove that legitimate reasons for a reenactment cure a policy tainted by an original discriminatory purpose.
I. The Court Should Grant the Petition to Resolve the Split in the Circuits on Whether Section 2 of the VRA May Be Applied to Felony Disenfranchisement Laws.
This case squarely presents the important threshold issue of whether felony disenfranchisement laws are actionable under Section 2 of the VRA. Section 2 prohibits "voting qualification[s] or prerequisite[s] to voting" that result in a denial of the right to vote on account of race. 42 U.S.C. § 1973(a). No court has ever placed any voting qualification other than a felony disenfranchisement provision beyond the reach of Section 2. The question of coverage turns on the language of the statute and, in light of the Eleventh Circuit's holding, Congress's enforcement power under the Reconstruction Amendments.
A. The Circuits Are Split on the Question Whether Felony Disenfranchisement Laws Are Subject to Challenge Under Section 2 of the VRA.

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In holding that Florida's felony disenfranchisement law is not subject to challenge under Section 2, the Eleventh Circuit acknowledged that "[t]he Circuits are split on this issue." Johnson, 405 F.3d at 1227 (App. 25a); see also Muntaqim v. Coombe, 366 F.3d 102, 104 (2d Cir.) ("[W]e recognize that this is a difficult question that can ultimately be resolved only by a determination of the United States Supreme Court . . . ."), cert. denied, 125 S. Ct. 480, and reh 'g en bane granted, 396 F.3d 95 (2d Cir. 2004); Farrakhan v. Washington, 359 F.3d 1116, 1126-27 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en bane).
There is a direct conflict between the Ninth and the Eleventh Circuits. The Ninth Circuit, in a straightforward application of the text of the statute, held that a claim of vote denial is cognizable under Section 2 of the VRA because felony disenfranchisement is plainly a "voting qualification" within the ordinary meaning of the statutory term. Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir. 2003), cert. denied sub nom. Locke v. Farrakhan, 125 S. Ct. 477 (2004). Thus, whether a particular state's felony disenfranchisement law creates racial inequality in voting is to be determined based on the merits of the individual case. !d. at 1016-17. In contrast, in the case before this Court, the Eleventh Circuit did not focus on the text of Section 2, but rather reasoned that without a clear congressional statement of specific intent, the Penalty Clause of the Fourteenth Amendment places felony disenfranchisement laws, unlike all other voting qualifications, beyond the reach of Congress's power to redress race discrimination in voting. See Johnson, 405 F.3d at 1228-34 (App. 29a-43a).
Like the Ninth Circuit, the Fourth and Sixth Circuits have allowed challenges to state felony disenfranchisement laws to proceed under Section 2, and these courts did not even question whether such laws are covered by the VRA.

- 12-
Howard v. Gilmore, No. 99-2285, 2000 WL 203984, at *1 (4th Cir. Feb. 23, 2000) (unpublished) (App. 193a-96a) (dismissing claim for failure to plead that there was "any nexus between the disenfranchisement of felons and race");6 Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (assuming the applicability of Section 2 to a felony disenfranchisement statute, but concluding that "in the context of the 'totality of the circumstances,' it is apparent that the challenged legislation does not violate the Voting Rights Act").
In addition, the Second Circuit has twice considered the issue without arriving at a binding conclusion. First, sitting en bane in Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996), the court divided equally on the question. Id. at 921-22, 934, 940. More recently, in Muntaqim, a panel held that Section 2 of the VRA did not apply to New York's felony disenfranchisement statute. 366 F.3d at 104. After this Court denied certiorari, 125 S. Ct. 480 (2004), the Second Circuit sua sponte granted en bane review of the panel decision, 396 F.3d 95 (2d Cir. 2004), and heard arguments on June 22, 2005.
The circuit courts' conflicting approaches create inconsistent levels of federal protection for the voting rights of racial minorities. Geography now determines whether criminal disenfranchisement laws, including permanent bans on voting by anyone convicted of a felony, may be challenged under the VRA. Of the four states that permanently disenfranchise all citizens convicted of felonies, two - Virginia and Kentucky - lie in circuits that treat Section 2 challenges to those laws as cognizable. See Howard, 2000 WL 203984 (App. 193a); Wesley, 791 F.2d 1255. But the Eleventh Circuit ruling below cuts off redress
6 The Fourth Circuit permits citation to unpublished opinions if "there is no published opinion that would serve as well ...." 4th Cir. R. 36(c).

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under Section 2 of the VRA for the 613,000 Florida petitioners in this case, and the more than 148,000 citizens of Alabama, who have completed their sentences but remain barred indefinitely from the polls. Marc Mauer & Tushar Kansal, Barred for Life: Voting Rights Restoration in Permanent Disenfranchisement States 6 tbl. (2005), at http://www. sentencingproj ect. org/pdfslbarredforlife. pdf.
B. The Decision Below Rests on a Fundamental Misreading of the Constitution That Calls for this Court's Correction.
Though couched in terms of statutory interpretation, the Eleventh Circuit's refusal to apply Section 2 of the VRA to felony disenfranchisement laws rests on that court's judgment that such an application would potentially violate the Constitution. The en bane majority reasoned that applying Section 2 to Florida's law would create "a serious constitutional question by interpreting the Voting Rights Act to conflict with the text of the Fourteenth Amendment." Johnson, 405 F.3d at 1230 (App. 32a).
The Eleventh Circuit's conclusion that felony disenfranchisement is immune from challenge under Section 2 because it is expressly protected by the Constitution, id. at 1228-30 (App. 29a-34a), overstates this Court's reasoning in Richardson v. Ramirez, 418 U.S. 24 (1974), ignores the holding in Hunter v. Underwood, 471 U.S. 222 (1985), and allows the exemption of criminal disenfranchisement from the Penalty Clause of the Fourteenth Amendment to trump the Fifteenth Amendment's subsequently enacted and unqualified ban on race discrimination in voting.
In the Penalty Clause of the Fourteenth Amendment, the Reconstruction Congress recognized that former Confederate states might deny voting rights to freedmen and created a broad, structural penalty for such disenfranchisement. The Clause also created a limited exception to that penalty:

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[W]hen the right to vote ... 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 [in Congress] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
U.S. Canst. amend. XIV, § 2 (emphasis added).
In Richardson, this Court relied on the Penalty Clause's exemption of criminal disenfranchisement from the sanction of reduced representation in Congress to reject a nonracial, equal protection challenge to provisions of the California Constitution that permanently disenfranchised certain felons. 418 U.S. at 42-43. The Court reasoned that the framers of the Fourteenth Amendment "could not have intended to prohibit outright in [the Equal Protection Clause of] § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment." !d. at 43; see also id. at 55.
Yet when this Court faced a challenge to criminal disenfranchisement on the grounds that the provision was enacted in order to disqualify blacks from voting, it found the Penalty Clause exemption inapposite. Hunter, 471 U.S. at 233. In Hunter, the Court struck down Alabama's criminal disenfranchisement law, observing that the "implicit authorization of § 2 [of the Fourteenth Amendment] ... was not designed to permit the purposeful racial discrimination attending the enactment and operation of [a law] which otherwise violates § 1 of the Fourteenth Amendment," and noting that nothing in Richardson is to the contrary. Id. Thus, Hunter stands for the proposition that criminal disenfranchisement laws do violate the Constitution when

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enacted with the intent to deprive one racial group of its fundamental right to participate in the political process. !d.
Under Hunter and Richardson, then, felony disenfranchisement laws are not per se unconstitutional, but they are unconstitutional if they deliberately abridge the right to vote on account of race. See Richardson, 418 U.S. at 55; Hunter, 471 U.S. at 231-33. This interpretation is mirrored in Congress's exercise of its enforcement power through the VRA: felony disenfranchisement laws are not prohibited per se in Section 4 of the VRA, but may be evaluated on a caseby-case basis for their discriminatory effects under Section 2. See 42 U.S.C. §§ 1973, 1973b; see also Johnson, 405 F.3d at 1249 (Barkett, J., dissenting) (App. 78a) (criticizing the en bane majority for "overlook[ing] the distinction between felon disenfranchisement laws generally and the narrow subset of such laws that result in racial discrimination").
In addition to Hunter's express recognition of a Fourteenth Amendment right to be free from racially discriminatory criminal disenfranchisement, the text, logic, and history of the Fifteenth Amendment undercut the Eleventh Circuit's approach. The Fifteenth Amendment makes no exception for criminal disenfranchisement. When disenfranchisement is intentionally racially discriminatory, the Fifteenth Amendment supersedes the earlier adopted Penalty Clause - replacing its structural penalty with an outright prohibition. There is thus no logical reason to assume that the Penalty Clause's race-neutral exemption from its general penalty was implicitly imported into the Fifteenth Amendment's prohibition against discrimination in voting based on race. Indeed, in crafting the Fifteenth Amendment, the Reconstruction Congress repeatedly considered exempting criminal disenfranchisement laws from the general ban on race discrimination in voting and rejected every such exception. See, e.g., 67 H.R.J. 232-37 (1869); Cong. Globe, 40th Cong., 3d Sess. 724 (1869). The Eleventh

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Circuit would nevertheless allow the exemption within the Fourteenth Amendment's Penalty Clause to immunize felony disenfranchisement laws from congressional enforcement of the Fifteenth Amendment's subsequent, specific, and exceptionless ban on race discrimination in voting.
Once it is clear - as it is from Hunter and an analysis of the text and history of the Fifteenth Amendment - that there is a constitutional right to be free of racially discriminatory felony disenfranchisement, nothing supports any special limit on Congress's remedial power. Congressional power under the enforcement clauses of the Reconstruction Amendments is strongest when protecting fundamental rights, see, e.g., Tennessee v. Lane, 541 U.S. 509, 518 & n.4, 532 n.20 (2004), and when providing injunctive protection against state practices subject to heightened judicial scrutiny under the Equal Protection Clause, see, e.g., Nev. Dep 't of Human Res. v. Hibbs, 538 U.S. 721, 736, 738 (2003). Enforcement of the Fifteenth Amendment implicates both the most fundamental of all democratic rights - voting - and the paradigmatic "suspect class" - race. Unsurprisingly, then, Congress's enforcement power was at its zenith in enacting the VRA. See Lane, 541 U.S. at 518 n.4; Hibbs, 538 U.S. at 737-38; Lopez v. Monterey County, 525 U.S. 266, 282-85 (1999); City ofBoerne v. Flores, 521 U.S. 507, 530 (1997).
The Eleventh Circuit majority stopped short of holding that Congress lacked the power to reach Florida's felony disenfranchisement law under Section 2 of the VRA. The court held instead that the "grave constitutional questions" raised by such an application compelled it to invoke the doctrine of constitutional avoidance. Johnson, 405 F.3d at 1229 (App. 32a). Because that doctrine depends on locating ambiguity in the statute, Pa. Dep 't of Corrs. v. Yeskey, 524 U.S. 206, 212 (1998), the court sought and found ambiguity in the statutory phrase "on account of race or color," Johnson, 405 F.3d at 1229 n.30 (App. 31a-32a n.30). But

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any uncertainty under subsection (a) about whether a particular voting qualification results in discrimination "on account of race or color" is resolved by subsection (b), which specifies that "[a] violation of subsection (a) . . . is established" by the totality of circumstances test, which is further illuminated in the accompanying Senate Report. 42 U.S.C. §§ 1973(a), (b); S. Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177 et seq.; Thornburg v. Gingles, 478 U.S. 30, 43-45 (1986) (treating the Senate Report as controlling the analysis). The only remaining question then is how Florida's provision fares under the VRA's totality of the circumstances test, 42 U.S.C. § 1973(b), which is a factual determination for trial.
Similarly, the en bane court misapplied the clear statement rule. Although this rule also operates only when a statute is ambiguous, Yeskey, 524 U.S. at 209-12, which Section 2 of the VRA is not,7 the Eleventh Circuit required "a clear statement from Congress that it intended [the] constitutionally-questionable result" of covering felony disenfranchisement, Johnson, 405 F.3d at 1232 (App. 37a38a). Finding no clear statement, the court refused to apply Section 2 of the VRA to the Florida provision. Id. (App. 38a). By this logic, a VRA challenge would be barred even when a state had habitually violated the Constitution by using its felony disenfranchisement laws to discriminate intentionally against black voters.
In contrast to the Eleventh Circuit's convoluted constitutional analysis, the Ninth Circuit reasoned in a straightforward way, without resort to invented ambiguity. The court first observed that felony disenfranchisement laws are "voting qualification[s]" within the ambit of the Act's
See Chisom v. Roemer, 501 U.S. 380, 412 (1991) (Scalia, J., dissenting) ("[W]e tacitly rejected a 'plain statement' rule as applied to the unamended [VRA] § 2 in City ofRome ....").

- 18-
ban on any "voting qualification ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account ofrace," 42 U.S.C. § 1973(a). Farrakhan, 338 F.3d at 1016. Because "Section 2 is clear that any voting qualification that denies citizens the right to vote in a discriminatory manner violates the VRA," id., the Ninth Circuit reasoned that the plaintiffs' claim of vote denial was cognizable. The court saw no constitutional reason to look beyond the plain meaning of the statute or to create special exemptions for felony disenfranchisement. The Ninth Circuit recognized what this Court made clear in Hunter: "[S]tates cannot use felon disenfranchisement as a tool to discriminate on the basis of race." !d. (citing Hunter, 471 U.S. at 233). Regarding Congress's intentions, the court pointed to the breadth of Section 2' s coverage, noting that "Congress specifically amended the VRA to ensure that, 'in the context of all the circumstances in the jurisdiction in question,' any disparate racial impact of facially neutral voting requirements did not result from racial discrimination." !d. (quoting the Senate Report and citing Chisom, 501 U.S. at 394 & n.21); cf In re England, 375 F.3d 1169, 1179 (D.C. Cir. 2004) (acknowledging that the Supreme Court has repeatedly instructed that statutes written in broad language should be given broad application) (citations omitted), cert. denied sub nom. Chaplaincy ofFull Gospel Churches v. England, 125 S. Ct. 1343 (2005).
Thus the Ninth Circuit expressly, and the Fourth and Sixth Circuits by implication, treat challenges to felony disenfranchisement laws under Section 2 of the VRA as they would challenges to any other voting qualification. Rather than requiring heightened evidence of legislative intent, they evaluate whether plaintiffs have properly alleged and can prove that in "the totality of circumstances," a challenged provision creates inequality in different racial groups' opportunities "to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).

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C. This Case Is a Good Vehicle for Resolving the Question Presented.
This case comes to the Court on summary judgment with a factual record that includes strong evidence ofthe objective factors specified by the Senate as relevant to liability under Section 2 of the VRA. 8 The strong Senate-factor evidence is relevant to the question presented because Congress could not have intended to omit coverage of a voting qualification that interacts so strongly with the very factors Congress identified as typically creating Section 2 violations.
In this case, the record is so strong on the first Senate factor - historical discrimination in voting - and so weak on the last factor- the State's reasons for maintaining the policy - that petitioners have an independent claim of intentional race discrimination under the Fourteenth and Fifteenth Amendments. See infra Part II. In addition, petitioners presented evidence that the discriminatory impact of
8 The Senate Report that accompanied the 1982 amendments to Section 2 sets out a non-exhaustive list of factors relevant to a claim: "the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group . . . ; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction." Gingles, 478 U.S. at 44-45 (citing S. Rep. No. 97-417, at 28-29, reprinted in 1982 U.S.C.C.A.N. at 206-07). The Report also notes the probative value of evidence demonstrating that elected officials are unresponsive to the particular needs of the minority group and that the State has only tenuous reasons for maintaining the challenged policy. S. Rep. No. 97-417, at 29, reprinted in 1982 U.S.C.C.A.N. at 207.

-20-
Florida's felony disenfranchisement provision results in part from discrimination in another area - the criminal justice system, where racial disparities in felony convictions cannot be explained by higher rates of crime in the black community. See Chiricos Rep. (App. 310a). These disparities are aggravated by voting practices and procedures that tend to enhance the opportunity for racial discrimination. For example, the clemency process aggravates racial disparities by restoring voting rights to whites at higher rates than to blacks. See Uggen Rep. at 5-11 (App. 263a-70a); Uggen Supp. at 1-8 (App. 361 a-73a). The process for purging the voter lists in 1998-2000 further aggravated these disparities. See Fla. Stat. ch. 98.0975 (repealed 2001); U.S. Comm'n on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, ch. 5 (200 1), available at http://www.usccr.gov/pubs/vote2000/report/main.htm. In addition, elections in Florida are characterized by racially polarized voting, Uggen Rep. at 11-12,9 and only rarely result in the election of black candidates, David A. Bositis, Black Elected Officials: A Statistical Summary 2001, at 16 tbl.3 (Joint Ctr. for Political & Econ. Studies 2003), available at http://www.jointcenter.org/publications1/publication-PDFs/ BEO-pdfs/2001-BEO.pdf. See Gingles, 478 U.S. at 44-45.
Taking the evidence in the light most favorable to petitioners, as is required on summary judgment, Florida's felony disenfranchisement law is a voting qualification originally adopted as part of a multi-faceted scheme to disenfranchise African-Americans in a state whose history is replete with official race discrimination. The challenged provision continues to defeat black Floridians' electoral preferences today by disenfranchising them at twice the rate
9 See also Solomon v. Liberty County, 899 F.2d 1012, 1020-21 (11th Cir. 1990) (equally divided court) (Kravitch, J., concurring); id. at 1037 (equally divided court) (Tjoflat, C.J., concurring); NAACP v. Gadsden County Sch. Bd., 691 F.2d 978, 982-83 (11th Cir. 1982).

- 21 -
of the rest ofFlorida's electorate. Uggen Rep. at 1, 22 (App. 256a, 296a-97a). In deciding whether challenges to felony disenfranchisement laws are cognizable under Section 2, this Court should have before it the kind of record this case presents, demonstrating the extent to which such laws may "interact[ ] with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives," just as Congress anticipated. Gingles, 478 U.S. at 47.
II. The Court Should Grant the Petition to Make Clear That the State Bears the Burden of Proving a Legitimate Purpose for Reenacting a Provision Originally Enacted with Discriminatory Intent.
If there had been no 1968 reenactment of Florida's policy of permanent felony disenfranchisement, the outcome of this challenge would be clear. Because the 1868 provision was enacted to discriminate against black citizens and has continuously had that effect, it would be unconstitutional under Hunter, 471 U.S. 222. The Eleventh Circuit concluded, however, that because petitioners had not demonstrated racist intent behind the 1968 reenactment, their constitutional challenge evaporated. Johnson, 405 F.3d at 1223-26 (App. 17a-25a). The majority deviated from both this Court's precedents and its own in placing the evidentiary burdens on petitioners and insisting that they prove racist intent anew in 1968, despite the provision's tainted origin and continuing discriminatory impact.
Reenactments have caused widespread confusion concerning the allocation and description of the burdens of proof on the crucial issue of discriminatory purpose. The lower courts approach haphazardly and answer inconsistently the questions of who bears the burdens of production and persuasion, and what evidence is sufficient, to prove that a reenactment has cleansed a law tainted by an original

-22-
unconstitutional purpose. The confusion is not unique to felony disenfranchisement cases. It arises in cases involving elections systems, redistricting, education reform, and the establishment of religion. ln view of the pervasiveness of the issue and the disarray in the lower courts, this Court should grant review in this case to articulate a clear evidentiary rule to govern challenges to the reenactment of policies once adopted for discriminatory reasons.
A. This Court Has Followed a Consistent Approach to Assessing the Constitutionality of the Reenactment of Policies Tainted by an Impermissible Purpose.
This Court has already developed and consistently employed two straightforward evidentiary devices capable of resolving the confusion in the lower courts: a shift in both the burdens of production and persuasion, and careful consideration of the evidence regarding the purpose for a law's reenactment. The Court's decisions reveal that: (1) a state reenacting a policy tainted by an impermissible purpose bears the burden of proving that legitimate reasons motivated the reenactment, thus purging any taint; and (2) the state may carry this burden only by producing credible and contemporaneous evidence showing that the primary reason for reenacting the policy was valid.
Almost thirty years ago, this Court explained that state policies adopted with a discriminatory purpose are unconstitutional. See Washington v. Davis, 426 U.S. 229, 239-42 (1976). Shortly afterwards, in two companion cases, the Court made clear that if an improper purpose is shown to be a substantial or motivating factor in a policy's adoption, the burden shifts to the state to prove by a preponderance of the evidence that "the same decision would have resulted even had the impermissible purpose not been considered." Village ofArlington Heights v. Metro. Hous. Dev. Corp., 429

- 23-
U.S. 252, 270 & n.21 (1977); Mt. Healthy City Sch. Dist. Bd. ofEduc. v. Doyle, 429 U.S. 274,287 (1977).
Then, in Hunter, this Court recognized that the taint of improper purpose persists through time. The Court held Alabama's criminal disenfranchisement provision - adopted with discriminatory intent and yielding continuous discriminatory impact - to be unconstitutionally tainted eighty-four years after its passage. Hunter, 471 U.S. at 233. The Court reserved the possibility that a reenactment of the policy for legitimate reasons might render it constitutional. !d. Given proof of initial improper intent and continuing discriminatory impact, however, the Court repeated that the burden shifts to the state to establish the tainted policy's legitimacy. !d. at 228.
In United States v. Fordice, 505 U.S. 717 (1992), this Court addressed for the first time a state's attempt to purge, through a subsequent reenactment, the taint of a policy originally enacted with unconstitutional intent. The case concerned several policies maintained by Mississippi's historically white universities. One such policy conditioned admission on minimum standardized test scores that were just under the average for white students but double the average for black students. !d. at 734. The state had adopted the standards for the purpose of excluding blacks after James Meredith was admitted to the University of Mississippi under court order. See Ayers v. Allain, 914 F.2d 676, 679-80 (5th Cir. 1990) (en bane), vacated sub nom. United States v. Fordice, 505 U.S. 717 (1992); Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962). Three decades later, the policy continued to disqualify a disproportionate number of blacks from attending historically white universities. Fordice, 505 U.S. at 734. A class of black citizens sued under the Equal Protection Clause. Affirming the dismissal of their suit, the en bane Fifth Circuit focused not on the original intent of the policy in 1963, but instead on the state's intent in the mid-

-24-
1970s, when it readopted and amended the policy for the alleged purpose of addressing the under-preparation of incoming students. Ayers, 914 F.2d at 690. In the Fifth Circuit's view, the state's articulated reason for retaining the test standards in the 1970s purged their taint. Id.
This Court reversed, employing the evidentiary devices described above. All nine members of the Court recognized that because Mississippi's policies were "enacted originally to discriminate against black students," Fordice, 505 U.S. at 734, Mississippi bore the ultimate burden to prove proper justification for their readoption and continued implementation, see id. at 731, 739 (imposing on the state the burden to prove a clean break from prior intentional discrimination); id. at 744 (O'Connor, J., concurring) (same); id. at 746-47 (Thomas, J., concurring) (placing the burden to prove proper justification squarely on the state); id. at 758-59 (Scalia, J., concurring in the judgment in part and dissenting in part) (finding that in the face of policies once adopted with discriminatory intent, "the District Court should have required Mississippi to prove that its continued use of [standardized test] requirements does not have a racially exclusionary purpose and effect"). The Court was firm as well in its skeptical treatment of the state's asserted nondiscriminatory purpose. See id. at 734 (rejecting as a "midpassage justification" state evidence that test standards were maintained to address students' lack of preparedness for college); id. at 744 (O'Connor, J., concurring) ("[T]he courts below must carefully examine Mississippi's proffered justifications for maintaining a remnant of de jure segregation to ensure that such rationales do not merely mask the perpetuation of discriminatory practices.").
In his concurrence, Justice Thomas noted that the Court had, in effect, placed the burden of persuasion on the state:

- 25-
A challenged policy does not survive under the standard we announce today if it began during the prior de jure era, produces adverse impacts, and persists without sound educational justification. When each of these elements has been met, I believe, we are justified in not requiring proof of a present specific intent to discriminate. . . . And given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time, both because the State has created the dispute through its own prior unlawful conduct, and because discriminatory intent does tend to persist through time. . . . Thus, if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear- clear enough to presume conclusively - that the State has failed to disprove discriminatory intent.
!d. at 746-47 (Thomas, J., concurring) (internal citations omitted). Justice Thomas thus explained the approach this Court has developed: given a policy initially tainted by and continuing to effectuate a state's discriminatory intent, the state bears the burden of persuading a factfinder that it had independent, legitimate reasons for retaining the policy at the time of its reenactment.
This Court most recently confronted the reenactment of a policy initially tainted by an impermissible purpose in McCreary County v. ACLU of Kentucky, 125 S. Ct. 2722 (2005). McCreary County involved three decisions by county governments to install a display honoring the Ten Commandments. The first two decisions were undertaken with the impermissible intent to advance religion. !d. at 2738-39. While refusing to find that these "past actions forever taint any effort" to reinstall a Ten Commandments display, id. at 2741, the McCreary County Court shifted the

-26-
burdens of production and persuasion to the counties to justify the final display, see id. at 2739-40 & n.18 (reviewing and rejecting counties' stated purposes, and noting that the counties had not demonstrably "cast off' the earlier improper objective). The Court also held that the secular purpose the government proffers "has to be genuine, not a sham," as well as "preeminent" or "primary," id. at 2735-36 (internal quotations omitted). And it viewed the evidence offered through the eyes of an "objective observer ... presumed to be familiar with the history of the government's actions and competent to learn what history has to show." !d. at 2737.
The evidentiary standards applied in Fordice and McCreary County rest on unassailable legal principles. In the event of a reenactment of a tainted policy, the plaintiff has already carried the burdens of production and persuasion to prove the existence of a past unconstitutional motive, thereby establishing the taint. This proof overcomes the general presumption that government policies are constitutional. On the contrary, a tainted policy is unconstitutional, and it stays that way until the state wipes it clean. See Hunter, 471 U.S. at 233. Because it is the state's obligation to purge the taint, it only makes sense for the state to bear the evidentiary burdens in proving that it has done so. That is the logic of the burden shift imposed in Arlington Heights, 429 U.S. at 270 n.21, Mt. Healthy, 429 U.S. at 287, and Hunter, 471 U.S. at 228. Fordice and McCreary County add only that a reenactment, in itself, does not shift these burdens back to the plaintiff; a reenactment may indeed cure a policy's unconstitutionality, but the state must prove that it has done so. As to the content of this proof, government policies in general must be supported by a valid and rational purpose; so, too, must a reenactment. In proving that it retained or reenacted the policy for legitimate reasons, the state breaks the link with the policy's unconstitutional origin. Thus, the initial discriminatory purpose can no longer be viewed as a cause of the continuing discriminatory effects.

-27-
The instant case involves the intersection of two rights that demand the highest level of constitutional protection: the right to participate in the political process and to be free of race discrimination in doing so. Petitioners are entitled to enhanced evidentiary protections because the State has previously and purposefully infringed both rights.
B. The Lower Courts Are Not Following this Court's Approach, or Any Coherent Approach, in Assessing the Constitutionality of the Reenactment of Policies Tainted by an Impermissible Purpose.
Despite this Court's consistent application of these evidentiary rules, the lower courts are disregarding this precedent and reaching inconsistent results - in some cases, like this one, results at odds with this Court's decisions and inadequately protective of the constitutional rights at stake.
The Fourth Circuit recognized- and then avoided- the issue of the allocation of evidentiary burdens. In Irby v. Virginia State Board of Elections, 889 F.2d 1352 (4th Cir. 1989), the court confronted Virginia's decision to continue appointing rather than electing school board members. The appointive system was retained in 1901 - and reenacted in 1956 - in order to discriminate against black citizens. !d. at 1354. The policy was then reenacted on several subsequent occasions, with and without explanation. The Fourth Circuit declined to decide whether the finding of discriminatory intent in 1901 and 1956 "shifts to the defendants [the burden] to prove that the system is not currently being maintained for discriminatory purposes." !d. at 1355. Instead, the court assumed such a shift and held that the defendants had carried their burden. The Irby court expressed skepticism that the taint could be purged by a 1971 revision that made "dramatic (and racially progressive) changes [to its constitution] in other areas pertaining to education," but retained "the school

- 28-
board selection provlSlon . . . without change and with virtually no debate." !d. at 1356. Ultimately, however, the court held that the state defendants had "met their burden of rebutting the inference of discriminatory intent" by submitting evidence that the policy had been retained in 1984 on purely nondiscriminatory grounds. !d.
The Fifth Circuit's decisions reflect an unacknowledged internal conflict, first placing both evidentiary burdens as to legitimate intent on the challenger, and later reviewing with care the state's justification for a reenactment. In 1998, the Fifth Circuit held that, although Mississippi's criminal disenfranchisement provision was originally "motivated by a desire to discriminate against blacks," a reenactment "removed the discriminatory taint associated with the original version." Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998). Because the plaintiff had not proved impermissible intent at the reenactment stage, the court saw no constitutional wrong. Two years later, however, the same court looked to the state's evidence of its motives in retaining a policy. Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000). When a redistricting plan allegedly adopted with racial motivation was later reenacted, the court inquired into "the state of mind of the reenacting body" and found that "the City had valid reasons to adhere to its prior borders distinct from the [purportedly tainted] grounds which led to their adoption." !d. at 520-21.
The Eleventh Circuit has changed its approach in the other direction, first placing both burdens of proof on the state and most recently, in this case, lifting the burdens from the state altogether and placing them on petitioners. In Knight v. Alabama, 14 F.3d 1534 (11th Cir. 1994), the Eleventh Circuit considered a challenge to Alabama's classification of its universities on racial lines, with more limited educational missions assigned to the historically black institutions. The plaintiffs there proved that this

-29-
system was traceable to de jure segregation. !d. at 1544. The court of appeals made clear that, under Fordice, "'the burden of proof [then] falls upon the State, and not the aggrieved plaintiffs,"' to establish a clear break from the prior unconstitutional policy. !d. at 1541 (quoting Fordice, 505 U.S. at 739 (alteration in original)). The court held that the state did not carry this burden by producing evidence of its reconsideration and reaffirmation of the classification system in 1974 and again in 1985, because the system remained, nevertheless, a "vestige of segregation," id. at 1542-45. See Brown v. Bd. of Sch. Comm 'rs, 542 F. Supp. 1078, 1090 & n.l1, 1105-06 (S.D. Ala. 1982) (invalidating Alabama's imposition of an at-large voting system motivated in 1876 by discriminatory intent and faulting the state for failing to show how a 1919 reenactment might have purged the taint), aff'd, 706 F.2d 1103 (11th Cir. 1983).
In contrast, the Eleventh Circuit's current rule allows a policy initially designed to advance an unconstitutional purpose to be cleansed if the state reenacts it through a multistep process, with marginal textual modifications that leave the substance intact, and with complete silence as to its objective. Johnson, 405 F. 3d at 1220-22, 1224-25 (App. 11a-15a, 20a-23a). The court put petitioners to the task of proving a racist motive behind the reenactment in 1968, as if the law were newly minted and the hundred-year history of racial discrimination that produced it made no difference.
Such an unfair result is inconsistent with this Court's requirement that states show a definitive break with the racist origins of laws they decide to perpetuate despite their continuing discriminatory impact. Review by this Court is necessary to ensure, in this and an array of similar cases, that challenges to the reenactment of laws with odious origins and continuing discriminatory effects are resolved under the appropriate allocation and definition of the burdens of proof.

- 30-
CONCLUSION
For these reasons, petitioners respectfully request that this Court grant this petition for a writ of certiorari to review the judgment of the Eleventh Circuit in this case.

Dated: Aug. 10, 2005

Respectfully submitted,

Of Counsel James E. Johnson Caroline H. Moustakis Philip Rohlik Gregory A. Diamond Shanya Dingle
DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 (212) 909-6000

Catherine Weiss Counsel ofRecord
Burt Neubome Deborah Goldberg Jennifer Weiser Justin Levitt
BRENNAN CENTER FOR JUSTICE ATNYU SCHOOLOFLAW 161 Sixth Avenue, 12th Fl. New York, NY 10013 (212) 998-6730

Anita S. Earls
UNC SCHOOLOFLAW CENTER FOR CIVIL RIGHTS CB No. 3380 Chapel Hill, NC 27599 (919) 843-7896

Jessie Allen
NYU SCHOOLOFLAW 40 WASHINGTON SQUARE SOUTH NEW YORK, NY 10012 (212) 998-6449

Jon M. Greenbaum Cara Fineman
LAWYERS' COMMITTEEFOR CIVIL RIGHTS UNDER LAW 1401 New York Ave., N.W. Suite 400 Washington, DC 20005 (202) 662-8600

 
 353 F.3d 1287 (2003)
Thomas JOHNSON, Derrick Andre Thomas, et al., in their own right and as representatives of all ex-felon citizens of Florida, Plaintiffs-Appellants. Omali Yeshitela, Plaintiff, v.
GOVERNOR OF the STATE OF FLORIDA, Jeb Bush, Secretary of the State of Florida, Katherine Harris, et al., in their roles as members of the Clemency Board of Florida,
Beverly Hill, Alachua County Election Supervisor, et al., Defendants-Appellees.
No. 02-14469.
United States Court of Appeals, Eleventh Circuit.
December 19, 2003.
12898901 *1288 *1289 *1290 *1291 Jessie Allen, Deborah Goldberg, New York City, for Plaintiffs-Appellants.
Charles J. Cooper, David H. Thompson, Hamish Hume, Derek L. Shaffer, Cooper & Kirk, PLLC, Washington, DC, Jeffrey Paul Ehrlich, Miami, FL, Robert C. Buschel, Buschel, Carter, Schwartzrcich & Yates, Michael David Cirullo, Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, FL, H. Ray Allen, III, Tampa, FL, for DefendantsAppellees.
James J. Benjamin, Jr., Nancy Chung, Akin, Gump, Strauss, Hauer & Feld, LLP, Paul A. Engelmayer, Wilmer, Cutler & Pickering, New York City, John Russell-Cotes Cosgrove, Menlo Park, CA, Charles S. Treat, San Francisco, CA, Mark L, Gross, Clay G. Guthridge, U.S. Dept. of Justice, Washington, DC, Stacey Michelle 1292 Schwartz, Akin, Gump, Strauss, Hauer & *1292 Feld, LLP, Fort Lauderdale, FL, for Amici Curiae.
Before BARKETT and KRAVITCH, Circuit Judges, and FULLAM[*], District Judge.
BARKETT, Circuit Judge:
On September 21, 2000, eight Florida citizens[1] ("the Plaintiffs") filed this class action lawsuit on behalf of all Florida citizens who have been convicted of a felony and successfully completed all terms of incarceration, probation, or parole, but who are still ineligible to vote under Florida's felon disenfranchisement law.[2] The Florida Constitution provides that "[n]o person convicted of a felony ... shall be qualified to vote or hold office until restoration of civil rights or removal of disability." Fla. Const. art. VI, § 4 (1968). The Plaintiffs sued members of Florida's Clemency Board in their official capacity[3] ("the Defendants"), alleging that this law violates the First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to the United States Constitution and Sections 2 and 10 of the Voting Rights Act of 1965, codified as amended at 42 U.S.C. § 1973 et seq. After excluding certain expert testimony, the district court granted summary judgment to the Defendants on all claims, and the Plaintiffs now appeal. We affirm the district court's grant of summary judgment on the Plaintiffs' poll tax claim, but, because there are disputed issues of fact to be resolved, we reverse and remand for further proceedings on the equal protection and voting rights claims.
I. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same legal standards as the district court. Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224-25 (11th Cir.2002). Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In evaluating the argument of the moving party, the district court must view all evidence in the light most favorable to the non-moving party and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999). If the record

presents factual issues, or if reasonable minds might disagree about the inferences arising from the facts, then the court should deny summary judgment. Id. On a motion for summary judgment, the district court may not weigh evidence or find facts. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir.2003). We review rulings to exclude expert testimony for abuse of discretion. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir.2002).
1293 *1293 II. EQUAL PROTECTION CLAIM
Observing that Florida is one of only seven states that permanently disenfranchise first-time convicted felons unless they receive clemency, the Plaintiffs allege in their first claim on appeal that (1) the Florida Constitution's provision mandating felon disenfranchisement was adopted in 1868 with the intent to discriminate against African-American voters, (2) the intent of the 1868 framers remains operative despite the provision's reenactment in 1968, and (3) the provision had and continues to have the discriminatory effect intended. As such, the Plaintiffs contend that the provision violates the Equal Protection Clause, which prohibits any State from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
To decide whether a facially neutral law invidiously discriminates on the basis of race in violation of equal protection, an important factor to consider is whether its impact bears more heavily on one race than another. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). In this case, the Plaintiffs have presented evidence that Florida's disenfranchisement of felons has a disproportionate impact on African Americans.[4] According to that evidence, Florida currently disenfranchises over 613,000 men and women on account of a prior felony conviction. Doc. 121 at 490. When Florida enacted its most recent constitution in 1968, voting-age African Americans were more than twice as likely as non-African Americans to be barred from the vote on account of a prior felony conviction. See Doc. 163 at Addendum. The disparity is even more pronounced today. Approximately 10.5% of voting-age African Americans in Florida 0907 over 167,000 men and women 0907 are now disenfranchised as ex-felons, compared with 4.4% of the non-African-American population. Doc. 121 at 509. More than one in six adult African-American males in Florida are disenfranchised due to a prior felony conviction. Doc. 121 at 509. Moreover, using arrest rates as a proxy for criminal involvement, the Plaintiffs have offered evidence that between 25 and 36 percent of the racial disproportionality in felony convictions 0907 and therefore disenfranchisement due to felony convictions 0907 cannot be explained by differential involvement in crime by race. Doc. 120 at 20-23. Thus, the Plaintiffs have presented sufficient evidence of racially disproportionate impact both in 1968 and today to support their position on this issue at summary judgment.
However, although relevant, disproportionate impact alone is not sufficient to prove invidious racial discrimination in violation of the Fourteenth Amendment. Davis, 426 U.S. at 242, 96 S.Ct. 2040. To prove that a facially neutral law with racially disproportionate effects violates the Equal Protection Clause, the Plaintiffs must show that racially discriminatory intent was a substantial or motivating factor behind its adoption, although it need not be the only factor. See Arlington Heights, 429 U.S. at 264-65, 97 S.Ct. 555 ("[Washington v. Davis] does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said 1294 that a legislature or administrative body operating *1294 under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the `dominant' or `primary' one.").
The evidentiary inquiry into discriminatory motive is rarely simple: "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266, 97 S.Ct. 555. Although a general history of past discrimination "cannot, in the manner of original sin, condemn governmental action that is not itself unlawful," City of Mobile v. Bolden, 446 U.S. 55, 74, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the particular law's historical background is a source of probative evidence of intent. See Arlington Heights, 429 U.S. at 266-67, 97 S.Ct. 555. "The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes." Id. at 267, 97 S.Ct. 555. Moreover, proof of discriminatory intent behind a specific policy in the past creates an inference that the impermissible purpose continues into the present, despite the passage of time and even, in some instances, intervening changes to the policy. See Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (observing that the original enactment of the Alabama Constitution's criminal

disenfranchisement provision was motivated by a desire to discriminate against blacks, continues to have that effect, and therefore violates equal protection, despite intervening events that narrowed the scope of the provision).[5]
With these principles in mind, we turn to the origins of Florida's current felon disenfranchisement provision. It is true that Florida's earliest constitution, ratified in 1838, empowered the legislature to disenfranchise certain 1295 criminal offenders.[6] However, the fact that the 1838 *1295 Florida Constitution granted this power at a time when African Americans could not vote does not foreclose the Plaintiffs' claim of invidious discrimination in violation of the Equal Protection Clause. A law may be infected by discriminatory intent at any stage, including a later reenactment. See McMillan v. Escambia County, 638 F.2d 1239, 1246 n. 14 (5th Cir.1981).[7] Indeed, the district court found in this case that
Plaintiffs have presented to this Court an abundance of expert testimony about the historical background of Florida's felon disenfranchisement scheme as historical evidence that the policy was enacted originally in 1868 with the particular discriminatory purpose of keeping blacks from voting.
Johnson v. Bush, 214 F.Supp.2d 1333, 1338-39 (S.D.Fla.2002) (emphasis added).
According to the Plaintiffs' evidence, which consists primarily of the expert report and testimony of one of Florida's leading historians of Reconstruction, Dr. Jerome Shofner,[8] Florida refused to extend civil and political rights to blacks immediately following the Civil War. For example, the State denied blacks the right to vote in its 1865 constitution, rejected the Fourteenth Amendment in 1866, and established additional crimes, including a new, expansive type of larceny, in order to "address the altered condition of the colored race." Doc. 121 at 430-32.
In response, as a condition of readmission to the Union, Congress required Florida to extend voting rights regardless of race, pursuant to which Florida convened its 1868 constitutional convention. Id. at 433-34. Initially dominated by Radical Republicans supporting black enfranchisement, this convention first approved a constitution (1) lacking any provision disenfranchising voters on the basis of criminal convictions, (2) restricting ex-Confederate white suffrage, and (3) providing for equal population legislative districts. Id. at 439. Subsequently, however, a competing faction of Moderate Republicans, who sought the support of white exConfederate Floridians opposed to black suffrage, took control of the convention from the Radical Republicans. Id. at 439-40. Maintaining frequent contact with white ex-Confederate leaders, the reconstituted convention established a legislative apportionment scheme that diminished representation from densely populated black counties. It also proposed a new suffrage article automatically disenfranchising those persons convicted of infamous crimes while restoring suffrage to ex-Confederates. Id. at 440-41. Then, at the last moment, the delegates substituted yet another, arguably even more stringent suffrage article that (1) changed that disenfranchisement provision's scope from infamous crimes to all felonies; (2) inserted a provision, which had existed in the 1838 Constitution but had been eliminated by the Radical Republicans, granting the legislature 1296 power to disenfranchise persons convicted of bribery, perjury, and other infamous crimes; *1296 and (3) included in that enumerated list the crime of larceny, which the 1865 legislature had expanded to address the emancipation of blacks. Id. at 432, 441-42.
In the end, this alternative version of the constitution prevailed.[9] Shortly afterward, one of the Moderate Republican leaders boasted that he had kept Florida from becoming "niggerized."[10] Doc. 122 at 791, 869. One of the 1868 convention delegates also reported in 1881 that the criminal disenfranchisement provisions were being used to reduce the number of black voters, Doc. 121 at 444, an effect that the Plaintiffs argue continues to date. Based on the different versions of the constitution, the last minute amendments and vote changes, and the general historical context, Dr. Shofner concluded that intentional racial discrimination had motivated the Florida Constitution's criminal disenfranchisement provisions as passed in 1868. See Doc. 121 at 426-28; Doc. 142 at 3-10.
Accepting the Plaintiffs' evidence, a reasonable fact-finder could conclude that the discriminatory animus behind the felon disenfranchisement provision's 1868 adoption satisfies the Plaintiffs' initial burden of showing that race

was a substantial or motivating factor behind the constitutional provision here challenged. Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. Once the Plaintiffs have made this threshold showing, "the burden shifts to Appellees to prove that, at the time of the discriminatory act, the same decision would have been made for a legitimate reason." Burton, 178 F.3d at 1189 (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)) (emphasis added). The summary judgment record here does not, however, establish that the Defendants have shown as a matter of law that the constitutional convention would have passed the felon disenfranchisement provision in 1868 absent a racially impermissible purpose. Thus, were the 1868 Constitution Florida's most recent, our present inquiry could end here. The case would be controlled directly by the Supreme Court's unanimous opinion in Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), which found that the Alabama Constitution's criminal disenfranchisement provision, passed in 1901, 1297 was motivated by racially discriminatory *1297 intent, would not have been enacted at that time without the racially discriminatory intent, and therefore violated the Equal Protection Clause.
However, Florida ratified a new constitution in 1968. Although the provision explicitly disenfranchising all felons remained substantively unchanged, the 1968 Constitutional Revision Committee did make certain textual modifications. As amended in 1885, the felon disenfranchisement provision had read:
No person under guardianship, non compos mentis or insane shall be qualified to vote at any election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless restored to civil rights.
Fla. Const. art. VI, § 2 (1885). After the 1968 revision, the provision reads:
No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.
Fla. Const. art. VI, § 4 (1968).[11] The summary judgment record reflects no evidence that racial considerations were discussed by the participants in the 1968 constitutional revision process when they passed the felon disenfranchisement provision. Thus, had the 1968 provision been Florida's first enactment of such a felon disenfranchisement rule, our analysis would look first to the Supreme Court's opinion in Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), which held that felon disenfranchisement laws are not per se unconstitutional.
This case, however, fits neither the Hunter nor the Richardson model. The 1868 convention did not have the final word on the disenfranchisement provision. Nor did the provision originate in 1968. Thus, accepting as true that the provision's purpose in 1868 included impermissible intentional racial discrimination, we must consider the legal effect to be accorded the retention of this provision in 1968.
The Plaintiffs argue that when discriminatory intent motivated a prior enactment, the State bears the burden of showing that, to avoid perpetuating the impermissible purpose, the later reenactment had a legitimate, nondiscriminatory basis. The Defendants counter that the State bears no burden and, moreover, that the original provision has no legal effect in light of a later reenactment.
Although neither this Court nor the Supreme Court has yet confronted this question in the context of felon disenfranchisement, courts have considered the legal effect of race-neutral policies that serve to perpetuate intentional racial discrimination in other contexts. For example, courts have considered equal protection challenges when asserted to invalidate laws, policies, and practices arising from a history of de jure segregation. In these cases, when original discriminatory intent has been demonstrated, the State has been required to show that the original taint has been purged and even, in some circumstances, that the State has taken affirmative steps to remove the effects of the discrimination.[12]
1298 *1298 Specifically, in holding that States have an affirmative duty to dismantle the vestiges of past de jure segregation in higher education, the Supreme Court concluded that the State of Mississippi had not satisfied its constitutional burden through "the adoption and implementation of race-neutral policies alone," United States v. Fordice, 505 U.S. 717, 729, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), because such policies did not stem the

effects of the past discrimination and less segregative alternatives existed. See id. at 743, 112 S.Ct. 2727. Linking intent to the State's burden, Justice Thomas further observed in Fordice that,
given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time, both because the State has created the dispute through its own prior unlawful conduct, and because discriminatory intent does tend to persist through time.... Thus, if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear 0907 clear enough to presume conclusively 0907 that the State has failed to disprove discriminatory intent.
Id. at 747, 112 S.Ct. 2727 (Thomas, J., concurring).
Applying the standards articulated in Fordice to hold that Alabama had also not met its constitutional obligation with respect to its prior de jure segregated university system, this Circuit made clear in Knight v. Alabama, 14 F.3d 1534 (11th Cir.1994), that "[o]nce it is determined that a particular policy was originally adopted for discriminatory reasons, the Fordice test inquires whether the current policy is `traceable' to the original tainted policy, or is `rooted' or has its `antecedents' in that original policy." Id. at 1550. When that is established, the burden of proof lies with the State to show that it has dismantled the past discrimination "root and branch." Id. at 1540, 1552 (quotation omitted); see also Fordice, 505 U.S. at 731, 112 S.Ct. 2727 ("If the State perpetuates policies and practices traceable to its prior system that continue to have segregative effects ... the State has not satisfied its burden of proving that it has dismantled its prior system."). In Knight, drawing heavily on the "causation principles articulated in Fordice," we therefore framed our analysis of facially race-neutral policies enacted against an originally discriminatory backdrop in terms of "break[ing] the causal chain." Knight, 14 F.3d at 1550.
These cases required the State to dismantle a prior discriminatory education system by eradicating its effects. While their particular remedies might not be completely applicable here, we do derive guidance from their rationale, which demands that the State demonstrate a break in the causal chain of discrimination to assure compliance with the Equal Protection Clause. Surely if a State has an affirmative duty to dismantle the vestiges of past de jure segregation in the education context, it must bear some burden when the right to vote 0907 a citizen's most basic right in a democracy 0907 has been impermissibly abrogated.[13] At a minimum, as Justice Thomas 1299 noted, once the State *1299 has impermissibly discriminated on the basis of race through a particular law and continuing discriminatory effects have been established, then the State must disavow any connection to the law's original discriminatory purpose by showing that it was later reenacted for independent, non-discriminatory reasons.
The application of this principle in discrimination law appropriately draws on fundamental principles of causation and intent prevalent throughout the legal system. In both criminal law and the law of torts, for example, the legal effects of a wrongful action are held to reach through subsequent events to encompass remote but foreseeable harms. See, e.g., Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (N.Y.1928); United States v. Hayes, 589 F.2d 811, 821 (5th Cir.1979). As evidenced in Knight, this principle of legal causation is often conceptualized by reference to a metaphorical "chain of causation" that links events through time. See, e.g., United States v. Rodriguez, 279 F.3d 947, 952 (11th Cir.2002). Though it generally stretches intact and inertially between events, the causal chain may be severed by a sufficiently independent intervening action.[14] This concept of a "new intervening action," rooted in common sense, is frequently used by courts to analyze whether events that occur subsequent to an initial action operate to break the causal chain. See, e.g., Malley v. Briggs, 475 U.S. 335, 344 n. 7, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (recognizing the causal chain between an application for a warrant and an improvident arrest because "§ 1983 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions"); United States v. Waksal, 709 F.2d 653, 663 (11th Cir.1983) ("No significant intervening event purged the taint of the illegal restraint on appellant's liberty."); United States v. Cantu, 230 F.3d 148, 158 (5th Cir.2000) (King, J., concurring) (examining "whether there were any intervening circumstances sufficient to break the causal chain thus dissipating the taint of the initial illegality") (internal quotations omitted).

A new action or event is only considered to be sufficiently "intervening" if it is made freely, deliberately, and knowledgeably. See, e.g., Hart & Honoré, Causation in the Law at 136. Thus, the actions of uninformed agents who unwittingly further the principal's purposes are generally deemed inadequate to break the causal chain. Cf. 1300 Rodriguez, 279 F.3d at 952 (noting that it is a "basic principle of criminal law that foreseeable negligent *1300 acts of a third party do not sever the chain of causation"); Rest. (2d) Torts § 452 (stating that a third person's failure to prevent harm is not a superceding cause of the harm). In contrast, the exercise of independent judgment by a later actor may suffice to sever the connection to the original wrongful action. See, e.g., Townes v. City of New York, 176 F.3d 138, 147 (2d Cir.1999) ("It is well settled that the chain of causation between a police officer's unlawful arrest and a subsequent conviction and incarceration is broken by the intervening exercise of independent judgment."); Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir.1988) (stating that presenting all facts to an independent intermediary will break a chain of causation, while misdirecting the intermediary "by omission or commission perpetuates the taint of the original official behavior"). Applied in the context of an originally discriminatory legislative action, these principles direct us to consider whether a subsequent reenactment was made with sufficient knowledge and purpose to be deemed a new intervening event, thereby breaking the chain of invidious intent.
In Hunter, the Supreme Court looked to the original intent and found that certain intervening events were insufficient to break the causal chain of discrimination. In that case, the Court held that a criminal disenfranchisement law is unconstitutional if "its original enactment was motivated by a desire to discriminate against blacks on account of race and the [law] continues to this day to have that effect." 471 U.S. at 233, 105 S.Ct. 1916. In so holding, the Court rejected Alabama's argument that its current interest in disenfranchising certain criminal offenders legitimated its originally discriminatory disenfranchisement provision. Rather than accept a non-discriminatory justification post-hoc, the Court focused on the State's original intent, observing that "such a [legitimate] purpose simply was not a motivating factor of the 1901 convention." Id. at 232, 105 S.Ct. 1916.
The Hunter Court further noted that:
At oral argument in this Court, the appellants' counsel suggested that, regardless of the original purpose of § 182, events occurring in the succeeding 80 years had legitimated the provision. Some of the more blatantly discriminatory selections, such as assault and battery on the wife and miscegenation, have been struck down by the courts, and appellants contend that the remaining crimes 0907 felonies and moral turpitude misdemeanors 0907 are acceptable bases for denying the franchise. Without deciding whether § 182 would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect. As such, it violates equal protection under Arlington Heights.
Id. at 233, 105 S.Ct. 1916 (emphasis added). In Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir.1998), the Fifth Circuit relied upon this statement to conclude that Hunter "left open the possibility that by amendment, a facially neutral provision ... might overcome its odious origin."[15] On that basis, the Fifth Circuit upheld, despite its discriminatory origin, a criminal disenfranchisement provision subsequently reenacted with modifications by the State of Mississippi. While we agree that Hunter left open the possibility that reenactment may be sufficient in 1301 some circumstances to "break the causal chain," *1301 Knight, 14 F.3d at 1550, we disagree with the Fifth Circuit's failure to consider whether such reenactment must be accompanied by an independent, nondiscriminatory purpose.
Based on all of the foregoing, we conclude 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, nondiscriminatory purpose. Thus, if an impermissible discriminatory intent is found to be a motivating factor behind the 1868 enactment of the provision, and the Defendants do not show that it would have been enacted at that time absent the impermissible discriminatory intent, the Defendants have the burden to show that the State knowingly and deliberately reenacted it for a nondiscriminatory reason.

At this stage of the proceedings, when viewed in the light most favorable to the Plaintiffs, the record before the district court does not show that the 1968 Constitution gave effect to an independent, nondiscriminatory purpose in keeping the felon disenfranchisement provision.[16] Although the record reflects that the five-person Subcommittee on Suffrage and Elections "discussed" the provision at one of its twelve meetings, there is no evidence regarding the substance of that discussion nor that the Constitutional Revision Committee as a whole or 1302 the legislature ever discussed the provision.[17] While it is possible to speculate from the minutes that *1302 Subcommittee members discussed non-discriminatory reasons for disenfranchising felons, one could equally conclude that the Subcommittee regarded the felon disenfranchisement provision as a legacy of previous constitutions that did not need to be revisited in substance.[18] Retaining an originally discriminatory provision in order to preserve continuity, or out of deference to tradition, or simply due to inertia does not amount to an independent purpose sufficient to break the chain of causation between the original racial animus and the provision's continuing force as law. Thus, if the 1968 constitutional drafters kept a long-standing provision essentially intact for any of these reasons, then the discriminatory animus of which that provision was born, if ultimately proved as a matter of fact, would suffice to establish unconstitutional racial discrimination in violation of the Fourteenth Amendment.
Accordingly, because the Plaintiffs' showing of racial animus in the 1868 provision creates a genuine issue of material fact as to whether it was adopted with a discriminatory purpose, and because on this record the Defendants have not met their burden of showing that this provision was reenacted in 1968 with an independent, non-discriminatory purpose, summary judgment was improperly granted. We therefore reverse and remand to the district court for further proceedings on the equal protection claim.[19]
1303 *1303 III. VOTING RIGHTS CLAIM
Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as amended, 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).[20] In 1982, Congress amended the Act to provide explicitly that a violation of Section 2
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. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973(b).
The 1982 amendments were passed in response to the Supreme Court's opinion in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), which held that proof of intentional discrimination was necessary to establish violations of both the Fifteenth Amendment and Section 2 of the Voting Rights Act. The 1982 amendments instead established a "results" test "to make clear that proof of discriminatory intent is not required to establish a violation of Section 2." S.Rep. No. 97-417, at 2 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 179; see also United States v. Marengo County Comm'n, 731 F.2d 1546, 1557 (11th Cir.1984) (describing the enactment of the 1982 amendments).
The new subsection (b) "provides that the issue to be decided under the results test is whether the political processes are equally open to minority voters." S. Rep. at 2. In explaining the amended standard, the 1982 Senate Judiciary Committee majority report lays out a broad, non-exclusive list of factors to consider ("the Senate factors"), which include any history of voting-related official discrimination, the extent to which minority group 1304 members bear the effects of discrimination in other *1304 areas which hinder their ability to participate effectively

in the political process, and the extent to which the State has used voting practices that tend to enhance the opportunity to discriminate against the minority group.[21]Id. at 28-29.

Guided by the relevant Senate factors, courts must then evaluate a Section 2 claim "based on the totality of circumstances." 42 U.S.C. § 1973(b). In other words, "[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).[22] Although different factors have varying relevance depending on the particular practice at issue, see S. Rep. at 28, it is clear that a proper examination cannot focus solely on one explanation for the vote denial or abridgement but must involve a "[s]earching practical evaluation of the past and present reality" of the challenged voting structure, Gingles, 478 U.S. at 45, 106 S.Ct. 2752, and its interaction with social and historical conditions, id. at 47 n. 8, 106 S.Ct. 2752, including the "searching and meaningful evaluation of all the relevant evidence." Southern Christian Leadership Conference of Ala.v. Sessions, 56 F.3d 1281, 1293 (11th Cir.1995) (en banc). Each situation is particular, and as a result, each inquiry is fact-intensive. See Gingles, 478 U.S. at 79, 106 S.Ct. 2752 ("This determination is peculiarly dependent upon the facts of each case, and requires an intensely local appraisal of the design and impact of the contested electoral mechanisms.") (internal citations omitted).

In this case, the Plaintiffs challenge the adverse summary judgment on their Section 2 vote denial claim, arguing 1305 that the district court erred by failing to consider the evidence they presented in *1305 accordance with the totality
of the circumstances standard delineated above. We agree. In granting summary judgment, the district court simply concluded that "it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment." Johnson, 214 F.Supp.2d at 1341. This conclusion, however, only begs the question. The proper question here is whether felon status "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives."[23]Gingles, 478 U.S. at 47, 106 S.Ct. 2752. Indeed, in Hunter, the Supreme Court found that Alabama's criminal disenfranchisement law could not constitutionally be used as a tool for discrimination on the basis of race, even though the plaintiffs had been convicted of crimes.[24] Thus, the fact that the Plaintiffs have been convicted of crimes "was not a bar to the plaintiffs claims in Hunter v. Underwood, and should play no different role in the case at hand." Farrakhan v. Locke, 987 F.Supp. 1304, 1313 (E.D.Wash.1997) ("Farrakhan I"), aff'd by Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir.2003) (" Farrakhan III") (agreeing that disenfranchised felons may state a claim of vote denial under Section 2 of the Voting Rights Act). We therefore find that the district court erred by relying at summary judgment solely on the fact of the Plaintiffs' criminal convictions rather than looking to the totality of the circumstances.

In addition, the district court relied on the Eastern District of Washington's opinion in Farrakhan v. Locke, No. 96-0076, 2000 U.S. Dist. LEXIS 22212 (E.D.Wash.2000) ("Farrakhan II"), which granted summary judgment on the basis that discrimination in the criminal justice system was insufficient to establish that Washington's felon disenfranchisement law violated Section 2 of the Voting Rights Act. That case, however, was reversed, and the appellate court concluded that

1306

*1306 [t]o the extent that racial bias and discrimination in the criminal justice system contribute to the conviction of minorities ..., such discrimination would clearly hinder the ability of racial minorities to participate effectively in the political process, as disenfranchisement is automatic. Thus, racial bias in the criminal justice system may very well interact with voter disqualifications to create the kind of barriers to political participation on account of race that are prohibited by Section 2, rendering it simply another relevant social and historical condition to be considered where appropriate.

Farrakhan III, 338 F.3d at 1020. We agree with this analysis and conclude that the district court erred in
disregarding the Plaintiffs' evidence of discrimination in the criminal justice system at the summary judgment stage. The weight due to this evidence is a disputed question for the fact-finder at trial.[25]

Finally, we note that the Plaintiffs presented evidence bearing on a number of relevant Senate factors, including, inter alia, (1) a history of official discrimination by the State of Florida touching on the right to vote, including but not limited to the racially discriminatory origins of blanket felon disenfranchisement in the state; (2) the use of voting practices or procedures that enhance opportunities for discrimination against the minority group; and (3) the effects of discrimination in other areas that affect felon disenfranchisement, such as education, employment, and health.[26] When taken in the light most favorable to the Plaintiffs, a fact-finder could conclude that under the totality of the circumstances test, this evidence demonstrates intentional racial discrimination behind Florida's felon disenfranchisement as well as a nexus between disenfranchisement and racial bias in other areas, such as the criminal justice system, in violation of the Voting Rights Act.
For the foregoing reasons, summary judgment should not have been granted on the Plaintiffs' Section 2 vote denial claim.[27]
1307 *1307 IV. POLL TAX/WEALTH DISCRIMINATION CLAIMS
Access to the franchise cannot be made to depend on an individual's financial resources. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). As the Second Circuit has stated, "[t]he focal question is whether [the State], once having agreed to permit ex-felons to regain their vote and having 1308 established administrative machinery for this purpose, can then deny access *1308 to this relief, solely because one is too poor to pay the required fee." Bynum v. Conn. Comm'n on Forfeited Rights, 410 F.2d 173, 175-76 (2d Cir.1969) (sending challenge to Connecticut's $5 fee for filing an application for restoration of rights to a threejudge district court).
In this case, however, Florida's Rules of Executive Clemency do not deny access to the franchise to those too poor to pay restitution.[28] Under the Rules, restoration of civil rights, including the franchise, can still be granted to felons who cannot afford to pay restitution. We are not convinced that requiring a hearing under certain circumstances, including the failure to pay restitution, is sufficient to support the Plaintiffs' claim. Thus, because the current Rules of Executive Clemency do not deny access to the restoration of the franchise based on ability to pay, we affirm the district court's judgment that no violation of the constitutional and statutory prohibitions against poll taxes exists here.[29]
V. CONCLUSION
We therefore AFFIRM the district court's order granting summary judgment to Defendants on the poll tax claim. We REVERSE and REMAND the equal protection and vote denial claims.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
KRAVITCH, Circuit Judge, dissenting:
I disagree with the majority's analysis of both the Equal Protection and Voting Rights Act claims. Therefore, respectfully I dissent.
I. The Equal Protection Claim
The text of the Fourteenth Amendment explicitly allows states to disenfranchise convicted felons, U.S. CONST. amend. XIV, § 2, and the Supreme Court unambiguously has determined that a state's decision to permanently disenfranchise such citizens, in itself, is not an Equal Protection violation. Richardson v. Ramirez, 418 U.S. 24, 53-55, 94 S.Ct. 2655, 2670-71, 41 L.Ed.2d 551 (1974). Of course, a state may not intentionally use a faciallyneutral measure to discriminate on the basis of race. Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). This prohibition includes enacting a felon disenfranchisement provision in order to deprive one racial group of its right to participate in the political process. Hunter v. Underwood, 471 U.S. 222,

233, 105 S.Ct. 1916, 1923, 85 L.Ed.2d 222 (1985). But the State of Florida's decision to bar felons from voting should not, in itself, cast suspicion on the motives of the state. The dispositive question in this case is whether the plaintiffs have alleged such facts that, if true, would be sufficient to establish intentional discrimination in Florida's current disenfranchisement statute. In my view, the plaintiffs do not do so, and thus I would affirm the district court.
A. Background
The State of Florida's decision to disenfranchise felons has a long history, beginning before the Civil War. In its 1838 Constitution, Florida first denied voting rights to those convicted of crimes. After the Civil War, Florida was 1309 required to change its Constitution for readmittance to the Union and subsequently held two constitutional *1309 conventions 0907 one in 1865 and the other in 1868. The 1865 Constitution was inadequate because it did not extend the franchise to African Americans. The 1868 Constitutional Convention cured this defect. Delegates to both conventions decided to disenfranchise felons, a decision explicitly left to their discretion by the Fourteenth Amendment. One hundred years later in 1968, the State of Florida comprehensively revised its Constitution and again decided to deny felons the right to vote. Any felon, however, who has completed his sentence, including any orders of restitution, may apply for clemency to have his civil rights restored.[1] Fla. Stat. § 940 (2003).
B. The Constitutional Revision Process
There is no question that the felon disenfranchisement provision was based on a non-racial rationale when it was first included in the Florida Constitution in 1838. At that time, the right to vote was only extended to white males. The plaintiffs allege that the decision to retain the disenfranchisement provision in the 1868 Constitution was motivated by a desire to minimize black voting power. Because it is not the role of this court to make factual determinations, we view the evidence in the light most favorable to the plaintiffs.[2] We need not assume, however, that racial animus was the sole rationale. Indeed, as the plaintiffs' expert acknowledges, at least five African American delegates to the 1868 Convention, of the sixteen African American delegates voting, supported this provision, presumably not for racially-discriminatory reasons.
In 1968, Florida again reexamined and revised its Constitution and enacted the current felon disenfranchisement provision. The 1968 Constitution was passed after the state had engaged in four stages of deliberation, including debate and revision by the Suffrage and Elections Committee, review by the Florida Constitutional Revision Committee, approval from both houses of the legislature and finally affirmation by a state-wide referendum.
There is no allegation in the complaint that the 1968 Constitutional Convention was infected with any racial animus, and the plaintiffs did not present any evidence that racial animus was present in this process.[3] As the 1310 majority opinion states, the *1310 "summary judgment record reflects no evidence that racial considerations were discussed by the participants in the 1968 constitutional revision process when they passed the felon disenfranchisement provision."
Florida's revision of its constitution in 1968 distinguishes it from some other states with a history of racial discrimination. For instance, the State of Alabama enacted a felon disenfranchisement provision in 1901 with the specific intent of disenfranchising African American voters, and unlike Florida, Alabama never revisited the provision through the legislative process. Hunter, 471 U.S. at 233, 105 S.Ct. at 1922.
C. Equal Protection Analysis
A facially-neutral provision violates the Equal Protection Clause if adopted with the intent to discriminate against a racial group. Washington v. Davis, 426 U.S. at 239, 96 S.Ct. at 2047. Here, there is no allegation in the complaint that the 1968 Constitution was adopted with the intent to discriminate based on race.

1. Applying Hunter v. Underwood
In Hunter v. Underwood, the Supreme Court examined head-on the issue of felon disenfranchisement. 471 U.S. at 223, 105 S.Ct. at 1917. The Court determined that the Alabama Constitution violated the Equal Protection Clause because it was adopted in 1901 as a means of minimizing the political power of its African American population. Id. at 228-230, 105 S.Ct. at 1920-21. There, Alabama's elected representatives neither altered the provision nor reenacted it in a political atmosphere free of racial bias. Rather, all of the amendments to the constitution were the result of judicial action. Id. at 233, 105 S.Ct. at 1922.
In Hunter, the Supreme Court, affirming the decision of this court, established an easily applied test for finding Equal Protection Clause violations in the context of felon disenfranchisement. Id. at 227-28, 105 S.Ct. at 1920 (1985). That test is as follows:
Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment: "[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." Once racial discrimination is shown to have been a "substantial" or "motivating" factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor.
Id. (citation omitted).
Under this analysis, we apply a two-step test to determine whether a particular felon disenfranchisement provision violates the Equal Protection Clause. First, we examine whether there is any proof that racial discrimination was a substantial or motivating factor in the state's decision to deny the right to vote to felons. Second, we determine whether the state can show that the provision would have been enacted without the racially discriminatory motive.
For the purposes of appeal, we assume, without deciding, that the plaintiffs have demonstrated that there was some racial animus in the 1868 Constitutional process. This, however, does not lead to the conclusion that race was a motivating factor in the political process which resulted in the 1968 Constitution, a hundred years later.
We next examine whether Florida would have chosen to disenfranchise felons if legislators did not have a 1311 discriminatory *1311 motive. In Hunter, this was a more complicated analysis because it required a counter-
factual scenario: Given that Alabama only legislatively addressed this issue once, what would legislators have done if they did not have a discriminatory motive? 471 U.S. at 228-29, 105 S.Ct. at 1920. Here, we have the luxury of not having to delve into complex counter-factual scenarios because Florida simplified the analysis by returning to the issue in 1968. Florida's 1968 Constitution permits us to determine whether the state would have chosen to disenfranchise felons if the impermissible motive was absent. The results are plain: There is no allegation of racial discrimination in 1968 and legislators decided to include a felon disenfranchisement provision in the revised constitution after consideration by two committees. This decision was then affirmed by both houses of the legislature and by popular referendum.
Thus, Florida's provision is not a violation of the Equal Protection Clause under the standard adopted by the Supreme Court in Hunter. Florida's reenactment of the felon disenfranchisement provision in the 1968 Constitution conclusively demonstrates that the state would enact this provision even without an impermissible motive. Reenactment is exactly the measure that we would require Florida to take if we did find an Equal Protection Clause violation, and thus the state has already cured the provision on its own initiative. The state, therefore, has met its burden as a matter of law by undertaking the precise measure the plaintiffs are seeking.[4]
Moreover, Florida's provision is arguably not even subject to this type of intent analysis because the felon disenfranchisement provision did not create a disparate impact along racial lines in 1968. Accepting the plaintiffs'

best estimates for 1968 as true, the felon disenfranchisement provision denied voting rights to far more whites than African Americans and decreased the percentage of African-American voters state-wide by less than one quarter of one percent.[5] Although proportionately more African American were affected, the percentage of eligible African Americans voters in the voting age public in 1968 dropped only from 12.53% to 12.32% due to felony convictions. The majority focuses on the present racially disparate impact of the felon disenfranchisement provision, but this disparate impact was not present in 1968.
2. The Majority's Standard
The majority establishes a different standard than the one announced in Hunter. Instead of examining whether legislators would have enacted the felon disenfranchisement provision if they did not have an impermissible motive, the majority remands the case to the district court and requires that the state prove that it "knowingly and deliberatively reenacted it for a non-discriminatory reason." This standard is beyond what is required by Hunter because it invalidates facially-neutral provisions enacted by legislators who are not alleged to have discriminatory 1312 motives.[6] In effect, the majority requires that the *1312 State of Florida show that it considered the alleged racial discrimination in the 1868 Constitution and that it "knowingly and deliberately" decided to re-enact the provision for other reasons in 1968. The present law does not require this level of proof. Florida's current provision is constitutional because 0907 as the majority agrees 0907 there is no evidence of any racial bias in the reenactment. See also Cotton v. Fordice, 157 F.3d 388 (5th Cir.1998) (holding that a felon disenfranchisement provision did not violate the Equal Protection Clause because the current provision was adopted without discriminatory intent.).
a. Justifying Heightened Review
The majority argues that Florida's 1968 facially-neutral provision, passed without any evidence of racial discrimination, should be deemed a violation of the Equal Protection Clause. To support its position, the majority relies on United States v. Fordice, 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), which involved a challenge to Mississippi's system of higher education. Fordice, however, involved an extreme case of recent state discrimination. There, Mississippi actively resisted removing the segregated system of education in the 1960s, failed to fund even limited educational reform in 1969, and was sued by the United States and private plaintiffs in 1975 for failing to comply with the Equal Protection Clause. Id. at 722-25, 112 S.Ct. at 2732-34. The issue in Fordice was whether the state's facially-neutral education system, which was passed only after the state was required to integrate its schools by court order, was valid under the Equal Protection Clause if the system maintained the racially disparate impact that de jure segregation had created. The Supreme Court found that Mississippi's actions were not consistent with the Equal Protection Clause if Mississippi made no effort to remove the discriminatory effects of de jure segregation. The present case and Fordice are simply not analogous.
First, Florida's 1968 provision did not continue the adverse disparate impact of earlier de jure measures, which makes the present case entirely different than the situation in Fordice. At the time the Mississippi legislature adopted its education system, the system of higher education was almost completely racially segregated. Id. at 722, 112 S.Ct. at 2732. In Fordice, therefore, the Supreme Court was concerned that Mississippi was attempting to perpetuate its racially segregated education system, established in a time of de jure segregation, through a facially-neutral provision. In contrast, when Florida adopted its felon-disenfranchisement provision in 1968, the racial effects of the provision were minor. In 1968, Florida legislators and voters were not attempting to extend the effects of de jure discrimination with a facially-neutral provision because there was no adverse impact to 1313 extend by passing the felon disenfranchisement provision.[7] Florida's provision simply did not *1313 maintain a pattern of discrimination the way Mississippi's provision did. Consequently, the heightened review used in Fordice is not appropriate here.
Second, the current Florida provision was passed one hundred years after allegedly intentional discrimination occurred, whereas Mississippi's provision was passed shortly after the end of de jure segregation in education. Needless to say, the Florida legislators who passed the 1868 Constitution and the 1968 Constitution were not the same people. In Fordice, however, the legislators, who refused to desegregate the Mississippi schools without a

court order in the 1960s, most likely overlapped significantly with the legislators who passed the facially-neutral education system in the 1970s. Given the proximity in time between Mississippi's intentional discrimination and the facially-neutral provision in education, we should have a healthy skepticism that the facially-neutral provision was indeed neutral. Certainly, the Mississippi legislators who voted for the facially-neutral provision understood the history of racial segregation in education and the likely racial effects of their new education system. But this healthy skepticism should not be applied here, because it is not reasonable to assign any impermissible motives held by the 1868 Florida legislators to the 1968 legislators who voted for the present felon disenfranchisement provision.
Third, Florida has a valid public policy reason for disenfranchising felons, where Mississippi did not have a sound justification for its education policies. The majority quotes Justice Thomas's concurrence in Fordice, but Justice Thomas specifically states that this heightened review is only applicable when there is no sound public policy justification for the state law, stating: "A challenged policy does not survive under the standard we announce today if it began during the prior de jure era, produces adverse impacts, and persists without sound educational justification." Fordice, 505 U.S. at 746, 112 S.Ct. at 2745 (emphasis added). Where Mississippi schools did not have valid educational justification for maintaining segregated schools, Florida has a legitimate reason for denying the vote to felons.
Finally, we note that this circuit has been reluctant to extend the education line of cases to other areas. As this court stated in Burton v. City of Belle Glade, school desegregation jurisprudence is unique and thus difficult to apply in other contexts. 178 F.3d 1175, 1190 (1999) (stating "In the first place, Appellants can point to no court that has ever applied Fordice outside of the education setting. Indeed, given the unique nature of school desegregation, we hesitate to extend Fordice to a property annexation case.") Moreover, as argued earlier, there is specific precedent from this court and the Supreme Court dealing with felon disenfranchisement. See Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), Beacham v. Braterman, 300 F.Supp. 182, 183 (1969), aff'd 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969) (finding by a three judge panel that Florida's decision to disenfranchise felons was not a violation of the plaintiff's equal protection or due process rights). Because these cases establish clear 1314 standards by which to judge state action, we are bound by precedent *1314 and need not go into other areas of possibly analogous law.
b. Sufficient Deliberation
The majority argues that Florida has not yet demonstrated that it has "broken the causal chain" between the 1868 Constitution and the current provision. It maintains that the 1968 constitutional revisions to this provision were not sufficient because legislators did not adequately deliberate over this issue. But the record belies this conclusion: The provision was subject to significant deliberation.
The 1968 Constitution's felon disenfranchisement rule was first actively considered by the Suffrage and Elections Committee. The record reflects that the committee discussed the provision, debated proposed changes, and ultimately decided to adopt the present provision, which is different from the 1868 provision. The committee also considered an alternative motion that would have eliminated the disenfranchisement rule to felons released from incarceration.[8] After discussion, the alternative motion failed. The new constitution was then accepted by the full committee, approved by both legislative houses, and affirmed by a state-wide referendum-all without any allegation of racial bias. Although reasonable people may disagree over the wisdom of the policy choice, the provision certainly received sufficient deliberation.
3. Wisdom of the Policy
Several of the amici argue that, as a policy matter, felons should be enfranchised, particularly those who have served their sentences and presumably paid their debt to society. But this is a policy decision that the United States Constitution expressly gives to the state governments, not the federal courts. U.S. CONST. amend. XIV, §

2. Florida already has legislatively reexamined this provision since 1868 and affirmed its decision to deny felons the vote. Federal courts cannot question the wisdom of this choice.
For the above reasons I would affirm the district court's grant of summary judgment on this count.
II. The Voting Rights Act Claim
I also respectfully dissent from the majority's remand of the Voting Rights Act claim. In my view, the Voting Rights Act does not apply to felon disenfranchisement provisions. The majority's interpretation of the scope of the Voting Rights Act creates grave questions as to the constitutionality of the Voting Rights Act and is contrary to Congress's statements regarding its coverage.
A. The Scope of the Voting Rights Act
Florida's discretion to deny the vote to convicted felons is fixed by the text of § 2 of Fourteenth Amendment, which states:
[W]hen the right to vote...is denied to any of the male inhabitants...or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
1315 U.S. Const. amend. XIV, § 2 (emphasis added).[9] Interpreting the Voting Rights *1315 Act to deny a state this discretion, as the majority does, creates a constitutional problem because such an interpretation allows a congressional statute to trump the text of the Constitution.
It is a long-standing rule of statutory interpretation that federal courts should not construe a statute to create a constitutional question unless there is a clear statement from Congress endorsing this understanding. As the Supreme Court stated in DeBartolo Corp. v. Florida Gulf Coast Trades Council:
[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. This cardinal principle has its roots in Chief Justice Marshall's opinion for the Court in Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804), and has for so long been applied by this Court that it is beyond debate.... This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.
485 U.S. 568, 575, 108 S.Ct. 1392, 1397-98, 99 L.Ed.2d 645 (1988). Thus when we analyze the scope of the Voting Rights Act, we should first address whether one interpretation presents grave constitutional questions where other interpretations would not, and then examine whether the latter interpretation is clearly contrary to Congressional intent. Id.
Here, the majority's interpretation creates a serious constitutional question by interpreting the Voting Rights Act to trump the text of the Fourteenth Amendment.[10] Congress undoubtedly has the constitutional authority to prohibit many measures that are not explicitly prohibited in the Fourteenth Amendment, but this enforcement power arguably does not extend to prohibiting constitutionally protected practices. This is not to say that a state's felon disenfranchisement provisions can never be challenged. As pointed out above and as the decision in Hunter confirmed, states cannot use felon disenfranchisement provisions to discriminate intentionally on the basis of race. 471 U.S. at 233, 105 S.Ct. at 1923. Thus, the plaintiffs have a remedy if the state's provision violates the Equal Protection Clause. Id. It is a different matter, however, when a statute limits a state's delegated power in contravention of the Fourteenth Amendment's text.

The majority opinion cites Hunter for the proposition that the felon disenfranchisement provision can be 1316 challenged under *1316 the Voting Rights Act. But in Hunter, the Supreme Court dealt exclusively with the Equal
Protection Clause and did not discuss the Voting Rights Act. The Supreme Court has never given any indication that the felon disenfranchisement provision can be challenged under the Voting Rights Act. To the contrary, in Richardson v. Ramirez, the Supreme Court explained that felon disenfranchisement provisions are different from other state franchise rules because they are permitted by the Fourteenth Amendment's express language. 418 U.S. 24, 54, 94 S.Ct. 2655, 2671, 41 L.Ed.2d 551(1974).
For the majority's analysis of the Voting Rights Act to be correct, we must look for a clear statement from Congress that it intended such a constitutionally-questionable result. DeBartolo, 485 U.S. at 575, 108 S.Ct. at 1397. Instead of a clear statement from Congress that the majority's interpretation was intended, the legislative history indicates just the opposite-that Congress did not intend the Voting Rights Act to apply to felon disenfranchisement provisions.[11]
1. Congressional Statements in 1965

The scope of the Voting Rights Act is limited. Congress first passed the act in 1965 to prevent states from discriminating against minorities in voting.[12] The act was intended to cover voting tests and other practices, such as districts designed by states to minimize minority voting. See Burton v. City of Belle Glade, 178 F.3d 1175, 1196 (11th Cir.1999). The Senate and House reports make clear, however, that Congress did not intend the Voting Rights Act to cover felon disenfranchisement provisions. The reports indicate that tests for literacy or good moral character should be scrutinized, but felon disenfranchisement provisions should not. S. Rep. 89-162, 1965 U.S.C.C.A.N. 2508, 2562. The only place where legislators addressed felon disenfranchisement provisions was with regard to Section 4, where the Senate Report reflects that legislators intended to exempt the voting restrictions on felons from the statute's coverage, stating:

1317

The third type of test or device covered is any requirement of good moral character. This definition would not result *1317 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.

Id.

Likewise the House Report also states that the Voting Rights Act was not designed to prohibit felon disenfranchisement:

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.

1965 U.S.C.C.A.N. 2437, 2457. These reports indicate that neither house of Congress intended to include felon disenfranchisement provisions within the statute's scope. These are the only references to felon disenfranchisement made in reports to the 1965 act.

Furthermore, this court's predecessor previously decided that the 1965 act did not cover a state's decision to exclude felons from voting. In United States v. Ward, the former Fifth Circuit held that the Voting Rights Act prohibited Louisiana from imposing any literacy test or other qualification on voter registration, but found that the act did not extend to felon disenfranchisement rules. 352 F.2d 329, 332 (5th Cir.1965).[13] There, the court issued an order enjoining the state from applying the voting tests, but explicitly exempted felony convictions from the order. The court ordered that the state cease

... requiring any applicant for voter registration in Madison Parish, as a pre-condition to such registration, to take or pass any test of literacy, knowledge, or understanding or to comply with any other test or device as defined in Section 4(c) of the Voting Rights Act of 1965, Public Law 89-110,

79 Stat. 438-439, i.e., any requirement (including the "good character" requirement specified in Article VIII, Section 1(c) of the Louisiana Constitution and Title 18, Section 32, of the Louisiana Code, except to the extent that these provisions permit disqualification for conviction of a felony).
Id. at 332 (emphasis added).
2. Congressional Statements in 1982
Congress most recently amended the Voting Rights Act in 1982 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), in an attempt to clarify the standard for finding statutory violations. In revising the statute, Congress intended to depart from the intent-based standard of the Supreme Court's Equal Protection jurisprudence and establish an effects-based standard. S. Rep. 97-417, 15-17, 1982 U.S.C.C.A.N. 177, 192-94 (1982). After the 1982 amendment, a state practice could survive Equal Protection Clause scrutiny but fail Voting Rights Act scrutiny.
Although the 1982 amendments were significant in terms of the legal test applied to practices covered by the act, they are not relevant here because the challenged provision remains outside the scope of the Voting Rights Act. Neither the plain text nor the legislative history plainly declares Congress's intent to extend the Voting Rights Act to felon disenfranchisement provisions.[14] The Senate Report, which goes into great detail on legislative intent, 1318 made no mention of felon disenfranchisement *1318 provisions.[15] Although it is conceivable that certain legislators may have wanted the Voting Rights Act to encompass felon disenfranchisement provisions, we should not assume that Congress intended to produce a statute contrary to the plain text of the Fourteenth Amendment without a clear statement. DeBartolo, 485 U.S. at 575, 108 S.Ct. at 1397.
In short, I believe the majority adopts a constitutionally questionable interpretation of the Voting Rights Act 0907 one in which the statute prohibits a practice that the Fourteenth Amendment explicitly permits. As a matter of statutory construction, we should avoid such an interpretation. Moreover the case for rejecting the majority's interpretation is particularly strong here, where Congress has expressed its intent to exclude felon disenfranchisement measures from Voting Rights Act scrutiny.[16]
1319 *1319 Accordingly, I dissent from the decision to remand and would affirm the district court on this count also.
[*] Honorable John P. Fullam, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
[1] Thomas Johnson, Derrick Andre Thomas, Eric Robinson, Omali Yeshitela, Adam Hernandez, Kathryn Williams-Carpenter, Jau'dohn Hicks, and John Hanes. On January 17, 2001, the district court dismissed Yeshitela as a plaintiff because his civil rights had been restored.
[2] Thus, this case does not involve those persons who are still incarcerated, who are on probation or parole, or who have not completed every requirement or condition of such probation or parole.
[3] The Governor of Florida and the Cabinet collectively constitute the Clemency Board, which has the power to restore civil rights, including the right to vote. See Fla. R. Exec. Clemency. The suit also named Florida's county supervisors of elections. Their participation has been abated pending determination of liability.
[4] Because on summary judgment we must view all evidence in the light most favorable to the non-moving party and resolve all reasonable doubts about the facts in its favor, Burton, 178 F.3d at 1187, this opinion recounts facts as presented by the Plaintiffs unless otherwise noted. Some facts are contested, and we take no position as to which, if any, of these facts may ultimately be proved at trial.
[5] See also United States v. Fordice, 505 U.S. 717, 747, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992) (Thomas, J., concurring) (observing that "discriminatory intent does tend to persist through time"); McMillan v. Escambia County, 638 F.2d 1239, 1249 (5th Cir.1981) ("If the system was unconstitutional in its inception and if it continues to have the effect it was designed to have, then the pure hearts of current council members are immaterial.");

Kirksey v. Bd. of Supervisors, 554 F.2d 139, 148 (5th Cir.1977) (en banc) ("[N]othing in [Washington v. Davis or Arlington Heights] suggests that, where purposeful and intentional discrimination already exists, it can be constitutionally perpetuated into the future by neutral official action."); Brown v. Bd. of Sch. Comm'rs of Mobile County, 542 F.Supp. 1078, 1090 (S.D.Ala.1982) (looking to the intent behind an 1876 statute, rather than its 1919 reenactment, in the absence of evidence that the latter had changed the relevant features of the election plan), aff'd, 706 F.2d 1103 (11th Cir.1983) (explicitly affirming the district court on all issues), aff'd, 464 U.S. 807, 104 S.Ct. 64, 78 L.Ed.2d 79 (1983); Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 266, 270 n. 22, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (implying, in an equal protection claim, that the purpose of the current Massachusetts veterans preference law may be located in its 1896 origins despite a number of amendments, including eliminations and extensions); Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1356 (4th Cir.1989) (suggesting that the 1971 retention, with no debate, of a particular provision of the Virginia Constitution did not cleanse it of its original discriminatory intent).
[6] The 1838 Constitution included two references to criminal disenfranchisement. Article VI, § 4 read:
The General Assembly shall have power to exclude from every office of honor, trust or profit, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime.
Fla. Const. art VI, § 4 (1838). Article VI, § 13 read:
Laws shall be made by the General Assembly, to exclude from office, and from suffrage, those who shall have been or may thereafter be convicted of bribery, perjury, forgery, or other high crime, or misdemeanor; and the privilege of suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon, from power, bribery, tumult, or other improper practices.
Fla. Const. art. VI, § 13 (1838).
[7] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
[8] Dr. Shofner, who spent more than thirty years studying and teaching about Florida history and the Reconstruction era, has written ten books on those subjects and, additionally, has published two scholarly pieces focusing on Florida's 1868 constitutional convention. Doc. 122 at 906-07; Doc. 121 at 457.
[9] The two provisions for criminal disenfranchisement enacted in 1868 read:
No person under guardianship non compos mentis, or insane, shall be qualified to vote at any election, nor shall any person convicted of felony be qualified to vote at any election unless restored to civil rights....
Fla. Const. art. XIV, § 2 (1868).
The Legislature shall have power and shall enact the necessary laws to exclude from every office of honor, power, trust, or profit, civil or military, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime....
Fla. Const. art. XIV, § 4 (1868). In 1885, these provisions were renumbered as article VI, §§ 4 and 5, respectively, but the language remained largely unchanged except for the addition of "by a court of record" to the new § 4.
[10] There is no evidence in the record that this boast referred specifically to the 1868 Constitution's criminal disenfranchisement provisions. But taking the evidence we do have in the light most favorable to the Plaintiffs, a reasonable fact-finder could conclude that in 1868, certain political factions did whatever they could to prevent African Americans from being able to vote, including inserting both the better-known discriminatory voter apportionment and appointment provisions as well as the lesser-known criminal disenfranchisement provisions into the constitution with the intent to achieve that goal. It is at least as likely that the 1872 boast referred to the whole 1868 Constitution, including criminal disenfranchisement, as that it was limited only to the other, more obviously discriminatory provisions.
[11] The 1968 Constitution also deleted the provision that had read:

The Legislature shall have power to, and shall, enact the necessary laws to exclude from every office of honor, power, trust or profit, civil or military, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime....
Fla. Const. art. VI, § 5 (1885).
[12] See, e.g., Fordice, 505 U.S. at 728, 112 S.Ct. 2727; Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 537-38, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979) (noting the "affirmative duty [to desegregate] imposed by our cases" and stating that "[g]iven intentionally segregated schools in 1954, ... the Board [of Education] was thereafter under a continuing duty to eradicate the effects of that system"); Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) (stating that once official segregation has been shown, "[u]nder the Fourteenth Amendment and the cases that have construed it, the Board [of Education]'s duty to dismantle its dual system cannot be gainsaid"); Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 437, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) (holding that a Virginia school board did not meet its affirmative burden to "take[] steps adequate to abolish" its past de jure racial segregation when it adopted a facially race-neutral policy of school choice, because it was ineffective in accomplishing actual desegregation).
[13] Cf. Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ("[T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights."). The dissent insists that felon disenfranchisement and higher education should be subject to different standards of review because Mississippi had no valid educational justification for maintaining segregated schools. However, the Plaintiffs allege that Florida intended to categorize voters on the basis of race, not criminal activity. Just as there is no constitutionally legitimate reason to segregate schools on the basis of race, even if the facially neutral policies used to maintain such segregation 0907 such as school choice programs or admissions standards 0907 might also have non-racial justifications, there is no constitutionally legitimate reason to deny the right to vote to felons or anyone else on the basis of race. Additionally, although felon disenfranchisement does not apply only to African Americans, racially discriminatory policies can be deliberately over-inclusive. Poll taxes, for example, surely disenfranchised some whites as well as blacks even though they were discriminatorily intended to impact blacks. It is impermissible to have an over-inclusive felon disenfranchisement law intended to keep blacks from voting, even if it keeps certain white convicted criminals away from the polls as well. See also infra note 23.
[14] This concept is captured by the traditional doctrine of novus actus interveniens. See, e.g., H.L.A. Hart & A.M. Honoré, Causation in the Law 73-74 (1985).
[15] With its language, the Hunter Court left equally open the converse possibility that prior discriminatory purpose could be perpetuated through an amendment enacted pursuant to a non-discriminatory legislative process.
[16] The dissent implies that Florida had a legitimate policy reason in 1968 for continuing to disenfranchise felons. We find no evidence in the summary judgment record of such a legitimate motive in 1968. Although a few courts have suggested non-racially discriminatory public policy rationales for disenfranchising felons, see Green v. Bd. of Elections, 380 F.2d 445, 451 (2d Cir.1967); Washington v. State, 75 Ala. 582, 585 (1884), others have questioned those rationales. See, e.g., Richardson, 418 U.S. at 79-82, 94 S.Ct. 2655 (Marshall, J., dissenting); Farrakhan v. Locke, 987 F.Supp. 1304, 1312 (E.D.Wash.1997); Stephens v. Yeomans, 327 F.Supp. 1182, 1188 (D.N.J.1970). See also Afi S. Johnson-Parris, Note: Felon Disenfranchisement: The Unconscionable Social Contract Breached, 89 Va. L.Rev. 109 (2003); Alec C. Ewald, "Civil Death": The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wisc. L.Rev. 1045 (2002); Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box," 102 Harv. L.Rev. 1300 (1989) (all challenging the validity and/or constitutionality of the assumptions behind those rationales). Moreover, the United States appears unique in the world community in the manner in which it permits felon and ex-felon disenfranchisement. See Jamie Fellner & Marc Mauer, Losing the Right to Vote: The Impact of Felon Disenfranchisement Laws, The Sentencing Project & Human Rights Watch Report (Oct. 1998), http:// www.hrw.org/reports98/vote/usvot98o-04.htm# 0112_273. For example, Canada recently declared its prisoner disenfranchisement statute unconstitutional, regarding the law as a violation of a fundamental democratic right. See Suavé v. Canada (Chief Electoral Officer), 2002 S.C.C.D.J. 2883, 2002 S.C.C.D.J. LEXIS 81 (Oct. 31, 2002).

In any case, the debate over the soundness of felon disenfranchisement or its rationales is irrelevant in the absence of any evidence that the framers of the 1968 Florida Constitution considered any such independent, non-discriminatory reasons for retaining felon disenfranchisement. Cf. Hunter, 471 U.S. at 232, 105 S.Ct. 1916 (rejecting Alabama's argument that it had a legitimate interest in its criminal disenfranchisement law because that interest was not shown to be a motivating factor in 1901).
[17] The relevant portion of the Subcommittee minutes reads as follows:
Mr. Earle moved that Article VI, Section 4 be adopted by the Committee on Suffrage and Elections. The motion was seconded.
Mr. Pettigrew moved to amend Mr. Earle's motion by striking "judicially determined to be of unsound mind, or under judicial guardianship because of mental disability" and to substitute therefor "persons adjudicated mentally incompetent." This motion was seconded and passed.
Mr. Pettigrew moved to further amend Section 4 by adding to his previous amendment: "in this or any other state and who have not had their competency judicially restored." This amendment was seconded and also passed.
After considerable discussion, Mr. Pettigrew moved that Section 4 be deleted and the following inserted: "The Legislature may by law establish disqualifications for voting for mental incompetency or conviction of a felony." The motion was seconded.
Mr. Goodrich offered the following substitute motion to Mr. Pettigrew's motion: Delete Section 4 and insert: "The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution." After discussion, Mr. Goorich's [sic] motion failed for lack of a second.
The vote was taken on Mr. Pettigrew's motion, but it failed adoption.
Mr. Goodrich moved that the word "felony" in line 2 of Section 4 be changed to "crime." The motion failed for lack of a second.
The Committee adopted Section 4 of Article VI with no further amendments.
Minutes of the Suffrage and Elections Committee of the Florida Constitution Revision Commission, Feb. 2-3, 1966, at 6-7.
[18] Cf. Richardson, 418 U.S. at 44, 94 S.Ct. 2655 ("The Journal of that Committee's proceedings shows only what motions were made and how the various members of the Committee voted on the motions; it does not indicate the nature or content of any of the discussion in the Committee. While the Journal thus enables us to trace the evolution of the draft language in the Committee, it throws only indirect light on the intention or purpose of those who drafted § 2.").
[19] On remand, the parties shall be given the opportunity to engage in additional discovery to address any other evidence pertaining to the motivations behind the passage of the felon disenfranchisement provision in 1868 and 1968. An assessment of the drafters' purposes would, among other things, look to the historical context in which the provision was considered, the discussions held at that time, and the changes effectuated. See Arlington Heights, 429 U.S. at 266-67, 97 S.Ct. 555. Eliminating only one part of an odious provision while maintaining other parts that continue to have racially discriminatory effects, for example, might perpetuate rather than eliminate the taint. Cf. Hunter, 471 U.S. at 233, 105 S.Ct. 1916 (narrowing changes by the courts to Alabama's criminal disenfranchisement law did not cure the equal protection violation).
In addition, we find meritorious the Plaintiffs' claim that evidence from their expert Richard Scher should be considered as well. Although the district court originally granted the Defendants' motion in limine to exclude Scher's evidence because it would not be helpful to the trier of fact, both parties at summary judgment relied on Scher's expert report and testimony for almost all of their evidence as to the 1968 constitutional revision process. Moreover, the district court cited to Scher's evidence in the order granting summary judgment. See Johnson v. Bush, 214 F.Supp.2d 1333, 1339 (S.D.Fla.2002). We also observe that Scher's proposed testimony about the 1968 constitutional revision process, drawing upon his specialized knowledge of information located in archives

in Tallahassee, sheds light on the sensitive factual inquiry into discriminatory intent, see Arlington Heights, 429 U.S. at 266, 268, 97 S.Ct. 555, an inquiry distinct from the practice, familiar to courts and lawyers, of using legislative history to discern the intent of the legislature as it bears on a law's meaning.
[20] The full text of subsection (a) states:
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 U.S.C. § 1973b(f)(2)], as provided in subsection (b).
42 U.S.C. § 1973(a).
[21] The enumerated Senate factors also include the extent of racially polarized voting, the exclusion of minority group members from candidate slating processes, the use of racial appeals in political campaigns, the extent to which members of the minority group have been elected to public office in the jurisdiction, the tenuousness of the State's interest in the particular practice, and evidence that elected officials are unresponsive to the needs of minority group members. S. Rep. at 28-29.
[22] Although much of the legislative history of Section 2 and most of the cases focus on the abridgement of the right to vote by dilution of minority voting strength, see, e.g., S. Rep. at 29-31; H.R.Rep. No. 97-227, at 18, 30 (1981); Holder v. Hall, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994); Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc); Solomon v. Liberty County, 899 F.2d 1012 (11th Cir.1990) (en banc); see also Frank R. Parker, The "Results" Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va. L.Rev. 715, 762 (1983), the statute's "results test"0907as determined by the totality of the circumstances 0907also applies by its plain language to claims of absolute denial of the vote. See 42 U.S.C. § 1973; see also S.Rep. at 30 ("Section 2 remains the major statutory prohibition of all voting rights discrimination."). We have not yet explicated the meaning of the results test in the context of a vote denial claim, but this Court has explicitly recognized the applicability of the totality of the circumstances inquiry and implicitly accepted the relevance of some of the evidence described by the "Senate factors." See Burton, 178 F.3d at 1197-98; see also Farrakhan v. Washington, 338 F.3d 1009, 1015 n. 11 (9th Cir.2003) ("Farrakhan III") ("We have held that the totality of the circumstances approach applies to both vote dilution and vote denial claims."); Mississippi State Chapter, Operation PUSH v. Allain, 674 F.Supp. 1245, 1263 (N.D.Miss.1987) ("While the Committee report makes reference to dilution, the court is of the opinion that the same language and analysis is applicable to this voter registration case.").
[23] Similarly, in other cases, otherwise neutral categories or classifications have interacted with social and historical conditions so as to function as proxies for race. For example, a literacy test, by itself a constitutional race-neutral voting qualification, may violate the Voting Rights Act when it is used to deny African Americans the right to vote, see South Carolina v. Katzenbach, 383 U.S. 301, 333-34, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (upholding the Voting Rights Act's ban on literacy tests although a facially fair literacy test is not per se unconstitutional). In addition, facially race-neutral poll taxes and grandfather clauses have been declared unconstitutional when used as proxies to deny African Americans the franchise. See Guinn v. United States, 238 U.S. 347, 364-67, 35 S.Ct. 926, 59 L.Ed. 1340 (1915) (striking down exemption from literacy tests for any "person who was, on January 1, 1866, or any time prior thereto, entitled to vote... and [any] lineal descendant of such person" because "the standard itself inherently brings [a racially exclusionary] result into existence"); United States v. Alabama, 252 F.Supp. 95 (M.D.Ala.1966) (three-judge district court) (finding Alabama's poll tax unconstitutional because its purpose and effect was to discriminate on the basis of race).
[24] In reaching its conclusion, the district court relied in part on the Sixth Circuit's opinion in Wesley v. Collins, 791 F.2d 1255 (6th Cir.1986), aff'g 605 F.Supp. 802, 813 (M.D.Tenn.1985). However, Wesley failed to adequately consider the Supreme Court's approach to racially discriminatory disenfranchisement, noting erroneously that "the disenfranchisement of felons has never been viewed as a device by which a state could discriminatorily exclude a given racial minority from the polls." Wesley, 791 F.2d at 1262 (affirming the trial court's conclusion that disenfranchising felons has never been linked to discriminatory attempts to prevent racial minorities from voting,

despite Hunter's holding the previous year). See also Baker v. Pataki, 85 F.3d 919, 940 n. 10 (2d Cir.1996) (in banc) (Feinberg, J., concurring) (rejecting Wesley's conclusions).
[25] In this regard, we also find that Professor Richard Engstrom's expert testimony on racially polarized voting in Florida should not have been excluded on the grounds that it is not relevant to this type of vote denial claim. Although the weight to be given it is left to the fact-finder, the evidence is relevant to the consideration of the totality of the circumstances, including the extent of racial bias in the community, and the interaction of those circumstances. Moreover, as this case is being remanded for further consideration and discovery, the arguments pertaining to a delayed disclosure of the testimony of James Ginger and the five Florida Supreme Court Racial and Ethnic Bias Study Commission reports on which he relied are moot, as the State now has the opportunity to respond.
[26] For example, the record includes evidence of Florida's history of official discrimination in elections; the disproportionate impact of felon disenfranchisement on African Americans; racial bias in the criminal justice system, see Doc. 142 at 17-18 (describing the conclusion of the Florida Supreme Court's Racial and Ethnic Bias Study Commission that "differential treatment results, at least in part, from racial and ethnic bias on the part of enough individual police officers, prosecutors, and judges to make the system operate as if it intended to discriminate against non-whites"); the historical use of criminal justice in Florida as a tool to subjugate African Americans; and the impact of past racially discriminatory criminal justice policies on current disenfranchisement. The Plaintiffs also cite to evidence of the effects of discrimination in education, such as differences in graduation rates, higher education degrees, and per capita income; the impact of those effects on criminal arrest rates and on the restoration of rights after serving a sentence; and the tendency of the eligibility requirements for the restoration of rights to exclude more African Americans.
[27] The dissent argues that our interpretation of the scope of the Voting Rights Act creates serious constitutional problems because it allows the Voting Rights Act to "trump" the text of Section 2 of the Fourteenth Amendment, which expressly permits states to deny the right to vote "for participation in rebellion, or other crime." However, notwithstanding the text of Section 2, states clearly do not have the right to intentionally disenfranchise felons on the basis of race. See Hunter, 471 U.S. at 233, 105 S.Ct. 1916 ("[W]e are confident that § 2 [of the Fourteenth Amendment] was not designed to permit the purposeful racial discrimination attending the enactment and operation of [Alabama's criminal disenfranchisement law] which otherwise violates § 1 of the Fourteenth Amendment. Nothing in our opinion in Richardson v. Ramirez, supra, suggests the contrary."). Thus, although Congress might not be able to ban all state criminal disenfranchisement laws, it may certainly exercise the power granted to it under Section 5 of the Fourteenth Amendment to enforce statutorily the constitutional prohibition against racially discriminatory criminal disenfranchisement. See Baker, 85 F.3d at 936-37 (Feinberg, J., concurring) (writing for one-half of the evenly-split in banc Second Circuit); cf. Marengo County Comm'n, 731 F.2d at 1550, 1563 (holding that Section 2 as amended in 1982 is a constitutional exercise of congressional enforcement power under the 14th and 15th Amendments).
Moreover, insofar as the dissent is assuming that Section 2 of the Fourteenth Amendment expressly authorizes Florida to disenfranchise convicted felons, even where its manner of doing so disproportionately impacts racial minorities, we question this interpretation, for which the dissent provides no authority. We think it better to interpret this constitutional provision to permit Florida and other states to disenfranchise convicted felons in a racially neutral manner0907that is, in a manner that is neither racially motivated nor produces racially disproportionate effects. Viewed in this light, the Constitution's express permission to states to disenfranchise felons is compatible with the scope of the Voting Rights Act, and no constitutional problem arises by assuming that Congress may use its enforcement power to proscribe felon disenfranchisement policies that have racially discriminatory effects. Cf. Marengo County Comm'n, 731 F.2d at 1563 ("Section 2 [of the Voting Rights Act] does not conflict with or contract any right protected by the Constitution, and nothing in the Constitution either explicitly or implicitly prohibits a results standard for voting rights violations.").
Finally, we note that the legislative history and precedent discussed by the dissent pertain only to Section 4 of the Voting Rights Act, 42 U.S.C. § 1973b, which addresses "tests or devices" used to determine voter eligibility in certain states and political subdivisions, and not to Section 2. Our predecessor court observed that the Voting Rights Act of 1965 "contains a number of different provisions each with a different objective, that for its

comprehension critical examination of each section is essential and that the reader cannot, therefore, assume that each of the sections is designed to reach the same objective or is necessarily to be read in the same manner." United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 550 (5th Cir. 1980). See also Baker, 85 F.3d at 939 (Feinberg, J., concurring) ("Because §§ 2 and 4 have different purposes, scope and language, the legislative history of § 4(c) is not necessarily applicable to interpretation of § 2."). Section 4's prohibition of specified "tests or devices" brings with it a host of additional requirements for states and political subdivisions covered by the section. In contrast, Section 2 applies nationally to prohibit a broader range of practices than those "tests or devices" defined in Section 4, but only when their use results in the denial or abridgement of the right to vote on account of race. It is perfectly conceivable that Congress might wish to exclude a particular practice from section 4's "test or device" label to avoid attaching to it the additional requirements, yet still intend to prohibit that practice when the evidence shows that its use results in the denial of the right to vote on account of race.
[28] The district court erroneously observed that "It is not Plaintiffs' right to vote which payment of a victim restitution is being conditioned but rather it is the restoration of his civil rights which is being conditioned." Johnson, 214 F.Supp.2d at 1343. As one of the civil rights to be restored, clearly the right to vote depends on any conditions that apply to the restoration of civil rights in general.
[29] In doing so, we say nothing about whether conditioning an application for clemency on paying restitution would be an invalid poll tax.
[1] There are conditions to the restoration of civil rights, including conviction of fewer than three violent crimes.
[2] Nonetheless, I question the majority's description of the record. In particular, the majority states that one white delegate to the 1868 Constitutional Convention stated several years later that he had helped prevent the state from being "niggarized." A white politician running for office in 1872 made this despicable comment in reference to the entire 1868 Constitution. Although this is evidence of an unfortunate and indefensible racial animus in nineteenth-century Florida politics, there is no evidence that the comment was in reference to the felon disenfranchisement provision. It is far more likely that the comment referenced other provisions in the 1868 Constitution, such as the voter apportionment system.
The plaintiffs' expert states voter apportionment and the appointment (rather than election) of many political posts were the most significant and well-known issues of 1868 Constitutional Convention, while felon disenfranchisement was a relatively minor issue. In fact, the plaintiffs' expert acknowledged that the historical record is mixed on the felon disenfranchisement provision. The 1868 Constitution's felon suffrage provisions garnered the support of several of the Radical Republicans, including four African American delegates who consistently voted with the Radical Republicans. Doc. 122 at 875.
[3] The plaintiffs stipulate that there is no evidence that legislators were concerned with or considered the consequences of the policy along racial lines.
[4] The majority states that Florida must prove that it would have enacted this provision in 1868 without a discriminatory motive to withstand summary judgment. This would be the case if the 1868 provision was being challenged. In the current litigation, however, the plaintiffs are challenging the 1968 provision and they have presented no evidence that this provision, passed one hundred years later, was motivated by discriminatory intent.
[5] Doc. 163-Addendum. The plaintiffs' best estimates show that 44,562 white voters and 16,150 African American voters were disenfranchised in 1968 due to a felony conviction.
[6] The majority cites Hunter for the proposition that "proof of discriminatory intent behind a specific policy in the past creates an inference that the impermissible purpose continues into the present despite the passage of time and even, in some instances, intervening changes to the policy." (emphasis added). In Hunter, the Supreme Court found that revision to the state provision by state courts, which severed "some of the more blatantly discriminatory" portions of the law, did not purge the provision of its legislative intent. 471 U.S. at 232-33, 105 S.Ct. 1916. However, the Supreme Court did not hold that intervening legislative changes to the policy were legally insufficient to remove an earlier discriminatory intent. Because the present case deals with legislative

changes, rather than judicial changes, to the felon disenfranchisement policy, Hunter should not be read to support the proposition that an impermissible motive in Florida's 1868 Constitution continues to the present in spite of legislative changes made in the 1968 Constitution.
[7] The majority repeatedly refers to the current effects of the felon disenfranchisement provision 0907some forty years after it was passed0907but this is simply not relevant for understanding the motives of legislators in 1968. Unlike in Fordice, the racially disparate effect of Florida's voting provision was not present when the provision was passed. In contrast to school desegregation where the racially disparate impact was at its height in the 1950s and 1960s and has decreased since, the felon disenfranchisement rule had very little racially disparate impact in the 1960s and only developed such an effect many years later.
[8] The minutes of the committee meeting record the following motion was considered:
"Mr. Goodrich offered the following substitute motion to Mr. Pettigrew's motion: Delete Section 4 and insert: `The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution.' After discussion, Mr. Goodrich's motion failed for lack of a second."
Doc.App. 10 at 983.
[9] The full text of Section 2 states:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But 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, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
[10] If this court chooses to adopt an interpretation that confronts the constitutional question, then we must address directly whether Congress has the power to trump constitutional provisions that are not applied in violation of the Equal Protection Clause.
[11] The Second Circuit reinstated a district court opinion that reached the same conclusion on the scope of the Voting Rights Act. In Baker v. Pataki, an en banc panel was evenly split on the issue. 85 F.3d 919 (2d Cir.1996). In an opinion urging the court to affirm, Judge Mahoney, joined by four other judges, argued that the Voting Rights Act was of questionable constitutionality if it applied to felon disenfranchisement provisions. Id. at 929-32. The judges looked for a clear statement from Congress supporting this interpretation and found evidence of Congressional support to be "manifestly lacking." Id. at 930.
Only the Ninth Circuit has found a felon disenfranchisement provision to be a statutory violation. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003). There, the plaintiffs brought a Voting Rights Act challenge to the State of Washington's felon disenfranchisement provision, claiming that racism in the criminal justice system interacted with the state's suffrage laws to deny equal voting opportunities to minorities. Id. at 1020. The Ninth Circuit reversed the grant of summary judgment, but did not specifically address the constitutionality of its interpretation. Logically, that court must have found that the statute covered the challenged provision and that Congress had the constitutional authority to regulate felon disenfranchisement provisions to reach its holding. Nevertheless, the Ninth Circuit did not provide any reasoning for its finding, and thus that court's decision, which is only persuasive authority in our circuit, should not inform our analysis.
[12] Section 1973 of the Voting Rights Act in 1965 stated:
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.

[13] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
[14] The current text, as amended in 1982, states:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
Section 1973b(f)(2) states that:
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 because he is a member of a language minority group.
[15] In addition, there are currently two bills circulating in Congress that aim to limit a state's discretion to disenfranchise felons and include findings that felon disenfranchisement provisions create a disparate racial impact. Civil Participation and Rehabilitation Act, H.R. 259, 108th Cong. § 2(g) (2003), Ex-Offenders Voting Rights Act of 2003, H.R. 1433, 108th Cong. § 2(a)(11) (2003). Although not dispositive in interpreting the scope of the Voting Rights Act, it is unclear why these bills have been proposed if Congress has the clear understanding that the Voting Rights Act currently covers these cases.
[16] Even if we assume that the Voting Rights Act applies to Florida's provision, the plaintiffs still must demonstrate that specific racial biases in society cause minorities to be convicted of felonies at a higher rate than whites. Cf. Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 2764, 92 L.Ed.2d 25 (1987) (stating that the Voting Rights Act requires that electoral practices interact with social or historical conditions to cause racial inequality in the political process). Without such an initial showing, the plaintiffs do not allege a sufficiently specific nexus between racial discrimination and the felon disenfranchisement rule.
The majority opinion discusses a long list of possible areas of discrimination, but here we are concerned only with how the state discriminates against similarly situated persons who have committed felonies. The record includes some evidence that there is a statistical difference in the rate of felony convictions along racial lines, even accounting for other factors. This finding is disturbing, but the statistical analysis cannot speak to causation. The plaintiffs' statistical findings only demonstrate correlations between different variables and do not purport to establish causal relationships between these variables. Causation analysis must come from sources external to the statistical analysis. Thus by definition, the plaintiffs cannot establish a causal nexus between variables by statistical results alone.
The majority emphasizes that Voting Rights Act requires a "totality of the circumstances" analysis to evaluate whether racial discrimination, outside of the voting context, causes racial discrimination in the political process. I agree that this is the correct standard. I respectfully disagree with the majority, however, over what evidence is necessary to demonstrate that the alleged disparate impact in voting is caused by discrimination outside of the political process.
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 377 F.3d 1163 (2004)
Thomas JOHNSON, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams-Carpenter, Jau'Dohn Hicks, John Hanes, in their own right and as representatives of all ex-felon citizens of Florida, Plaintiffs-Appellants, Omali Yeshitela, Plaintiff, v.
GOVERNOR OF THE STATE OF FLORIDA, Jeb Bush, Secretary of the State of Florida, Katherine Harris, Charlie Crist, Robert Milligan, William Nelson, Robert Crawford, Thomas
Gallagher, in their roles as members of the Clemency Board of Florida, Beverly Hill, Alachua County Election Supervisor, et al., Defendants-Appellees.
No. 02-14469.
United States Court of Appeals, Eleventh Circuit.
July 20, 2004.
Jessie Allen, Deborah Goldberg, New York City, for Plaintiffs-Appellants.
Charles J. Cooper, David H. Thompson, Hamish Hume, Derek L. Shaffer, Cooper & Kirk, PLLC, Washington, DC, Robert C. Buschel, Buschel, Carter, Schwartzreich & Yates, Michael David Cirullo, Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, FL, H. Ray Allen, III, Tampa, FL, for Defendants-Appellees.
James J. Benjamin, Jr., Akin, Gump, Strauss, Hauer & Feld, LLP, New York City, for Amicus Curiae, Alpert.
John Russell-Cotes Cosgrove, Menlo Park, CA, for Amicus Curiae, Center for Children of Incarcerated Parents.
Paul A. Engelmayer, Wilmer, Cutler & Pickering, New York City, for Amicus Curiae, Holder.
Charles S. Treat, San Francisco, CA, for Seven Nonprofit Public Interest Organizations.
Mark L. Gross, Clay G. Guthridge, U.S Dept. of Justice, Washington, DC, Nancy Chung, Akin, Gump, Strauss, Hauer & Feld, LLP, New York City, Stacey Michelle Schwartz, Akin, Gump, Strauss, Hauer & Feld, LLP, Fort Lauderdale, FL, for Amici Curiae, U.S.
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CANES, BARKETT, HULL, WILSON and PRYOR, Circuit Judges[*].
BY THE COURT:
A member of this Court in active service having requested a poll on the suggestion of rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a rehearing en banc,
1164 *1164 IT IS ORDERED that the above cause shall be reheard by this Court en banc. The previous panel's opinion is hereby VACATED.
[*] Judge Stanley Marcus has recused himself and will not participate. Judge Phyllis A. Kravitch has elected to participate in further proceedings in this matter pursuant to 28 U.S.C. § 46(c).
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 405 F.3d 1214 (2005)
Thomas JOHNSON, Derrick Andre Thomas, Eric Robinson, Adam Hernandez, Kathryn Williams-Carpenter, Jau'Dohn Hicks, John Hanes, in their own right and as representatives of all ex-felon citizens of Florida, Plaintiffs-Appellants, Omali Yeshitela, Plaintiff, v.
GOVERNOR OF the STATE OF FLORIDA, Jeb Bush, Secretary of the State of Florida, Katherine Harris, Charlie Crist, Robert Milligan, William Nelson, Robert Crawford, Thomas
Gallagher, in their roles as members of the Clemency Board of Florida, Beverly Hill, Alachua County Election Supervisor, et al., Defendants-Appellees.
No. 02-14469.
United States Court of Appeals, Eleventh Circuit.
April 12, 2005.
12156 *1215 *1216 James E. Johnson, Debevoise & Plimpton, LLP, Jessie Allen, Deborah Goldberg, Brennan Center for Justice, New York City, for Plaintiffs-Appellants.
Charles J. Cooper, David H. Thompson, Derek L. Shaffer, Thomas B. Cotton, Hamish Hume, Cooper & Kirk, PLLC, Washington, DC, Jeffrey Paul Ehrlich, Miami, FL, Robert C. Buschel, Buschel, Carter, Schwartzreich & Yates, Michael David Cirullo, Jr., Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, FL, H. Ray Allen, III, Hillsborough Atty., Tampa, FL, for Defendants-Appellees.
James J. Benjamin, Jr., Nancy Chung, Akin, Gump, Strauss, Hauer & Feld, LLP, Paul A. Engelmayer, Wilmer, Cutler & Pickerung, New York City, John Russell-Cotes Cosgrove, Menlo Park, CA, Charles S. Treat, San Francisco, CA, Mark L. Gross, Clay G. Guthridge, U.S. Dept. of Justice, Washington, DC, Mark A. McCarty, Alston & Bird, LLP, Atlanta, GA, Stacey Michelle Schwartz, Fort Lauderdale, FL, for Amici Curiae.
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, WILSON, PRYOR and KRAVITCH, Circuit Judges.[*]
KRAVITCH, Circuit Judge:
I. Introduction
This case involves a Fourteenth Amendment Equal Protection Clause challenge and a Section 2 Voting Rights Act ("VRA") challenge to Florida's felon disenfranchisement law which provides that "[n]o person convicted of a felony ... shall be qualified to vote or hold office until restoration of civil rights or removal of disability."[1] Fla. Const. art. VI, § 4 (1968). The plaintiffs filed this class action on behalf of all Florida citizens who have been convicted of a felony and have completed all terms of their incarceration, probation, and parole but who are 1217 barred from voting under the *1217 state's felon disenfranchisement law.[2] The defendants are members of Florida's Clemency Board.[3]
II. Procedural History and Standard of Review
After cross motions for summary judgment, the district court granted summary judgment in favor of the defendants on all claims. A divided panel of this court reversed and remanded on both the Equal Protection and VRA claims. Johnson v. Governor of State of Florida, 353 F.3d 1287 (11th Cir.2003), vacated 377 F.3d 1163. This court vacated the panel opinion and granted a rehearing en banc. Johnson, 377 F.3d at 1163-64. We now

consider whether the district court erred in granting summary judgment in favor of the defendants on the plaintiffs' claims under the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act.
We review a district court's grant of summary judgment de novo, "viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party." Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

III. The Equal Protection Claim

The plaintiffs argue that Florida's felon disenfranchisement law violates the Equal Protection Clause, which prohibits a state from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The plaintiffs contend that racial animus motivated the adoption of Florida's criminal disenfranchisement provision in 1868 and this animus remains legally operative today, notwithstanding the fact that Florida altered and reenacted the provision in 1968.

A state's decision to permanently disenfranchise convicted felons does not, in itself, constitute an Equal Protection violation. Richardson v. Ramirez, 418 U.S. 24, 53-55, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). The Supreme Court made this clear in Richardson, where it rejected a non-racial equal protection clause challenge to California's felon disenfranchisement law. 418 U.S. at 56, 94 S.Ct. 2655. In doing so, the Court relied on Section 2 of the Fourteenth Amendment, holding that it expressly permits states to disenfranchise convicted felons.[4] The Court was persuaded that:

1218

[T]hose who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction *1218 of reduced representation imposed by § 2 of the Amendment.

Id. at 43, 94 S.Ct. 2655. Of course, the Equal Protection Clause prohibits a state from using a facially neutral law to intentionally discriminate on the basis of race. Washington v. Davis, 426 U.S. 229, 239-40, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). This includes a criminal disenfranchisement law enacted with the intent to deprive one racial group of its right to participate in the political process. Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). In light of this well-established precedent, the question here is whether the plaintiffs have alleged facts that, if true, would be sufficient to establish intentional discrimination in Florida's current disenfranchisement law.

1. Historical Background

Florida's policy of criminal disenfranchisement has a long history, tracing back well before the Civil War.[5] Florida's earliest Constitution, adopted in 1838, authorized the General Assembly to enact criminal disenfranchisement laws and in 1845, Florida's General Assembly enacted such a law.[6] Florida's 1861 and 1865 Constitutions also contained criminal disenfranchisement provisions.
There is no doubt that Florida's decision to adopt a criminal disenfranchisement law in these early Constitutions was based on a non-racial rationale. At that time, the right to vote was not extended to African-Americans, and, therefore, they could not have been the targets of any disenfranchisement law. The plaintiffs, however, point to 1868 as the critical date on which they allege Florida's disenfranchisement law became motivated by racial discrimination.
Because the plaintiffs' Equal Protection claim hinges on the 1868 criminal disenfranchisement provision, we must examine the historical context in which that provision was adopted. After the Civil War, the Reconstruction Act 1219 required Florida to ratify the Fourteenth Amendment and *1219 change its Constitution as a condition for readmittance to the Union.[7] In accordance with a federally mandated plan, the South was divided into military districts with Florida under the command of General John Pope. Under his supervision, both African-Americans and white delegates were elected to Florida's 1868 constitutional convention.

During the convention, a struggle for control erupted between the Radical Republicans and the Moderate Republicans. The Radical Republicans "wished to exclude native whites from state politics" and the Moderate Republicans were "opposed to the Radicals and willing to compromise with native whites." After a series of events unfolded, the Radical Republicans and Moderate Republicans each had drafted competing constitutions and both groups claimed to be the lawful convention. The Federal government supervised the process. Faced with a choice between the two constitutions, the United States Congress endorsed the Constitution drafted by the Moderate Republicans. It was subsequently ratified by the voters of Florida. Like Florida's earlier Constitutions, the 1868 Constitution contained a criminal disenfranchisement provision.[8] Thus, under federal supervision, a racially mixed delegation produced a constitution granting suffrage to men of all races.
We do not doubt that racial discrimination may have motivated certain other provisions in Florida's 1868 Constitution such as a legislative apportionment scheme that diminished representation from densely populated black counties. The existence of racial discrimination behind some provisions of Florida's 1868 Constitution does not, however, establish that racial animus motivated the criminal disenfranchisement provision, particularly given Florida's long-standing tradition of criminal disenfranchisement. Indeed, the plaintiffs' own historical expert conceded that prior to the instant case, no historian who had studied Florida's 1868 Constitution had ever contemplated that the 1868 criminal disenfranchisement provision was enacted with discriminatory intent.
The plaintiffs offer no contemporaneous evidence from the 1868 constitutional convention demonstrating that racial discrimination motivated the enactment of the 1868 disenfranchisement provision. To advance their theory, the plaintiffs rely almost exclusively[9] on a few isolated remarks[10] made after the 1868 Constitutional 1220 Convention. Although these comments reflect an unfortunate and indefensible racial *1220 animus in nineteenthcentury Florida politics, there is no evidence that these post-convention comments referenced the 1868 disenfranchisement provision. Indeed, the record strongly indicates that these comments referenced other provisions in the 1868 Constitution, such as the legislative apportionment system.[11] In addition, the plaintiffs point to the fact that Florida rejected the Radical Republican Constitution which did not contain a disenfranchisement provision in favor of the Moderate Republican Constitution which contained such a provision. Although this is true, it in no way establishes that racial discrimination motivated the disenfranchisement provision. There is no evidence to suggest that Florida's decision to adopt the Moderate Republican Constitution had anything to do with the disenfranchisement provision.[12] Furthermore, Florida did not act alone in choosing its Constitution 0907 the United States Congress expressly approved Florida's 1868 Constitution in readmitting the state to the Union.
2. 1968 Constitutional Revision
One hundred years after the adoption of the 1868 Constitution, Florida comprehensively revised its Constitution. Once again, Florida chose to maintain a criminal disenfranchisement law, a decision explicitly left to its discretion by the text of the Fourteenth Amendment. The plaintiffs do not allege that racial discrimination motivated the adoption of Florida's 1968 felon disenfranchisement law.
The backdrop for the enactment of Florida's 1968 felon disenfranchisement provision is as follows. In 1965, the Florida Legislature appointed a thirty-seven member Constitutional Revision Commission ("CRC") to engage in "a careful study of the constitution ... for the purpose of eliminating obsolete, conflicting and unnecessary provisions as well as for framing an orderly and properly arranged constitution, based upon economic and social changes." 1965 Fla. Laws, ch. 65-561. To engage in this process, the CRC delegated responsibilities to various committees. The Suffrage and Elections Committee was charged with, inter alia, examining Florida's felon disenfranchisement provision.
The plaintiffs contend that any revisions made in 1968 to Florida's felon disenfranchisement law were not 1221 substantive in nature.[13] We disagree. Florida's 1968 felon disenfranchisement provision is markedly *1221
different from Florida's 1868 version. The 1868 Constitution (as amended in 1885) contained two provisions for criminal disenfranchisement.

Section 4 provided:
No person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless restored to civil rights.
Fla. Const. art. VI, § 4 (1885). Section 5 provided:
The Legislature shall have the power to, and shall, enact the necessary laws to exclude ... from the right of suffrage, all persons convicted of bribery, perjury, larceny, or other infamous crime ...
Fla. Const. art. VI, § 5 (1885). After the 1968 revision, only one provision addressed felon disenfranchisement:
No person convicted of a felony, or adjudicated in this or any state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.
Fla. Const. art. VI, § 4 (1968).
Whereas the 1868 provisions disenfranchised persons convicted of certain misdemeanors such as petty larceny, [14] under the new 1968 provision, only those persons convicted of felonies could be disenfranchised. Therefore, the 1968 provision narrowed the class of persons who could be disenfranchised and re-enfranchised some persons who previously were disenfranchised.[15]
Additionally, before submitting its proposal to the CRC, the Suffrage and Elections Committee considered several 1222 motions to alter the newly proposed felon disenfranchisement provision.[16] Notably, *1222 the committee
considered but rejected an amendment which would have ended blanket disenfranchisement of felons and instead would have vested the legislature with the power to impose criminal disenfranchisement. The committee also considered and rejected an amendment to limit felon disenfranchisement to those still in prison. Had the committee only been engaged in stylistic revisions, as the plaintiffs urge was the case, it would not have considered or debated these alternatives.
The committee's final proposal then was sent to the CRC. The CRC met to review the changes to the Constitution and submitted a draft to the legislature. The legislature approved the proposed new Constitution containing the disenfranchisement provision; it then was affirmed by the voters of Florida. Thus, Florida's 1968 Constitution, including the felon disenfranchisement provision, was adopted after four stages of review.
3. Equal Protection Analysis
A facially-neutral law violates the Equal Protection Clause if adopted with the intent to discriminate against a racial group.[17]Washington v. Davis, 426 U.S. at 239, 96 S.Ct. 2040. In Hunter v. Underwood, the Supreme Court examined head-on an equal protection challenge to a criminal disenfranchisement provision. 471 U.S. at 223, 105 S.Ct. 1916. There, the Court determined that Alabama's criminal disenfranchisement provision violated the Equal Protection Clause because it was adopted in 1901 to minimize the political power of its AfricanAmerican population. Id. at 228-230, 105 S.Ct. 1916.[18] After the 1901 enactment, the Alabama legislature neither altered the provision nor reenacted it in a political atmosphere free of racial bias. Rather, all of the amendments to the provision were the result of judicial action. Id. at 233, 105 S.Ct. 1916.
The Hunter Court articulated a two-step test to analyze whether a criminal disenfranchisement provision violates 1223 the *1223 Equal Protection Clause. Id. at 227-28, 105 S.Ct. 1916. The Court directed as follows:
Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment: "[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." Once racial discrimination is shown to have been a "substantial" or "motivating" factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor.
Id. (citation omitted).
Thus, under the Hunter analysis, we first examine whether racial discrimination was a substantial or motivating factor in the state's decision to deny the right to vote to felons. If there is evidence that racial discrimination was a motivating factor, we then ask whether the state can show that the provision would have been enacted in the absence of any racially discriminatory motive.
Applying Hunter v. Underwood
The essence of the plaintiffs' Equal Protection claim is that racial animus motivated the adoption of Florida's disenfranchisement law in 1868 and this animus remains legally operative today despite the re-enactment in 1968. As suggested earlier, we question whether the plaintiffs have adequately demonstrated that racial discrimination motivated the adoption of the 1868 provision. The plaintiffs introduced no contemporaneous evidence showing that racial discrimination motivated the adoption of the 1868 provision. Nevertheless, because of the procedural posture of this case, we are mindful of the need to view the evidence in the light most favorable to the plaintiffs. Thus, we will assume, without deciding, that racial animus motivated the adoption of Florida's 1868 disenfranchisement law. That assumption does not, however, lead us to conclude that the plaintiffs satisfy the first step of Hunter. Importantly, we are concerned here with the validity of the 1968 provision, not the 1868 provision and the plaintiffs concede that the 1968 provision was not enacted with discriminatory intent.[19]
In Hunter, the Supreme Court left open the precise question we confront here: whether a subsequent legislative re-enactment can eliminate the taint from a law that was originally enacted with discriminatory intent.[20]Hunter, 471 U.S. at 233, 105 S.Ct. 1916. In Cotton v. Fordice, 157 F.3d 388 (5th Cir.1988), the Fifth Circuit recognized that this issue was left open by Hunter and held that the facially neutral disenfranchisement provision in that case overcame its "odious origin" through legislative amendments. 157 F.3d at 391. The Fifth Circuit pointed out that 1224 the disenfranchisement provision at issue was originally *1224 enacted in 1890 with discriminatory intent, but was amended by the legislature in 1950 to remove burglary as a disenfranchising crime, and was amended in 1968 to add murder and rape as disenfranchising crimes, two crimes which were historically excluded because they were not considered "black" crimes. Id. The court emphasized the deliberative process through which the provision had twice been amended: First, both houses of the legislature had to pass the amendment by a two-thirds vote; then the Mississippi Secretary of State had to publish the full text of the provision at least two weeks before the popular election; finally, a majority of the voters had to approve the full text of the provision. Id. Thus, the Fifth Circuit held that "[b]ecause Mississippi's procedure resulted both in 1950 and in 1968 in a reenactment of [the provision], each amendment superseded the previous provision and removed the discriminatory taint associated with the original version." Id.
The situation here is similar to that in Cotton v. Fordice. Like Mississippi's provision, Florida's disenfranchisement provision was amended through a deliberative process in 1968. The 1968 provision narrowed the class of disenfranchised individuals to those convicted of felonies. Moreover, the provision first was considered by the Suffrage and Elections Committee. The Committee sent its final proposal to the CRC. The CRC reviewed the changes to the Constitution and sent a draft to the legislature, which approved the new Constitution. Finally, the voters approved the new Constitution. Thus, as in Cotton v. Fordice, Florida's 1968 re-enactment eliminated any taint from the allegedly discriminatory 1868 provision, particularly in light of the passage of time and the fact that, at the time of the 1968 enactment, no one had ever alleged that the 1868 provision was motivated by racial animus.
Even if the plaintiffs were somehow able to satisfy the first step of Hunter, their Equal Protection claim would still fail. Under the second step of Hunter, we examine whether Florida would have chosen to disenfranchise felons in 1968 if legislators did not have a discriminatory motive. In Hunter, this was a more complicated analysis because it required a counter-factual scenario: given that Alabama only legislatively addressed the disenfranchisement

issue once, what would legislators have done if they did not have a discriminatory motive? 471 U.S. at 228-29, 105 S.Ct. 1916. Here, we have the luxury of not having to delve into a complex counter-factual scenario because Florida simplified the analysis by returning to the issue in 1968. Florida's 1968 Constitution permits us to determine whether the state would have chosen to disenfranchise felons if the impermissible motive was absent. The results are plain: there is no allegation of racial discrimination in 1968 and the legislators decided to include a felon disenfranchisement provision in the revised constitution after consideration by both the CRC and the Suffrage and Elections Committee. This decision was then affirmed by both houses of the legislature and by the voters of Florida.
Thus, Florida's felon disenfranchisement provision is not a violation of the Equal Protection Clause under the standard the Court adopted in Hunter. Florida's re-enactment of the felon disenfranchisement provision in the 1968 Constitution conclusively demonstrates that the state would enact this provision even without an impermissible motive and did enact the provision without an impermissible motive. The state has met its burden as a matter of law by substantively reenacting the law for race-neutral reasons.
The plaintiffs urge that the defendants should bear a greater burden. They contend that Florida must affirmatively 1225 prove *1225 that racial discrimination was not a substantial or motivating factor behind the disenfranchisement
law in 1968. Specifically, the plaintiffs argue that Florida must demonstrate that it acknowledged that racial discrimination tainted the 1868 provision, and yet it knowingly reenacted the disenfranchisement provision for non-discriminatory reasons in 1968. We do not require this level of proof.[21] Florida's felon disenfranchisement provision is constitutional because it was substantively altered and reenacted in 1968 in the absence of any evidence of racial bias. Cotton v. Fordice, 157 F.3d 388 (5th Cir.1998).
The plaintiffs rely extensively on United States v. Fordice, 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992) to support their argument. Fordice, however, dealt with a challenge to Mississippi's system of higher education and involved an extreme case of recent state discrimination. Mississippi had actively resisted removing the segregated system of education in the 1960s, failed to fund even limited educational reform in 1969, and was sued by the United States and private plaintiffs in 1975 for failing to comply with the Equal Protection Clause.[22] Id. at 722-25, 112 S.Ct. 2727. The issue in Fordice was whether the state's facially-neutral education system, adopted only after the state was required to integrate its schools by court order, was valid under the Equal Protection Clause if the system maintained the racially disparate impact that de jure segregation had created. The Supreme Court found that Mississippi's actions were not consistent with the Equal Protection Clause because Mississippi made no effort to remove the discriminatory effects of de jure segregation.
The present case and Fordice are not analogous. First, Florida has a valid public policy reason for disenfranchising felons, where Mississippi did not have a sound justification for its education policies. Justice Thomas, in his concurring opinion in Fordice, specifically stated that heightened review is only applicable when there is no sound public policy justification for the state law, stating: "A challenged policy does not survive under the standard we announce today if it began during the prior de jure era, produces adverse impacts, and persists without sound educational justification." Fordice, 505 U.S. at 746, 112 S.Ct. 2727. Unlike Mississippi, which did not have a valid educational justification for maintaining segregated schools, Florida has a legitimate reason for denying the vote to felons. Several courts have recognized the propriety of excluding felons from the franchise. See Richardson, 418 U.S. at 54-55, 94 S.Ct. 2655; Green v. Board of Elections, 380 F.2d 445, 450-52 (2d Cir.1967); Beacham v. Braterman, 300 F.Supp. 182, 184 (S.D.Fla.), aff'd, 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969).
Second, the current Florida provision was passed one hundred years after the alleged intentional discrimination 1226 occurred, *1226 whereas Mississippi's provision was passed shortly after the end of de jure segregation in
education. Needless to say, the Florida legislators who passed the 1868 Constitution and the 1968 Constitution were not the same people. In Fordice, however, the legislators who refused to desegregate the Mississippi schools without a court order in the 1960s, most likely overlapped significantly with the legislators who passed the facially neutral education system in the 1970s. Given the proximity in time between Mississippi's intentional discrimination and the facially neutral provision in education, the Court had a healthy skepticism that the facially neutral provision was indeed neutral. Certainly, the Mississippi legislators who voted for the facially neutral provision understood the history of racial segregation in education and the likely effect of their new education

system. But this skepticism does not apply here, because it is not reasonable to assign any impermissible motives held by the 1868 Florida legislators to the 1968 legislators who voted for the present felon disenfranchisement provision.
Third, Florida's 1968 felon disenfranchisement provision did not continue the adverse disparate impact of earlier de jure measures, which makes the present case entirely different than the situation in Fordice. At the time the Mississippi legislature adopted its education system, the system of higher education was almost completely racially segregated. 505 U.S. at 722-23, 112 S.Ct. 2727. In Fordice, therefore, the Supreme Court was concerned that Mississippi was attempting to perpetuate its racially segregated education system, established in a time of de jure segregation, through a facially-neutral provision. Conversely, when Florida adopted its felon disenfranchisement provision in 1968, the racial effects of the provision were minor.[23] In 1968, Florida legislators and voters were not attempting to extend the effects of de jure discrimination with a facially-neutral provision because there was little adverse impact to extend by passing the felon disenfranchisement provision. [24] Florida's provision simply did not maintain a pattern of discrimination the way Mississippi's provision did. Consequently, the heightened review in Fordice is not appropriate here.
Finally, we note that this circuit has been reluctant to extend the education line of cases to other areas. As this court stated in Burton v. City of Belle Glade, school desegregation jurisprudence is unique and difficult to apply in other contexts. 178 F.3d 1175, 1190 (11th Cir.1999); see also Johnson v. DeSoto County Bd. Of Comm'rs, 204 F.3d 1335, 1344 n. 18 (11th Cir.2000). Moreover, as discussed earlier, there is specific precedent from this court and the Supreme Court dealing with criminal disenfranchisement. See Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985); Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974); Beacham v. Braterman, 300 F.Supp. 182, 183 (1969), aff'd 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969) (finding by a three judge panel that Florida's decision to disenfranchise felons was not a violation of the plaintiff's equal protection or due process rights). Because these cases establish clear standards by which to judge state 1227 action, we are bound *1227 by precedent and need not go into other areas of possibly analogous law.
For the above reasons, we affirm the district court's grant of summary judgment on this claim.
IV. The Voting Rights Act Claim
The plaintiffs also argue that Florida's felon disenfranchisement law violates Section 2 of the Voting Rights Act. As a threshold matter, this claim raises an important question of statutory interpretation, namely, whether Section 2 of the Voting Rights Act applies to Florida's felon disenfranchisement provision. The Circuits are split on this issue. Compare Muntaqim v. Coombe, 366 F.3d 102, 124 (2d Cir.2004) (holding that Section 2 did not reach New York's felon disenfranchisement statute), cert. denied, ___ U.S. ___, 125 S.Ct. 480, 160 L.Ed.2d 356 (2004), and reh'g en banc granted, 396 F.3d 95 (2004) with Farrakhan v. Washington, 338 F.3d 1009, 1014-15 (9th Cir.2003) (holding that Section 2 applied to Washington's felon disenfranchisement law), cert. denied, ___ U.S. ___, 125 S.Ct. 477, 160 L.Ed.2d 365 (2004); Wesley v. Collins, 791 F.2d 1255, 1259-61 (6th Cir.1986) (assuming that Section 2 of the VRA applies to felon disenfranchisement laws but holding that there was no violation); see also Farrakhan v. Washington, 359 F.3d 1116 (9th Cir.2004) (Kozinski, J., dissenting from denial of rehearing en banc) (arguing that Section 2 of the VRA does not apply to felon disenfranchisement laws).
1. The Scope of the Voting Rights Act
Congress enacted the Voting Rights Act pursuant to its enforcement powers under the Fourteenth and Fifteenth Amendments for the remedial purpose of eliminating racially discriminatory voting practices. South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); United States v. Marengo County Commission, 731 F.2d 1546, 1555 (11th Cir.1984). Recognizing the subtle ways that states often denied racial minorities the right to vote, in 1982, Congress amended Section 2 of the Voting Rights Act so that a plaintiff could establish a violation without proving discriminatory intent.[25]See Chisom v. Roemer, 501 U.S. 380, 383-84, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). Thus, it is well-settled that a plaintiff can challenge voting qualifications

1228 under a "results" test.[26]Id. Section 2 of the Voting Rights Act of 1965, *1228 42 U.S.C. § 1973, as amended, provides in relevant part[27]:
(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 ...
(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that ... members [of protected racial minorities] 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. Despite its broad language, Section 2 does not prohibit all voting restrictions that may have a racially disproportionate effect. See Chisom, 501 U.S. at 383, 111 S.Ct. 2354 ("Congress amended § 2 of the Voting Rights Act to make clear that certain practices and procedures that result in the denial or abridgement of the right to vote are forbidden even though the absence of proof of discriminatory intent protects them from constitutional challenge.") (emphasis added); Muntaqim, 366 F.3d at 116. Felon disenfranchisement laws are unlike other voting qualifications. These laws are deeply rooted in this Nation's history[28] and are a punitive device stemming from criminal law. See Richardson, 418 U.S. at 48-52, 94 S.Ct. 2655. Today, all states except two have some form of criminal disenfranchisement provision.
Most important, Florida's discretion to deny the vote to convicted felons is fixed by the text of § 2 of the Fourteenth Amendment, which states:
[W]hen the right to vote ... is denied to any of the male inhabitants ... or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
1229 U.S. Const. amend. XIV, § 2 (emphasis added).[29] As the Court explained in Richardson," *1229 the exclusion of felons from the vote has an affirmative sanction in section 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated [in other cases]." 418 U.S. at 54, 94 S.Ct. 2655. Thus, interpreting Section 2 of the Voting Rights Act to deny Florida the discretion to disenfranchise felons raises serious constitutional problems because such an interpretation allows a congressional statute to override the text of the Constitution.
It is a long-standing rule of statutory interpretation that federal courts should not construe a statute to create a constitutional question unless there is a clear statement from Congress endorsing this understanding.[30] As the Supreme Court stated in DeBartolo Corp. v. Florida Gulf Coast Trades Council:
[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. This cardinal principle has its roots in Chief Justice Marshall's opinion for the Court in Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804), and has for so long been applied by this Court that it is beyond debate ... This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.
485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). Thus, when we analyze the scope of the Voting Rights Act, we should first address whether one interpretation presents grave constitutional questions whereas another interpretation would not, and then examine whether the latter interpretation is clearly contrary to Congressional intent. Id.
1230

*1230 Here, the plaintiffs' interpretation creates a serious constitutional question by interpreting the Voting Rights Act to conflict with the text of the Fourteenth Amendment.[31] The Fourteenth and Fifteenth Amendments to the United States Constitution grant Congress the power to enforce those amendments' substantive provisions "by appropriate legislation." U.S. Const. amend. XIV, § 5; XV, § 2. Congress may enforce the substantive provisions of these Amendments by regulating conduct that does not directly violate those Amendments. See South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). As the Court has explained, "Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct." Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721, 727-28, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003).
Nonetheless, Congress's power in this regard is not absolute. To be a valid exercise of Congress's enforcement power, "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) . Congress undoubtedly has the constitutional authority to prohibit many measures that are not explicitly prohibited by the Fourteenth Amendment, but this enforcement power arguably does not extend to prohibiting constitutionally protected practices. This is not to say that a state's felon disenfranchisement provision can never be challenged. As the Court's decision in Hunter made clear, states cannot use disenfranchisement provisions to discriminate intentionally on the basis of race. 471 U.S. at 233, 105 S.Ct. 1916. Thus, the plaintiffs have a remedy if the state's provision violates the Equal Protection Clause. Id. It is a different matter, however, when a federal statute is read to limit a state's delegated power.
Moreover, as the Second Circuit detailed in Muntaqim, there are additional reasons why the plaintiffs' 1231 interpretation of the Voting Rights Act calls into question Congress's enforcement power. 366 F.3d at *1231
118-26. For Congress to enact proper enforcement legislation, there must be a record of constitutional violations. [32]See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 368, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 89, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). In Oregon v. Mitchell, 400 U.S. 112, 118, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), superseded by U.S. Const. amend. XXVI, the Court reviewed the 1970 amendments to the Voting Rights Act, which imposed a temporary ban on literacy tests and lowered from 21 to 18 the minimum voting age. There, the Court affirmed the literacy test ban but held that Congress exceeded its authority in lowering the voting age from 21 to 18 in state elections. The Court concluded that "Congress had before it a long history of discriminatory use of literacy tests to disenfranchise voters on account of their race" but "Congress made no legislative findings that the 21 year old requirement was used by the States to disenfranchise voters on account of race." Mitchell, 400 U.S. at 130, 132, 91 S.Ct. 260.
As was the case in Mitchell, when Congress enacted the VRA and its subsequent amendments, there was a complete absence of congressional findings that felon disenfranchisement laws were used to discriminate against minority voters.[33] Without a record of constitutional violations, applying Section 2 of the Voting Rights Act to Florida's felon disenfranchisement law would force us to address whether Congress exceeded its enforcement powers under the Fourteenth and Fifteenth Amendments.[34]
1232 *1232 For these reasons, we believe that the plaintiffs' interpretation of the VRA raises grave constitutional concerns.[35] For the plaintiffs' interpretation to be correct, we must look for a clear statement from Congress that it intended such a constitutionally-questionable result. DeBartolo, 485 U.S. at 575, 108 S.Ct. 1392. Instead of a clear statement from Congress indicating that the plaintiffs' interpretation is correct, the legislative history indicates just the opposite 0907 that Congress never intended the Voting Rights Act to reach felon disenfranchisement provisions.[36]
2. Congressional Statements in 1965
Congress first passed the Act in 1965 to prevent states from discriminating against minorities in voting. The act was intended to reach voting tests and other practices, such as districts designed by states to minimize minority voting. See Burton v. City of Belle Glade, 178 F.3d 1175, 1196 (11th Cir.1999). The Senate and House reports 1233 strongly suggest, however, that *1233 Congress did not intend Section 2 of the Voting Rights Act to cover felon

disenfranchisement provisions.[37] These reports indicate that tests for literacy or good moral character should be scrutinized, but felon disenfranchisement provisions should not. S. Rep. 89-162, 1965 U.S.C.C.A.N. 2508, 2562. The only place where legislators addressed felon disenfranchisement was with regard to Section 4 of the VRA, where the Senate Report reflects that legislators intended to exempt the voting restrictions on felons from the statute's coverage, stating:
The third type of test or device covered is any requirement of good moral character. This definition 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.
Id. Likewise, the House Report also states that the Voting Rights Act was not designed to reach felon disenfranchisement provisions:
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.
H.R.Rep. No. 89-439, 1965 U.S.C.C.A.N. 2437, 2457. These reports indicate that neither house of Congress intended to include felon disenfranchisement within the statute's scope. These are the only references to felon disenfranchisement made in reports to the 1965 act.
Furthermore, this court's predecessor decided that the 1965 Act did not cover a state's decision to exclude felons from voting. In United States v. Ward, the former Fifth Circuit held that the Voting Rights Act prohibited Louisiana from imposing any literacy test or other qualification on voter registration, but found that the act did not extend to felon disenfranchisement rules. 352 F.2d 329, 332 (5th Cir.1965).[38] There, the court issued an order enjoining the state from applying the voting tests, but explicitly exempted felony convictions from the order. The court ordered that the state cease
... requiring any applicant for voter registration in Madison Parish, as a precondition to such registration, to take or pass any test of literacy, knowledge, or understanding or to comply with any other test or device as defined in Section 4(c) of the Voting Rights Act of 1965, Public Law 89-110, 79 Stat. 438-439, i.e., any requirement (including the "good character" requirement specified in Article VIII, Section 1(c) of the Louisiana Constitution and Title 18, Section 32, of the Louisiana Code, except to the extent that these provisions permit disqualification for conviction of a felony).
Id. at 332 (emphasis added).
3. Congressional Statements in 1982
Congress most recently amended the Voting Rights Act in 1982 in response to the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 446 U.S. 55 (1980), in an attempt to clarify the standard for 1234 finding Section 2 violations. In revising the statute, Congress *1234 intended to depart from the intent-based standard of the Supreme Court's Equal Protection jurisprudence and establish an effects-based standard. S. Rep. 97-417, 15-17, 1982 U.S.C.C.A.N. 177, 192-94 (1982). After the 1982 amendment, a state practice could survive Equal Protection Clause scrutiny but fail Section 2 Voting Rights Act scrutiny.
Neither the plain text nor the legislative history of the 1982 amendment declares Congress's intent to extend the Voting Rights Act to felon disenfranchisement provisions. The Senate Report, which details many discriminatory techniques used by certain jurisdictions, made no mention of felon disenfranchisement provisions.[39] Although it is conceivable that certain legislators may have wanted the Voting Rights Act to encompass felon disenfranchisement provisions, we should not assume that Congress intended to produce a statute contrary to the plain text of the Fourteenth Amendment without a clear statement. As the Second Circuit noted 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." 366 F.3d at 123-24. There is simply no discussion of felon disenfranchisement in the legislative history surrounding the 1982 amendments.
Thus, we believe that applying Section 2 of the Voting Rights Act to felon disenfranchisement provisions raises grave constitutional concerns.[40] Chiefly, the plaintiffs' interpretation calls for a reading of the statute which would prohibit a practice that the Fourteenth Amendment permits Florida to maintain. As a matter of statutory construction, we should avoid such an interpretation. The case for rejecting the plaintiffs' reading of the statute is particularly strong here, where Congress has expressed its intent to exclude felon disenfranchisement provisions from Voting Rights Act scrutiny. Accordingly, we affirm the district court's grant of summary judgment to the defendants on the Voting Rights Act claim.
V. Wisdom of the Policy
Several amici curiae argue that, as a policy matter, felons should be enfranchised, particularly those who have served their sentences and presumably paid their debt to society. Even if we were to agree with the amici, this is a policy decision that the United States Constitution expressly gives to the state governments, not the federal courts. U.S. Const. Amend. XIV, § 2. Florida has legislatively reexamined this provision since 1868 and affirmed 1235 its *1235 decision to deny felons the right to vote. Federal courts cannot question the wisdom of this policy choice.
VI. Conclusion
For the foregoing reasons, we AFFIRM the district court's grant of summary judgment in favor of the defendants.
AFFIRMED.
TJOFLAT, Circuit Judge, specially concurring, in which, PRYOR, Circuit Judge, joins.
Section 2 of the Voting Rights Act (VRA) "outlaws election practices that result in racial discrimination." Nipper v. Smith, 39 F.3d 1494, 1509-10 (11th Cir.1994) (en banc) (opinion of Tjoflat, C.J., joined by Anderson, J.). Specifically, it bars 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). Focusing only on the "which results in" language, both dissenters argue that we should remand this case to the district court for a trial to determine whether Florida's felon-disenfranchisement provision[1] produces a racially disparate impact. The majority argues that remand is inappropriate because the dissenters' theory creates a constitutional question that can be avoided by construing the statute not to cover felon-disenfranchisement provisions.[2] I write separately to demonstrate that, even if the dissenters are correct that the language of section 2 of the VRA unambiguously covers felon disenfranchisement provisions, summary judgment was appropriate in this case because the plaintiffs have not been able to show that whatever denial or abridgement of voting rights resulted from Florida's felon disenfranchisement provision occurred "on account of race or color." Remand is therefore not required.
It is true that section 2 of the VRA now requires something less than a showing of actual intent to discriminate by a State or political subdivision. I do not believe, however, that it requires only, as both dissenters imply, a showing of racially disparate effects. A brief discussion of section 2's history demonstrates this point. In 1980, the Supreme Court decided City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Prior to its holding in that case, a number of circuits had applied a "totality of the circumstances" analysis in vote-dilution cases brought under the Equal Protection Clause of the Fourteenth Amendment. The old Fifth Circuit, our predecessor court, established the framework for this kind of analysis in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973). That framework required courts to judge vote-dilution cases by measuring the relevant facts according to a number of factors, now commonly referred to as Zimmer factors.[3] Importantly for purposes of this 1236 discussion, *1236 those factors required a showing of something less than intent by a State actor to discriminate, but something more than a mere disparate impact to make out a claim of vote dilution.

Bolden involved a challenge to an at-large election arrangement in a multimember district in Mobile, Alabama. In that case, the Supreme Court held that Zimmer,"coming before Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 ..., was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause 0907 that proof of a discriminatory effect is sufficient." Bolden, 446 U.S. at 71, 100 S.Ct. at 1501-02.[4] The Court viewed this conclusion as inescapable in light of Davis, and it concluded that to make out a vote-dilution claim a "plaintiff must prove that the disputed plan was `conceived or operated as [a] purposeful devic[e] to further ... discrimination.'" Id. at 66, 100 S.Ct. at 1499 (quoting Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971)) (alterations and omission original).
In addition to seeking relief under a vote-dilution theory under the Equal Protection Clause, the plaintiffs had also sought relief under the VRA. Bolden rejected this approach, too, holding that "it is apparent 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. at 1496 (footnote omitted). The Court noted explicitly that this meant by extension that section 2 as then written did not cover disparate-impact cases: "Our decisions ... have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose." Id. at 62, 100 S.Ct. at 1497.
Apparently alarmed by these holdings, Congress set out to amend the VRA, ultimately doing so in 1982. See generally S.Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177; see also Voting Rights Act Amendments, Pub. L. No. 97-205, 96 Stat. 131 (1982). The effect of this amendment was to recast the thenexisting version of section 2 as section 2(a) of the VRA and to add a new subsection, subsection (b).
1237 The wording of the new section 2(a) is not identical to the old section 2. The new *1237 section 2(a) made two modifications: first, it made one change in phrasing. Compare 42 U.S.C. § 1973 (preamendment) ("No voting qualification ... 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." (emphasis added)), with 42 U.S.C. § 1973(a) (postamendment) ("No voting qualification ... shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color." (emphasis added)). Second, 2(a) added a phrase to make clear that abridgement or denial could be recognized "as provided in subsection (b)." 42 U.S.C. § 1973(a). The intended effect of the second modification is obvious; that of the first less so. As I explain, the first modification reflects Congress's desire to remove an intent requirement, but it does not reflect a desire to replace it with a mere disparate-impact requirement.
It is clear from both the language of the new subsection (b) and the extensive Committee Report that accompanied the amendment that Congress intended to restore what it perceived to be the pre-Bolden status quo. Specifically, the subsection (b) language reflects vote-dilution rhetoric from pre-Bolden Supreme Court cases. Compare 42 U.S.C. § 1973(b) ("A violation ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of a class of citizens protected by subsection (a) of this section 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.") with, e.g., White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973) ("The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question 0907 that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice."). The Committee Report specifically evinces the view of Congress that Bolden was contrary to its understanding of the operation of section 2, suggesting by strong implication at least that Congress had thought section 2 was operating successfully prior to Bolden. See, e.g., S. Rep. 97-417, at 15 (1982), reprinted in 1982 U.S.C.C.A.N. at 192 ("The proposed amendment to Section 2 of the Voting Rights Act is designed to restore the legal standard that governed voting discrimination cases prior to the Supreme Court's decision in Bolden.").

Consistent with that intent, we have, as Judge Barkett suggests in her dissent, applied section 2 in the vote denial context. See Burton v. City of Belle Glade, 178 F.3d 1175, 1197-98 (11th Cir.1999). Dismissing the votedenial claim in a cursory manner in that case, however, we did not pause to establish the minimum requirements of a prima facie vote-denial claim under section 2, and the case is thus of dubious precedential value, especially in support of the proposition that mere disparate impact is sufficient to establish such a claim. In fact, if anything, 1238 our holding on the vote-denial claim in Burton stands for a contrary conclusion.[5] In short, nothing in *1238 Burton requires us to return this case to the district court simply because Florida's felon-disenfranchisement law disadvantages minorities out of proportion to their makeup of the general population of the State.
Thus, the pre-Bolden application of section 2, along with the legislative history surrounding the amendment and our own postamendment application of section 2 in the vote-denial context all point to the inexorable conclusion that something more than a mere showing of disparate effect is essential to a prima facie vote-denial case.[6] The reservoir of that requirement and the key to understanding the minimum content of such a case lie in the words "on account of" in subsection (a), for those words alone constrain the preceding, seemingly broad "applied in a manner which results in" language. Those words do not suggest, as the majority intimates, that Congress may have designed some lingering requirement of intent by state actors. See ante, at 1229 n. 30. Instead, as I have argued elsewhere, these words suggest a causation requirement, that is, a showing that racial bias in the relevant community caused the alleged vote denial or abridgment.[7]Zimmer set out some of the circumstantial factors that might be referred to in attempting to show such causation in the vote-dilution context, some of which are transferrable to the vote-denial context. I am mindful that voting rights are protected against "sophisticated as well as simple-minded modes of discrimination," Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281 (1939), and that we should be alert to unconventional factors indicating bias-caused vote denials. But I do not believe there are any factors of causation, whether to be found in our precedent or in our wildest dreams, that 1239 can establish anything on the basis of the facts presented in this case other than that the *1239 cause of the denial of the right to vote to felons in Florida consists entirely of their conviction, not their race.
Nearly all of the evidence advanced by the plaintiffs demonstrates only disproportionality, but, as I have argued, it is a basic section 2 principle that something more must be shown to survive summary judgment. Plaintiffs argue in their brief that their proof "was significantly more extensive than simply `evidence of disproportionate impact,'" but they rely chiefly on "different outcomes for similarly situated offenders at various stages of the criminal justice process." The main thrust of their argument is that "racial bias in the criminal justice system" interacts with Florida's disenfranchisement provision to the disadvantage of minority voters. It is true that, if plaintiffs could support this claim with evidence, they might demonstrate the sort of causal connection between racial bias and disparate effect necessary to make out a vote-denial claim. But the evidence plaintiffs advance simply does not support this proposition, even if we were to reverse the district court's order excluding various experts from testifying. In fact, leaving aside the excluded evidence and raw disparate impact data, plaintiffs' brief does not appear to advance a single showing of contemporary race bias that ostensibly is producing the comparatively well-evidenced disparate-impact.[8]
Thus, I do not believe that plaintiffs have made a case sufficient to survive summary judgment. I would avoid the task of determining whether a constitutional question is created by application of section 2 to felondisenfranchisement provisions entirely and simply rule that plaintiffs do not have a case. In any event, even if the dissenters are correct that the majority has misanalyzed the statutory-interpretation question, the majority has arrived at the correct judgment in this case. I thus concur.
WILSON, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority's holding that the defendants are entitled to summary judgment with respect to the plaintiffs' Equal Protection claim. Whatever discriminatory motives may have prompted Florida to enact the 1868 criminal disenfranchisement provision, the plaintiffs presented no evidence that intentional discrimination motivated the 1968 Constitutional Revision Committee. As a matter of law, the state met its burden by re-enacting the felon disenfranchisement provision without an impermissible motive, as suggested by Hunter v. Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 1920, 85 L.Ed.2d 222 (1985). For the reasons stated by the majority, I concur in affirming the district court's resolution of this claim.

I write separately, however, to dissent from the majority's conclusion that racially discriminatory felon disenfranchisement provisions are not cognizable under § 2 of the Voting Rights Act ("VRA"). The majority overstates the case for constitutional avoidance. Because it is possible to harmonize the text of the VRA with the Constitution, we should not stray from the plain text of the statute. See City of Rome v. United States, 446 U.S. 156, 172, 100 S.Ct. 1548, 1559, 64 L.Ed.2d 119 (1980).
1240 *1240 I. SCOPE OF THE VOTING RIGHTS ACT
Section 2 of the VRA prohibits "voting qualification[s] ... imposed or applied by any State" that "results in a denial or abridgement" of the right to vote "on account of race or color." 42 U.S.C. § 1973(a). As a comprehensive and expansive remedy for racially discriminatory denials of the right to vote, § 2 reaches a wide variety of electoral practices and schemes.[1] The standard for evaluating a § 2 claim is "based on the totality of the circumstances." 42 U.S.C. § 1973(b). As a purely textual matter, a voting qualification based on felony status that interacts with social and historical conditions to produce a racially discriminatory effect, such as race bias in the criminal justice system, falls within the scope of the VRA. See Thornburg v. Gingles, 478 U.S. 30, 45-47, 106 S.Ct. 2752, 2763-64, 92 L.Ed.2d 25 (1986) (describing interactive standard that accounts for "past and present reality").
The majority fears that interpreting the VRA in this manner "raises serious constitutional problems." Consequently, the majority construes the statute to avoid this "conflict," reading the VRA to preclude challenges to criminal disenfranchisement provisions.
To reach its result, the majority places great stock in § 2 of the Fourteenth Amendment, which reduces a state's representation in Congress when the state denies its male citizens the right to vote unless it abridges the right "for participation in rebellion, or other crime." U.S. Const. amend. XIV, § 2. The majority characterizes this clause as sui generis 0907 deeply rooted in our nation's history and fixed by the text of the Constitution. However, that Section does not constitute an affirmative grant of state power to disenfranchise criminals. Rather, as a Reconstruction Amendment, this Section was intended to punish states that were slow to grant the franchise by reducing their representation in Congress. In holding that states have unfettered discretion to disenfranchise criminals, the majority relies upon a clause that is an exception to this punishment.
Unlike the majority, I do not see a need to construe the statute in this manner. The "avoidance" canon of construction applies if there is ambiguous statutory language. See Southlake Prop. Assoc., Ltd. v. City of Morrow, 112 F.3d 1114, 1119 (11th Cir.1997). Where, as here, there is no ambiguity, the "avoidance" doctrine should not be employed as a pretext for rewriting clear statutory language. Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir.2000) (citation omitted).
Furthermore, I do not think that § 2 of the Fourteenth Amendment amounts to a right to disenfranchise citizens at 1241 will, *1241 heedless of the consequences. It is a right only by implication, and therefore does not conflict with
Congress's power to limit criminal disenfranchisement. The Fourteenth Amendment does not define the outer limits of a state's "right" to disenfranchise criminals, but it is certain that a state's right to disenfranchise is not absolute. States may not intentionally disenfranchise felons on account of race. Hunter, 471 U.S. at 233, 105 S.Ct. at 1922. Likewise, I believe that a state may not disenfranchise criminals in a manner resulting in a racially discriminatory denial of the right to vote. This is because the VRA reaches conduct for which it may not always be possible to prove purposeful discrimination. The VRA recognizes that discriminatory effects are probative of race bias in electoral schemes and practices.
In sum, § 2 of the Fourteenth Amendment does not conflict with Congress's attempts to prohibit criminal disenfranchisement that is not racially neutral. That clause does not limit Congress's power to prohibit a voting qualification that results in a denial of equal access to the electoral process on the basis of race or color. See 42 U.S.C. § 1973. I see no conflict between the Constitution and the VRA in this regard, and therefore I see no reason to interpolate an exemption that does not exist.
I do not quarrel with the state's discretion to disenfranchise felons as a matter of policy. Rather, I take issue with the majority's characterization of that discretion. Far from "deny[ing] Florida the discretion to disenfranchise

felons," as the majority fears, states are free "to disenfranchise convicted felons in a racially neutral manner 0907 that is, in a manner that is neither racially motivated nor produces racially disproportionate effects." Johnson v. Bush, 353 F.3d 1287, 1306 n. 27 (11th Cir.2003). My view is that the Voting Rights Act prohibits criminal disenfranchisement provisions that accomplish denial of the right to vote "on account of race." 42 U.S.C. § 1973 (a).
Importantly, I am not convinced that the plaintiffs have proven their case. The plaintiffs' statistical evidence raises an inference that the disparate impact of felon disenfranchisement results from the interaction of that scheme 1242 with race bias in the criminal justice system and the lingering effects of racial exclusion.[2] In a trial on *1242 the merits, the defendants would be given every opportunity to present rebuttal evidence to question the methodology of this analysis or to present their own analysis explaining the disparity. I dissent because I believe that the district court's resolution of the merits was premature and that the plaintiffs were entitled to present their case at trial.
II. SCOPE OF CONGRESS'S POWER
The majority also suggests that, were a § 2 VRA claim challenging criminal disenfranchisement provisions cognizable, Congress might have exceeded its enforcement powers of the Fourteenth and Fifteenth Amendments. I respectfully disagree with this conclusion.
Congress's enforcement authority is at its most expansive when protecting against discrimination based on suspect classifications or when protecting fundamental rights. Thus, to carry out the basic objectives of the Fourteenth and Fifteenth Amendments, Congress may enact "prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent." Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 1986, 158 L.Ed.2d 820 (2004) (upholding Title II of the Americans with Disabilities Act as a valid exercise of Congress's Fourteenth Amendment enforcement power); see also City of Rome, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (upholding VRA's § 5 preclearance requirement for covered jurisdictions seeking electoral changes as a valid exercise of Congress's Fifteenth Amendment enforcement power).
Despite the strength of Congress's remedial enforcement power, it is not without limits. Congress's remedy must respond to states' actual violations of a protected right. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 89, 120 S.Ct. 631, 649, 145 L.Ed.2d 522 (2000); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 640, 119 S.Ct. 2199, 2207, 144 L.Ed.2d 575 (1999). Therefore, Congress must identify the "history and pattern of unconstitutional ... discrimination" that it seeks to address, creating a legislative record to support its exercise of enforcement power. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Furthermore, valid § 5 legislation must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997).[3]
Congress enacted the VRA pursuant to the enforcement clauses of the Fourteenth and Fifteenth Amendments in response to rampant violations of the right to vote. United States v. Bd. of Comm'rs, 435 U.S. 110, 126-27, 98 S.Ct. 965, 976-77, 55 L.Ed.2d 148 (1978). The scope of the VRA and those amendments are not coterminous: As a remedial statute, the VRA reaches beyond what is prohibited by the Fourteenth and Fifteenth Amendments. See, e.g., United States v. Marengo County Comm'n, 731 F.2d 1546 (11th Cir.1984). The VRA not only 1243 safeguards a fundamental *1243 right, voting, but also protects against discrimination based on race, a suspect class. See Lane, 124 S.Ct. at 1992 (noting that because fundamental rights, such as access to the courts, receive heightened scrutiny, review of the legislative record for a pattern of constitutional violations is less searching); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 735-36, 123 S.Ct. 1972, 1981-82, 155 L.Ed.2d 953 (2003) (explaining that for suspect classifications, such as sex, that are subject to heightened scrutiny, it is "easier for Congress to show a pattern of state constitutional violations"). The Act is properly considered a remedial statute, passed with the broadest exercise of power allowed under the Fourteenth and Fifteenth Amendments.

The VRA is entitled to a broad reading because Congress has chronicled extensive state violations of the right to vote. In 1965, when first enacting the VRA, Congress documented violations of the Fifteenth Amendment, including "grandfather clauses" that permitted previously registered voters (all white) to register without taking a literacy test, laws restricting the participation in political primaries to whites only, procedural hurdles, racial gerrymandering, improper challenges, and the discriminatory use of tests. See H.R.Rep. No. 89-439, at 8 (1965) (citing Supreme Court decisions). Congress was particularly concerned about states' use of tests that discriminated against racial minorities, including literacy tests, constitutional interpretation tests, and tests concerning the obligations of citizenship. H.R.Rep. No. 89-439, at 12.
All of these devices worked in concert to depress the registration and turnout rate among voting-age African Americans. For example, prior to the VRA only 6.7% of the African-American voting age population in Mississippi was registered to vote. In Alabama, the registration rate of African Americans lagged behind that of whites by 49.9%. See S.Rep. No. 94-295, at 13 (1975), reprinted in 1975 U.S.C.C.A.N. 774, 779. Perhaps more problematic was the revelation that innovation in discrimination marked the landscape of voting rights. See S.Rep. No. 89-162, at 5 (1965); S.Rep. No. 89-439, at 10 ("[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.") (citing United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965), and United States v. Penton, 212 F.Supp. 193 (M.D.Ala.1962)). Congress found specifically that it was impossible to predict the variety of means that would be used to infringe on the right to vote.
In response, Congress passed the VRA, which operates on two levels. First, Congress recognized that some areas of the country had a particularly bad history of voting discrimination. Section 5 of the VRA thus designated these regions as "covered jurisdictions," requiring them to clear any changes in voting or election laws with either the Attorney General or a federal court in the District of Columbia before putting them into effect. 42 U.S.C. § 1973c. The approval of the Attorney General or the court was conditioned on a showing that the changes would not discriminate in purpose or in effect. Additionally, because Congress understood that violations of voting rights were not confined to covered jurisdictions, it included § 2, a nationwide remedy less intrusive on states' functions. See S.Rep. No. 97-417, at 41-42 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 219-20.
It is of no moment that the VRA's legislative record does not contain specific examples of discrimination based on felon status. Boerne and its progeny require that the legislative record show a pattern of state constitutional 1244 violations, not that the right at issue be abridged in a particular *1244 way. See Lane, 124 S.Ct. at 1988-90; Garrett, 531 U.S. at 368-69, 121 S.Ct. at 964-65; Kimel, 528 U.S. at 89, 120 S.Ct. at 648-49; Boerne, 521 U.S. at 530, 117 S.Ct. at 2169. If this were the standard, states would always have one free bite at the apple, which is not what Congress intended when it passed the VRA to deal with voting discrimination "comprehensively and finally." S.Rep. No. 97-417, at 5, reprinted in 1982 U.S.C.C.A.N. at 182.
Congress has found that racial discrimination in voting has a long history in our country. The remedy that Congress chose to respond to the pattern of state discrimination is to prohibit voting discrimination in whatever form it takes. See Gingles, 478 U.S. at 45 n. 10, 106 S.Ct. at 2764 n. 10 ("Section 2 prohibits all forms of voting discrimination...."). This remedy is congruent and proportional to the goal of enforcing the fundamental right to vote. When voting interacts with proof of racial bias in criminal justice, Congress is well within its power to prohibit the resultant discrimination.
BARKETT, Circuit Judge, dissenting:
I dissent because I believe summary judgment was improperly granted on both plaintiffs' claims under the Equal Protection Clause of the Constitution and Section 2 of the Voting Rights Act.
I. The Equal Protection Claim
The majority frames the question presented in this case as "whether the plaintiffs have alleged facts that, if true, would be sufficient to establish intentional discrimination in Florida's current disenfranchisement law." Majority

Op. at 1218 (emphasis in original). The framing of the question in this way dictates an answer that, in my view, fails to correctly analyze the equal protection claim here in the context of a summary judgment motion.
The majority and the district court simply find that because there is no evidence of intentional discrimination in the 1968 re-enactment of the relevant constitutional provision, the defendants are entitled to summary judgment. But given the nature of the plaintiffs' claim and the evidence they present, the court cannot look at the 1968 reenactment in a vacuum. The plaintiffs contend that the original constitutional provision of 1868 (taking the evidence in the light most favorable to the plaintiffs at this stage) was passed for racially discriminatory purposes. [1] If that is so, then United States v. Fordice, 505 U.S. 717, 739, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), and Knight v. Alabama, 14 F.3d 1534, 1550 (11th Cir.1994) teach us that to repudiate the tainted earlier provision, the government must show not only a lack of intentional racial discrimination in the 1968 re-enactment, but also that the re-enactment was motivated by independent, legitimate goals that "broke the chain" linking it to the original discriminatory motive. This would not require the state to explicitly address the law's odious origins, but simply 1245 articulate the non-racial *1245 policy justification that drove its re-enactment.
Where the state has not demonstrated any race-neutral basis for the re-enactment, there can be no "break" in the chain of invidious intent. See, e.g., Fordice, 505 U.S. at 739, 112 S.Ct. 2727; Knight, 14 F.3d at 1550 (holding that, "[o]nce it is determined that a particular policy was originally adopted for discriminatory reasons, [and] ... is `traceable' to the original tainted policy, or is `rooted' or has its `antecedents' in that original policy" the burden of proof lies with the state to show that it has dismantled the past discrimination to "break the causal chain"). Though the majority cautions that we have never followed the rule of Fordice outside of the educational context, [2] I believe there is no principled basis not to apply Fordice to a matter of equal if not greater importance 0907 the fundamental right to participate in the democratic process. Cf. Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ("the right of suffrage is a fundamental matter .... preservative of other basic civil and political rights").
In addition to its concerns regarding the application of Fordice outside of the educational context, the majority holds that the rule announced in Fordice is inapplicable here because there are valid public policy reasons for disenfranchising felons, while no such reasons underpinned the educational policies considered in Fordice. Though the valid reasons recognized by the court may have driven Florida's decision to retain its felon disenfranchisement scheme, the record fails to demonstrate that those reasons in fact motivated the 1968 reenactment. The court's attempt to distinguish Fordice based on the existence of a potentially valid public policy thus begs the very question of the motivation behind the 1968 re-enactment. Though valid public policies might have similarly underpinned the educational policies at issue in Fordice, the Court nonetheless required the state to demonstrate that those policies had a sound race-neutral educational justification.
Although the majority does not recognize the Fordice framework as applicable in this context, it nonetheless suggests that the record here supports a conclusion that the 1968 re-enactment was driven by race-neutral considerations because it was "deliberative." Majority Op. at 1224. There is no indication, however, in the record of deliberations that the subcommittee had any non-discriminatory reasons for re-enacting the disenfranchisement law, nor any indication that the Constitutional Revision Committee as a whole or the legislature even discussed it. While the 1968 subcommittee minutes trace the committee's procedure and its changes to the disenfranchisement provision's text, their limited nature sheds no light at all as to whether the committee was motivated by legitimate non-discriminatory reasons, or whether they saw the felon disenfranchisement provision as a legacy of previous constitutions whose justification did not need to be revisited in substance. Cf. Richardson v. Ramirez, 418 U.S. 24, 44, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) ("[T]he Journal of that Committee's proceedings shows only what motions were made and how the various members of the 1246 Committee voted on the motions; it does not indicate the nature or *1246 content of any of the discussion in the Committee. While the Journal thus enables us to trace the evolution of the draft language in the Committee, it throws only indirect light on the intention or purpose of those who drafted § 2"). As such, while the adjective "deliberative" describes the procedural aspects of the decision, it need not include any substantive component at all.
The record at this juncture does not permit a conclusion that the legislature's textual modifications removed the prior racial taint in any meaningful way. Where the provision explicitly disenfranchising all felons remained

unchanged in substance, and without evidence that the 1968 re-enactment had an independent, legitimate motivation, the majority's conclusion that the 1968 process cleansed the taint of racial animus as a matter of law is unfounded at this stage of the proceedings. See Fordice, 505 U.S. at 747, 112 S.Ct. 2727 (Thomas, J., concurring) (observing that "discriminatory intent does tend to persist through time"); Kirksey v. Bd. of Supervisors, 554 F.2d 139, 148 (5th Cir.1977) (en banc) ("[N]othing in [Washington v. Davis or Arlington Heights] suggests that, where purposeful and intentional discrimination already exists, it can be constitutionally perpetuated into the future by neutral official action."). Indeed, under the majority's rule, legislatures could continue to utilize statutes that were originally motivated by racial animus, and that continue to produce discriminatory effects, so long as they re-promulgate the statutes "deliberately" and without explicit evidence of an illicit motivation.
To conclude that the 1968 re-passage of Florida's felon disenfranchisement provision is in and of itself sufficient to "eliminate the racial taint," the majority relies on the Fifth Circuit's decision in Cotton v. Fordice, 157 F.3d 388 (5th Cir.1998). The panel in Cotton, like the majority, fails to analyze the claim presented in terms of the government's burden to show that a legitimate neutral reason underlaid its re-enactment of a law tainted by racial animus. However, even if I were to accept the Fifth Circuit's rule in Cotton, the case is distinguishable on its facts. The statute in Cotton, Mississippi's felon disenfranchisement law, was originally crafted to intentionally deny the vote to those convicted of so-called "black crimes," while preserving the franchise for those felons convicted of crimes thought to be committed by whites. Cotton holds that the legislature successfully removed the original "taint" of this discriminatory scheme by removing "black crimes" from the disenfranchising list, and successively adding murder and rape 0907 "crimes historically excluded ... because they were not considered `black' crimes." Cotton, 157 F.3d at 391. Thus, the legislative amendment process in Cotton proceeded as the converse of the enactment process: the amendment removed those aspects of the law shown to be rooted in racial animus. The same cannot be said for Florida's felon disenfranchisement law. Its 1968 re-enactment resulted in only non1247 substantive textual changes to the statute,[3] leaving unchanged *1247 the essential feature that plaintiffs' evidence links to racial animus: Florida's disenfranchisement of all felons.
As the district court found and the majority assumes, plaintiffs' showing of racial animus in the original 1868 enactment raises a genuine issue of material fact as to whether it was adopted with a discriminatory purpose. Where the record is insufficient to conclude that either the 1968 re-enactment was motivated by legitimate concerns or that the 1868 provision would have been enacted even without racial motivations, summary judgment was improperly granted.
II. The Voting Rights Act Claim
The simple question before us is whether or not Section 2 of the Voting Rights Act ("VRA") is applicable to plaintiffs' claim that they have been denied the right to vote. As the majority states, this is not a vote dilution claim.[4] Although I do not know whether plaintiffs can ultimately succeed, their contention that Florida's felon disenfranchisement law effectively denies their right to vote because they are black is clearly encompassed by the plain language of the VRA, which prohibits state enforcement of any "qualification or prerequisite to voting" that "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) (2005); Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir.2003), cert. denied sub nom. Locke v. Farrakhan, ___ U.S. ___, 125 S.Ct. 477, 160 L.Ed.2d 365 (2004); Baker v. Pataki, 85 F.3d 919, 935-36 (2d Cir.1996) (Feinberg, J., writing for an equally divided court)[5]; Wesley v. Collins, 791 F.2d 1255, 1259 (6th Cir.1986) (considering, without analysis, a felon disenfranchisement claim brought under Section 2 of the VRA); see also, Thornburg v. Gingles, 478 U.S. 30, 45 n. 10, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) ("Section 2 [of the VRA] prohibits all forms of voting discrimination ....").
The first step in statutory interpretation requires that courts apply the plain meaning of the statutory language unless it is ambiguous. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ; United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.2002). Only when we find ambiguity in the statute's text do we apply canons of statutory interpretation, such as the canon of constitutional avoidance that the majority utilizes. Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 134, 122 S.Ct. 1230, 152 L.Ed.2d 258

1248 (2002). *1248 The language of Section 2 of the VRA is unambiguous, and compels a conclusion that it applies to felon disenfranchisement provisions. Such a provision is unquestionably a "voting qualification or prerequisite to voting"[6] that is "applied by [the] state." 42 U.S.C. § 1973(a) (2005). Whether or not felon disenfranchisement results in vote denial "on account of race or color" under the totality of the circumstances remains the ultimate question for the trier of fact.
Given the plain meaning of the language of Section 2, we are thus squarely faced with the issue of whether its application to felon disenfranchisement schemes is constitutional. I find no constitutional infirmity in applying Section 2 to felon disenfranchisement statutes, and find unpersuasive the majority's argument that it impermissibly conflicts with Section 2 of the Fourteenth Amendment and raises questions about Congress' civil rights enforcement powers.
First, there is no conflict between the Constitution and the VRA. The majority's finding of a conflict between the VRA and Section 2 of the Fourteenth Amendment stems from its failure to distinguish between felon disenfranchisement laws generally and those that result in racial discrimination. Section 2 of the Fourteenth Amendment merely permits states to disenfranchise felons without suffering a reduction in congressional representation. Nothing in Section 2 of the Fourteenth Amendment grants states unfettered discretion to disenfranchise felons, much less permits felon disenfranchisement on the basis of race. Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) ("[Section] 2 was not designed to permit the purposeful racial discrimination [in Alabama's criminal disenfranchisement law] ... which otherwise violates [Section] 1 of the Fourteenth Amendment. Nothing in ... Richardson v. Ramirez suggests the contrary."). Nor does Section 2 preclude Congress from legislatively addressing criminal disenfranchisement laws that have the effect of disenfranchising felons because of their race pursuant to its civil rights enforcement powers. Baker, 85 F.3d at 936-37 (Feinberg, J., writing for an equally divided court) (citing City of Rome v. United States, 446 U.S. 156, 177, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980) (explaining that Congress can use its enforcement powers to prohibit conduct that does not itself violate the Civil War Amendments, so long as the prohibitions on racial discrimination in voting are appropriate)). The VRA does not undermine a state's "delegated power" to disenfranchise felons, as the majority suggests. Applying the VRA's plain text would not automatically draw into question state disenfranchisement statutes in general. Rather, it would only constrain states from enacting felon disenfranchisement regimes that result in the "denial ... of the right ... to vote on account of race or color." 42 U.S.C. § 1973(a) (2005) (emphasis added). There is thus no conflict between the limited parameters that the VRA's Section 2 places on state disenfranchisement laws and the apportionment provisions found in Section 2 of the Fourteenth Amendment.
Second, the majority purports to exclude felon disenfranchisement from coverage under the VRA because of its concern over the lack of a congressional record chronicling constitutional violations stemming from state felon 1249 disenfranchisement laws. *1249 While the factual evidence of discrimination that Congress considered in enacting Section 2 did not include evidence of racially motivated felon disenfranchisement, there is no requirement that Congress make factual findings as to every potential application of a civil rights statute passed pursuant to its powers to enforce the Fourteenth and Fifteenth Amendments.[7] This is particularly so where Congress could not even have begun to identify every potential discriminatory voting qualification that would be subject to the VRA, given the "increasing sophistication with which the states were denying racial minorities the right to vote." Farrakhan, 338 F.3d at 1014; see also S.Rep. No. 89-439, at 10 (1965) ("[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.").
Insofar as the majority discerns congressional intent to exclude felon disenfranchisement from coverage under Section 2 of the VRA in subsequent congressional enactments that make provisions for felon disenfranchisement, it again overlooks the distinction between felon disenfranchisement laws generally and the narrow subset of such laws that result in racial discrimination. The simple fact that Congress made provisions for felon disenfranchisement in post-VRA statutes says nothing of whether Congress intended to insulate racially discriminatory disenfranchisement schemes from attack under the VRA. Furthermore, where the majority relies on the legislative history of the "test or devices" standard found in Section 4 of the VRA to locate legislative intent as to the application of Section 2 to felon disenfranchisement, its approach overlooks the fact that because the

VRA "contains a number of different provisions each with a different objective ... the reader cannot, therefore, assume that each of the sections is designed to reach the same objective or is necessarily to be read in the same manner."[8]United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 550 (5th Cir.1980); see also Baker, 85 F.3d at 939 (Feinberg, J., writing for an equally divided court) ("[B]ecause [Sections] 2 and 4 have different purposes, scope and language, the legislative history of [Section] 4(c) is not necessarily applicable to the interpretation of [Section] 2.").
Irrespective of states' authority to disenfranchise felons,[9] or the frequency with which states have historically exercised that authority, the Supreme Court has made clear that states cannot use felon disenfranchisement to 1250 intentionally discriminate on the basis of race. Hunter, *1250 471 U.S. at 233, 105 S.Ct. 1916. In view of Hunter, there can be no reason why Congress cannot act to prevent such discrimination, using its civil rights enforcement powers to reach felon disenfranchisement laws with racially discriminatory results, as it did in Section 2. See Baker, 85 F.3d at 938 (Feinberg, J., writing for an equally divided court); see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) ("[T]he fact that [a statute] has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.").
The majority's focus on the absence of congressional findings as to felon disenfranchisement, and its disregard of the statutory text, eviscerates Congress's intent to give Section 2 the "broadest possible scope." Allen v. State Bd. of Elections, 393 U.S. 544, 566-67, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). More importantly, the majority's approach renders statutes passed pursuant to Congress' civil rights enforcement powers little more than stale documents, applicable only to those forms and patterns of discrimination evident at the time of passage and explicitly considered by Congress, irrespective of the breadth of the plain statutory text.
Nor does the "plain statement" rule of Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), which counsels the majority's avoidance approach, prevent plaintiffs from proceeding under the VRA. The canon of construction at issue in Gregory holds that where Congress intends to alter the "usual constitutional balance between the states and federal government," it must make its intent to do so unmistakably clear in the statute. Id. at 460-61, 111 S.Ct. 2395 (internal citation marks omitted). As Judge Feinberg concluded in his persuasive opinion, however, the Fourteenth and Fifteenth Amendments altered the constitutional balance between the two sovereigns 0907 not the Voting Rights Act, which merely enforces the guarantees of those amendments. Baker, 85 F.3d at 938 (Feinberg, J., writing for an equally divided court) (citing City of Rome, 446 U.S. at 179, 100 S.Ct. 1548 (holding that the Civil War Amendments "were specifically designed as an expansion of federal power and an intrusion on state sovereignty")); see also id. at 942 (Newman, J., concurring).
Moreover, the Supreme Court has explicitly held that the Gregory "plain statement" canon is wholly inapplicable where the statutory language unambiguously applies to a particular state function. Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). In Yeskey, the petitioners contended that under Gregory, state prisons were not subject to the Americans with Disabilities Act based on the lack of a "plain statement" indicating congressional intent to alter the constitutional balance by regulating state prisons. Id. at 208-09, 118 S.Ct. 1952. The Court limited Gregory's plain statement rule, holding it inapplicable because the prison fell squarely within statutory language providing for coverage of "public entities." Id. at 209-10, 118 S.Ct. 1952. Similarly, Congress need not have included a "plain statement" on the VRA's application to criminal disenfranchisement statutes, as those statutes fall squarely within the VRA's textual prohibition on any "qualification or prerequisite to voting ... 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) (2005). The only "ambiguity" the majority finds in the VRA is its "conflict" with the Fourteenth Amendment's apportionment clause. Not only does Section 1251 2's prohibition on racially discriminatory felon disenfranchisement schemes fail to conflict with the Fourteenth *1251 Amendment, as discussed above, but such a perceived conflict is easily distinguishable from the case of ambiguity within a statute's text, which animated Gregory. See Gregory, 501 U.S. at 469-70, 111 S.Ct. 2395; see also Salinas v. United States, 522 U.S. 52, 60, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) ("The plain statement requirement articulated in Gregory ... does not warrant a departure from the statute's terms. The text ... is unambiguous.").

While the majority would use this "ambiguity" to avoid the result dictated by the VRA's plain meaning and dispose of plaintiffs' claim, I would remand for determination by the trier of fact whether, under the totality of the circumstances[10], plaintiffs' votes were denied "on account of race" in violation of the VRA.
[*] Circuit Judge Marcus recused and did not participate in this case. Senior Circuit Judge Kravitch elected to participate in this decision, pursuant to 28 U.S.C. § 46(c).
[1] The full text of the provision states:
No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.
Fla. Const. art. VI, § 4 (1968).
A felon who has completed his sentence may apply for clemency to have his civil rights restored. Fla. Stat. § 940 (2003). The plaintiffs also allege that Florida's voting rights restoration scheme violates constitutional and statutory prohibitions against poll taxes. Access to the franchise cannot be made to depend on an individual's financial resources. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Under Florida's Rules of Executive Clemency, however, the right to vote can still be granted to felons who cannot afford to pay restitution. The requirement of a hearing is insufficient to support the plaintiffs' claim. Because Florida does not deny access to the restoration of the franchise based on ability to pay, we affirm the district court's grant of summary judgment in favor of the defendants on these claims. In doing so, we say nothing about whether conditioning an application for clemency on paying restitution would be an invalid poll tax.
[2] Approximately seventy percent of the plaintiffs' class is white.
[3] The Clemency Board is made up of the Governor of Florida and members of the Cabinet. The Clemency Board has the power to restore the civil rights of convicted felons, including the right to vote. See Fla. R. Exec. Clemency. The suit also named Florida's county supervisors of elections. Their participation has been abated pending determination of liability.
[4] The full text of Section 2 states:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But 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, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. U.S. Const. amend. XIV, § 2.
[5] Indeed, throughout history, criminal disenfranchisement provisions have existed as a punitive device. See Harvard Law Review Association, One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1939-42 (2002). When the Fourteenth Amendment was ratified, twenty-nine of thirty-six states had some form of criminal disenfranchisement law. See Richardson, 418 U.S. at 48, 94 S.Ct. 2655. Today, forty-eight states have some form of criminal disenfranchisement provision. Although Florida's felon disenfranchisement law may be among the most restrictive, Florida hardly stands alone in its long-standing use of these laws.
[6] The 1838 Constitution provided that "[t]he general assembly shall have power to exclude from ... the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime." Fla. Const. art VI, § 4 (1838).
The 1845 provision stated:
Be it further enacted, That every person who shall become a candidate for any of the foregoing offices, shall possess the same qualification as that prescribed for a voter, before he shall be eligible to that office. And no

person who shall hereafter be convicted of bribery, perjury, or other infamous crime, shall be entitled to the right of suffrage.
1845 Fla. Laws. Ch. 38, art. 2 § 3.
[7] In Richardson, the Court briefly explained the process of how the southern states gained readmission to the Union following the Civil War. 418 U.S. at 48-52, 94 S.Ct. 2655. The Court observed that many of the new congressionally approved state constitutions contained felon disenfranchisement provisions. Id.
[8] Notably, five African-American delegates at the convention explicitly voted for the 1868 criminal disenfranchisement provision.
[9] As further evidence of racial discrimination, the plaintiffs argue that the 1868 criminal disenfranchisement provision expanded the category of crimes by reaching all felonies. However, the plaintiffs conceded below that the term "infamous crimes" used in Florida's 1838 disenfranchisement provision was understood at common law to include all felonies. The use of the word "felony" in the 1868 Constitution merely reflected the language that was used in the Reconstruction Act which required the states to grant suffrage to all male citizens, twenty-one years and older "except such as may be disenfranchised for participation in the rebellion or for felony at common law." Act of Mar. 2, 1867, ch. 163, 14 Stat. 428. § 5 (emphasis in original).
[10] For example, the plaintiffs cite to the fact that one of the Moderate Republican leaders stated in 1872 that he had kept Florida from becoming "niggerized." A review of the record suggests that this post-convention comment and others cited by the plaintiffs were likely made in reference to the legislative apportionment formula and a provision that circumvented local elections by requiring the governor to appoint county officials. The plaintiffs' own expert conceded that felon disenfranchisement was a relatively minor issue during the 1868 Convention.
[11] The only comment possibly referencing the felon disenfranchisement provision was made in 1881. But it is not clear whether this comment specifically referred to the adoption of the disenfranchisement provision in 1868. Moreover, we question the reliability of a single comment made thirteen years after the Convention.
[12] In fact, the record indicates that the reason the Moderate Republican Constitution was chosen was because it was signed by a clear majority of the delegates at the convention.
[13] To support this argument, the plaintiffs offer incomplete statements from a hodgepodge of legislative materials that were not before the district court at summary judgment. Even if we were to take judicial notice of all of these records, these materials would not help the plaintiffs. The plaintiffs also argue that the district court erred in excluding Richard Scher's expert report on the 1968 constitutional revision. We review evidentiary rulings for abuse of discretion, United States v. Smith, 231 F.3d 800, 807 (11th Cir.2000), and conclude that the district court did not abuse its discretion. Even if admissible, Scher's report would not help the plaintiffs.
[14] According to the Florida Supreme Court, persons convicted of offenses enumerated in Section 5 of the 1868 disenfranchisement provision, including a misdemeanor such as "petty larceny" were disenfranchised. State ex. rel. Jordan v. Buckman, 18 Fla. 267, 270 (1881).
[15] The plaintiffs focus on what they call the "automatic felony disenfranchisement provision" and assert that it remained unaffected by the 1968 revision. Presumably, the plaintiffs are referring to Section 4 of the 1868 provision. The plaintiffs' argument is misleading. Section 5 of the 1868 provision was also an "automatic disenfranchisement" provision because it required the legislature to enact disenfranchisement laws. In deleting Section 5 in 1968, the legislature did engage in a revision of what the plaintiffs call "automatic disenfranchisement." Therefore, the "automatic disenfranchisement provision" (which encompassed both sections 4 and 5 in the 1868 provision) was revised in 1968.
[16] The committee minutes state:
Mr. Earle moved that Article VI, Section 4 be adopted by the Committee on Suffrage and Elections. The motion was seconded. Mr. Pettigrew moved to amend Mr. Earle's motion by striking "judicially determined to be of unsound mind, or under judicial guardianship because of mental disability" and to substitute therefor "persons adjudicated mentally incompetent." This motion was seconded and passed. Mr. Pettigrew moved to further

amend Section 4 by adding to his previous amendment: "in this or any other state and who have not had their competency judicially restored." This amendment was seconded and also passed. After considerable discussion, Mr. Pettigrew moved that Section 4 be deleted and the following inserted: "The Legislature may by law establish disqualifications for voting for mental incompetency or conviction of a felony." The motion was seconded. Mr. Goodrich offered the following substitute motion to Mr. Pettigrew's motion: Delete Section 4 and insert: "The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution." After discussion, Mr. Goodrich's motion failed for lack of a second. The vote was taken on Mr. Pettigrew's motion, but it failed of adoption. Mr. Goodrich moved that the word "felony" in line 2 of Section 4 be changed to "crime." The motion failed for lack of a second. The Committee adopted Section 4 of Article VI with no further amendments.
Minutes of the Suffrage and Elections Committee of the Florida Constitution Revision Commission, Feb. 2-3, 1966, at 6-7.
[17] Proof of intentional discrimination is required under the Equal Protection Clause. One factor relevant to the intent inquiry is whether the law being challenged has an impact that bears more heavily on one race than another. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Here, Florida's felon disenfranchisement provision did not create a significant disparate impact along racial lines in 1968. Accepting the plaintiffs' estimates for 1968 as true, the felon disenfranchisement provision denied voting rights to far more whites than African-Americans and decreased the percentage of AfricanAmerican voters state-wide by less than one quarter of one percent. The plaintiffs' best estimates show that 44,562 white voters and 16,150 black voters were disenfranchised in 1968 due to a felony conviction. Although proportionately more African-American voters were affected, the percentage of eligible African-American voters in the voting age public dropped only from 12.57% in 1967 to 12.32% in 1968. The plaintiffs focus on the present racially disparate impact of the felon disenfranchisement provision, but this amount of disparate impact was not present in 1968 when the provision was enacted. Although disturbing, the present racially disparate impact of the felon disenfranchisement law does not guide our analysis.
[18] Unlike the case at bar, in Hunter, there was extensive evidence that racial animus motivated the 1901 disenfranchisement provision. Alabama did not contest this fact. Indeed, at oral argument Alabama's counsel conceded that "I would be very blind and naive [to] try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won't do that." Id. at 230, 105 S.Ct. 1916.
[19] There is no allegation in the plaintiffs' complaint that the 1968 provision was adopted with the intent to discriminate based on race. Indeed, the plaintiffs stipulated that there is no evidence that legislators in 1968 were concerned with or considered the consequences of the policy along racial lines.
[20] The Supreme Court concluded that revision to the provision by state courts, which severed "some of the more blatantly discriminatory" portions of the law, did not purge the provision of its legislative intent. Hunter, 471 U.S. at 232-33, 105 S.Ct. 1916. The Supreme Court, however, did not hold that intervening legislative changes to the policy would have been legally insufficient to remove an earlier discriminatory intent.
[21] Prior to this case, no expert had ever suggested that the 1868 disenfranchisement provision was motivated by racial discrimination. The plaintiffs' standard establishes an insurmountable burden. As the defendants point out, if the court were to accept the plaintiffs' standard, then the more dubious an allegation of past discrimination in a predecessor provision, the more difficult it becomes for a state to extinguish it because it would be unlikely that the present day legislators would be aware of the past discrimination. The result would be to reverse the presumption that a State's laws are constitutional, and plunge federal courts into far-reaching expeditions regarding the sins of the past in order to question the laws of today.
[22] In Fordice, the question was one of what remedy the Constitution requires after a State has already been found liable for violating the Constitution via de jure segregation. By contrast, here the question is one of liability, not remedy.

[23] According to the plaintiffs' estimates, in 1968, 3.13% of voting age African-Americans were disenfranchised due to a felony conviction as compared to 1.24% of non African-Americans.
[24] In contrast to school desegregation where the racially disparate impact was at its height in the 1950s and 1960s and has decreased since, the felon disenfranchisement rule had very little racially disparate impact in the 1960s and only developed such an effect many years later.
[25] Specifically, Congress amended the Voting Rights Act in 1982 in response to 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), which required proof of intentional discrimination to establish a violation under Section 2.
[26] Two types of discriminatory practices and procedures are covered by section 2: those that result in "vote denial" and those that result in "vote dilution." The plaintiffs' claim here is one of vote denial. Vote denial occurs when a state employs a "standard, practice, or procedure" that results in the denial of the right to vote on account of race. 42 U.S.C. § 1973(a); Burton v. City of Belle Glade, 178 F.3d 1175, 1197-98 (11th Cir.1999). To prevail, a plaintiff must prove that "under the totality of the circumstances, ... the political processes ... are not equally open to participation by [members of a protected class] ... 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). In making this inquiry, courts consider a non-exclusive list of objective factors (the "Senate factors") detailed in a Senate Report accompanying the 1982 amendments. See S.Rep. No. 97-417, at 28-29, 1998 U.S.C.C.A.N. at 206; Thornburg v. Gingles, 478 U.S. 30, 36, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Because we conclude that Section 2 of the Voting Rights Act does not reach Florida's felon disenfranchisement provision, there is no need to consider the plaintiffs' evidence of alleged discrimination in Florida's criminal justice system which might be relevant under the totality of the circumstances inquiry.
[27] The full text, as amended in 1982, states:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered. Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their participation in the population.
42 U.S.C. § 1973.
[28] When the Fourteenth Amendment was ratified, twenty-nine out of thirty-six states had some form of criminal disenfranchisement provision. Richardson, 418 U.S. at 48, 94 S.Ct. 2655. The prevalence of these laws before African-Americans were granted the right to vote indicates that states have historically maintained these laws for race-neutral reasons.
[29] The plaintiffs argue that the Fourteenth Amendment's endorsement of felon disenfranchisement laws should not control our analysis because the Fifteenth Amendment does not contain similar language and, in their view, the Fifteenth Amendment repealed § 2 of the Fourteenth Amendment. The plaintiffs cite to no case law to support this bold assertion and we find no merit in this argument. The plain text of the Constitution is clear and we must follow it.
[30] Before turning to a canon of statutory interpretation, we must find some level of ambiguity in the words of the statute. Dep't of HUD v. Rucker, 535 U.S. 125, 134, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002); Harry v. Marchant,

291 F.3d 767, 770 (11th Cir.2002) (en banc). Although Section 2 of the VRA does not require proof of intentional discrimination behind the enactment of the challenged voting qualification, Congress's decision to retain the phrase "on account of race or color" makes it unclear as to whether Section 2 would apply to Florida's felon disenfranchisement provision, which is endorsed by the Fourteenth Amendment, applies to felons without regard to race or color (it is particularly telling that over seventy percent of the plaintiffs' class is white), and is administered as one component of a felon's criminal sentence. See Muntaqim, 366 F.3d at 116; Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir.1994) ("to be actionable, a deprivation of a minority group's right to equal participation in the political process must be on account of a classification, decision, or practice that depends on race or color, not on account of some other racially neutral cause.") (emphasis added). Moreover, the deep division among eminent judicial minds on this issue demonstrates that the text of Section 2 is unclear. See Muntaqim, 366 F.3d at 116-118 ("Unfortunately, it `is exceedingly difficult to discern what [Section 2] means.'"). Finally, the interpretation of the statute advanced by the dissenters would suggest that currently incarcerated felons may also fall within the scope of the statute. Unless one concedes that Section 2 of the VRA reaches currently incarcerated felons, the interpretation advanced by the dissenters provides an additional reason why the statute is unclear.
[31] In saying this, we in no way doubt Congress's authority to enact the VRA nor do we question that, as a general rule, the results test of Section 2 is constitutionally sound. See United States v. Marengo County Comm'n, 731 F.2d 1546, 1556-63 (11th Cir.1984) (holding that Section 2's results test is constitutional on its face). The only issue here is our concern over whether Congress would exceed its authority if we were to apply Section 2 to Florida's felon disenfranchisement law. Even assuming arguendo that Section 2 of the VRA applies to Florida's provision, a review of the record strongly suggests that the plaintiffs' Section 2 claim would still fail. The plaintiffs would have to demonstrate that specific and relevant racial biases in society interact with the felon disenfranchisement rule, resulting in a denial of the franchise "on account of race or color." Cf. Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (stating that the Voting Rights Act requires that electoral practices interact with social or historical conditions to cause a racial inequality in the political process); Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir.1994) ("The existence of some form of racial discrimination remains the cornerstone of Section 2 claims ..."). We are concerned only with how the state allegedly discriminates against similarly situated persons who have committed felonies. Although the record includes some evidence of a statistical difference in the rate of felony convictions along racial lines, these disparities do not demonstrate racial bias. There are a myriad of factors other than race that may explain the disparity. For example, an individual's socioeconomic status, prior criminal record, gravity of offense, strength of evidence, nature of legal representation, and age of offender might explain the disparity. Moreover, the plaintiffs' own expert found that whites have disproportionately high conviction rates for four of the nine categories of crimes he analyzed. Furthermore, there is no significant racial disparity in the sentences received by convicts with similar guideline scores.
[32] As the Court has explained, Congress must (1) "identify conduct transgressing ... the substantive provisions" of the amendments and (2) "tailor its legislative scheme to remedying or preventing such conduct." Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savs. Bank, 527 U.S. 627, 639, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999). In addition to the absence of findings showing that felon disenfranchisement laws are used to discriminate, it is also questionable whether applying Section 2 to reach all felon disenfranchisement laws would be a congruent and proportionate response to the purported problem with these laws. Section 2 applies nationwide to all states and there is no termination date. Given that racial minorities are overrepresented in the felon population, the plaintiffs' theory would cast into doubt most felon disenfranchisement laws in this country. See Boerne, 521 U.S. at 533, 117 S.Ct. 2157 (noting that although enforcement legislation need not have "termination dates, geographic restrictions, or egregious predicates ... limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under" the Enforcement Clause).
[33] The plaintiffs suggest that it is unreasonable to require a specific record of violations because Congress could not identify every form of voting discrimination when it enacted the Voting Rights Act. Given the widespread existence of felon disenfranchisement laws throughout this Nation's history and the fact that many States had such laws on their books when the VRA was enacted, we find no merit in this argument.

[34] The plaintiffs concede that Congress compiled no record of constitutional violations with respect to felon disenfranchisement provisions. They contend, however, that Congress's enforcement power is broader when it acts to prohibit discrimination against a suspect class or to protect a fundamental right such as voting. See Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 1991-92, 158 L.Ed.2d 820 (2004) (court access); Hibbs, 538 U.S. at 735-36, 123 S.Ct. 1972 (sex). Although this is true, the Supreme Court still requires some record of constitutional violations to ensure that Congress had an adequate constitutional basis for prophylactic legislation. Hibbs, 538 U.S. at 735, 123 S.Ct. 1972; Lane, 124 S.Ct. at 1992. The plaintiffs also cite to the Court's decision in Hunter v. Underwood as evidence of a record of constitutional violations with regard to felon disenfranchisement provisions. A key problem with this argument is that the Court did not decide Hunter until 1985, three years after the 1982 amendments to the Voting Rights Act. Thus, Congress could not have relied on Hunter when it enacted the amended Section 2 of the Voting Rights Act. Moreover, evidence of a purposefully discriminatory criminal disenfranchisement law in Alabama could not justify congressional regulation of Florida's law, which was enacted for race-neutral reasons.
[35] We also note that application of the VRA to Florida's felon disenfranchisement provision could raise federalism concerns in that it significantly alters the constitutionally mandated balance of power between the States and the Federal Government. See Gregory v. Ashcroft, 501 U.S. 452, 457-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Whenever Congress intrudes upon "a decision of the most fundamental sort for a [State], ... `it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides' this balance." Gregory v. Ashcroft, 501 U.S. at 461, 111 S.Ct. 2395 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). Congress's intent must be "unmistakably clear in the language of the statute." Id. at 460-61, 111 S.Ct. 2395. In Gregory, Missouri state court judges challenged a provision of the Missouri Constitution that required certain judges to retire at the age of seventy as being in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (ADEA). After concluding that "the authority of the people of the States to determine the qualifications of their most important government officials ... lies at the heart of representative government," the Court found that state judges were not covered by the ADEA because Congress did not make their inclusion unmistakably clear. Id. at 467, 111 S.Ct. 2395. As in Gregory, the balance of power between the States and the Federal Government is at issue in this case. If 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. Although the States' power in this regard must be exercised in accordance with the Fourteenth and Fifteenth Amendments, § 2 of the Fourteenth amendment establishes an explicit constitutional balance between the States and the Federal Government by giving the States authority to continue the prevalent practice of disenfranchising felons. If Congress wishes to alter the balance of power in this area, its intention must be unmistakably clear.
[36] Only the Ninth Circuit has found a felon disenfranchisement provision to be a statutory violation. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003). There, the plaintiffs brought a Voting Rights Act challenge to the State of Washington's felon disenfranchisement provision, claiming that racism in the criminal justice system interacted with the state's suffrage laws to deny equal voting opportunities to minorities. Id. at 1020. The Ninth Circuit reversed the grant of summary judgment, but did not specifically address the constitutionality of its interpretation. Logically, that court must have found that the statute covered the challenged provision and that Congress had the constitutional authority to regulate felon disenfranchisement provisions to reach its holding. Nevertheless, the Ninth Circuit did not provide any reasoning for its finding, and thus that court's decision, which is only persuasive authority in our circuit, should not compel our analysis.
[37] We recognize that there is no legislative history directly referencing Section 2 of the VRA that mentions felon disenfranchisement provisions. Nonetheless, we find Congress's treatment of these provisions in reference to other sections of the VRA to be persuasive on this matter.
[38] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
[39] The one-sided legislative history is buttressed by subsequent Congressional acts. Since 1982, Congress has enacted laws making it easier for states to disenfranchise felons. For instance, in 1993, Congress enacted the National Voter Registration Act (NVRA), Pub. L. No. 103-31, 107 Stat. 77 (1993), which authorizes states to

purge felons from voter rolls. 42 U.S.C. § 1973gg-6(a)(3)(B). The Act also instructs federal prosecutors to give written notice to state election officials of persons convicted of felonies. 42 U.S.C. § 1973gg-6(g)(3). In this same Act, Congress sought to eliminate certain practices that dampen minority participation in the electoral process. Although not dispositive, this suggests that Congress did not intend to sweep felon disenfranchisement laws within the scope of the VRA.
[40] In addition to the constitutional concerns, there are prudential concerns as well. If we were to accept the plaintiffs' interpretation of the statute, states might lose their ability to exclude felons currently in prison from the franchise. See Farrakhan, 359 F.3d at 1125-27 (Kozinski, J., dissent from denial of rehearing en banc) (discussing the slippery slope problems of applying the Voting Rights Act to felon disenfranchisement provisions including implications for voter lists, Internet voting, and weekday elections).
[1] The Florida constitution provides that "[n]o person convicted of a felony ... shall be qualified to vote or hold office until restoration of civil rights." Fla. Const. art. VI, § 4 (1968).
[2] The constitutional question is created by the Fourteenth Amendment's savings clause regarding such provisions. See U.S. Const. amend. XIV, § 2.
[3] Those factors are canvassed in the original opinion:
It is axiomatic that at-large and multi-member districting schemes are not per se unconstitutional. Nevertheless, where the petitioner can demonstrate that "its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice," White v. Regester, 412 U.S. [755,] 766, 93 S.Ct. [2332,] 2339, 37 L.Ed.2d [314 (1973)], Whitcomb v. Chavis, 403 U.S. [124,] 149-150, 91 S.Ct. 1858[, 1872, 29 L.Ed.2d 363 (1971)], such districting schemes are constitutionally infirm.
The Supreme Court has identified a panoply of factors, any number of which may contribute to the existence of dilution. Clearly, it is not enough to prove a mere disparity between the number of minority residents and the number of minority representatives .... [W]here a minority can demonstrate a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, antisingle shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts. The fact of dilution is established upon proof of the existence of an aggregate of these factors. The Supreme Court's recent pronouncement in White v. Regester demonstrates, however, that all these factors need not be proved in order to obtain relief.
Zimmer, 485 F.2d at 1304-05 (footnotes and internal cross-references omitted).
[4] No one spoke for the Court in Bolden. Although six Justices concurred in the Court's judgment, Justice Stewart wrote only for himself, Chief Justice Burger, and Justices Powell and Rehnquist. For purposes of brevity, I do not pause to make this observation at every reference to Justice Stewart's opinion.
[5] We can assume from the facts of Burton that the plaintiffs had alleged that the challenged policy in that case had in fact produced a disparate impact to the disadvantage of minority voters. By implication, that allegation was not in itself sufficient to sustain a vote-denial claim, as the court concluded that "Appellants have failed to raise a genuine issue of material fact as to whether they were denied the right to vote on account of race." Burton, 178 F.3d at 1198.
[6] Additional support for this proposition can be found by implication in the final proviso of subsection (b): " Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." 42 U.S.C. § 1973(b).
[7] See Nipper, 39 F.3d at 1515-24; id. at 1524 (opinion of Tjoflat, C.J., joined by Anderson, J.) ("[A] plaintiff must prove invidious discrimination in order to establish a violation of section 2 of the Voting Rights Act. Specifically, the plaintiff may prove either: (1) discriminatory intent on the part of [state actors] ...; or (2) objective factors that,

under the totality of the circumstances, show the exclusion of the minority group from meaningful access to the political process due to the interaction of racial bias in the community with the challenged voting scheme."); Solomon v. Liberty County, 899 F.2d 1012, 1032 (11th Cir.1990) (en banc) (Tjoflat, C.J., specially concurring, joined by Fay, Edmondson, Cox, and Hill, JJ.) ("Prior to Bolden, in order to win a voting rights case, a plaintiff had to prove invidious discrimination. This could be done in one of two ways.... [T]he invidious discrimination requirement, as well as the two methods of proving it, remained part of section 2 [after amendment]."). Essentially, section 2 reflects an acknowledgment by Congress that even a facially neutral voting scheme can operate as a circuit for the oppression of minority voters by powerful private parties regardless of legislative intent. It maintains a requirement, however, that such oppression be "on account of race or color," and thus that intent to produce a denial or abridgment of the right to vote on that basis be present somewhere in the relevant community.
The Supreme Court recently gave similar meaning to the analogous phrase "on the basis of" when it held that Title IX authorizes an implied private right of action based on a claim of retaliation for whistle-blowing. See Jackson v. Birmingham Bd. of Educ., ___ U.S. ___, 125 S.Ct. 1497, ___-___, ___ L.Ed.2d ___, slip op. at 4-5 (2005) (defining "retaliation" to be "`on the basis of sex' because it is an intentional response to the nature of the complaint: an allegation of sex discrimination" (emphasis added)).
[8] Furthermore, notwithstanding the requirement that we view plaintiffs' evidence favorably in light of the procedural posture of this case, their burden is significant in light of the numerous filters and checks built into our criminal-justice system that are independently capable of weeding out cases improperly infused with racial motives. Those checks include grand juries, the right to a trial by a jury (and specifically by a jury whose composition has not been manipulated on the basis of race), an impartial judge supervising the trial, appellate and collateral state-court review, federal habeas review, and clemency.
[1] See, e.g., Morse v. Republican Party of Va., 517 U.S. 186, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996) (exclusion of protected groups from a nominating convention); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) (multi-member districts); Arakaki v. Hawaii, 314 F.3d 1091 (9th Cir.2002) (restriction on race of candidate); McMillan v. Escambia County, 748 F.2d 1037 (11th Cir.1984) (majority vote requirement in at-large election primary); United States v. Marengo County Comm'n, 731 F.2d 1546, 1574 (11th Cir.1984) (at-large elections); DeGrandy v. Wetherell, 794 F.Supp. 1076 (N.D.Fla.1992) (single-member districting plans); Dillard v. Town of North Johns, 717 F.Supp. 1471 (M.D.Ala.1989) (selective withholding of candidacy requirement information and forms); Harris v. Siegelman, 695 F.Supp. 517 (M.D.Ala.1988) (refusal to appoint minority registration and election officials); Irby v. Fitz-Hugh, 693 F.Supp. 424 (E.D.Va.1988) (shift from elective to appointive system); Brown v. Dean, 555 F.Supp. 502 (D.C.R.I.1982) (location of polling place); Arroyo v. Tucker, 372 F.Supp. 764 (E.D.Pa.1974) (English-only election system, where residents born in Puerto Rico do not speak, read, write, or comprehend English).
[2] Judge Tjoflat argues in his concurrence that a plaintiff's showing of disproportionate effect does not suffice to make out a prima facie case of a § 2 VRA claim. It is far from clear that the language of § 2 VRA claim reinstates the law of the pre-Bolden cases. Congress could have specified in § 2 that some of the White factors were strongly probative of intent, and that proof of "something more than effect" was the sine qua non of a § 2 claim, regardless of whether the proof was direct or indirect. See White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). Given Congress's express language, however, it is plausible that the amended § 2 was meant to ensure racial minorities equal access to the vote, regardless of intent. See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 103-41, 100 S.Ct. 1490, 1519-1539, 64 L.Ed.2d 47 (1980) (Marshall, J., dissenting).
Indeed, it is far from clear that the state of pre-Bolden law did not recognize vote dilution claims based solely on effect. See Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966), (stating that the standard for vote dilution claim is "invidious effect"); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965) ("It might well be that, designedly or otherwise, a multi-member constituency 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." (emphasis added)).
In the event that Judge Tjoflat's interpretation is the correct one (that proof of "something more" is required), I do not think that interpretation leads inexorably to the conclusion that a plaintiff's showing of disproportionate effect

does not satisfy the summary judgment burden. On the contrary, one of the permissible inferences that can, and must, be drawn from the plaintiffs' showing here is that the disproportionate effect was caused by race. Thus, I believe that the plaintiffs have carried their summary judgment burden by producing evidence of a disproportionate effect.
[3] It bears noting that the Supreme Court has yet to determine whether the "congruence and proportionality" test applies to the Fifteenth Amendment. I assume here that it would. Because the VRA is a congruent and proportional remedy, and therefore well within Congress's enforcement power under the Fourteenth Amendment, an inquiry into the Fifteenth Amendment's scope is not required.
[1] The district court found that the "[p]laintiffs have presented to this Court an abundance of expert testimony about the historical background of Florida's felon disenfranchisement scheme as historical evidence that the policy was enacted ... with the particular discriminatory purpose of keeping blacks from voting." 214 F.Supp.2d 1333, 1338-39 (S.D.Fla.2002). While ultimately assuming, for the sake of summary judgment, that racial animus motivated Florida's 1868 disenfranchisement law, the majority goes to great lengths to question the sufficiency of plaintiffs' evidence and to offer alternative explanations for each historical fact that suggests a discriminatory motive. I believe that in doing so the majority erroneously views the facts and draws all reasonable inferences, not in favor of the non-moving party, but rather in favor of the state. See Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995).
[2] While the majority cites to Burton v. City of Belle Glade, 178 F.3d 1175, 1190 (11th Cir.1999) (finding that "[a]ppellants can point to no court that has ever applied Fordice outside of the education setting"), this circuit has suggested that Fordice applies in the employment setting, preventing public employers from escaping their constitutional obligations simply by enacting race-neutral policies that institutionalize the effects of prior discrimination. See Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1575 (11th Cir.1994).
[3] The 1868 provision, as amended in 1885, provided that "No person under guardianship, non compos mentis or insane shall be qualified to vote at any election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless restored to civil rights." Fla. Const. art. VI, § 4 (1885). Following the 1968 re-enactment process the text read, "No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability." Fla. Const. art. VI, § 4 (1968). The 1968 changes also eliminated a provision which empowered the legislature to disenfranchise those convicted of certain misdemeanors. Fla. Const. art. VI, § 5 (1885). While the majority emphasizes this revision, the plaintiffs' evidence of racial intent does not hinge on or relate to the eliminated provision. Unlike the plaintiffs in Cotton, whose claim arose from the disenfranchisement of those committing certain "black crimes", plaintiffs' claim of racial bias relates to Florida's disenfranchisement of all felons.
[4] While much of the case law interpreting Section 2 of the VRA focuses on the dilution of minority voting strength, see e.g., Holder v. Hall, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994); Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc), we have recognized that the statute's results test, as determined under the totality of the circumstances, applies by its terms to absolute denials of the vote. See Burton v. City of Belle Glade, 178 F.3d 1175, 1196 (11th Cir.1999) ("[T]wo distinct types of discriminatory practices and procedures are covered under Section 2: those that result in `vote denial' and those that result in `vote dilution.'").
[5] In Baker, an en banc panel of the Second Circuit considered whether Section 2 of the VRA applied to New York's felon disenfranchisement law. Because the panel divided equally, 5 to 5, the lower court opinion denying VRA coverage was affirmed. While the majority relies heavily on Muntaqim v. Coombe, 366 F.3d 102 (2d. Cir.2004), we note that the Second Circuit has granted en banc review of Muntaqim and has yet to issue its decision. See Muntaqim v. Coombe, 396 F.3d 95 (2d Cir.2004).
[6] See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959) ("Residence Requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345-47, 10 S.Ct. 299, 33 L.Ed. 637 [1890]) are obvious examples indicating factors which a State may take into consideration in determining the qualification of voters.") (emphasis added).

[7] Nor is Congress required to impose temporal or geographic restrictions (whose absence from Section 2 the majority finds so troubling) on statutes passed pursuant to its civil rights enforcement authority. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 118, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (upholding a nationwide ban on use of literacy tests without any expiration date or geographical limit, and without congressional fact-finding on the discriminatory use of literacy tests in every state).
[8] The majority's citation to United States v. Ward, 352 F.2d 329, 332 (5th Cir.1965) suffers from the same infirmity. Ward simply notes that disqualification for a felony conviction would not qualify as a "test or device" prohibited in those jurisdictions subject to Section 4(c) of the VRA. Nothing in Ward construes or relates to Section 2 of the VRA, much less its coverage of felon disenfranchisement laws.
[9] Of course, I recognize that non-discriminatory felon disenfranchisement statutes, standing alone, raise no equal protection violation. See Ramirez, 418 U.S. at 54-55, 94 S.Ct. 2655.
[10] Although the district court failed to examine the plaintiffs' evidence under the totality of the evidence standard that governs Section 2 claims, Judge Tjoflat's concurrence argues that a remand is unnecessary as "plaintiffs have been unable to show that whatever denial or abridgment of voting rights resulted from Florida's felon disenfranchisement provision occurred `on account of race or color.'" First, because plaintiffs are appealing the district court's grant of summary judgment, it is not necessary that they show at this stage that their votes were denied on account of race. Rather, they need only show that genuine issues of material fact remain. That, they have certainly done. As I explained in the panel opinion, as the district court wrongly excluded evidence on several of the "senate factors", plaintiffs can point to evidence on racially polarized voting, prejudice in the criminal justice system, socio-economic disparities, and a history of official discrimination. Johnson, 353 F.3d at 1305-06 and n. 25. This evidence goes beyond disparate impact, and when considered in the light most favorable to plaintiffs, permits a conclusion that felon status "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S.Ct. 2752. Moreover, to the extent that Judge Tjoflat's construction of the "totality of the circumstances" inquiry imposes a requirement that plaintiffs demonstrate discriminatory intent "from somewhere in the relevant community", such a requirement appears nowhere in the pre-Bolden iterations of the senate factors and is inconsistent with the Congressional objective of eliminating intent from Section 2. See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) ("[Following Bolden], Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone and to establish as the relevant legal standard the `results test,' applied by this Court in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and by other federal courts before Bolden."); Chisom v. Roemer, 501 U.S. 380, 394, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) ("Under the amended statute, proof of intent is no longer required to prove a § 2 violation. Now plaintiffs can prevail under § 2 by demonstrating that a challenged election practice has resulted in the denial or abridgment of the right to vote based on color or race. Congress not only incorporated the results test in the paragraph that formerly constituted the entire § 2, but also designated that paragraph as subsection (a) and added a new subsection (b) to make clear that an application of the results test requires an inquiry into `the totality of the circumstances.'").
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 Johnson v. Bush, 546 U.S. 1015 (2005)
126 S.Ct. 650 Supreme Court of the United States Thomas JOHNSON, et al., petitioners,
v. Jeb BUSH, Governor of Florida, et al.
No. 05-212. | Nov. 14, 2005.
Case below, 405 F.3d 1214.

Opinion *651 Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.
Parallel Citations 126 S.Ct. 650 (Mem), 163 L.Ed.2d 526, 74 USLW 3114, 74 USLW 3300, 74 USLW 3301
	  

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