Muntaqim v. Coombe Brief for Plaintiffs-Appellants

Public Court Documents
March 30, 2005

Muntaqim v. Coombe Brief for Plaintiffs-Appellants preview

Muntaqim v. Coombe En Banc Brief for Hayden Plaintiffs-Appellants

Cite this item

  • Brief Collection, LDF Court Filings. Muntaqim v. Coombe Brief for Plaintiffs-Appellants, 2005. 4c1356f1-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0cc5d4b1-618e-4a3c-942e-9774bb20a106/muntaqim-v-coombe-brief-for-plaintiffs-appellants. Accessed June 17, 2025.

    Copied!

    01 -7260-cv 
04-3886-pr

To be argued by
_______________________ Janai S. Nelson, Esq.

In the

IniieZ) Bialw (fnurt nf Appealfi
For the Second Circuit

Jalil A bdul Muntaqim, a/k/a Anthony Bottom, Joseph Hayden, Lumumba A kinwole- 
Bandele, W ilson A ndino, Gina Arias, Wanda Best-D eveaux, Carlos B ristol, Augustine 

Carmona, David Galarza, Kimalee Garner, Mark Graham, Keran Holmes, III, 
Chaujuantheyia Lochard, Steven Mangual, Jamel Massey, Stephen Ramon, Lillian M. 

Rivera, N ilda Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield, and Barbara 
Scott, on behalf o f themselves and all individuals similarly situated,

Plaintiffs -  Appellants,

Phillip Coombe, Anthony Annucci, Louis F. Mann, George Pataki, Governor of the State of 
N ew York, Carol Berman, Chairperson, N ew York Board of Elections, and Glenn S. 

Goord, Commissioner of N ew York State Department of Correctional Services,

Defendants -  Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTS 
FOR THE NORTHERN AND SOUTHERN DISTRICTS OF NEW YORK

EN BANC BRIEF FOR HAYDEN 
PLAINTIFFS-APPELLANTS

NAACP Legal Defense & Educational fund, Inc. 
Theodore M. Shaw 

Director-Counsel 
Norman J. Chachkin 
Janai S. Nelson 
Ryan P. Haygood 
99 Hudson Street, Suite 1600 
New York, New York 10013-2897 
(212) 965-2200

Community Service Society of New York 
Juan Cartagena 
Risa Kaufman 
105 East 22nd Street 
New York, New York 10010 
(212) 260-6218

[Listing of Counsel Continued Inside Cover]



Center for Law and Social Justice 
at Medgar Evers College 

Joan P. Gibbs 
Esmeralda Simmons 
1150 Carroll Street 
Brooklyn, New York 11225 
(718)270-6296

Attorneys for Plaintiffs-Appellants



CORPORATE DISCLOSURE STATEMENT

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

Legal Defense & Educational Fund, Inc., Community Service Society of New York, 

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

the undersigned counsel, make the following disclosures:

Counsel for Plaintiffs-Appellants, all not-for-profit corporations of the State 

of New \  ork, are neither subsidiaries nor affiliates of a publicly owned corporation.

— -

Janai S. Nelson, Esq.
Director of Political Participation 

NAACP Legal Defense & 
Educational Fund, Inc.

99 Hudson Street, Suite 1600 
New' York, NY 10013 
(212) 965-2237 
jnelson@naacpldf.org

mailto:jnelson@naacpldf.org


TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT............................................................

TABLE OF CONTENTS................................................................................................j,

TABLE OF AUTHORITIES........................................................................................ jv

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

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION.... 1

STATEMENT OF QUESTION PRESENTED............................................................ 2

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

STATEMENT OF RELEVANT FACTS......................................................................8

STANDARD OF REVIEW.......................................................................................... 14

SUMMARY OF ARGUMENT....................................................................................14

ARGUMENT................................................................................................................ j 7

I. Congress Has the Authority to Enforce the Reconstruction Amendments by 
Applying Section 2 of the Voting Rights Act to New York’s Felon 
Disfranchisement Scheme, Which Disqualifies Certain People with Felony 
Convictions from Voting on the Basis of Race (En Banc Question No. 1)
................................................................................................................................17

II. The “Plain Meaning Rule” of Statutory Interpretation Establishes that
Section 2 of the Voting Rights Act is Applicable to New York’s Felon 
Disfranchisement Regime, and the “Clear Statement Rule” Has No 
Application to this Case (En Banc Question No. 2 )........................................24

n



III. Proof Required to Establish a Challenge to §5-106(2) Pursuant to a Vote 
Dilution Theory under Section 2 of the Voting Rights Act (En Banc
Question No. 3)..............................................................................................  29

A. Disparate Impact of New York Election Law §5-106...........................30

B. Totality' of the Circumstances Test..........................................................3 1

Evidence of Discrimination in the Criminal Justice System.... 33

a. Type of Evidence (Court's En Banc Question No. 3(a)) 
.............................................................................................33

b. Quantum of Proof (Court’s En Banc Question No. 3(b)) 
.............................................................................................36

c. Relevance of Evidence of Discrimination in Federal and 
State Criminal Justice System (Court’s En Banc Question
No- 3 (c))............................................................................ 36

ii. Other Senate Factors.................................................................... 36

IV. Hayden Appellants are Proper Representatives of Their Respective Proposed 
Subclasses and Satisfy all Requirements for Bringing Claims on Their Own 
Behalf as Well as on Behalf of the Proposed Subclasses They Represent... 39

A. Hayden Community-Member Appellants are Appropriate
Representatives of Their Respective Proposed Subclasses and Satisfy 
All Requirements of Fed. R. Civ. P. Rule 23...................................... 40

B. Hayden Prisoner-and Parolee- Subclass Representatives Are Not
Required to Demonstrate Individualized Discrimination that Resulted 
in Their Incarceration or That a Similarly Situated White Person 
Necessarily Would Have Been Treated Differently............................44

iii

CONCLUSION 46



TABLE OF AUTHORITIES

FEDERAL CASES

Allen v. Ellisor.
664 F.2d 391 (4th Cir. 1981), vacated as moot 454 U S 807 (1981) ......................  25

Amchem Products Inc., v. Windsor.
521 U.S. 591 (1997)................................................................................................  43

Aslandis v. United States Lines. Inc..
7 F.3d 1067 (2d Cir. 1993)......................................................................................  ]4

Baffa v. Donaldson. Lufkin. Jenrette Sec. Cnrp..
222 F.3d 52 (2d Cir. 2000)......................................................................................  43

Bd. of Trustees v. Garrett.
531 U.S. 356 (2001)...............................................................................................  19

Caridad v. Metropolitan-North Commuter R.R..
191 F.3d 283 (2d Cir. 1999)....................................................................................  40

Chisom v. Roemer.
501 U.S. 380 (1991)..........................................................................................passim

City of Boeme v, Flores.
521 U.S. 507 (1997)..........................................................................................  19.20

DeMuria v. Hawkes.
328 F.3d 704 (2d Cir. 2003)....................................................................................  14

In re Drexel Burnham Lambert Group. Inc..
960 F.2d 285 (2d Cir. 1992)....................................................................................  42

East Texas Motor Freight Svs.. Inc, v. Rodriguez.
431 U.S. 395 (1977)..........................................................................................  4 j 43

Farrakhan v. Locke.
987 F. Supp. 1304 (E.D. Wash. 1997), affd. Farrakhan v. Washington
338 F.3d 1009 (9th Cir. 2003) ................................................................................  21

Fla. Prepaid v. College Sav. Bank.
527 U.S. 627(1999)................................................................................................  19

Goosbv v. Town of Hempstead.
180 F.3d 476 (2d Cir. 1999), cert, denied. 528 U.S. 1138 (2000) ........................... 37

Green v. Bd. of Elections.
380 F.2d 445 (2d Cir. 1967)....................................................................................  22

IV



Gregor\' v. Ashcroft.
501 U.S. 452 (1991)........................................................................................ 2. 26-27

Harper v. Virginia State Board of Elections.
383 U.S. 663 (1966)................................................................................................  22

Herron v, Koch.
523 F. Supp. 167 (S.D.N.Y. 1981)........................................................................... 37

Houston Lawyers’ Ass’n v. Attorney General.
501 U.S. 419(1991)................................................................................................  27

Hunter v. Underwood.
471 U.S. 222 (1985)............................................................................................ 20-21

Johnson v. Gov, of Fla..
353 F.3d 1287 (11th Cir. 2003) ..............................................................................  28

Katzenbach v. Morgan.
384 U.S. 641 (1966)................................................................................................  19

Marisol A. v. Guiliani.
126 F.3d 373 (2d. Cir. 1997)...................................................................................  40

Mitchum v, Foster.
407 U.S. 225 (1972)................................................................................................  27

Muntaqim v. Coombe.
366 F.3d 102 (2d Cir. 2004)..............................................................................passim

Nevada Dep’t of Human Res, v. Hibbs.
538 U.S. 721 (2003)................................................................................................  19

New Rochelle Voter Def. Fund v. City of New Rochelle
308 F. Supp. 2d 152 (S.D.N.Y. 2003)...................................................................... 37

Pa. Dep’t of Corr. v. Yeskev.
524 U.S. 206(1998)................................................................................................  26

Rossini v. Qgilvv & Mather. Inc..
798 F.2d 590 (2d Cir. 1986)....................................................................................  42

Salinas v. United States.
522 U.S. 52 (1997)..................................................................................................  26

Schick v. Schmutz (In re Venture Mortgage Fundi.
282 F.3d 185 (2d Cir. 2002)....................................................................................  24

Schlesinger v. Reservists Comm, to Stop the War.
418 U.S. 208 (1974)................................................................................................  43

v



South Carolina v. Katzenbach. 
383 U.S. 301 (1966)........ 19

Tennessee v. Lane.
541 U.S. 509, 124 S. Ct. 1978 (2004)

Thornburg v. Gingles.
478 U.S. 30(1986)...........................

Trop v. Dulles.
356 U.S. 86 (1958)............................

United States v, Morrison.
529 U.S. 598 (2000)..........................

Vargas v. Citv of New York.
377 F.3d 200 (2d Cir. 2004)..............

DOCKETED CASES

Havden v, Pataki.
No. 00 Civ. 8586, 2004 WU 1335921 (S.D.N.Y. June 14, 2004)............................

Havden v. Pataki.
No. 04-3886-pr (2d Cir. Feb. 24, 2005)(order consolidating Havden v, Pataki with 
Muntaqim v. Coombe. No. 01-7260-cv)(“En Banc Consolidation Order”) ........  1,

FEDERAL STATUTES

42U.S.C. §1973 ............................................................................................................  44

42 U.S.C. § 1973(a) ..............................................................................  15,24,25,30,44

42 U.S.C.§ 1973(b) .......................................................................................................  44

42 U.S.C. §§ 1973(f)..................................................................................... j

28 U.S.C. §§ 1331 and 1343 ..............................................................  ]

Fed. R. Civ. P. 12(c) .............................................................................................  ]4

Fed. R. Civ. P. 23 ....................................................................................................  ]6,40

S. Rep. No. 97-417 (1982), reprinted in 1992 U.S.C.A.A.N. 177, 179 ...................  32, 45

vi



STATE STATUTES

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

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

N.Y. Election Law § 5-106...................

.. 12-1

.........  8

passim

MISCELLANEOUS

Anthony Thompson, Stopping the Usual Suspects. 74 N.Y.U L Rev 956 
(1999) .................................................................

Becky Pettit & Bruce Western, Mass Imprisonment and the Life Course:
Race and Class Inequality in U.S. Incarceration. 69 American Sociological Review 
151 (2004) .......................................................................................... .. 35

Brief for the Association of the Bar of the City of New York as Amicus Curiae in
Support of Appellant (“City Bar Amicus Br.”) ......................................  21, 22, 24, 27

Brief for the United States as Amicus Curiae Supporting Appellee in Part
and Urging Affirmance......................................................................................  27 28

Brief of the United States as Amicus Curiae in Support of Defendants-Appellees
at 25-33, Muntaqim (Nos. 01-7260-cv, 04-3886-pr)(“Brief of United States”).....27

Compl., U.S. v. Brown, et ah. (S.D. Miss. 2005)(No. 4:05- cv-33 TSL-AGN) ............ 28

Cong. Globe, 40th Cong., 3d Sess. 1012-13 (1869).........................................................  23

Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in 
African American Communities.
56 Stan. L. Rev. 1271 (2004) .............................................................................  32 35

En Banc Brief in Support of Plaintiff-Appellant Jalil-Abdul Muntaqim, a/k/a Anthony 
Bottom, and in Support of Reversal, on Behalf of Amici Curiae NAACP Legal 
Defense & Educational Fund, Inc., Community Service Society of New York, and 
Center for Law and Social Justice at Medgar Evers College (“Hayden Counsel 
Amicus Brief T................................................................................................  21 45

En Banc Brief of Amici Curiae the Lawyers’ Committee for Civil Rights Under Law,
People for the American Way Foundation, National Association for the Advancement 
of Colored People, and National Black Law Students Association Northeast Region 
in Support of Appellant and in Support of Reversal (“Lawyers’ Committee Amicus 
Br ”) ...................................................................................................................  26-27

En Banc Brief of the Brennan Center for Justice at New York University School of Law 
and the University of North Carolina School of Law Center for Civil Rights as Amici



Curiae Supporting Plaintiff- Appellant Jalil Abdul Muntaqim and In Support of 
Reversal (“Brennan Amicus Brief”) .................................................... ->7

Invisible Punishment: Collateral Consequences of Mass Imprisonment (Marc Mauer and 
Meda Chesney-Lind eds. 2002)...........................................................................  33

James P. Lynch & William Sabol, Effects of Incarceration on Social Control 
in Communities, in The Impact of Incarceration on Families and 
Communities........................................................................................................... 35

Jeff Fagan, et ah, Reciprocal Effects of Crime and Incarceration in New
York Citv Neighborhoods. 30 Fordham Urb. L.J. 1551 (2003) .............................. 34

Jeff Fagan & Garth Davies, The Effects of Drug Enforcement on the Rise 
and Fall of Homicides in New York City. 1985-95. Final Report, Grant 
No. 031675, Substance Abuse Policy Research Program, Robert Wood 
Johnson Foundation (2002)................................................................................. 33-34

Jeff Fagan & Tom R. Tyler, Legal Socialization of Children and Adolescents. Social 
Justice Research (forthcoming 2005) ................................................................... 34

Joan Moore, Bearing the Burden: How Incarceration Policies Weaken 
Inner-Citv Communities, in The Unintended Consequences of 
Incarceration ....................................................................................................... 35

John Hagan & Ronit Dinovitzer, Collateral Consequences of Imprisonment 
for Children, Communities, and Prisoners, in 26 Crime and Justice A 
Review of Research: Prisons ................................................................................... 35

Office of the Attorney General of the State of New York, Civil Rights Bureau, The New 
York Citv Police Department’s “Stop & Frisk” Practices (19991 ......................  33-34

Reply Brief for the United States .................................................................................. 28

Todd R. Clear, et ah, Coercive Mobility and Crime: A Preliminary Examination 
of Concentrated Incarceration and Social Disorganization. 20 Justice 
Quarterly 33 (2003).................................................................................................. 35

viii



PRELIMINARY STATEMENT

This appeal is from an unreported decision and judgment of the United States 

District Court for the Southern District of New York (McKenna, J.), granting 

Defendants’ Motion for Judgment on the Pleadings and dismissing Plaintiffs- 

Appellants’ (“Hayden Appellants” or “Appellants”) action in its entirety. The 

decision is set forth in the Hayden Appellants’ Supplemental Appendix (“ASA”) at 

00001 - 00179. On July 13, 2004, Hayden Appellants filed their notice of appeal to 

this Court. By order dated February 24, 2005, this Court consolidated this case with 

Muntaqim v, Coombe. which was already designated to be heard en banc, on the 

common question of law as set forth in the Statement of Question Presented, infra.1

STATEMENT OF SUBJECT MATTER 
AND APPELLATE JURISDICTION

Hayden Appellants’ claims for declaratory and injunctive relief arise under the 

Fourteenth and Fifteenth Amendments of the United States Constitution and under 

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

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

§§ 1973(f) and §1983. The final judgment and order dismissing the claims was 

entered on June 14, 2004, and on July 13, 2004, Havden Appellants filed their notice 

of appeal to this Court. 1

1 Hayden v. Pataki, No. 04-3886-pr (2d Cir. Feb. 24 ,2005)(order consolidating 
Havden v. Pataki with Muntaqim v, Coombe. No. 01-7260-cv)(“En Banc 
Consolidation Order”).

1



STATEMENT OF QUESTION PRESENTED

The Court’s En Banc Consolidation Order expressly states that the question 

presented in this consolidated appeal is whether, on the pleadings, a claim that New 

York Election Law §5-106, which disfranchises persons currently incarcerated or on 

parole for a felony conviction, results in unlawful vote denial and/or vote dilution can 

be brought under Section 2 of the Voting Rights Act, as amended. Havden Appellants

respectfully submit that this threshold question is the only issue before the Court at 

this time.2 * 1

The Court’s En Banc Consolidation Order also sets forth the following 
questions for the parties to address in their briefs:

(1) Whether Section 2 of the Voting Rights Act can constitutionally be 
applied to New York Election Law §5-106 in light of the Supreme Court’s recent 
jurisprudence regarding Section 5 of the Fourteenth Amendment;

(2) Whether the Supreme Court’s “clear statement rule,” articulated in 
Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991), requires Congress to have clearly 
stated that the Voting Rights Act was intended to infringe upon the states’ discretion 
to deprive persons currently incarcerated as felons and parolees of the right to vote 
and, if so, whether Congress had made that intent clear;

(3) What proof of racial bias in the criminal process is relevant to 
assessing a Section 2 vote dilution claim, including the type and quantum of statistical 
proof and the data and variables of such statistical proof, whether there are relevant 
distinctions in the federal and state criminal justice systems and whether a finding of 
discrimination in one and not the other affects the determination of the vote dilution 
claim, and how evidence of racial disparity in the criminal process factors into the 
Voting Rights Act’s “totality of the circumstances” test;

(4) Whether certain Hayden Appellants are proper class representatives 
for the proposed subclass they seek to represent and whether those appellants alleging 
vote denial must prove that his or her particular incarceration was the result of 
discrimination and that a similarly situated white person would have been treated 
differently.

2



STATEMENT OF THE CASE

The instant appeal is the consolidation of two voting rights cases, Muntaqim 

vJToombe and Hayden v. Pataki, that challenge New York’s felon disfranchisement 

scheme on the ground that New York Election Law §5-106 (“New York’s felon 

disfranchisement statute or §5-106 ) unlawfully denies Blacks and Latinos in prison 

or on parole for a felony conviction the right to vote on account of their race under 

Section 2 of the Voting Rights Act, as amended (“Voting Rights Act,” “VRA” or 

“Act”). Hayden Appellants also challenge §5-106 on the ground that it has a 

disparate impact on and dilutes the voting strength of New York State’s Black and 

Latino communities in violation of Section 2 of the VRA. In both cases, Appellants 

rely on the broad scope of the VRA to provide a remedy for the palpable effects of a 

punitive voting qualification that is rooted in racial discrimination and yields 

discriminatory results today.

Muntaqim v. Coomhe

On September 26, 1994, pro se inmate Jalil Abdul Muntaqim filed Muntaqim. 

challenging New York Election Law §5-106 under the Voting Rights Act, on the 

ground that it prohibits him from voting on account of his race. No significant 

discovery had taken place when appellees in Muntaqim3 moved for summary

See En Banc Consolidation Order, at 2-3.

Muntaqim filed this action against Philip Coombe, Commissioner, New York 
State Department of Correctional Services, Anthony Annucci, Deputy Commissioner 
New York State Department of Correctional Services, and Louis Mann’ 
Superintendent of the Shawangunk Correctional Facility (“Muntaqim Appellees”)’

3



judgment, and on January 24, 2001, the district court granted their motion in its 

entirety, holding that New York State’s felon disfranchisement scheme is immune 

from challenge under the Voting Rights Act. Judgment was entered against Muntaqim 

on January 25, 2001. A panel of this Court affirmed the district court’s decision on 

April 23, 2004. Muntaqim filed a petition for a writ of certiorari to the United States 

Supreme Court on July 21, 2004. On October 1, 2004, this Court issued an order 

indicating that a sua sponte poll as to whether to rehear the case en banc had failed. 

The Supreme Court denied Muntaqim’s petition for a writ of certiorari on November 

8, 2004. Muntaqim then moved for rehearing en banc, and, by order dated December 

23, 2004, this Court agreed to rehear his appeal en banc. On December 29, 2004, the 

Court issued an amended scheduling order in the Muntaqim appeal, requesting that 

the parties address four specific issues in their briefs. The order set forth a briefing 

schedule and an April 7, 2005 oral argument.4

Hayden v. Pataki

Hayden v. Pataki was originally filed pro se by Plaintiff-Appellant Joseph 

Hayden on September 13, 2000, in the Southern District of New York, alleging that 

§5-106, which prohibited him from voting in New York State solely because of his 

felony conviction and incarceration, violated his rights under the Voting Rights Act 

and the U.S. Constitution. Hayden’s pro se complaint was docketed on November 9,

Per this Court’s Second Amended Scheduling order, on January 28 2005
Muntaqim filed a brief responding to this Court’s order to address the four specific 
issues that are nearly identical to those set forth in the En Banc Consolidation Order. 
Alter these cases were consolidated, oral argument was rescheduled for June 22,2005.

4



2000. Defendant Carol Berman, Chairperson of the New York State Board of 

Elections (“Berman”), and Defendants George Pataki (“Pataki”), Governor of the 

State of New York, and Glenn Goord, Commissioner of the New' York State 

Department of Correctional Services (“Goord”), filed answers on January 5,2001, and 

on February 28, 2001, respectively.

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

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

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

injunctive relief (“First Amended Complaint” or “FAC”). District Court Judge 

McKenna granted this motion on February 21, 2003. The First Amended Complaint 

added new appellants, including representatives for three plaintiff subclasses,5 and 

expanded the claims in this action against Defendants Pataki and Berman in their 

official capacities (“Hayden Appellees” or “Defendants”).6 The First Amended 

Complaint includes detailed allegations in support of the constitutional and Voting 

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

D. additional plaintiffs may be grouped within three separate subclasses: 1)
Blacks and Latinos eligible to vote but for their incarceration for a felony conviction- 
2) B acks and Latinos eligible to vote but for their parole for a felony conviction; 3) 
Black and Latino voters who reside in specific communities in New York City whose 
collective voting strength is unlawfully diluted because of New York’s 
disfranchisement laws. Appellants filed a motion to certify these subclasses on 
November 3, 2004, which the district court denied as moot in its June 14 2004 
judgment and order granting Defendants’ motion for judgment on the pleadings 
Hayden v. Pataki, No. 00 Civ. 8586, 2004 WL 1335921 (S.D.N.Y. June 14, 2004).

6 Goord was not named as a defendant in the First Amended Complaint and is 
no longer a party to this action.

5



York’s felon disfranchisement laws,7 and of the Voting Rights Act claim arising out 

of the disparate impact of §5-106, as well as claims under the First Amendment, the 

Due Process Clause of the Fourteenth Amendment, the Civil Rights Acts of 1957 and 

1960, and customary international law. Defendants Berman and Pataki answered this 

amended pleading on April 8, 2003, and April 14, 2003, respectively.

On April 10, 2003, Judge McKenna denied Havden Appellees’ motion to stay 

discovery until this Court adjudicated Muntaqim v. Coomhe. 366 F.3d 102 (2d Cir. 

2004). Discovery by all parties commenced pursuant to a scheduling order issued by 

Magistrate Judge Henry Pitman on May 19, 2003. While the Muntaqim appeal was 

pending before a panel of this Court, Hayden Appellees filed a motion for judgment 

on the pleadings on July 10, 2003. Appellants filed a brief in opposition on 

September 9, 2003. All parties actively engaged in discovery through June 14, 2004, 

at which time District Court Judge McKenna issued a final Memorandum and Order 

granting Defendants’ Motion for Judgment on the Pleadings in its entirety. The 

district court held that Appellants’ VRA claims must be dismissed in light of the 

ruling by a panel of this Court in Muntaqim. holding that the Voting Rights Act does 

not apply to felon disfranchisement laws. The court below further held as a matter of 

law that Appellants had not alleged facts sufficient to state claims against Appellees 

under the Fourteenth and Fifteenth Amendments.

In the First Amended Complaint, Havden Appellants outline over one 
hundred years of constitutional history in New York and include allegations of 
specific acts of intentional discrimination denying the franchise to Blacks (ASA 
00045-49 [FAC 39-57]).

6



On July 13, 2004, Hayden Appellants filed a notice of appeal to this Court. 

They subsequently filed their brief in support of appeal on September 27, 2004. 

Appellees filed an opposition brief on November 24, 2004, and Havden Appellants 

filed a reply brief on December 8, 2004. In their briefs, Havden Appellants argued 

that the district court applied the incorrect standard in dismissing their claims under 

the Fourteenth and Fifteenth Amendments, and that they had, in fact, pled sufficient 

facts to withstand a motion for judgment on the pleadings. Havden Appellants also

sought to preserve their Voting Rights Act claims pending final resolution in 

Muntaqim.

Consolidation of Muntaqim and Havden

On February 24, 2005, this Court ordered that Havden be consolidated with 

Muntaqim and adjourned the previously scheduled April 7, 2005 argument date in 

^ ta(lim' In a separate order of the same date, the Court ordered that the Voting 

Rights Act claims in Hayden be heard en banc and consolidated with Muntaqim and 

requested that Appellants address a series of questions identified by the Court. The 

order set a March 23, 2005 deadline for Havden Appellants’ brief.

On March 1, 2005, Appellees filed a motion for consolidated briefing in 

Muntaqim and Hayden, which Muntaqim opposed on March 9, 2005, and which 

Hayden Appellants opposed on March 10,2005. Along with their opposition, Havden 

Appellants filed a motion for a one-week extension of time in which to file their brief. 

On March 11, 2005, this Court issued an order granting Appellees’ motion to 

consolidate briefing, and granting Havden Appellants’ motion for a one-week

7



extension of time. The March 11, 2005 order sets forth March 30, 2005, as the date 

by which briefs of appellants and amici in support of appellants in both Muntaqim and 

Hayden are due,8 with a consolidated appellees’ brief for both appeals due on April 

27, 2003. Reply briefs for appellants are due on May 13, 2005, and oral argument is 

scheduled for June 22, 2005.

STATEMENT OF RELEVANT FACTS 

New York’s Felon Disfranchisement Laws

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

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

crime. 9 Icf New York Election Law §5-106 provides:

No person who has been convicted of a felony pursuant to the laws of the state, 
shall have the right to register for or vote at any election unless he shall have 
been pardoned or restored to the rights of citizenship by the governor, or his 
maximum sentence of imprisonment has expired, or he has been discharged 
from parole. The governor, however, may attach as a condition to any such 
pardon a provision that any such person shall not have the right of suffrage 
until it shall have been separately restored to him.

The First Amended Complaint

While Hayden Appellants have not yet had the benefit of full discovery, their 

First Amended Complaint sets forth numerous allegations in support of their claims 

for vote denial and vote dilution actionable under the Voting Rights Act.

Per this Court s order, dated March 14, 2005, Appellant Muntaqim has the 
option of filing a new brief, or, in the alternative, may rely upon his brief filed 
February 1, 2005.

9 The term “infamous crime” has come to mean felony under New York State 
law. (ASA 00047 [FAC f  49]).

8



A. Racial Disparities

In their First Amended Complaint, Hayden Appellants included numerous 

allegations regarding the racial disparities that result from the operation of §5-106. 

Specifically, in New York State, Blacks and Latinos are prosecuted, convicted, and 

sentenced to incarceration at rates substantially disproportionate to Whites. Although 

Blacks make up approximately 15.9% of New York’s overall population (as reported 

in the 2000 U.S. Census), they make up 54.3% of the current prison population and 

50% of the current parolee population in New York State. (ASA 00049 [FAC ^ 62]). 

Although Latinos make up approximately 15.1% of New York State’s overall 

population (as reported in the 2000 U.S. Census), they make up 26.7% of the current 

prison population and 32% of the current parolee population in New York State. 

(ASA 00050 [FAC If 63]).

Collectively, Blacks and Latinos make up 86% of the total current prison 

population and 82% of the total current parolee population in New York State, while 

they approximate only 31% of New York State’s overall population. (ASA 00050 

[FAC Tf 64]). By contrast, Whites make up approximately 62% of New York States’ 

overall population (as reported in the 2000 Census) and only 16% of New York 

State’s current prisoners and parolees, respectively. (ASA 00050 [FAC If 65]).

Blacks and Latinos are sentenced to incarceration at substantially higher rates 

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

Blacks and Latinos. For example, in 2001, Whites made up approximately 32% of 

felony convictions, yet comprised 44% of those who received probation and only

9



21.4% of those incarcerated for felony convictions. (ASA 00050 [FAC  ̂66]). By 

contrast, Blacks made up 44% of those convicted of a felony, but only approximately 

of those sentenced to probation and 51% of those sentenced to incarceration. 

(ASA 00050 [FAC 66]). Latinos comprised 23% of those convicted of a felony, yet 

only 19% of those sentenced to probation and 26.5% of those sentenced to 

incarceration. (ASA 00050 [FAC ^ 66]).

In addition, Blacks make up 30% and Latinos make up 14% of the total current 

population of persons sentenced to probation in New York State, while Whites make 

up 51% of such persons. (ASA 00050 [FAC U 67]). Nearly 52% of those currently 

denied the right to vote pursuant to §5-106, are Black and nearly 35% are Latino. 

Thus, collectively, Blacks and Latinos comprise nearly 87% of those currently denied 

the right to vote pursuant to §5-106. (ASA 00050 [FAC  ̂68]).

B. Vote Dilution

Hayden Appellants First Amended Complaint also contains allegations of 

minority vote dilution resulting from operation of §5-106, including the specific claim 

that the disproportionate rates of prosecution, conviction, and incarceration of Blacks 

and Latinos (and the resulting disproportionate rates of disfranchisement among these 

groups) has a disparate impact on the ability of Blacks and Latinos in New York State 

to participate in the political process on an equal basis as Whites. (ASA 00051 [FAC 

U 69]). A majority of New York State’s prison population consists of Blacks and 

Latinos from New York City communities in the following areas: Harlem, 

Washington Heights, the Lower East Side, the South and East Bronx, Central and East

10



Brooklyn, and Southeast Queens. (ASA 00051 [FAC |  70]). As a result of the 

disproportionate disfranchisement of Blacks and Latinos, the voting strength of Blacks 

and Latinos, as separate groups and collectively, is diluted in violation of Section 2 

of the Voting Rights Act. (ASA 00051 [FAC f  71]).

C. Intentional Discrimination

In eighteen separate allegations in their First Amended Complaint (ASA 00045 

[FA.(2 H  39 — 57]), Hayden Appellants outlined over one hundred years of 

constitutional history in New York and made allegations of specific acts of intentional 

discrimination to deny the franchise to Blacks.10

The allegations of the First Amended Complaint detail how the framers of the 

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

limiting suffrage to property holders and free men, (ASA 00046 [FAC ^ 43]), 

requirements that disproportionately disfranchised Blacks. Id  Further, when in 1801 

the legislature removed all property restrictions from the suffrage requirements for the 

election of delegates to New York’s first Constitutional Convention, at the same time 

it expressly excluded Blacks from participating in this election. (ASA 00046 [FAC 

145]).

New York’s felon disfranchisement provisions originated in this historical 

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

10 In addition to being the crux of Hayden Appellants’ constitutional intentional 
discrimination claim currently pending before a panel of this Court without argument, 
evidence that §5-106 was specifically enacted with the intent to discriminate against 
Blacks should be considered in the “totality of the circumstances” analysis under 
Section 2 of the Voting Rights Act by the district court on remand. See, infra, note

11



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

(ASA 00047 [FAC 1148]). Delegates expressed their conviction that Black New 

Yorkers were unequipped and unfit to be part of the democratic process, (ASA 00046- 

47 [FAC til 46-47]), and crafted new voting requirements that were aimed at stripping 

Blacks of their previously held, albeit severely restricted, right to vote. Id. Race- 

based suffrage requirements, such as heightened property requirements applicable 

only to Blacks, were written into Article II of the New York State Constitution. (ASA 

00047 [FAC H 48]). The discriminatory effect of these measures was evident; only 

298 out of 29,701 Blacks, or less than 1% of the Black population of New York State, 

met these new requirements. Id. New citizenship requirements were also devised and 

applied in a racially discriminatory manner. Ich

The delegates to the 1821 Constitutional Convention also adopted a provision 

that permitted the legislature to exclude from the franchise those “who have been, or 

may be, convicted of infamous crimes.” (ASA 00047 [FAC 1f 49, quoting N.Y. 

Const. (1821), art. II, § 2]). In 1826 the New York State Constitution was amended 

to expand White male suffrage without any alteration of either the onerous property 

requirements for Black males, or the felon disfranchisement provision. (ASA 00047 

[FAC If 50]).

Delegates to New York’s 1846 Constitutional Convention made explicit 

references to their belief that Blacks were unfit to vote. (ASA 00047 [FAC If 51]). 

They adopted a new Constitutional provision expanding the Legislature’s 

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

12



of bribery, of larceny, or of any infamous crime.” (ASA 00047 [FAC ^ 52, quoting 

N.Y. Const, art. II, § 2 (amended 1894)]). As in 1821, the delegates to the 1846 

Constitutional Convention acted with knowledge that felon disfranchisement would 

disproportionately reduce the numbers of Black voters, (ASA 00048 [FAC t  53]). 

One speaker, for example, noted that “the proportion of ‘infamous crime’ in the 

minority population was more than thirteen times that in the white population.” (ASA 

00047 [FAC Tf 51]). The delegates were, therefore, aware of the racially 

discriminatory impact of the felon disfranchisement law. (ASA 00048 [FAC  ̂53]).

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

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

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

rejected. (ASA 00048 [FAC 1 54]). And the felon disfranchisement provision was 

not removed or altered. JcL

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

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

(ASA 00048 [FAC 1 55]). But two years after the passage of the Fifteenth 

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

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

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

the franchise. (ASA 00048 [FAC U 56], see N.Y. Const, art. II, § 2 (amended 1894)). 

Until that point, enactment of such laws had been permissive. (ASA 00048 [FAC f

13



56]). This new mandate for felon disfranchisement was reaffirmed at a Constitutional 

Convention in 1894, (ASA 00048 [FAC f  57]), and persists today.

STANDARD OF REVIEW

The standard of review by an appellate court in these consolidated appeals is 

similar. In the instant case an appellate court reviews the ruling on a Fed. R. Civ. P. 

12(c) motion for judgment on the pleadings de novo, Vargas v. City of New York. 377

F.3d 200, 205 (2d Cir. 2004), and accepts as true all factual averments made by the 

plaintiffs including any inferences to be drawn therefrom. DeMuria v. Hawkes 328 

F.3d 704, 706 (2d Cir. 2003). Similarly, in Muntaqim. a de novo review on appeal of 

the district court’s grant of summary judgment is warranted and the appellate court 

must review the evidence in a light most favorable to the non-moving party and draw 

all reasonable inference in his favor. Aslandis v. United States Lines. Inc.. 7 F.3d 

1067, 1072 (2d Cir. 1993). Accordingly, the standard of review in this consolidated 

appeal is de novo for the similar claims they each raise.

SUMMARY OF ARGUMENT

The Voting Rights Act s application to laws intended to discriminate or result 

in discrimination on account of race is unequivocal. Accordingly, laws like New York 

Election Law §5-106 that disproportionately deny voting rights to racial and ethnic 

minorities on account of their race fit squarely within the VRA’s scope. Not only 

does §5-106 disproportionately deny voting rights to African Americans and Latinos 

more than any other racial or ethnic group, this law exacts a punitive toll on Black and

14



Latino communities within New York State which suffer most acutely from racial 

disparities in the criminal justice system.

Congress’s authority to stamp out discriminatory voting practices is rooted 

firmly in the Constitution via the Fourteenth and Fifteenth Amendments. Both 

amendments provide separate and reinforcing bases for Congress’s power in this 

regard. Moreover, this authority is fully consistent with recent Supreme Court 

jurisprudence regarding Section 5 of the Fourteenth Amendment. Indeed, the VRA 

is the legislative embodiment of Congress’s force in this area and any aversion to 

expanding the franchise to citizens with felony convictions should not result in a 

distortion of the text and spirit of this important law, especially where the disparate 

racial impact of the challenged practice is incontrovertible.

In addition, because of Congress’s unmistakable authority to legislate against 

racially discriminatory voting practices and the unambiguous text of Section 2 of the 

VRA, the clear statement rule does not apply and has no place in the determination of 

the VRA’s application to felon disfranchisement laws. The “plain meaning” of 

Section 2 demonstrates that its scope reaches any “voting Qualification or prerequisite 

to voting” that results in vote denial or vote dilution on account of race. See 42 U.S.C. 

§ 1973(a). Moreover, assuming, for the sake of argument, that the clear statement rule 

does apply, Congress’s intent that Section 2 reach felon disfranchisement laws is 

established by, among other things, the Act’s broad and expansive construction.

To prove a vote dilution claim under Section 2, the proof of racial disparities 

or bias in the criminal justice system is no different than that for a vote denial claim.

15



There are several relevant measures concerning the criminal process that can inform 

an analysis of such disparities which are discussed below. Similarly, the structure and 

parameters of the “totality of the circumstances” test is the same for both vote dilution 

and vote denial claims. Vote dilution claims, however, require the court to consider 

more closely factors that bear directly upon the ability of the minority groups at issues 

to participate in the electoral process on an equal basis as Whites. Factors that can 

provide this perspective are discussed in Section III.

Finally, the named Hayden Appellants, through the three proposed subclasses 

they seek to represent, are each valid class representatives. In particular, the persons 

representing the subclass of persons alleging vote dilution under Section 2 not only 

have standing to bring claims on their own behalves, but meet the requirements of 

Fed. R. Civ. P. 23, which provide their authority to serve a class representatives. The 

named Hayden Appellants who represent the subclasses of persons with felony 

convictions unlawfully denied voting rights on account of their race are also proper 

class representatives and are not required to show that their individual convictions 

were the result of discrimination and that a similarly situated white person necessarily 

would have been treated differently to pursue a claim under Section 2.

For these reasons and those set forth below, this Court should reverse the ruling 

of the panel in Muntaqim, reverse the district court in Havden to the extent that it 

relies on Muntaqim for any part of its holding, and remand these cases to the district 

court for further proceedings.

16



ARGUMENT

In the interest of not burdening the Court with repetitive argument, Havden 

Appellants, in response to questions Nos. 1 and 2 in this Court's En Banc 

Consolidation Order do not restate, but rather summarize, adopt and incorporate by 

reference the analyses in the Brief for Plaintiff-Appellant In Banc (“Muntaqim 

Opening Br. ) and certain briefs of amicus curiae filed in support of Muntaqim 

pursuant to this Court's En Banc Order, dated December, 29, 2004. Similarly, in their 

response to Question 3 of the En Banc Consolidation Order, Hayden Appellants rely 

in large part on the En Banc Brief in Support of Plaintiff-Appellant Jalil-Abdul 

Muntaqim, a/k/a Anthony Bottom, and in Support of Reversal, on Behalf of Amici 

Curiae NAACP Legal Defense & Educational Fund, Inc., Community Service Society 

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

(“Hayden Counsel Amicus Brief’) and supplement the arguments in that brief within 

the context of the vote dilution claim raised in Havden. I.

I. CONGRESS HAS THE AUTHORITY TO ENFORCE THE 
RECONSTRUCTION AMENDMENTS BY APPLYING SECTION 
2 OF THE VOTING RIGHTS ACT TO NEW YORK’S FELON 
DISFRANCHISEMENT SCHEME, WHICH DISQUALIFIES 
CERTAIN PEOPLE WITH FELONY CONVICTIONS FROM 
VOTING ON THE BASIS OF RACE (En B a n c  Question No. 1)

Congress is clearly vested with authority to enforce the Reconstruction 

Amendments by prohibiting New York State from disfranchising people with felony 

convictions on the basis of race. Indeed, Congress acted at the height of its powers, 

and in a manner that was consistent with the spirit and purpose of the Reconstruction

17



Amendments when it enacted Section 2 of the Voting Rights Act to remedy racial 

discrimination in voting. As the Muntaqim panel recognized in its discussion of 

Congress’s enforcement power under Section 5 of the Fourteenth Amendment, 

Supreme Court precedent “stands broadly for the proposition that Congress may 

enforce the substantive provisions of the Reconstruction Amendments by regulating 

conduct [through the “results test” of Section 2 of the VRA] that does not directly 

violate those provisions.” (ASA 00170 rMuntaqim. 366 F.3d at 119 (“Panel Op,.” at 

119)]). In this case, there is no constitutional impediment to Appellants’ claims, 

where, as members of protected racial minority classes, Appellants seek relief under 

the Voting Rights Act to enjoin the operation of §5-106, which unlawfully prevents 

them from exercising a fundamental right on the basis of race.

To foreclose Appellants’ claims, the panel placed New York’s felon 

disfranchisement law out of Section 2’s reach on the ground that the established 

Supreme Court precedent failed to “delineate the outer boundaries of Congress’s 

authority. (ASA 00170 [Panel Op., at 119]). The panel instead relied upon a 

misinterpretation of more recent Supreme Court jurisprudence to conclude that, 

though Congress’s authority to enact Section 2 was not in question, (ASA 00171 

[Panel Opu, at 121]), Section 2 could not be constitutionally applied to New York’s 

felon disfranchisement statute. (ASA 00174 [Panel Ojx, at 124]). In reality, the 

Supreme Court s recent Fourteenth Amendment jurisprudence, particularly the 

“congruence and proportionality” test, reinforces the constitutionality of Section 2’s 

application to New York’s felon disfranchisement statute. In nearly every one of

18



these recent cases, the Supreme Court has regarded the Voting Rights Act as an 

exemplar of appropriate enforcement legislation, and the standard for measuring all 

other statutes. Tennessee v. Lane. 541 U.S. 509, 124 S. Ct. 1978, 1985 n.4 (2004); 

Nevada Dep’t of Human Res, v. Hibbs. 538 U.S. 721, 736 (2003); Bd. of Trs. v. 

Garrett, 531 U.S. 356, 373-74 (2001); United States v. Morrison. 529 U.S. 598, 626 

(200°); Ha. Prepaid v. Coll. Sav. Bank. 527 U.S. 627, 638 (1999); CitvofBoeme v 

Flores, 521 U.S. 507, 518, 526 (1997). Though the panel recognized these cases, it 

nevertheless was “doubtful that § 1973 [could] be constitutionally applied to §5-106,” 

(ASA 00175 [Panel Op., at 125]), and proffered several bases for constitutional 

concern. None of the panel’s concerns, however, survive scrutiny or represent a 

constitutional impediment to Appellants’ claims, id  at 122-23.

First, enjoining the operation of §5-106, which denies the vote to people with 

felony convictions on account of their race and color, is clearly a “congruent and 

proportional response to the enduring legacy and continuing persistence in the 

modem day of racial discrimination in voting. See, e ^ ,  Tennessee. 541 U.S. at 1988- 

1992. As the Supreme Court recognized one year after the passage of the VRA, 

Congress is vested with the authority to “use any rational means to effectuate the 

constitutional prohibition of racial discrimination in voting,” South Carolina v. 

Katzenbach, 383 U.S. 301, 324 (1966), and is entitled to enact aggressive legislation 

to achieve those ends. Katzenbach v. Morgan. 384 U.S. 641, 651 (1966). Applying 

Section 2 to New York s racially discriminatory felon disfranchisement regime is

19



entirely consistent with the purpose of the VRA, and does not exceed Congress’s 

enforcement power.11

Second, the panel applied an unreasonably restrictive interpretation of the 

Supreme Court’s recent Fourteenth Amendment cases, requiring Congress, in order 

to prohibit felon disfranchisement laws that were not enacted with a discriminatory 

purpose, to compile a record of intentional voting rights discrimination that could be 

deterred or prevented by invalidating those laws.” (ASA 00175 [Panel Q&, at 125]).* 12 

Congress, however, is required only to make findings on broad categories of unlawful 

racial discrimination, not to develop a practice-specific record, as the panel mistakenly 

believes, and the Supreme Court has not required such findings. See CitvofBoem e. 

521 U.S. at 531 (Court focused on the lack of a “widespread pattern of religious 

discrimination in this country, not on the allegedly discriminatory zoning practices 

at issue). The Supreme Court has also recognized that Congressional enforcement 

legislation can be supported by findings outside of the Congressional Record. See

Tennessee, 541 U.S. at 1988-90 (Court relied on numerous sources outside of the

For further elaboration on these points, Appellants adopt and incorporate by 
reference the Muntaqim Opening Br„ at 30-39, and Brief for the Association of the
Am'0* 1B t>23^25  ̂ ^  A™CUS Curiae in SuPPort of Appellant (“City Bar

12 Ironically, in its discussion of Hunter v, Underwood 471 U.S. 222 (1985) 
the panel minimized the significance of Hunter’s substantial findings of Alabama’s 
practice-specific intentional racial discrimination as support for Congress’s authority 
to reach felon disfranchisement law through Section 2 holding that though such 
evidence rnight be sufficient to support the regulation of disenfranchisement laws 
m Georgia [§ic] it would not support regulation of felon disfranchisement in all fifty 
states. (ASA 00176 [Panel Op., at 126]). y

20



Congressional record to determine that the ADA’s Title II is congruent and 

proportional legislation).

Notwithstanding that Appellants have alleged — with ample evidentiary 

support that New York’s felon disfranchisement scheme was enacted with 

discriminatory intent, the panel’s reading of the Supreme Court’s enforcement 

authority precedent to require geographically-targeted evidence of discriminatory 

felon disfranchisement is unreasonably narrow.13

Third, Congress s authority to prohibit New York from disfranchising people 

with felony convictions from voting on the basis of race is not precluded by the “other 

crime” provision in Section 2 of the Fourteenth Amendment. Indeed, because the 

other crime provision did not foreclose the Equal Protection challenge to Alabama’s 

felon disfranchisement law in Hunter v. Undemood. 471 U.S. 222 (1985), it cannot 

now be used to bar Appellants from challenging §5-106 under Section 2 of the Voting 

Rights Act. See Farrakhan v. Locke. 987 F. Supp. 1304, 1310 (E.D. Wash. 1997) 

(ruling that, after Hunter, it “necessarily follows, then, that Congress also has the

power to protect against discriminatory uses of felon disenfranchisement statutes 

through the VRA”), affd , Farrakhan v. Washington 338 F.3d 1009 (9th Cir. 2003). 

Fourth, the panel’s suggestion that penological justifications, (ASA 00172

[Panel Op,, at 122]), and “the longstanding practice in this country of disenfranchising 

felons, (ASA 00173 [Panel Op,, at 123]), can exempt §5-106 from Section 2 review

13
r„ ,  F° r ["rther elaboration on this point, Appellants adopt and incorporate by 
reference the Muntaq.rn Opening Br„ at 39-43, and City Bar Amicus Br„ at 25-27 
and Hayden Counsel Amicus Brief, at 26-29.

21



is also misplaced. For one thing, with respect to an earlier version of §5-106, this 

Court recognized in Green that New York’s felon disfranchisement law is a 

“non-penal exercise of the power to regulate the franchise.” Green v. Rd. of Elections, 

380 F.2d 445, 449 (2d Cir. 1967)(quoting Trop v. Dulles. 356 U.S. 86, 97 (1958)). 

In addition, the mere fact alone that §5-106 is deeply rooted in tradition does not 

protect it from Voting Rights Act scrutiny.14 It is worth noting that the enslavement 

of Africans, poll taxes and literacy requirements, too, are rooted in this nation’s 

tradition and yet have been found unconstitutional and antithetical to its current 

values. See generally Harper v. Virginia State Bd. of Flections 383 U.S. 663, 669 

(1966)(Courts are “not shackled to the political theory of a particular era[,]” and are 

not confined to historic notions of equality” or “what was at a given time deemed to 

be the limits of fundamental rights.”).15

Finally, the constitutionality of applying Section 2 of the VRA to §5-106 must 

also be evaluated in light of Congress’s authority vested by the Fifteenth Amendment. 

The panel s exclusive reliance on §2 of the Fourteenth Amendment to preclude 

Section 2’s application to felon disfranchisement laws is insufficient because the 

primary purpose of the VRA is to “enforce the fifteenth amendment to the

For further elaboration on these points, Appellants adopt and incorporate by 
reference the Muntaqim Opening Br., at 43-50, and City Bar Amicus Br., at 26-31 
filed in support of Muntaqim.

15 It is important to note here that Section 2 of the Voting Rights Act must be 
interpreted in a way that is true to its purpose and spirit as envisioned by Congress, 
and interpreted by the courts, and that the integrity of this interpretation cannot be 
compromised by an actual or perceived reluctance to expand the franchise to citizens 
with felony convictions.

22



Constitution of the United States.” Chisom v. Roemer 501 U.S. 380, 383 (1991) 

Designed to provide greater protection than the Fourteenth Amendment by enacting 

a broad prohibition on any disfranchisement on account of race, the Fifteenth 

Amendment does not exempt felon disfranchisement. In fact, the legislative history 

of its enactment reveals that Congress considered, but repeatedly rejected, proposed 

versions of the Fifteenth Amendment that would have explicitly permitted states to 

disfranchise persons convicted of felonies. Cong. Globe, 40th Cong., 3d Sess. 1012- 

13, 1041 (1869)(rejecting by a wide margin two versions of Fifteenth Amendment 

proposed by Representative Warner that sought to incorporate felon disfranchisement 

language). The text of the Fifteenth Amendment that finally passed both Houses of 

Congress made no reference to felon disfranchisement. With the Fifteenth 

Amendment, Congress created a express ban on disfranchisement on account of race, 

without importing expressly, or implicitly, the exemption of felon disfranchisement 

contained in Section 2 of the Fourteenth Amendment. Accordingly, Congress’s power 

to enforce the Fifteenth Amendment includes the ability to require New York to 

discontinue enforcing §5-106, which discriminates against people with felony 

convictions on the basis of race.16

For further elaboration on this point, Appellants adopt and incorporate by 
reference the Muntaqim Opening Br., at 47-49, and En Banc Brief of the Brennan 
Center for Justice at New York University School of Law and the University of North 
Carolina School of Law Center for Civil Rights as Amici Curiae Supporting Plaintiff-
at 2 22 ^  11 AbdUl Muntaqim and in SuPPort of Reversal (“Brennan Amicus Br.”),

23



II. THE “PLAIN MEANING RULE” OF STATUTORY 
INTERPRETATION ESTABLISHES THAT SECTION 2 OF THE 
VOTING RIGHTS ACT IS APPLICABLE TO NEW YORK’S 
FELON DISFRANCHISEMENT REGIME, AND THE “CLEAR 
STATEMENT RULE” HAS NO APPLICATION TO THIS CASE 
(E n  B a n c  Q u e s t io n  N o . 2)

On its face, the plain language of Section 2 of the Voting Rights Act, which 

expressly prohibits, without exception, any “voting qualification or prerequisite to 

voting or standard, practice or procedure,” if it “results in a denial or abridgement of 

the right to vote on account of race or color,” 42 U.S.C. § 1973(a), clearly applies to 

§5-106. Under the “plain meaning rule,” the plain meaning of a statute controls its 

interpretation, and “judicial review must end at the statute’s unambiguous terms.” 

Schick v. Schmutz (In re Venture Mortgage Fund) 282 F.3d 185, 188 (2d Cir. 2002). 

Applying the plain meaning rule to the unambiguous language of Section 2, it is clear 

§5-106 is within its scope. As a matter of strict textual interpretation, it is indisputable 

that §5-106, which prohibits certain individuals with felony convictions from 

registering to vote, falls squarely within the purview of Section 2 as a “voting 

qualification or prerequisite to voting” imposed by New York State. Although the 

panel recognized that, “on its face, §1973 extends to all voting qualifications,” it 

nevertheless, against the rules of statutory construction, concluded that the “clear 

statement rule” was applicable, and precluded Appellants’ Voting Rights Act claims. 

(ASA 00178 [Panel Op., at 129]).17

For further elaboration on these points, Appellants adopt and incorporate by 
reference the Muntaqim Opening Br., at 9-15, and City Bar Amicus Br at 11-14 
filed m support of Muntaqim.

24



In the face of nearly a century of systematic resistance to the Fifteenth 

Amendment, Congress utilized expansive and aggressive language to define the scope 

of the VRA and its amendments in order to achieve the Act’s ambitious remedial 

purpose: to rid the country of racial discrimination in voting. The broad terms of 

Section 2’s language, which extend the Act to cover any “voting qualification or 

prerequisite to voting or standard, practice, or procedure,” 42 U.S.C. § 1973(a), is 

identical to Section 5 s language, giving the Sections the same scope of coverage. See 

Chisom, 501 U.S. at 401-02. Significantly, covered jurisdictions under the Voting 

Rights Act have considered their felon disfranchisement laws to be within the scope 

of Section 5, thereby requiring pre-clearance from the Attorney General for any 

changes with respect to the same. See, e ^ ,  Allen v. Ellisor. 664 F.2d 391,399 (4th Cir. 

1981), vacated as moot, 454 U.S. 807 (1981). There is simply no logical basis to 

include felon disfranchisement laws within the scope of Section 5, while excluding 

them from coverage under Section 2.18

Indeed, nothing in the plain language or legislative history of Section 2 indicates 

that it cannot reach felon disfranchisement laws. The basic principle of the plain 

meaning rule — that courts will not resort to legislative history to confuse clear 

statutory text requires a recognition that, on its face, Section 2 is applicable to felon 

disfranchisement laws. The panel, however, improperly relied on the legislative

For further elaboration on this point, Appellants adopt and incorporate by 
reference the Muntaqim Opening Br., at 14-16, and En Banc Brief of Amici Curiae 
the Lawyers’ Committee for Civil Rights Under Law, People for the American Way 
Foundation, National Association for the Advancement of Colored People, and 
National Black Law Students Association Northeast Region in Support of Appellant 
and in Support of Reversal (“Lawyers’ Committee Amicus Br.”), at 11-12.

25



history of Section 4 of the Act, which is distinguishable by its language, operation and 

purpose, from Section 2. (ASA 00177 [Panel Op., at 128]).19

Although the panel recognized that, “on its face, § 1973 extends to all voting 

qualifications,” it nevertheless disregarded the established rules of statutory 

construction and relied upon the “clear statement rule.” (ASA 00177-78 [Panel Op,, 

at 128-29]). The panel s application of the clear statement rule is entirely inconsistent 

with Supreme Court case law, which has held that statutory ambiguity is an absolute 

prerequisite to the application of the clear statement rule. Pa. Dep’t of Corrs. v. 

Yeskey, 524 U.S. 206, 210-212 (1998); Salinas v. United States. 522 U.S. 52, 60 

(1997); Gregory, 501 U.S. 470. Remarkably, the panel, rather than declaring that 

Section 2 was ambiguous, affirmatively acknowledged that “Section 1973, while 

vague, does not seem ambiguous.” (ASA 00178 [Panel Op,, at 128 n.22]). 

Accordingly, based on the panel’s own reasoning, the clear statement rule simply does 

not apply.

The clear statement rule is inapplicable to §5-106 for yet another reason: 

applying Section 2 to this state law does not alter the existing balance of federal and 

state power, another prerequisite to the application of the rule. As the Supreme Court 

noted, the Fourteenth and Fifteenth Amendments “were specifically designed as an 

expansion of federal power and an intrusion on state sovereignty.” Gregory. 501 U.S. 

at 468. Thus, to the extent that the balance of power between the states and federal

For further elaboration on this point, Appellants adopt and incorporate by 
reference the Muntaqim Opening Br., at 17-19, and Lawyers’ Committee Amicus Br., 
at 14 n.3, filed in support of Muntaqim.

26



government has been shifted, that shift occurred more than one century ago when the 

Reconstruction Amendments were enacted. See generally Mitchum v. Foster 407 U.S. 

225,238 & n.28 (1972)(recognizing the “basic alteration in our federal system wrought 

in the Reconstruction era through federal legislation and constitutional amendment,” 

and referring specifically to the Thirteenth, Fourteenth and Fifteenth Amendments).

Moreover, the Supreme Court refused to apply the clear statement rule to 

Section 2 in Chisom, 501 U.S. 380, and Houston Lawyers’ Ass’n v. Attorney General. 

501 U.S. 419 (1991), both of which were decided on the same day as Gregory. 501 

U.S. 452, a case in which the Court applied the rule in a non-VRA context. To date, 

the Supreme Court has not applied the clear statement rule to any section of the VRA 

in any context.20 Accordingly, this Court’s application of Section 2 to New York’s 

felon disfranchisement regime is in no way dependent upon a clear statement from 

Congress.21

For further elaboration on these points, Appellants adopt and incorporate by 
reference the Muntaqim Opening Br., at 19-26, and City Bar Amicus Br., at 16-22, 
Brennan Amicus Br., at 22-30; and Lawyers’ Committee Amicus Br., at 14-25, filed 
in support of Muntaqim.

21 Though its latest position represents a significant departure from both its well 
settled and recent interpretations of Section 2, the United States Department of Justice 
has long argued that the plain language of Section 2 prohibits the use of voting 
standards, practices, or procedures that abridge the exercise of the vote on racial 
grounds. Brief of the United States as Amicus Curiae in Support of Defendants- 
Appellees at 25-33, Muntaqim (Nos. 01-7260-cv, 04-3886-pr)(“Brief of United 
States”). Far from suggesting that the clear statement rule applies to the Voting Rights 
Act, the United States has assumed that certain voting practices are squarely within 
the scope of the Act where Congress did not expressly state that such practices were 
excluded. It its brief in Chisom v. Roemer. for example, the United States explicitly 
recognized that since “[n]othing in the legislative history states that amended Section 
2 does not apply to the election of state judges, or that the results test of Section 2(b) 
does not apply to such elections[,]” the “text of amended Section 2 is therefore 
controlling.” Brief for the United States at 19-20, Chisom (Nos. 90-757, 90-

27



Finally, even if the clear statement rule applied here, Section 2 satisfies the clear 

intent requirement. Short of specifically including felon disfranchisement laws in the 

text or legislative history, which would be inconsistent with the general construction 

of Section 2, Congress could not have expressed its intent more clearly. Congress used 

expansive language in Section 2 with the intent that it would reach all voting practices 

that result in discrimination on the basis of race. The panel struggles mightily to 

obscure this fact, arguing that the clear statement rule is not satisfied because there is 

no explicit mention of disfranchisement laws in the text or legislative history of 

Section 2, (ASA 00167, 176-177 [Panel O ^, at 115, 127-28]), but the Supreme Court 

has not required Congress to list every conceivable law to which Section 2 applies. It 

is sufficient to recognize that Section 2 prohibits any state voting restriction, including

1032)(emphasis added). In fact, the United States argued its reply brief in Chisom 
that the clear statement rule was simply inapplicable, noting that “Congress passed the 
Voting Rights Act for the express purpose of regulating the States’ electoral rules and 
process and that “the Act should be read broadly so that it can achieve its remedial 
purposes.” Reply Brief for the United States at 5-6, Chisom (Nos. 90-757 90-1032) 
More significant for purposes of the instant appeal and consistent with its position in 
v.hisQm, the United States has assumed that the Voting Rights Act applies to felon 
disfranchisement Jaws challenged in Johnson v. Gov, of Fla, and applied the “totality 
of circumstances” test to Florida’s law before concluding that “plaintiffs failed as a 
matter of law to demonstrate discrimination that interacts with provisions that affect 
the right to vote.” Brief for the United States as Amicus Curiae Supporting Appellee 
m Part and Urging Affirmance at 15. Johnson v. Gov, of Fla 353 F.3d 1287(11th Cir 
2003)(No. 02-14469-CC). Similarly, the United States has simply been inconsistent 
m its treatment of the relevance of legislative history in determining the scope of the
wo â̂  s coverage. Finally, though the United States now attempts use the
VRA s legislative history to narrow the Act’s scope to preclude application to New 
York s felon disfranchisement statute, see Brief of United States, at 11 , the United 
States recently mounted a VRA challenge that clearly was not expressly contemplated 
S K eAAct’;  legislative history. See Compl., U.S. v. Brown, et al.. (S.D. Miss. 
2005)(No. 4:05- cv-33 TSL-AGN) (alleging, under the VRA, that Whites are 
subjected to discrimination in voting on the basis of race).

28



New York’s felon disfranchisement law, which results in the denial or abridgement of 

the right to vote on account of race or color. To hold that Congress intended to 

exempt felon disfranchisement statutes from Section 2 scrutiny is to hold that Congress 

intended to permit certain forms of racially discriminatory voter disfranchisement. 

That surely was not Congress’s intent.22

III. PROOF REQUIRED TO ESTABLISH A CHALLENGE TO 
§5-106(2) PURSUANT TO A VOTE DILUTION THEORY UNDER 
SECTION 2 OF THE VOTING RIGHTS ACT (En B a n c  Q u e s t io n  
No. 3)

In their pre-consolidation amicus brief in support of appellant Muntaqim. 

counsel for the Hayden Appellants answered specific questions posed by this Court 

about the proof required to support a challenge to felon disfranchisement laws under 

Section 2 of the VRA. Because Muntaqim withdrew his vote dilution claim, the 

Hayden Counsel Amicus Brief limited its analysis to the theory of vote denial only. 

However, because of the overlap in the substance of the analyses of both vote denial 

and vote dilution claims, Hayden Appellants incorporate by reference the analysis of 

the proof required to support a Section 2 challenge to felon disfranchisement laws, as 

specified below. Hayden Appellants submit that the analysis required for a vote 

dilution claim necessarily includes the same proof as a vote denial claim, in addition 

to evidence that directly relates to the impact of the challenged voting procedure on the 

ability of Blacks and Latinos to participate on an equal basis in the electoral process 

as Whites. Accordingly, the following arguments supplement the analysis contained

For further elaboration on this point, Appellants adopt and incorporate by 
reference the Muntaqim Opening Br., at 27-29.

29



m the Hayden Counsel Amicus Brief with respect to the claim of vote dilution 

specifically raised in Hayden:

A. Disparate Impact of New York Election Law §5-106

Hayden Appellants incorporate by reference page 8 of the Havden Counsel 

Amicus Brief and further state as follows:

Section 2 s application in both vote denial and vote dilution claims is triggered

upon sufficient allegations of disparate impact, and relief under the statute is

appropriate upon a showing that the electoral mechanism at issue is either intentionally

discriminatory or has a discriminatory result on account of race. See 42 U.S.C.

§ 1973(a). Hayden Appellants have alleged facts and statistical evidence of the racially

disparate impact of §5-106 sufficient to trigger application of the “results” test of

Section 2. In their First Amended Complaint, the Havden Appellants allege that

“[njearly 52% of those currently denied the right to vote pursuant to §5-106 are Black

and nearly 35% are Latino. Collectively, Blacks and Latinos comprise nearly 87% of

those currently denied the right to vote pursuant to New York State Election Law

§5-106(2).” (ASA 00050 [FAC [̂68]). They further allege that disparities in

sentencing exacerbate the disparities in disfranchisement rates that flow from the

disproportionate incarceration of Blacks and Latinos:

66. Blacks and Latinos are sentenced to incarceration at substantially 
higher rates than whites, and whites are sentenced to probation at 
substantially higher rates than Blacks and Latinos. For example, in 2001 
whites made up approximately 32% of total felony convictions, yet 
comprised 44% of those who received probation and only 21.4% of those 
incarcerated for felony convictions. By contrast, Blacks made up 44% of 
those convicted of a felony, yet approximately only 35% of those 
sentenced to probation and over 51% of those sentenced to incarceration.

30



Latinos comprised 23% of those convicted of a felony, yet only 19% of 
those sentenced to probation and over 26.5% of those sentenced to 
incarceration.

67. In addition. Blacks make up 30% and Latinos make up 14% of the 
total current population of persons sentenced to probation in New York 
State, while whites make up 51% of such persons.

14 (ASA 00050 [FAC 66-67]).

As a result, “[although Blacks make up approximately 15.9% of New York 

State s overall population (as reported in the 2000 Census), they make up 54.3% of the 

current prison population and 50% of the current parolee population in New York 

State.” 14 (ASA 00049 [FAC f  62]). Similarly, “[although Latinos make up 

approximately 15.1% of New York State’s overall population (as reported in the 2000 

Census), they make up 26.7% of the current prison population and 32% of the current 

parolee population in New York State.” 14 (ASA 00050 [FAC f  63]). Together, 

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

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

31% of New York State’s overall population.” Id  (ASA 00050 [FAC ]J 64]). These 

allegations adequately establish the disparate impact of §5-106 on Blacks and Latinos 

in New York State.

B. Totality of the Circumstances Test

Hayden Appellants incorporate by reference pages 8-29 of the Havden Counsel 

Amicus Brief and further state as follows:

Like vote denial claims, the theory of vote dilution requires an analysis of 

evidence of racial disparities in the criminal justice system as part of the totality of

31



circumstances test required of any Section 2 claim. Evidence of such disparities is 

equally relevant to both types of claims in showing how the felon disfranchisement law 

at issue intersects with disparities in the criminal justice system to yield a disparate 

racial impact in its application.

In addition to such evidence, Section 2 mandates an inquiry into evidence of 

other factors that Congress set forth in the Senate Judiciary Committee Report 

regarding Section 2 claims, such as intentional discrimination in the enactment of New 

York’s felon disfranchisement statute; evidence of the effects of discrimination in the 

areas of education, employment, health, and housing;23 and evidence of the 

tenuousness of the felon disfranchisement statute to any legitimate state policy. S. 

Rep. at 28-29, U.S. Code Cong. & Admin. News 1982 at 206-07. With respect to vote 

dilution specifically, the following additional factors have particular relevance: the 

extent to which the state of political subdivision has used voting practices or 

procedures that may enhance the opportunity for discrimination against the minority 

group; evidence of racial appeals in political campaigns; the electability of minorities 

to public office; and the lack of responsiveness on the part of elected officials to the 

particularized needs of the members of the minority group. See id  These latter factors 

are designed to elicit whether the political processes for nomination and election are 

open equally to participation by members of the protected class. Further, the above 3

3Sge generally, Roberts, Dorothy E., The Social and Moral Cost of Mass 
Incarceration in African American Communities. 56 Stan. L. Rev. 1271 (2004) 
(analyzing the effects of the over-incarceration of African Americans on their 
commumties, including the destruction of “social citizenship” caused bv felon 
disfranchisement).

32



factors represent a relevant but non-exhaustive list of factors for the district court to 

consider in assessing whether felon disfranchisement results in unlawful vote dilution. 

Each of these factors is addressed in turn below.

1. Evidence of Discrimination in the Criminal Justice System

a. Type of Evidence (Court’s En Banc Question 
No. 3(a))

Hayden Appellants specifically incorporate by reference pages 11-19 of the 

Hayden Counsel Amicus Brief and further state as follows:

In addition to the specific data and types of evidence referenced in the Havden 

Counsel Amicus Brief, Hayden Appellants submit that there are potentially four or

more broad categories of information relevant to establishing racial disparities in the 

criminal process into which those specific data and types of evidence fall. The first 

category of evidence is measures of crime. Such evidence would permit Appellants

to show that, relative to Blacks’ and Latinos’ crime participation, their rates of stops, 

arrests, and other criminal justice processing are greater than for Whites in New York 

City. These data can be analyzed in neighborhoods and other small areas, as well as 

in police precincts, to show that the administration of criminal justice is different in 

predominantly Black and Latino neighborhoods.24

24
D. Ln?"’ Fagan & Garth Davies> The Effects of Drug Enforcement on

a?d Fal1 o f Homicides m New York City, 1985-95. Final Report, Grant No. 
U.31675, Substance Abuse Policy Research Program, Robert Wood Johnson 

oundation (2002) ( Effects of Drug Enforcement”) (finding that drug arrests are 
more likely tor African Americans and Latinos compared to Whites, relative to their 
crime rates and neighborhood); Office of the Attorney General of the State of New 
York, Civil Rights Bureau, The New York City Police Departments “StnP & Frisk” 
g£f9tlcets ( 19" )  C N.YS Attorney General ‘Stop & Frisk’ Report” V dem nnJL ,nam Rt 
police stops and fnsks are more likely for African Americans relative to their crime

33



The second category of evidence is measures of police activity. These data can 

reveal levels of police enforcement and surveillance in specific communities. When 

compared to rates of crime in these neighborhoods, the allocation of police and the 

behavior and level of activity of police relative to the local crime rate can indicate how 

mdi\ idual communities are disproportionately targeted by the criminal justice svstem, 

which can lead to disparities in arrest and conviction.-5 The third category is criminal 

case processing data. These data can reflect criminal case outcomes by race, including 

rates of conviction and incarceration, demonstrating racial disparities in each of these 

areas.26

Finally, the fourth category of evidence encompasses data on the concentration 

of incarceration.27 Patterns of incarceration have specific effects on neighborhoods 

through a variety of complex social and economic processes. Accordingly, data that 

show that racial and spatial patterns of concentrated incarceration are assigned to Black

rates and the characteristics of the neighborhood where they live or where they are 
stopped); see aJsp Jeff Fagan & Tom R. Tyler, Legal Socialization of Children and 
Adolescents, Social Justice Research (forthcoming 2005) (discussing the effects of 
interactions with law enforcement on children and^communities).

See, gg., Fagan & Davies, Effects of Drug Enforcement, supra, note 24 at 
6-7, 18-26; Anthony Thompson, Stopping the Usual Suspects. 74 N.Y.U. L. Rev. 956 
(1999) (analyzing the legal context of Fourth Amendment stops and frisks in the 
African-American community); NYS Attorney General “Stop and Frisk” Report.

“6 See, e^g., Jeff Fagan, et al., Reciprocal Effects of Crime and Incarceration in 
New York City Neighborhoods. 30 Fordham Urb. L.J. 1551 (2003) (showing the 
effects of social and economic disadvantage on patterns of incarceration from 1985-96 
m neighborhoods and police precincts in New York City, including that, controlling 
for neighborhood crime rates and social and economic characteristics, the rate of drug 
arrests predicts incarceration rates for African Americans).

27 See generally id.

34



and Latino communities more often than white communities may show that the 

attendant costs of such incarceration reinforce the racial disparities in the criminal 

process by limiting economic resources and increasing crime rates, among other 

things/ 8 An additional area of inquiry within this category would be the concentration 

of individuals who are formerly incarcerated and on parole. These data would further 

support the Hayden Appellants’ allegations that a disproportionate percentage of New 

York State s prison population consists of Blacks and Latinos from certain New York 

City communities.29

These four categories of data apply equally to vote denial and dilution claims 

and can support a comprehensive analysis of racial bias in the investigation, 

prosecution, conviction, and sentencing of Blacks and Latinos vis-a-vis Whites in New 

York City. * &

See generally, e ^ ,  Dorothy E. Roberts, supra, note 23; Becky Pettit & Bruce 
Westem> Mass Imprisonment and the Life Course: Race and Class Inequality in I? S 
Incarceration, 69 American Sociological Review 151 (2004); James P. Lynch & 
William Sabol, Effects of Incarceration on Social Control in Communities in The 
Impact of Incarceration on Families and Communities (Mary Pattillo et al., eds. 2003); 
Todd R. Clear, et al., Coercive Mobility and Crime: A Preliminary Examination of 
Concentrated Incarceration and Social Disorganization. 20 Justice Quarterly 33 
(2003), Invisible. Punishment: Collateral Consequences of Mass Imprisonment (Marc 
Mauer and Meda Chesney-Lind eds. 2002); John Hagan & Ronit Dinovitzer, 
Collateral Consequences of Imprisonment for Children. Communities, and Prisoners’ 
in 26 Crime and Justice A Review of Research: Prisons 121, 121-22 (Michael Tonry
& Joan Petersilia, eds. 1999); Joan Moore, Bearing the Burden: How Incarceration 
Policies Weaken Inner-City Communities, in The Unintended Conseauences of 
Incarceration 67, 72-75 (Vera Institute of Justice 1996).

~9 See ASA 00051 [FAC T| 70] (“Approximately 80% of New York State’s 
prison population consists of Blacks and Latinos from New York City communities 
in the following areas: Harlem; Washington Heights; the Lower East Side; the South 
and East Bronx; Central and East Brooklyn; and Southeast Queens.”).

35



b. Quantum of Proof (Court’s En Banc Question 
No. 3(b))

Hayden Appellants specifically incorporate by reference pages 20-22 of the 

Hayden Counsel Amicus Brief.

c. Relevance of Evidence of Discrimination in 
Federal and State Criminal Justice Svstem 
(Court’s En Banc Question No. 3(c))

Hayden Appellants specifically incorporate by reference pages 22-23 of the 

Hayden Counsel Amicus Brief and the argument contained in the En Banc Brief of 

Center for Community Alternatives, National Association of Criminal Defense 

Lawyers, New York Association for Criminal Defense Lawyers, and the Sentencing 

Project As Amicus Curiae In Support of Plaintiff-Appellant.

2. Other Senate Factors

Hayden Appellants specifically incorporate by reference pages 23-29 of the 

Hayden Counsel Amicus Brief and further state as follows:

As noted above, there are particular Senate factors that have unique relevance 

to a vote dilution challenge to felon disfranchisement laws because they go directly to 

the ability of the minority group to participate on an equal basis as Whites in the 

political process.

Specifically, the extent to which the state or political subdivision has used voting 

practices or procedures that may enhance the opportunity for discrimination against the 

minority group squarely focuses on whether minorities have an equal opportunity for 

influence or success in the political process. In New York State, there is ample 

evidence of voting practices and procedures that have historically and continuously

36



inhibited the equal access of minorities to the political process. Such evidence includes 

the fact of New York State’s partial coverage under Section 5 of the VRA and 

subsequent extensions of its coverage based on a history of discriminatory voting 

practices aimed at minority voters, the underlying findings of discrimination by the 

Department of Justice as evidenced by denials of pre-clearance of various measures, 

and, perhaps most significantly, evidence that §5-106 was enacted with the intent to 

discriminate against Blacks. In addition, there have been cases throughout the State 

m which violations of the Voting Rights Act have been established by minority voters.

Goosby v. Town of Hempstead. 180 F.3d 476 (2d Cir. 1999), cert denied. 

528 U.S. 1138 (2000) (Town of Hempstead’s at large voting method for election of 

Town Board members violated section 2 of the VRA); New Rochelle Voter Defense 

Fund v. City of New Rochelle, 308 F. Supp. 2d 152 (S.D.N.Y. 2003) (African- 

American voters brought successful VRA challenge to city government’s 

reapportionment plan for city council districts on grounds that the city deliberately 

diluted majority minority district to plurality minority district); see also Herron v. 

Koch, 523 F. Supp. 167 (S.D.N.Y. 1981) (New York City enjoined from holding 

primary or general elections until Section 5 pre-clearance obtained). Finally, New 

York State s policy and practice of using Census Bureau data for Congressional, state 

legislative, and certain municipal redistricting whereby prisoners’ residence is assigned

For support of the argument that there is evidence to demonstrate that §5-106 
was enacted with the intent to discriminate against Blacks, see pages 26-29 of the 
Hayden Counsel Amicus Brief, incorporated by reference herein, and the discussion 
ot intentional discrimination in the Statement of Relevant Facts, supra. In addition

direct the Court t0 portions of their Brief for Plaintiffs-Appellants’ 
(ASA 00093-102), and Reply Brief for Plaintiffs-Appellants, (ASA 00128-45).

37



to their prison rather than to the prisoners’ home address distorts the principle of “one 

person, one vote and dilutes the voting strength of prisoners’ home communities, 

which are largely Black and Latino and concentrated in specific New York City 

neighborhoods.31

Similarly, evidence of racial appeals in political campaigns contextualizes the 

climate in which minority voters have to assert their interests. Vote dilution plaintiffs 

may also present evidence regarding minority access to candidate slating process (he,, 

whether members of the minority group have been denied access to that process). Part 

of this evidence may include the extent to which Blacks and Latinos in New York are 

disadvantaged in the candidate slating process because only eligible voters may sign 

petitions to include candidates in the slating process for election. Indeed, because of 

the racially disparate application of §5-106 Blacks and Latinos may be 

disproportionately harmed in any aspect of the political process that requires or takes 

into account the number of registered voters in a particular community.

In addition, the extent to which members of the minority group have been 

elected to public office in the jurisdictions at issue is relevant to assessing whether 

there are in fact barriers to minority participation that result in exclusion from the 

political process. Evidence of some success in the area of minority electability does 

not necessarily negate the existence of vote dilution. See Gingles. 478 U.S. at 57-58

For additional support for this argument, the Hayden Appellants incorporate 
by reference the argument contained in the Brief of Amici Curiae in Support of 
Plaintiff-Appellant Jalil Abdul Muntaqim, a/k/a Anthony Bottom, Urging Reversal of 
the District Court, on Behalf of National Voting Rights Institute and Prison Policv 
Initiative. 3

38



(“[T]he success of a minority candidate in a particular election does not necessarily 

prove that the district did not experience polarized voting in that election . 

Finally, whether there is a significant lack of responsiveness on the part of elected 

officials to the particularized needs of the members of the minority group is relevant 

to establishing the effects of the vote dilution being alleged.

The above factors are a non-exhaustive list of relevant considerations for this 

Court in determining the scope of a Section 2 vote dilution claim. Havden Appellants 

emphasize that the factors discussed herein are non-exhaustive because, given the 

procedural posture of the Hayden litigation (most notably, that discovery in this case 

has not been concluded), there are other factors that may be germane to a court’s 

determination of whether vote dilution has occurred. The arguments herein aim to 

respond to the particular queries of this Court as set forth in its order of February 24,

2005, and do not purport to represent the universe of considerations in analyzing a vote 

dilution claim.

IV. HAYDEN APPELLANTS ARE PROPER REPRESENTATIVES OF 
THEIR RESPECTIVE PROPOSED SUBCLASSES AND SATISFY 
ALL REQUIREMENTS FOR BRINGING CLAIMS ON THEIR 
OWN BEHALF AS WELL AS ON BEHALF OF THE PROPOSED 
SUBCLASSES THEY REPRESENT

In their First Amended Complaint, Havden Appellants set forth the three 

subclasses of plaintiffs on whose behalf they challenge §5-106’s prohibition on voting 

by persons who are incarcerated and on parole. Specifically, Appellants bring claims 

on behalf of. ( 1) Blacks and Latinos eligible to vote but for their incarceration for a 

felony conviction; (2) Blacks and Latinos eligible to vote but for their parole for a

39



felony conviction, (3) Black and Latino voters who reside in specific communities in 

New York City whose voting strength is unlawfully diluted because of New York's 

felon disfranchisement laws.32 Without question, each named Appellant/Plaintiff meets 

the requirements for challenging §5-106 individually, and each is a proper 

representative of his or her respective proposed subclass.

A. Hayden Community-Member Appellants Are Appropriate 
Representatives of Their Proposed Subclasses and Satisfy All 
Requirements of Fed. R. Civ. P. Rule 23

Lumumba Akinwole-Bandele, Gina Arias, Wanda Best-Deveaux, Carlos Bristol, 

David Galarza, Chaujuantheyia Lochard, Stephen Ramon, Lillian Rivera, Nilda Rivera, 

Jessica Sanclemente and Barbara Scott are all proper representatives for the class of 

minority voters who experience vote dilution as a result of operation of §5-106.

Whether appellants are proper class representatives of the proposed subclass 

they seek to represent depends upon whether they meet the requirements of Federal 

Rule of Civil Procedure 23 that govern class certification. Fed. R. Civ. P. 23(a). Rule 

23(a) requires a party seeking class certification to satisfy four prerequisites: (1) 

numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. 

Caridad v. Metro-North Commuter R.R.. 191 F.3d 283, 291 (2d Cir. 1999).33 Based 

on these criteria, each of the above-named Appellants is a proper class representative

32 Appellants’ motion to certify these subclasses, filed November 3, 2004, was 
denied as moot by the district court in its June 14, 2004, judgment and order granting 
Defendants’ motion for judgment on the pleadings and dismissing the case in its 
entirety.

33 An action may be maintained as a class action if one of the three criteria set 
forth in Rule 23(b) is met. Fed. R. Civ. P. 23(b). See Marisol A. v. Giuliani 126 F 2H 
373, 376 (2d. Cir. 1997).

40



for the third subclass of appellants as set forth in Appellants’ First Amended 

Complaint.34

All the above-named Appellants are of lawful voting age and are citizens of the 

United States. (ASA 00039-43 [FAC at 6, 8, 9, 10, 12, 16, 19, 20, 21, 23, 25]). 

In addition, each of the Appellants is either African American or Latino, and each 

resides in a New York City neighborhood in which large numbers of residents35 are 

currently incarcerated or on parole, and therefore unable to vote. Id. Further, each 

Appellant alleges that he or she is denied an equal opportunity to participate in the 

political process in New York State because of the disproportionate disfranchisement 

of Blacks and Latinos under §5-106.

Based on these facts, it is clear that the above-named Appellants have claims that 

are typical of the subclass they seek to represent. The typicality requirement of Rule 

23(a)(3) mandates that plaintiffs possess the same interest and suffer the same injury 

as the class members.” See East Texas Motor Freight Svs.. Inc, v. Rodriguez. 431 U.S. 

395,403 (1977). The analysis seeks to determine whether the named plaintiffs’ claims

, 34. {n their Memorandum of Law in Support of Motion for Class Certification 
hied with the district Court November 3, 2003, Appellants set forth their 
qualifications for class certification, including the four prerequisites of numerosity, 
commonality, typicality and adequacy of representation. Appellants will focus here 
on the latter two criteria, which are more germane to this Court’s inquiry as to whether
they are proper class representatives, as well as the additional requirements for class 
certification.

35 Section 5-104 of New York’s election law provides that “for the purpose of 
registering and voting no person shall be deemed to have gained or lost a residence 
jpy r,eaJ??n ?fhis Presence or absence ..  . while confined in any public prison.” New 
York Election Law §5-104(1). Thus, Blacks and Latinos who had lived in New York 
City pnor to their arrest and incarceration but who are currently incarcerated upstate 
are still residents of their home communities for purposes of voting.

41



have the same essential characteristics as the claims of the class at large. Rossini v. 

Qghvy & Mather, Inc., 798 F.2d 590, 597 (2d Cir. 1986). The typicality requirement 

does not require that the factual background of each named plaintiffs claim be 

identical to all of the class members, so long as the claims arise from the same events 

and the arguments on liability are the same. See In re Drexel Burnham Lambert 

Group. Inc.. 960 F.2d 285, 291 (2d Cir. 1992).

Here, the named class Appellants seek to represent the third subclass identified 

in Appellants’ First Amended Complaint, namely:

Black and Latino persons who are of lawful voting age, citizens of the 
United States, qualified to vote, and denied an equal opportunity to 
participate in the political process in New York State because of the 
disproportionate disfranchisement under New York State Election Law 
§5-106(2) of Black and Latino persons who are incarcerated or on parole 
for a felony conviction.

(ASA 00044 [FAC, 29]). Thus, as set forth above, the subclass is comprised of 

citizens who reside and vote in a community from where the majority of Black or 

Latino prisoners are drawn, and whose votes are alleged to be diluted by operation of 

§5-106. Because each proposed individual class representative’s claims arise from the 

same set of acts as the class members, and each makes similar if not identical legal 

allegations to establish Appellees’ liability, their claims are typical of the class.

Named Appellants are also adequate representatives of the subclasses they seek 

to represent. To meet this requirement, representatives’ “counsel must be qualified, 

experienced and generally able to conduct the litigation, and the class members must 

not have interests that are antagonistic to the interest of the other members of the

42



class-” Baffa_v. Donaldson. Lufkin. Jenrette Sec. Corp.. 222 F.3d 52. 60 (2d Cir. 

2000).

Here, Appellants’ counsel are more than adequately qualified to represent the 

interests of the plaintiff class. The NAACP Legal Defense and Education Fund, Inc. 

is a non-profit public interest law firm with extensive experience in voting rights and 

constitutional litigation. The Community Service Society, an independent, non-profit 

organization, serves the poor through, among other things, litigation in numerous 

voting rights cases. The Center for Law and Social Justice at Medgar Evers College, 

a community-based education, research and legal organization, has substantial 

experience in litigating voting rights matters. Moreover, there is no conflict of interest 

between the named representatives and the absent class members.

Finally, named Appellants are each a member of the subclass they seek to 

represent. It is well established that “a class representative must be a part of the class 

and ‘possess the same interest and suffer the same injury’ as the class members.” East 

Texas Motor Freight System. Inc.. 431 U.S. at 403 (quoting Schlesinger v. Reservists 

Committee to Stop the War, 418 U.S. 208, 216 (YR)); see also Amchem Prods. Inc.. 

w. Windsor, 521 U.S. 591, 635-26 (1997). As set forth above and in the First 

Amended Complaint, each of the named Appellants is a member of the third subclass 

of Appellants described supra. Accordingly, named Appellants clearly satisfy the 

requirements for representing the class of minority voters who allege that they 

experience vote dilution as a result of the operation of §5-106.

43



B. Hayden Prisoner- and Parolee-Subclass Representatives Are Not 
Required to Demonstrate Individualized Discrimination that 
Resulted in Their Incarceration or That A Similarlv Situated 
White Person Necessarily Would Have Been Treated Differently

Appellants Joseph Hayden, Wilson Andino, Augustine Carmona, Kimalee

Gamer, Mark Graham, Keran Holmes, II, Steven Mangual, Jamel Massey, Mario

Romero, and Paul Satterfield each meet the requirements for bringing a Voting Rights

Act claim on his or her own behalf and are not required to show individualized

discrimination to press their claims. Indeed, well-established Voting Rights Act

jurisprudence rejects the notion that these named subclass representatives first prove

that his or her incarceration was a result of discrimination and that a similarly situated

white person would have been treated differently.

Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, 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). It is well established 

that when Congress amended the Act in 1982,36 * * * * * 42 the amendment was intended to 

relieve plaintiffs of the burden of proving discriminatory intent.” Chisom. 501 U.S.

36 Congress amended Section to provide that:

a violation of Section 2 is established if, based on the totality of
circumstances, it is shown that the political process 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 ( 1) 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).

44



at 394. Thus, Section 2 forbids certain practices and procedures that result in the denial 

or abridgement of the right to vote, even in the absence of discriminatory intent. Id ; 

see also S. Rep. No. 97-417, at 2 (1982), reprinted in 1992 U.S.C.A.A.N. 177, 179. 

The amendment provides that the issue to be decided under the results test is whether 

the political processes are equally open to minority voters.” Id

Under this such a standard, it is not necessary that Appellants prove 

discrimination in any of their individual cases. Indeed, although felon 

disfranchisement implicates issues related to criminal justice, it is important to 

distinguish this civil challenge from the standards of proof required in criminal justice 

proceedings and appeals. A vote denial plaintiff in a felon disfranchisement challenge 

need not offer proof of discrimination in the criminal justice system sufficient to 

overturn her criminal conviction or sentencing decision. Rather, Appellants ask this 

Court to examine the application of a statute that unquestionably has a disparate impact 

to determine whether the right to vote has been unlawfully denied. Thus, for these 

reasons and those set forth in Hayden Counsel Amicus Brief at pages 20-22, and as set 

forth supra, Appellants must show that, under the totality of circumstances analysis, 

§5-106 interacts with social and historical conditions to cause an inequality in the 

opportunities enjoyed by black and white voters to elect their representatives.” Gingles, 

478 U.S. at 47. There is simply no threshold requirement that Appellants prove that 

their individual convictions were a result of racial bias.

45



CONCLUSION

For the foregoing reasons, the judgment of the district courts in these now 

consolidated appeals should be reversed in part37 and the case remanded for further 

proceedings.

Dated: New York, New York
March 30, 2005

Theodore M. Shaw 
Director-Counsel 

Norman J. Chachkin 
Ryan P. Haygood 
NAACP Legal Defense 

& Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(Tel.) 212-965-2200 
(Fax) 212-226-7592 
inelson@naacpldf.org

Juan Cartagena 
Risa Kaufman 
Community Service Society 

of New York 
105 E. 22nd Street 
New York, NY 10010 
(Tel.) 212-614-5462 
(Fax) 212-260-6218 
icartagena@cssnv.orp

Because the Court has excluded from consideration in this consolidated 
appeal the other bases for appeal in Hayden v, Pataki. No. 04-3886-PR the Havden 
Appellants seek only reversal of the district court’s dismissal of its VRA claims in this 
appeal Notwithstanding this specific limitation, the Havden Appellants do not waive
any of the grounds for and arguments in support of the appeal of the remainder of their 
claims on appeal.

46

mailto:inelson@naacpldf.org
mailto:icartagena@cssnv.orp


Joan P. Gibbs 
Esmeralda Simmons 
Center for Law and Social Justice 

at Medgar Evers College 
1150 Carroll Street 
Brooklyn, NY 11225 
(Tel.) 718- 270-6296 
(Fax) 718-270-6190

47



RULE 29(d) CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this brief complies with the 

type-volume limitations of Rule 32(a)(5)(A) of the Federal Rules of 

Appellate Procedure. Relying on the word count of the word processing 

system used to prepare this brief, I hereby represent that the En Banc Brief 

for Hayden Plaintiffs-Appellants contains 13,079 words, not including the 

corporate disclosure statement, table of contents, table of authorities, and 

certificates of counsel, and is, therefore, within the 14,000 word limit set 

forth under Rule 32(a)(7)(B).

Janai S. Nelson, Esq.
Director of Political Participation 

NAACP Legal Defense & 
Educational Fund, Inc.

99 Hudson Street, Suite 10013 
(212)965-2237 
inelson@naacpldf.org

Dated: March 30, 2005

mailto:inelson@naacpldf.org


CERTIFICATE OF SERVICE

I hereby certify under penalty of perjury pursuant to 28 U.S.C. § 1746 that, on 
March 30, 2005,1 caused true and correct copies of the foregoing En Banc Brief for 
Hayden Plaintiffs-Appellants and Appellants’ Supplemental Appendix to be
served via United States Postal Service Priority Mail, postage prepaid, to the 
following attorneys:

Jonathan W. Rauchway, Esq. 
William A. Bianco 
Gale T. Miller
Davis Graham & Stubbs LLP 
1550 Seventeenth Street 
Suite 500
Denver, Colorado 80202 

J. Peter Coll, Jr.
Orrick, Herrington & Sutcliffe LLP 
666 5th Avenue
New York, New York 10013-0001

Attorneys for Plaintiff-Appellant 
Muntaqim

Elliot Spitzer
Attorney General for the State o f New 

York
Gregory Klass 
Benjamin Gutman 

Assistant Solicitor Generals 
New York State Office of the Attorney 
General
120 Broadway -  24th Floor 
New York, New York 10271-0332

Julie M. Sheridan 
Assistants Solicitor General 

New York State Office of the Attorney 
General
Appeals and Opinion Bureau, The Capitol 
Albany, New York 12224

Patricia Murray 
First Deputy Counsel 

New York State Board of Elections 
40 Steuben Street 
Albany, New York 12207-0332

Attorneys for the Defendants-Appellees



Japaj^r^Nelson, Esq. 
I^AACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013 
inelson@naacpldf.org

mailto:inelson@naacpldf.org

Copyright notice

© NAACP Legal Defense and Educational Fund, Inc.

This collection and the tools to navigate it (the “Collection”) are available to the public for general educational and research purposes, as well as to preserve and contextualize the history of the content and materials it contains (the “Materials”). Like other archival collections, such as those found in libraries, LDF owns the physical source Materials that have been digitized for the Collection; however, LDF does not own the underlying copyright or other rights in all items and there are limits on how you can use the Materials. By accessing and using the Material, you acknowledge your agreement to the Terms. If you do not agree, please do not use the Materials.


Additional info

To the extent that LDF includes information about the Materials’ origins or ownership or provides summaries or transcripts of original source Materials, LDF does not warrant or guarantee the accuracy of such information, transcripts or summaries, and shall not be responsible for any inaccuracies.

Return to top