Muntaqim v. Coombe Brief for Plaintiffs-Appellants
Public Court Documents
March 30, 2005
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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.
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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