Hayden v. Pataki Reply Brief for Plaintiffs-Appellants

    04-3886-PR
To be argued by

___________________________________________ Juan Cartagena, Esq.

fHntteb States Court of Appeals
for the

^econb Circuit

JOSEPH HAYDEN; LUMUMBA AKINWOLE-BANDELE; WILSON ANDINO; GINA ARIAS; 
WANDA BEST-DEVEAUX; CARLOS BRISTOL; AUGUSTINE CARMONA; DAVID GALARZA; 

KIMALEE GARNER; MARK GRAHAM; RERAN HOLMES, III; CHAUJUANTHEYIA 
LOCHARD; STEVEN MANGUAL; JAMEL MASSEY; STEPHEN RAMON; LILLIAN M. 

RIVERA; NILDA RIVERA; MARIO ROMERO; PAUL SATTERFIELD; and BARBARA SCOTT, 
on behalf of themselves and all individuals similarly situated,

-  against -
Plaintiffs-Appellants,

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

Defendants-Appellees.

On Appeal From The United States District Court 
For The Southern District Of New York

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

Naacp Legal Defense & Educational Fund, 
Inc.

Theodore M. Shaw 
Director-Counsel 

Norman J. Chachkin 
Debo P. Adegbile 
Ryan P. Hay good

Community Service Society 
Juan Cartagena 
Craig Acorn 
105 E. 22nd Street 
New York, NY 10010 
(212)260-6218

[Listing of Counsel Continued inside Cover]



Naacp Legal Defense & Educational Fund, 
Inc . (cont’d)

99 Hudson Street
New York, New York 10013-2897 
(212) 965-2235
rhavgood@naacpldf.org

Center for Law and Social Justice 
at Medgar Evers College 

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

Attorneys for Plaintiffs-Appellants

mailto:rhavgood@naacpldf.org


TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................................i

TABLE OF AUTHORITIES.....................................................................................ii

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

I. The Supreme Court’s Equal Protection Precedent Conclusively Refutes 
Defendants’ New Argument that Plaintiffs’ Complaint Fails
to State a Claim...............................................................................................2

II. Defendants’ Argument that New York’s Felon Disfranchisement Law
Would Have Been Enacted Even Absent a Racially Discriminatory 
Purpose Cannot be Resolved on the Pleadings............................................. 20

III. Plaintiffs’ Equal Protection Claim is Not Barred by Richardson or Baker Nor
is it Subject to Rule 12(c) Dismissal Without Further Development of the 
Record...........................................................................................................29

CONCLUSION....................................................................................................... 31

l



TABLE OF AUTHORITIES

FEDERAL CASES

Cases Pages

Anheuser-Busch v. Schmoke,
63 F.3d 1305 (4th Cir. 1995)..................................................................21

Ayers v. Allain,
914 F.2d 676 (5th Cir. 1990).................................................................. 11

Baker v. Cuomo,
58 F.3d 814 (2d Cir. 1995), vacated by 85 F.3d 919 (2d Cir.
1996)........................................................................................................ 15

29,30
Baker v. Pataki,

85 F.3d 919 (2d Cir. 1996)..................................................................... 15

Carolene Prod. Co. v. United States,
323 U.S. 18 (1944)................................................................................... 22

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

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

Hunter v. Underwood,
471 U.S. 222 (1985)..............................................................21,24, 25 n.5

Johnson v. Bush,
353 F.3d 1287 (11th Cir. 20031, vacated by 405 F.3d 1214(2005)...... 15

Johnson v. Bush,
405 F.3d 1214 (11th Cir. 2005)........................................................ passim

Kennedy Park Homes Association v. City of Lackawanna,
436 F.2d 108 (2d Cir. 1970)...................................................................... 8

ii



Keyes v. School District No. 1,
413 U.S. 189 (1973)..........................................................................  14n.3

Landell v. Sorrell,
382 F.3d 91 (2d Cir. 2004)...............................................................22, 23

Mt. Healthy City Board of Education v. Doyle,
429 U.S. 274(1977)................................................................................. 21

Personnel Admin, of Mass, v. Feeney,
442 U.S. 256(1979).................................................................8, 9, 12, 14,

20
Reynolds v. Sims,

377 U.S. 533 (1964)..........................................................................  14n.3

Richardson v. Ramirez,
418 U.S. 24(1974)............................................................................29,30

United States v. Hemandez-Fundora,
58 F.3d 802 (2d Cir. 1995)...................................................................... 22

Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977)......................................................................... passim

Washington v. Davis,
426 U.S. 229 (1976)................................................................9, 11, 14 n.3

Wright v. Rockefeller,
376 U.S. 52 (1964)............................................................................ 14 n.3

Young v. Fordice,
505 U.S. 717 (1992)......................................................................... passim

CONSTITUTIONS, STATUTES & RULES

Fed. R. Evid. 201, Notes of Advisory Committee on Rules............................21, 22

Fed. R. Evid. 201(a)................................................................................................22

Fed. R. Evid. 201(e)................................................................................................ 23

iii



Fed. R. Evid. 201(g)...............................................................................................22

N.Y. Const, art. II, § 3 ..........................................................................4, 4 n.2, 5, 17

MISCELLANEOUS

Charles Z. Lincoln, The Constitutional History of New York from the
Beginning of the Colonial Period to the Year 1905, Showing the 
Origin, Development, and Judicial Construction of the Constitution 
464-71 (1906)..........................................................................................28

Cong. Globe, 41st Cong., 2d Sess. at 1447-81.......................................................26

David Nathaniel Gellman & David Quigley, Jim Crow New York: A
Documentary History of Race and Citizenship, 1777-1877 293 
(NYU Press 2003)....................................................................................26

David Quigley, Second Founding: New York City, Reconstruction, and the
Making of American Democracy Ch. 5 (2004)....................................... 26

Edwin G. Burrows & Mike Wallace, Gotham: A History of New York City
to 1898 927, 1009 (1998)..................................................................26, 27

Erie County Democrats in Buffalo on September 8, 1868, in New York
Times, September 9, 1868, at 1 ..............................................................27

Irish Citizen, October 19, 1867 at 5 .......................................................................27

John T. Hoffman Address (January 5, 1869), in Messages from the
Governor. Vol. 6 (1869-1876) (Charles Z. Lincoln, ed. 1909)............27

John T. Hoffman Address (January 1870), in Messages from the Governor.
Vol. 6 0869-1876) (Charles Z. Lincoln, ed. 1909)...............................27

Kenneth Davis, An Approach to Problems of Evidence in the Administrative
Process, 55 Harv. L. Rev. 364, 404-407 (1942).....................................22

iv



25,26
Phyllis F. Field, The Politics of Race in New York: The Struggle for Black 

Suffrage in the Civil War Era (1982)..............................................

v



PRELIMINARY STATEMENT

Plaintiffs have demonstrated that the district court’s Rule 12(c) dismissal of 

their claims challenging New York’s felon disfranchisement laws under the 

Fourteenth and Fifteenth Amendments of the United States Constitution was in 

error.1 As a threshold matter, Defendants, in their original responsive brief, 

concede that Plaintiffs meet the basic pleading requirements for an intentional 

discrimination claim and do not challenge the sufficiency of the pleadings with 

respect to any of the claims on appeal. Moreover, not only does Defendants’ 

response offer no reliable justification for upholding the decision below, it 

highlights the searching factual inquiry that Plaintiffs’ claims deserve that has been 

thwarted by the district court’s premature dismissal of Plaintiffs’ Complaint. 

Defendants seek to justify the lower court’s summary dismissal by taking 

unwarranted liberties with its recitation of the legislative history at issue and by 

asserting that the relevant analysis is limited to the legislative record when a fuller

Pursuant to this Court’s October 13, 2006 Order, the deadline for the 
Appellants to file an appeal brief and appendix was November 13, 2006, and the 
deadline for Appellees to file a responsive brief was December 12, 2006. As per 
the instruction of Ms. Gislaine Philip, Deputy Clerk of this Court, Appellants, on 
November 3, 2006, re-filed their previously filed appeal brief (originally filed 
September 27, 2004) and reply brief (originally filed December 8, 2004) and joint 
appendix. Appellees, who originally filed their responsive brief November 24, 
2004, filed an updated brief on December 12, 2006. Appellants now file this 
updated reply brief to respond to the Appellees’ revised brief.



examination is required. Defendants also erroneously assert that prior 

discriminatory iterations of New York’s felon disfranchisement law are irrelevant 

to the question of whether Plaintiffs have established invidious discriminatory 

purpose.

For the reasons discussed below, Plaintiffs have pled sufficient facts that are 

supported by the legislative record and historical context to withstand dismissal 

under Rule 12(c).

I. THE SUPREME COURT’S EQUAL PROTECTION PRECEDENT
CONCLUSIVELY REFUTES DEFENDANTS’ NEW ARGUMENT
THAT PLAINTIFFS’ COMPLAINT FAILS TO STATE A CLAIM

In stark contrast to the prior concession that “the complaint’s allegations 

satisfy . . . minimal pleading requirements,” see Brief for Defendants-Appellees 

Pataki and Goord 12 (Nov. 24, 2004) (“Defendants’ Initial Brief’), Defendants 

now argue that Plaintiffs’ Complaint fails to state an equal protection claim. 

Defendants’ argument is inconsistent with binding Supreme Court precedent.

The appropriate test for determining whether a facially neutral state law that 

has a racially disparate impact violates the Equal Protection Clause was outlined 

by the Supreme Court in Village of Arlington Heights v. Metropolitan Housing 

Development Corn., 429 U.S. 252 (1977). In Arlington Heights, the Supreme 

Court held that proof of intent to discriminate can be derived from a contextual

2



analysis of a variety of factors that collectively support an inference of racial 

animus — including that the impact of an official action bears more heavily on one 

race than another, the historical background of the action, any departures from 

normal procedures in taking the action, and the legislative or administrative history 

of the action, particularly where there are contemporary statements by members of 

the decision-making body. Id. at 266-68. This list of relevant factors is not 

exhaustive. See id. at 267. Overall, “whether invidious discriminatory purpose 

was a motivating factor demands a sensitive inquiry into such circumstantial and 

direct evidence as may be available.” Id- Thus, a plaintiffs burden under 

Arlington Heights is to establish that invidious discrimination was a motivating 

factor behind the official action being challenged; the plaintiff need not 

demonstrate that such discrimination was the sole, dominant, or primary 

motivation. See id. at 265.

Because this case was decided on the pleadings, the question is whether 

Plaintiffs’ Complaint alleges sufficient facts that, if construed in the light most 

favorable to Plaintiffs and accepted as true, permit an inference of impermissible 

invidious purpose behind the felon disfranchisement provision in the New York 

Constitution. See, e.g.. DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003). In 

other words, at this stage of the proceedings, the suit should not have been 

dismissed unless it is clear that, even under a liberal construction of the Complaint,

3



Plaintiffs can prove no set of facts that would entitle them to relief. Id- Contrary 

to the Defendants’ argument, Plaintiffs’ Complaint clearly includes sufficient 

factual allegations to state a claim under Arlington Heights.

Even in Defendants most recent iteration of their defense of the lower court 

ruling they do not dispute two crucial points. First, the current provision of the 

New York Constitution that mandates felon disfranchisement has, to use 

Defendants’ term, its “roots” in constitutional provisions adopted in the nineteenth 

century. See Brief For Appellee Pataki 4 (Dec. 12, 2006) (Defendants’ Revised 

Brief). Second, Plaintiffs’ Complaint alleges specific facts that permit an inference 

that those constitutional provisions were enacted with an intent to discriminate 

against Blacks. Because these two points are uncontested, Plaintiffs have stated a 

claim under Arlington Heights.

Article II, §3 of the New York Constitution currently provides, in relevant 

part: “The legislature shall enact laws excluding from the right to vote all persons

Defendants’ discussion of the alleged nondiscriminatory purpose behind the 
1971 and 1973 revisions to the state election code concerning felon 
disfranchisement, see Defendants’ Revised Brief at 26-27, is beside the point. As 
Defendants previously pointed out, even assuming “the legislature acted with a 
nondiscriminatory purpose in 1971 and 1973, however, it passed those 
amendments pursuant to Article II, Section 3 of the New York Constitution, which 
stipulates that ‘[t]he legislature shall enact laws excluding from the right of 
suffrage of all persons convicted of bribery or any infamous crime.’” Defendants’ 
Initial Brief at 17 (alteration in Defendants’ Initial Brief). Because the state 
legislature lacks the authority to override the state Constitution’s felon 
disfranchisement provision, it is the constitutional provision, and not the state 
election code, that must be analyzed under the Equal Protection Clause.

4



convicted of bribery or of any infamous crime.” With one distinction, this 

language is essentially identical to the language of the felon disfranchisement 

provisions in the state Constitutions of 1821 and 1846, which stated, respectively, 

“Laws may be passed excluding from the right of suffrage persons who have been, 

or may be, convicted of infamous crimes” and “Laws may be passed excluding 

from the right of suffrage all persons who have been or may be convicted of 

bribery, of larceny, or of any infamous crime . . . The one meaningful 

distinction between the earlier (1821 and 1846) and current versions of the state 

Constitution’s felon disfranchisement provision is that the current version of the 

constitutional provision is mandatory, whereas the 1821 and 1846 versions were 

permissive. As Defendants explain, this change from permissive to mandatory 

language occurred in 1874, and was made permanent in 1894. See Defendants’ 

Revised Brief at 3-4.

Defendants do not dispute that Plaintiffs have alleged facts from which it 

would be reasonable to infer that the provisions of the New York Constitution 

adopted in 1821 and 1846 were motivated by racial discrimination. See 

Defendants’ Revised Brief at 23. Indeed, as Defendants acknowledge, the 

Complaint contains “specific allegations” concerning the racial discrimination that 

motivated delegates to the Constitutional Conventions of 1821, 1846, and 1867 (a 

convention that left the felon disfranchisement provision undisturbed). Id.

5



Defendants’ concession on this point is clearly correct. For example, with regard 

to the 1846 Convention, the Complaint alleges: “At the third Constitutional

Convention of New York in 1846, heated debates over suffrage again focused on 

Blacks. Advocating for the denial of suffrage, delegates continued to make 

explicit statements regarding Blacks’ unfitness for suffrage, including a declaration 

that the proportion of ‘infamous crime’ in the minority population was more than 

thirteen times that in the white population.” Compl. 51, Joint Appendix (JA) 

00107. The Complaint also alleges that, in 1846, “[w]hen re-enacting the felon 

disenfranchisement provision and specifically including ‘any infamous crime’ in 

the category of convictions that would disqualify voters, the delegates were acutely 

aware that these restrictions would have a discriminatory impact on Blacks.” Id., 

at |  53, JA 00108.

Notwithstanding these specific factual allegations, Defendants now maintain 

that Plaintiffs’ Complaint is insufficient to state a claim under the Equal Protection 

Clause because “plaintiffs have not alleged facts from which it would be 

reasonable to infer that any of New York’s prisoner disenfranchisement laws since 

1846 were motivated by race discrimination,” and “even if the disenfranchisement 

provisions adopted at [the 1821 and 1846 Constitutional] conventions had been 

discriminatory, both the Constitution and the implementing statutes have been 

substantively altered and reenacted since then, which removes any taint stemming

6



from racial bias as their origin.” Defendants’ Revised Brief at 24-25. Defendants 

are incorrect, factually and legally.

Factually, Defendants are wrong because they fail to acknowledge the 

specific allegations in the Complaint that permit an inference of racial 

discrimination at Constitutional Conventions after 1867. The Complaint clearly 

refers to all of the New York Constitutional Conventions in which delegates 

addressed suffrage (including the 1872-1873 Convention): “Throughout the New

York Constitutional Conventions addressing the right of suffrage, the framers 

made explicit statements of intent to discriminate against minority voters.” Compl. 

If 41. Second, the Complaint alleges that “two years after the passage of the 

Fifteenth Amendment [which voided facially discriminatory provisions concerning 

suffrage in the state Constitution, see Compl. 55], an unprecedented committee 

convened and amended the disfranchisement provision of the New York 

Constitution to require the state legislature, at its following session, to enact laws 

excluding persons convicted of infamous crimes from the right to vote.” Id- at ^ 

56. As is clearly detailed by the Complaint, the suspicious timing of the 1872-73 

Convention is circumstantial evidence of an impermissible discriminatory purpose, 

because a mere two years after federal law required New York to abandon its 

facially discriminatory suffrage requirements, the State, outside the normal course, 

convened a convention that changed the felon disfranchisement provision in the

7



New York Constitution from permissive to mandatory. See Arlington Heights. 429 

U.S. at 267 & n.16 (recognizing that the timing of a challenged official action, and 

departures from normal procedures in taking that action, are relevant evidence of 

discriminatory purpose) (citing Kennedy Park Homes Assn, v. City of 

Lackawanna. 436 F.2d 108 (2d Cir. 1970), and providing following parenthetical 

to describe the relevant portion of then-retired Justice Clark’s opinion in Kennedy 

Park: “town declared moratorium on new subdivisions and rezoned area for 

parkland shortly after learning of a plaintiffs’ plan to build low income housing”)).

Legally, Defendants are wrong, because, contrary to their assertion, 

invidious purpose under Arlington Heights is not analyzed solely with reference to 

the most recent reiteration of the legislation in question. Indeed, the Court’s 

decision in Personnel Admin, of Mass, v. Feeney. 442 U.S. 256 (1979) 

conclusively refutes any such notion. In Feeney, the plaintiff argued that a 

Massachusetts veterans preference statute violated the Equal Protection Clause by 

excluding women from consideration for certain civil service jobs. See id , at 259. 

Applying Arlington Heights, see id., at 274, the Court explained that “[t]he 

dispositive question, then, is whether the [plaintiff] has shown that a gender-based 

discriminatory purpose has, at least in some measure, shaped the Massachusetts 

veterans’ preference legislation,” id., at 276.

8



To address that question, the Court considered the entire “statutory history,” 

Id. at 279, and, finding no evidence of any intent to discriminate against women in 

any of the statute’s many iterations, ultimately held that “[w]hen the totality of 

legislative actions establishing and extending the Massachusetts’ veterans 

preferences are considered, the law remains what it purports to be: a preference for 

veterans of either sex over nonveterans, not for men over women,” id. at 280 

(citing Washington v. Davis. 426 U.S. 229, 242 (1976), which states that “an 

invidious discriminatory purpose may often be inferred from the totality of the 

relevant facts”). See also id. at 265-267 (tracing the circumstances surrounding the 

enactment of the Massachusetts veterans preference in 1884 through amendments 

and reenactments in 1895, 1896, 1919, 1942, 1949, and 1954). In short, Feeney 

establishes beyond doubt that, in evaluating legislative purpose under Arlington 

Heights, courts must consider not simply the most recent iteration of the legislation 

in question, but rather “the totality of [state] actions establishing and extending the 

[state law in question].” Id., at 280.

In Young v. Fordice. 505 U.S. 717 (1992), the Court reaffirmed the 

importance of considering the history of a law, and not just its most recent 

reenactment, when the law is challenged under the Equal Protection Clause. In 

Fordice, the plaintiffs argued that the State of Mississippi had failed to satisfy the 

requirements of the Equal Protection Clause with regard to its obligations to

9



eliminate the racially segregegative effects of its prior dual system of 

postsecondary education.

Justice White, speaking for eight members of the Court, explicitly rejected 

the argument that, by reenacting an amended version of a law initially promulgated 

with discriminatory intent, state actors necessarily removed the discriminatory taint 

of the original law:

We deal first with the current admissions policies of Mississippi’s public 
universities. As the District Court found, the three flagship historically 
white universities in the system . . . enacted policies in 1963 requiring all 
entrants to achieve a minimum composite score of 15 on the test 
administered by the American College Testing Program (ACT). The court 
described the “discriminatory taint” of this policy, an obvious reference to 
the fact that, at the time, the average ACT score for white students was 18 
and the average score for blacks was 7. The District Court concluded, and 
the en banc Court of Appeals agreed, that present admissions standards 
[which retained a heavy emphasis on ACT scores] derived from policies 
enacted in the 1970’s to redress the problem of student unpreparedness. 
Obviously, this midpassage justification for perpetuating a policy enacted 
originally to discriminate against black students does not make the present 
admissions standards any less constitutionally suspect.

Id-, at 734 (citations to lower courts’ opinions omitted) (emphasis added). The

Court reached this conclusion even though, in reenacting the admissions

requirements in the 1970s, state officials had amended the policies regarding ACT

scores at the historically white universities — for example, by permitting “up to

fifty talented or high-risk students (students presenting a high risk of academic

10



failure) per year per institution with [ACT] scores below 15,” Ayers v. Allain. 914 

F.2d 676, 679 (5th Cir. 1990).

Fordice leaves no doubt that the reenactment of a law does not necessarily 

eliminate an initial “discriminatory taint,” even when that law is amended and even 

when there is no evidence that racial animus was present during the amendment 

process. See also 505 U.S., at 747 (Thomas, J., concurring) (noting that the factors 

the majority considered in analyzing discriminatory intent, “the historical 

background of the policy, the degree of its adverse impact, and the plausibility of 

any justification asserted in its defense . . .  are precisely those factors that go into 

determining intent under Washington v. Davis. 426 U.S. 229 (1976). See, e.g.. 

Arlington Heights v. Metropolitan Housing Development Corn.. 429 U.S. 252, 

266-267 (1977).”)

Under this proper legal standard, Plaintiffs’ allegations are clearly sufficient 

to state a claim of impermissible discrimination under Arlington Heights. The 

specific facts alleged in the Complaint permit an inference that a substantial or 

motivating factor behind the adoption of New York’s felon disfranchisement 

provision in 1821, and its reenactment in 1846, was the delegates’ desire to 

exclude persons (men) of color from voting. The Complaint also alleges that the 

felon disfranchisement provision adopted in 1821 and reenacted in 1846 is, in 

relevant part, identical to the felon disfranchisement provision that is currently part

11



of the state Constitution — with the only caveat being that the current provision is 

harsher because it requires (as opposed to permits) disfranchisement. Drawing all 

reasonable inferences in favor of Plaintiffs, these factual allegations concerning the 

“totality of [state] actions establishing and extending” New York’s felon 

disfranchisement regime are sufficient to state a claim of impermissible 

discriminatory purpose under Arlington Heights. See Feeney, 442 U.S. at 280.

Defendants do not grapple with this binding Supreme Court precedent. 

Instead, they ask this Court to reflexively adopt the reasoning of the Eleventh 

Circuit in Johnson v. Bush. 405 F.3d 1214 (11th Cir. 2005) (en banc) and the Fifth 

Circuit in Cotton v. Fordice. 157 F.3d 388 (5th Cir. 1998). According to 

Defendants, under Johnson and Cotton, racial discrimination in an earlier version 

of a state constitutional provision is irrelevant so long as that provision has been 

amended and reenacted. See Defendants’ Revised Brief at 23. However, Johnson 

and Cotton, at least as interpreted by Defendants, are inconsistent with the 

Supreme Court’s decisions in Feeney and Fordice. Moreover, the facts of this case 

are quite different than those of Johnson and Cotton. Indeed, even if Johnson and 

Cotton were binding authority in this Circuit, it would be clear that the district 

court erred by dismissing this suit on the pleadings.

In Cotton, the Fifth Circuit rejected an equal protection challenge to the 

felon disfranchisement provision in Mississippi’s Constitution. The court

12



determined that, when originally enacted in 1890, the provision was designed to 

discriminate against Blacks. However, the Court found it significant that the 

provision “was amended in 1950, removing ‘burglary’ from the list of 

disfranchising crimes,” and again in 1968, when “the state broadened the provision 

by adding ‘murder’ and ‘rape’ — crimes historically excluded from the list 

because they were not considered ‘black’ crimes.” 157 F.3d at 391. The Fifth 

Circuit concluded that, because the plaintiff had not produced evidence that the 

1950 and 1968 reenactments of the felon disfranchisement provision were 

motivated by a discriminatory purpose, the plaintiff could not succeed on his equal 

protection claim. Similarly, in Johnson, the Eleventh Circuit assumed for the 

purposes of its decision that a Florida felon (and misdemeanor) disfranchisement 

provision adopted at an 1868 Constitutional Convention was motivated by a desire 

to discriminate against Blacks. However, one hundred years later, Florida held 

another Constitutional Convention, which reenacted the provision but narrowed it 

to include only those convicted of a felony. Because plaintiffs failed to present 

evidence of racial discrimination behind the 1968 reenactment, the Eleventh 

Circuit, citing Cotton, concluded that they had failed to establish an equal 

protection violation. See 405 F.3d, at 1221-22.

Plaintiffs respectfully submit that Cotton and Johnson were wrongly decided 

and should not be considered persuasive authority by this Court. As Judge Barkett

13



pointed out in her dissenting opinion in Johnson, “[u]nder the majority’s rule, 

legislatures could continue to utilize statutes that were originally motivated by 

racial animus, and that continue to produce discriminatory effects, so long as they 

re-promulgate the statutes ‘deliberately’ and without explicit evidence of illicit 

motivation.” 405 F.3d at 1246. This rule is inconsistent with Supreme Court 

jurisprudence. See Fordice, 505 U.S. at 734 (explaining that a later nonracial 

purpose does not justify perpetuating an official policy originally designed to 

discriminate);3 Feeney, 442 U.S. at 279-80 (analyzing the historical iterations of a 

law to determine whether it was motivated in part by impermissible discriminatory 

intent).

This Court need not, however, agree with Plaintiffs that Cotton and Johnson 

were wrongly decided in order to conclude that this challenge should not have been

In Johnson, the majority suggested that Fordice may not apply outside of the 
education context. See 405 F.3d at 1226-27. However, as Judge Barkett pointed 
out in dissent, “there is no principled basis not to apply Fordice to a matter of equal 
if not greater importance — the fundamental right to participate in the democratic 
process.” Id-, at 1245 (citing Reynolds v, Sims. 377 U.S. 533, 561-62). While it is 
true that some aspects of “school desegregation jurisprudence [are] unique,” id., at 
1226 (majority opinion), the issue of whether plaintiffs state a claim of 
unconstitutional discrimination in violation of the Equal Protection Clause does not 
vary depending on the subject matter of the challenged action. In both Arlington 
Heights and Washington v. Davis, the Court made clear that the rules for 
establishing impermissible discriminatory purpose apply across different contexts, 
specifically including electoral practices and school desegregation. See 
Washington v. Davis, 426 U.S. at 240 (citing Wright v. Rockefeller. 376 U.S. 52 
(1964) and Keyes v. School Dist. No. 1. 413 U.S. 189 (1973)); Arlington Heights. 
429 U.S. at 265 (same).

14



dismissed on the pleadings. In several significant respects, this case is 

distinguishable from Cotton and Johnson.

First, neither Cotton nor Johnson was decided on the pleadings. See Cotton. 

157 F.3d, at 390 (applying F.R.C.P. 56), Johnson v. Bush, 353 F.3d 1287, 1295 

(2003), vacated 405 F.3d 1214 (2005) (discussing expert evidence and testimony 

that plaintiffs submitted as a result of discovery, which the district court 

characterized as “abundan[t]”). As explained above, evidence that earlier versions 

of a challenged law were enacted for a discriminatory purpose is relevant under 

Arlington Heights and its progeny. However, at the very least, this is an issue of 

first impression in this Circuit. Dismissals on the pleadings “are especially 

disfavored in cases where the complaint sets forth a novel legal theory that can best 

be assessed after factual development.” Baker v. Cuomo. 58 F.3d 814, 819 (2d 

Cir. 1995) (citing Wright & Miller, 5A Federal Practice and Procedure, Civil 2d 

§1387 at 341-43), vacated on other grounds bv Baker v. Pataki 85 F.3d 919 (2d 

Cir. 1996). Although Plaintiffs disagree with the decision reached by the Eleventh 

Circuit in Johnson, that court wisely waited until it had seen plaintiffs’ expert 

evidence before reaching the merits of plaintiffs’ legal theories.

Waiting for the full development of all the relevant facts is especially 

important in a case such as this, which turns on whether Plaintiffs have established 

impermissible purpose under Arlington Heights, an analysis that “demands a

15



sensitive inquiry into such circumstantial and direct evidence as may be available.” 

429 U.S. at 267. Indeed, for two principal reasons, the facts of this case establish a 

much stronger nexus between the earlier versions of New York’s felon 

disfranchisement provision and the more recent versions of that provision than the 

nexus that existed among the relevant felon disfranchisement provisions at issue in 

Cotton and Johnson.4

First, the amount of time separating the various iterations of the felon 

disfranchisement provisions establishes a far tighter nexus in New York than in 

Mississippi or Florida. In Mississippi, there was evidence that delegates to the 

1890 Constitutional Convention had acted with a discriminatory purpose in 

promulgating the felon disfranchisement provision. That provision was then 

amended and reenacted sixty years later in 1950 (and then again in 1968) without 

evidence that racial animus motivated these reenactments. The comparable 

passage of time in Florida was a century — there was evidence of discriminatory 

motivation behind an 1868 felon disfranchisement provision, which was amended 

and reenacted in 1968 without any such evidence.

Even the Eleventh Circuit appeared to recognize that the nexus between the 
current version of a challenged law and prior iterations of that law is relevant. 
Specifically, the Eleventh Circuit emphasized the long passage of time between the 
two felon disfranchisement provisions at issue in the case before it, and the fact 
that delegates to the latter constitutional convention debated and rejected 
alternatives to reenacting the disfranchisement provision. See Johnson. 405 F.3d at 
1221-22, 1224-26.

16



By contrast, in this case, only a few years passed between New York’s 1867 

Constitutional Convention — the last Convention for which Defendants do not 

contest the sufficiency of Plaintiffs’ pleadings, see Defendants’ Revised Brief at 23 

— and the 1874 Convention which made the felon disfranchisement provision 

mandatory rather than permissive, and which, as Defendants have recognized, was 

the last substantive amendment to the felon disfranchisement provision in the state 

Constitution. See Defendants’ Initial Brief at 17-18 (“The relevant sentence of 

Article II, section 3 is the product of three substantive constitutional amendments, 

occurring in 1821, 1846, and 1874.”) Thus, unlike in Johnson and Cotton, this is 

not a case in which, due to a long passage of time, “the . . . [delegates] who passed 

the [earlier provision] and the [later provision] were not the same people.” 

Johnson. 405 F.3d, at 1226.

Rather, this case is more like Fordice. which was described by the Eleventh 

Circuit in Johnson as follows: “Given the proximity in time between Mississippi’s 

intentional discrimination and the facially neutral provision in education, the Court 

had a healthy skepticism that the facially neutral provision was indeed neutral. 

Certainly, the Mississippi legislators who voted for the facially neutral provision 

understood the history of racial segregation in education and the likely effect of 

their new education system.” Id. (emphasis added).

17



In fact, under Defendants’ view, the link in this case is even clearer than it 

was in Fordice. According to Defendants, “the 1874 constitutional amendment 

that first required — rather than merely authorized — the legislature to pass laws 

disenfranchising felons had its origins in a proposal by the 1867-1868 

constitutional convention.” Defendants’ Revised Brief at 28. Although Plaintiffs 

disagree with portions of Defendants’ discussion of the historical evidence 

concerning the 1867 and 1872 conventions — which is an issue that can be 

explored by the district court on a motion for summary judgment or at trial — even 

under Defendants’ view, there is an extremely close nexus between a 

Constitutional Convention at which it is conceded that Plaintiffs have made 

specific allegations that delegates were motivated by racial discrimination 

regarding suffrage, and the most recent convention that promulgated a “substantive 

amendment” to the felon disfranchisement provision in the state Constitution.

Second, there is an important and substantive difference between the types 

of amendments made to the felon disfranchisement provisions in the Florida and 

Mississippi Constitutions, on one hand, and the type of amendments made to the 

felon disfranchisement provision of the New York Constitution, on the other. In 

both Mississippi and Florida, later Constitutional Conventions took affirmative 

steps to narrow the breadth of the felon disfranchisement regime and/or reduce its 

racially discriminatory effects. See Cotton. 157 F.3d, at 391 (explaining that the

18



felon disfranchisement provision in the Mississippi Constitution was amended to 

remove burglary as a disfranchising crime in 1950, and further modified in 1968 to 

include “‘murder’ and ‘rape’—crimes historically excluded from the list of 

[disfranchising crimes] because they were not considered ‘black’ crimes”); 

Johnson, 405 F.3d at 1221-24 (explaining that the disfranchisement provision in 

the Florida Constitution was narrowed to affect only those convicted of felonies, as 

opposed to those convicted of felonies and misdemeanors). By contrast, in New 

York, the only substantive amendment was to freeze in place the discriminatory 

taint of the earlier disfranchisement provision in the state Constitution by making 

the provision mandatory rather than permissive. While a court could consider the 

passage of time, it stands to reason that the short interval here at issue should not 

be viewed as presumptively cleansing as a matter of law, but rather viewed in the 

totality of the circumstances as Supreme Court precedent requires.

It is clear that, at this stage of the proceedings, Plaintiffs have alleged facts 

that permit an inference that racial discrimination was a motivating factor in 

enactment of the felon disfranchisement provision of the New York Constitution. 

Defendants are factually incorrect that the Complaint does not contain specific 

allegations concerning racial discrimination regarding suffrage after 1867, and they 

are legally incorrect that, under Arlington Heights, the prior iterations of a 

challenged law are irrelevant to the question of whether plaintiffs have established

19



invidious discriminatory purpose. To the degree they hold otherwise, Johnson and

Cotton are inconsistent with the Supreme Court’s decisions in Feeney and Fordice.

However, even if Johnson and Cotton were binding law in this circuit, it would be

clear that the district court erred by dismissing Plaintiffs’ claims of impermissible

discrimination on the pleadings. The nexus between the different iterations of the

felon disfranchisement law is much closer here than it was in Johnson or Cotton.

and a court may not evaluate the significance of this nexus without all of the facts

necessary to undertake “a sensitive inquiry into such circumstantial and direct

evidence as may be available.” Arlington Heights. 429 U.S. at 267.

II. DEFENDANTS’ ARGUMENT THAT NEW YORK’S FELON 
DISFRANCHISEMENT LAW WOULD HAVE BEEN ENACTED 
EVEN ABSENT A RACIALLY DISCRIMINATORY PURPOSE 
CANNOT BE RESOLVED ON THE PLEADINGS

In the alternative, Defendants argue that, even if the allegations in the

Plaintiffs’ Complaint establish that invidious discrimination was a motivating

factor behind the felon disfranchisement provision in the New York Constitution

(which they do, see Part I, supra), this Court should affirm the district court’s

judgment because “[l]aws disfranchising felons would have been enacted in [1874]

— and continued to this day — even in the absence of any racial bias.”

Defendants’ Revised Brief at 30. This is not the right time for this argument.

Instead, Defendants should have an opportunity to make it again in a motion for

summary judgment or at trial.

20



As the Supreme Court explained in Hunter v. Underwood, “[o]nce racial 

discrimination is shown to have been a ‘substantial’ or ‘motivating’ factor behind 

enactment of the law, the burden shifts to the law’s defenders to demonstrate that 

the law would have been enacted without this factor.” 471 U.S. 222, 228 

(1985)(citing Mt. Healthy Bd. of Educ. v. Doyle. 429 U.S. 274, 287 (1977)). The 

defender of the law can only satisfy this burden if the preponderance of the 

evidence demonstrates that the official action would have been taken even absent 

the impermissible motivation. See Mt. Healthy, 429 U.S. at 287. At this juncture, 

this Court is not in a position to assess the preponderance of the evidence because 

the district court decided the case on the pleadings, without affording the parties an 

opportunity to develop the relevant evidence.

Defendants seek to avoid this fact by pointing out that a district court may, 

under some circumstances, consider the official legislative history of a law when 

analyzing a motion to dismiss. See Anheuser-Busch v. Schmoke. 63 F.3d 1305, 

1312 (4th Cir. 1995). However, Defendants ask this Court not simply to consider 

the legislative history but rather to take judicial notice of their interpretation of the 

legislative history of the laws in question. Defendants’ Initial Brief at 12-14. 

However, the Advisory Committee Notes to Rule 201, Fed. R. Evid., state that the 

Rule “deals only with judicial notice of ‘adjudicative’” and not “legislative” facts 

and defines legislative facts as those “which have relevance to legal reasoning and

21



the law-making process, whether in formulation of a legal principle or [ ] in the 

enactment of a legislative body.” See Fed. R. Evid. 201 Notes of Advisory 

Committee on Rules citing Kenneth Davis, An Approach to Problems of Evidence 

in the Administrative Process. 55 Harv. L. Rev. 364, 404-407 (1942). Defendants 

admit in their brief that “legislative intent is not an adjudicative fact but a 

legislative one,” Defendants’ Initial Brief at 14, making it clear that his proffered 

interpretation of legislative history does not fall under Rule 201. See also United 

States v. Hemandez-Fundora. 58 F.3d 802, 811 (2d Cir. 1995) (“[Resolution of 

the jurisdictional issue [ ] requires the determination of legislative facts, rather than 

‘adjudicative facts’ within the meaning of Rule 201(a), with the result that Rule 

201(g) is inapplicable.”).

Although courts have taken judicial notice of legislative history showing the 

reason for the passage of certain legislation, see, e.g.. Carolene Prod. Co. v. United 

States, 323 U.S. 18, 28 (1944) (“The trial court took judicial notice, as did the 

District Court of the District of Columbia, and as we do, of the reports of the 

committees of the House of Representatives and the Senate which show that other 

considerations [] influenced the [legislation at issue].”), this Court has held that it 

may not take notice of legislative facts if those facts are in dispute and especially 

when they are dispositive and the record is not developed. Landell v, Sorrell. 382 

F.3d 91, 135 n.24 (2d Cir. 2004) (“The fact that this Court may ultimately

22



undertake de novo review of any legislative facts found by the District Court on 

remand or that appellate courts take judicial notice of legislative facts under 

appropriate circumstances, does not mean that we must resolve disputed legislative 

facts — particularly facts that are dispositive of the case before us — on an 

insufficiently developed record.”). Indeed, Landell states that the legislative facts 

addressed by this Court have largely dealt with straightforward questions such as 

geography, jurisdiction, or scientific fact. Id. (“[T]he types of ‘legislative facts’ 

that have been addressed most recently in our caselaw deal with much more 

straightforward questions, e.g., geography and jurisdiction or the fact that cocaine 

is derived from coca leaves.”). Accordingly, this Court should not take judicial 

notice of Defendants’ proffered interpretation of the legislative history of New 

York’s felon disfranchisement laws, and certainly not in the context of a Rule 

12(c) determination. Should this Court determine that judicial notice is 

appropriate, Plaintiffs must be afforded an adequate opportunity to be heard on this 

issue. See Fed. R. Evid. 201(e).

Moreover, Defendants cite no authority to support the counter-intuitive 

proposition that the question whether the preponderance of the evidence indicates 

that state actors who were motivated by racial discrimination would have taken the 

same action even absent their discriminatory intentions may be resolved solely by 

an acontextual reading of the official legislative history. Even if Defendants are

23



correct that there is no explicit indication of racial discrimination in the official 

legislative history of the 1872-73 Constitutional Convention — a point that 

Plaintiffs do not concede — or that some legislators favored felon 

disfranchisement to protect the purity of elections, see Defendants’ Revised Brief 

at 25, 28-29, this hardly establishes by a preponderance of the evidence that, if a 

felon disfranchisement provision did not already exist, the delegates at the 1872-73 

Convention would have nonetheless decided to adopt a felon disfranchisement 

provision that would have happened to be almost identical in substance to the 

racially discriminatory provisions that were adopted in 1821 and 1846.

Instead, even though the events in question occurred many years ago, 

discovery is necessary so that historians may fully examine relevant documentary 

sources concerning both the actual intent of the delegates that promulgated and 

then reenacted the felon disfranchisement provision in the nineteenth century, and 

potential ways to make predictions about how the delegates would have acted had 

they not been motivated by racial discrimination. See Hunter, 471 U.S. at 229 

(citing testimony and opinions of historians in support of the conclusion that the 

Alabama Constitution of 1901 was designed to disfranchise Blacks); id., at 232 

(citing expert testimony in concluding that a proffered legitimate justification for 

Alabama’s felon disfranchisement provision was not an actual motivating factor

24



behind the provision’s enactment, and thus could not overcome the invidious 

discriminatory purpose that actually motivated the law).

Since filing this Complaint, Plaintiffs have developed significant evidence 

concerning the 1874 convention, which the district court never had an opportunity 

to consider because it dismissed this case on the pleadings. Specifically, between 

1867 and 1874, Radical Republicans, who were sympathetic to Black suffrage, 

were denied reelection in favor of Democrats, who were vehemently opposed to 

the same. Understanding this history facilitates an accurate understanding as to 

why the “shall” language — that is, language that required (as opposed to merely 

permitted) the legislature to disfranchise individuals convicted of a felony — was 

adopted in the 1874 amendment.5

The influence of Radical Republicans, who had a strong presence at the 

1867-68 Constitutional Convention and opposed the 1821 voting requirement that 

conditioned access to the franchise on a requirement that Blacks possess a freehold 

estate worth $250, was severely weakened by a decisive Democratic victory in the 

November 1867 elections. Phyllis F. Field, The Politics of Race in New York: The 

Struggle for Black Suffrage in the Civil War Era (1982). “The overwhelming

5 As in Hunter, Plaintiffs here should be afforded an opportunity to develop their 
case. Though Plaintiffs retained an expert in support of their intentional 
discrimination claim, the district court dismissed Plaintiffs’ claims before 
discovery was concluded.

25



majority of Democrats, however, were not willing to surrender on the race issue.” 

Id. at 173. Vehemently opposed to removing the racially discriminatory property 

requirements, Democrats (who were emboldened by victories in the 1867 state 

elections in which Black suffrage was a critical issue) put the issue to the voters of 

New York in 1869, with the expectation that New Yorkers would oppose that 

measure. See id. In 1869, New Yorkers, as expected, voted to maintain the 

racially discriminatory language of the 1821 Constitution. David Nathaniel 

Gellman & David Quigley, Jim Crow New York: A Documentary History of Race 

and Citizenship. 1777-1877 293 (NYU Press 2003).

It was not until the enactment of the Fifteenth Amendment (which New 

York opposed by attempting to withdraw its earlier ratification of the Amendment, 

Cong. Globe, 41st Cong., 2d Sess. at 1447-81), and the Federal Enforcement Acts 

of 1870 and 1871, that equal manhood suffrage came to New York, despite the 

opposition of New York’s voters and anti-Black Democrats in 1870 and 1871. 

David Quigley, Second Founding: New York City, Reconstruction, and the 

Making of American Democracy Ch. 5 (2004).

Moreover, the Governor of New York from 1869-1872 was John T. 

Hoffman, Mayor of New York City from 1866-1868 and one of the leaders of 

Manhattan’s Tammany Hall. Edwin G. Burrows & Mike Wallace, Gotham: A

26



History of New York City to 1898 927, 1009 (1998). In 1867, as Mayor of New 

York City, amid the push by some for Black suffrage, Governor Hoffman declared 

that “the people of the North are not willing . . . that there should be [NJegro 

judges, [NJegro magistrates, [NJegro jurors, [NJegro legislators, [NJegro 

Congressmen.” Irish Citizen, October 19, 1867, at 5. In Hoffman’s first speech of 

his gubernatorial campaign in 1868, he declared that “in ten Southern States the 

white man is subject to the domination of the [NJegro. [Applause.J That by an act 

of Congress [NJegro suffrage is forced upon them, while white men are 

disenfranchised.” Hoffman’s speech to Erie County Democrats in Buffalo on 

September 8, 1868, in New York Times, September 9, 1868, at 1. Governor 

Hoffman opposed the Fifteenth Amendment, complaining that it was “another step 

in the direction of centralized power.” Hoffman’s Address, January 5, 1869, 

Messages from the Governor. Volume 6 (1869-1876) (Charles Z. Lincoln, ed. 

1909). In 1870, Governor Hoffman wrote: “I protest against the revolutionary 

course of Congress with reference to amendments of the Constitution.” Hoffman’s 

Address, January 1870, Messages from the Governor. Volume 6 G869-1876) 

(Charles Z. Lincoln, ed. 1909).

Significantly, Governor Hoffman — in conjunction with the state Senate — 

appointed the members (who are more usually elected) to the State Constitutional 

Commission of 1872-73, which drafted the revisions to the 1874 Constitution at

27



issue here. Charles Z. Lincoln, The Constitutional History of New York from the

Beginning of the Colonial Period to the Year 1905, Showing the Origin. 

Development, and Judicial Construction of the Constitution 464-71 (1906). 

Governor Hoffman’s anti-Black Democratic appointees in 1872-73 thus were not, 

as the Defendants suggest, the Radical Republicans who grappled with issues 

of equal manhood suffrage for Blacks at the 1867-68 Constitutional Convention. 

Indeed, the 1872-73 Constitutional Commission, recognizing the impossibility of 

erecting explicitly racial barriers in the aftermath of the Fifteenth Amendment, 

supported a range of barriers — each of which disproportionately impacted New 

York’s Black population.

Against this historical backdrop, Defendants’ assertion that the Radical 

Republicans’ concern in 1867-68 to protect the ballot box from fraud “remained 

the purpose of the amended section 2 when it was ultimately enacted [by anti- 

Black Democrats] in 1874,” Defendants’ Initial Brief at 23, is unsupported by the 

historical record. Defendants’ conclusion — that “[g]iven the lack of the 

ambiguity in the published record, this court should conclude that no amount of 

extrinsic or circumstantial evidence” could provide evidence of discriminatory 

intent, Defendants’ Initial Brief at 24, is unreliable and insufficient to support the 

judgment below.

28



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

Complaint tells a persuasive story of a pervasive pattern of historical intentional 

discrimination in voting, including repeated explicit statements about Blacks’ 

unfitness for suffrage, their perceived criminality, and the codification of 

mandatory disfranchisement during an unprecedented special session at a time 

when overt denial of the franchise to Blacks was newly outlawed by the Fifteenth 

Amendment. These allegations satisfy the Rule 12(c) standard, and justify 

reversal of the district court’s dismissal of Plaintiffs’ Complaint on the pleadings.

III. PLAINTIFFS’ EQUAL PROTECTION CLAIM IS NOT BARRED 
BY RICHARDSON OR BAKER NOR IS IT SUBJECT TO RULE 
12(c) DISMISSAL WITHOUT FURTHER DEVELOPMENT OF 
THE RECORD

Plaintiffs also allege that New York’s felon disfranchisement scheme further 

violates the Equal Protection guarantees of the Fourteenth Amendment by 

impermissibly distinguishing among individuals convicted of a felony. To avoid 

scrutinizing New York’s non-uniform felon disfranchisement scheme, Defendants 

incorrectly rely upon a portion of the panel decision in Baker v. Cuomo, which 

applied a wholly deferential rational basis standard of review to a challenge to New 

York’s felon disfranchisement provision by incarcerated individuals. Defendants’ 

contention that Plaintiffs’ equal protection claims are foreclosed by Baker fails to 

recognize that Richardson v. Ramirez. 418 U.S. 24 (1974), left open a narrow

29



exception to heightened scrutiny of voting restrictions for laws that distinguish 

among those individuals who have been convicted of a felony and those who have 

not. Indeed, the Richardson Court left open the “alternative contention that there 

was such a total lack of uniformity in county election officials’ enforcement of the 

challenged state laws as to work a separate denial of equal protection.” 418 U.S. at 

56.

Neither Richardson nor Baker addressed the Equal Protection issues raised 

by Plaintiffs here: whether state and election officials, when enacting and

implementing felon disfranchisement provisions, may disfranchise only some 

individuals with felony convictions but not others and whether “rational basis” or 

“strict scrutiny” review would be applied to such a statute if challenged.

By dismissing Plaintiffs’ claims prematurely, the district court denied 

Plaintiffs the opportunity to engage in this analysis.

30



CONCLUSION

For the foregoing reasons, the judgment of the district court should be

reversed, and the case remanded for further proceedings.

Dated: New York, New York
January 16, 2007

Theodore M. Shaw 
Director-Counsel 

Norman J. Chachkin 
Debo P. Adegbile 
NAACP Legal Defense 

& Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(Tel.) 212-965-2235 
(Fax) 212-226-7592 
rhaygood@naacpldf.org

Juan Cartagena 
Craig Acorn
Community Service Society

of New York 
105 E. 22nd Street 
New York, NY 10010 
(Tel.) 212-614-5462 
(Fax) 212-260-6218 
icartagena@cssny.org

31

mailto:rhaygood@naacpldf.org
mailto:icartagena@cssny.org


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 
ioangibbs@hotmail.com

Counsel for Plaintiffs-Appellants

32

mailto:ioangibbs@hotmail.com


RULE 32(a)(7)(B)(ii) CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this reply brief complies with the type- 

volume limitations of Rule 32(a)(7)(B)(ii) of the Federal Rules of Appellate 

Procedure. Relying on the word count of the word processing system used to 

prepare this brief, I represent that the reply brief of 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 for Plaintiffs-Appellants 

contains 6,975 words, not including the table of contents, table of authorities, and 

certificates of counsel, and is therefore within the word limit for 7,000 set forth 

under Fed. R. App. P. 32(a)(7)(B)(ii).

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013 
rhavgood@naacpldf.org

Dated: January 16, 2007

mailto:rhavgood@naacpldf.org


CERTFICATE OF SERVICE

I certify under penalty of perjury pursuant to 28 U.S.C. § 1746 that on 

January 16, 2007 I served upon the following, by electronic mail and United States 

Postal Service priority mail, postage prepaid, two true and correct copies of the 

attached REPLY BRIEF FOR PLAINTIFFS-APPELLANTS:

Patricia L. Murray, Esq.
First Deputy Counsel 

New York State Board of Election 
40 Steuben Street 
Albany, New York 12207-2109 
Counsel for Defendant Carol Berman

Eliot Spitzer
New York Attorney General 

Michelle Aronowitz
Deputy Solicitor General 

Benjamin Gutman
Assistant Solicitor General 

120 Broadway -  25th Floor 
New York, New York 10271 
Counsel for Defendant Governor 
George Pataki

by depositing it securely enclosed in a properly addressed wrapper into the custody

of the United States Postal Service for priority mail delivery, prior to the latest time

designated by that service.

NAACP Legal Defense & 
Educational Fund, Inc.

99 Hudson Street, Suite 1600 
New York, NY 10013 
rhaygood@naacpldf.org

mailto:rhaygood@naacpldf.org