Hayden v. Pataki Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Judgment on the Pleadings

    UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

JOSEPH HAYDEN; LUMUMBA AKJNWOLE- :
BANDELE;WILSON ANDINO; GINA ARIAS; ;
WANDA BEST-DEVEAUX; CARLOS BRISTOL; :
AUGUSTINE CARMONA; DAVID GALARZA; .
KIMALEE GARNER; MARK GRAHAM; RERAN !
HOLMES, HI; CHAUJUANTHEYIA LOCHARD; ]
STEVEN MANGUAL; JAMEL MASSEY; STEPHEN 
RAMON; LILLIAN M. RIVERA; NILDA RIVERA; ;
MARIO ROMERO; JESSICA SANCLEMENTE;
PAUL SATTERFIELD; and BARBARA SCOTT, on 
behalf o f themselves and all individuals similarly 
situated, •

Plaintiffs, :

- against -

GEORGE PATAKI, Governor o f  the State o f  N ew  
York and CAROL BERMAN, Chairperson, New  
York State Board o f  Elections,

Defendant.

00 Civ. 8586 (LMM)(HBP)

PLA IN TIFFS’ M EM ORANDUM  OF LAW  IN O PPO SITIO N TO  
D EFEN D A N TS’ M OTION FOR JU D G M EN T ON THE PLEADINGS

Naacp Legal Defense and Educational 
Fund, Inc .

Elaine R. Jones, Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Janai S. Nelson 
Debo P. Adegbile 
Ryan Paul Haygood (RH-7549)
99 Hudson Street
New York, New York 10013-2897 
(212) 965-2200

Naacp Legal Defense and Educational 
Fund, Inc.

Todd A. Cox
1444 Eye Street, 10th Floor 
Washington, DC 20005 
(202) 682-1300



Community Service Society of New York 
Juan Cartagena (JC-5087)
Risa Kaufman 
105 E. 22nd Street 
New York, NY 10010 
(212)260-6218

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 Joseph Hayden; Lumuba Akinwole-Bandele; Wilson Andino; Gina Arias; Wanda 
Best-Deveaux; Carlos Bristol; Augustine Carmona; David Galarza; Kimalee Garner; Mark Graham; 
Keran Holmes, III; Chaujuantheyia Lochard; Steven Mangual; Jamel Massey’; Stephen Ramon; Lillian 
M. Rivera; Nilda Rivera; Mario Romero; Jessica Sanclemente; Paul Satterfeld; and Barbara Scott, on 

behalf of themselves and all individuals similarly situated.



TABLE OF CONTENTS

PRELIMINARY STATEM ENT.......................................................................................................... 1

BACKGROUND FACTS.......................................................................................................................2

STANDARD OF REVIEW ................................................................................................................... 3

ARGUMENT.............................................................................................................................................5

I. Richardson v . Ramirez Does Not D ispose of
Plaintiffs’ Constitutional Cla im s ....................................   .......5

II. Plaintiffs’ Amended Complaint Sufficiently Alleges a Claim For 
Intentional Discrimination Under The Equal Protection Clause of
the Fourteenth Amendment and under the Fifteenth Amendment..................... 7

A. The Amended Complaint Contains Facts Sufficient To Satisfy 
The Standard for Alleging Discriminatory Intent Under ih e  
Equal Protection Clause of the Fourteenth Amendment as 
Articulated by the Supreme Court............................................................... 8

1. New York's Extensive History of Intentional Racial Discrimination
In Voting Dates As Far Back As The State's Provisional Constitution 
Regarding Suffrage.................................................................................... 10

2. The Allegations Contained In The Amended Complaint Are More
Detailed And Specific Than The Allegations In The Complaint 
Submitted In Hunter...................................................................................18

III. The Amended Complaint Sufficiently States A Claim That Defendants’ Non-
Unform  Practices Disfranchising Persons Convicted Of A Felony Violate The 
Equal Protection Clause Of The Fourteenth Amendment.....................................21

A. The Application Of Strict Scrutiny Is Appropriate He r e .......................21

B. New York Election Law §5-106(2) Fails Strict Scrutiny Analysis
Because It Is Not Narrowly Tailored To The State's Interest ............23

C. Even If Rational Basis Scrutiny Is Applied, New York Election Law
§5-106(2) Fails Constitutional Rev fw  Because It Is Irrational And 
Arbitrary ............................................................................................................24

IV. The Amended Complaint Sufficiently States A First Amendment Claim On
Behalf Of Persons Who Are Incarcerated Or On Parole......................................26

A. New York's Disfranchisement Laws Impose A Severe Restriction
On The Right To Vo t e ........................................................................................26

Page



B. Defendants Erroneously Interpret Green and Richardson To 
Foreclose A First Amendment Challenge To Felon 
Disfranchisement Laws .................................................................................... 22

V. The Court Has Subject Matter Jurisdiction To Hear Plaintiffs’ Claim Under
The Civil Rights Acts Of 1957 and 1960, And Plaintiffs Have Standing To 
Assert Such A Cl a im ................................................................................................   29

A. Section § 1971 Impliedly Creates A Private Right Of Action Under
Which Plaintiffs May Challenge Defendants’ Unlawful 
Discrimination Against Black And Latino Felons....................................30

B. In Addition And In  The Alternative, Plaintiffs May Bring 
A Claim For Defendants’ Violation of 42 U.S.C. §1971
T h r o u g h  42 U.S.C. §1983.................................................................................... 32

C. Section 1971 Can Reach Challenges To D iscriminatory Voting
Qualifications................................................................  33

VI. The Amended Complaint Sufficiently States A Claim That §5-106(2) A n d

Article II, §3 Of The New York State Constitution Violate Customary 
International La w .....................................................   3^

A. The Court Has Subject Matter Jurisdiction To Hear 
Plaintiffs’ Claims As The Law Of Nations Is Part Of
The Federal C o m m o n  La w ................................................................................ 35

B. Plaintiffs Have Alleged Sufficient Facts To Establish A Violation
Of Customary International Law ................................................................. 40

C. Evolving Notions Of Customary International Law Support The

Right To Vote For Felons................................................................................. 42

VII. Defendants’ Practice Of Disfranchising Persons W ithout Notice Or Hearing,
Violates The Due Process Clause Of The Fourteenth Am endm ent.................... 45

CONCLUSION.......................................................................................................................................51



TABLE OF AUTHORITIES
Cases Page

Abebe-Jiri v. Negewo, 72 F.3d 844 (11th Cir. 1996)...............................................................................38

Abebe-Jiri v. Negewo,
No. 90-2010, 1993 U.S. Dist. LEXIS 21158 (N.D. Ga. Aug. 20, 1993)
affd other grounds, 72 F.3d 844 (11th Cir. 1996)................................................................... 37

Ad-Hoc Comm. O f Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch Coll.,
835 F.2d 980 (2d Cir. 1987)..........................................................................................................3

Alexander v. Sandoval, 532 U.S. 275 (1976)........................................................................................... 29

Allen v. Board o f Elections, 393 U.S. 544 (1969)...................................................................................  30

Armstrong v. Manzo, 380 U.S. 545 (1965).........................................................................................••••• 45

Atkins v. Virginia, 536 U.S. 304 (2002)....................................................................................  35, 39 n.25

August and Another v. Electoral Commission and Others, 1999 (4) BCLR 363 (CC)....................... 42

Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996)............................................................................................. 1

Ball v. Brown, 450 F. Supp. 4 (N.D. Ohio. 1977)......................................................................  31, 32-33

Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967)........................................................................................... 4

Benjamin v. Jacobson, 124 F.2d 162 (2d Cir. 1997)....................................................................... 21, 24

Blessing v. Freestone, 520 U.S. 329 (1997)...........................................................................................  32

Branum v. Clark, 927 F.2d 698 (2d Cir. 1991).......................................................................................... 4

Brier v. huger, 351 F. Supp. 313 (M.D. Pa. 1972)............................     31

Brooks v. Nacrelli, 331 F. Supp. 1350 (E.D. Pa. 1971)..............   31

Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999).............................  27

Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001)...................... ........................................................ 40, 42

Burdick v. Takushi, 504 U.S. 428 (1992).................................................................................... 21,22, 27

Chapman v. Houston Welfare Rts. Org., 441 U.S. 600 (1979).............................................................  32



City o f Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985)....................................... 21, 22-23

Cleveland Bd. O f Ed. v. LaFleur, 414 U.S. 632 (1974).......................................................................... 49

Cort v. Ash, 422 U.S. 66 (1975).................................................................................................... 29-30, 31

Doe v. Rowe, 156 F. Supp.2d 35 (D. Me.. 2001)........................................................................46, 48, 49

Dunn v. Blumsiein, 405 U.S. 330 (1972)..............................................................................  21, 22, 23, 24

Dwyer v. Regan, 111 F.2d 825 (2d Cir. 1985)......................................................................   4

Escalera v. New York City Hous. Auth., 425 F.2d 853 (2d Cir. 1970)......................................................4

Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir. 1980)....................................................................  passim

Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987).........................................................  37-38

General Electric Capital Corp. v. Domino's Pizza, Inc.,
No. 93 Civ. 5070, 1994 U.S. Dist. LEXIS 7277 (S.D.N.Y. June 2, 1994)....................... 3 n.2

Gieslerv. Petrocelli, 616 F.2d 636 (2d Cir. 1980)......................................... ..........................................4

Gonzaga University v. Doe, 536 U.S. 273 (1978).................................................................................  32

Green v. Board o f Elections, 259 F. Supp. 290 (S.D.N.Y. 1966).............   27

Green v. Board o f Elections, 380 F.2d 445 (2d Cir. 1967)..................................................................... 27

Grutter v. Bollinger, 123 S. Ct. 2325 (2003).................................................................................  39 n.25

Heller v. Doe, 509 U.S. 312 (1993)................................................................................................. . 24, 25

Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968)..........................................4

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

Illinois v. City o f Milwaukee, 406 U.S. 91 (1972).................................................................................  34

Irish Lesbian and Gay Org. v. Giuliani, 3 43 F.3d 638 (2d Cir. 1998)............................................... 3, 4

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).................................................................................36, 37

Lawrence v. Texas, 123 S. Ct. 2472 (2003).............................................................................  35, 39 n.25

Cases (cont'd) Page



Cases (eont'd) Page

Little v. Streater, 452 U.S. 1 (1981)..........................................................................................................46

Maher v. Runyan, No. 94 Civ. 5052, 1996 U.S. Dist. LEXIS 642 (S.D.N.Y. Jan. 24, 1996)........ 3 n.2

Maine v. Thiboutot, 448 U.S. 1 (1980).....................................................................................................  32

Maria v. McElroy, 68 F. Supp.2d 206 (E.D.N.Y. 1999).................................................... 38 n.24, 40, 41

Martinez-Baca v. Suarez-Mason,
No. 87-2057, 1988 U.S. Dist. LEXIS 19470 (N.D. Cal. Apr. 22, 1988).................... .......... 37

Matthews v. Eldridge, 424 U.S. 319 (1976)............................................................................................  45

Monell v. Dep't o f Social Servs., 436 U.S. 658 (1978)........................................................................... 32

Morse v. Republican Party o f Virginia, 517 U.S. 186 (1996)...............................................................  30

Mt. Healthy City Board o f Education v. Doyle, 429 U.S. 274 (1977)....................................................8

Mullane v. Central Hanover Bank & Trust, 339 U.S. 306 (1950)........................................................  45

Norman v. Reed, 502 U.S. 279 (1992)..............................................................................................  21, 27

Patel v. Contemporary Classics o f Beverly Hills, 259 F.3d 123 (2d Cir. 2001)......................... passim

Pellv. Procunier, 417 U.S. 817 (1974)..................................................................................................  26

Procunier v. Martinez, 416 U.S. 396 (1974)..........................................................................................  26

Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354 (D. Anz. 1990).................... 46

Republic o f Philippines v. Marcos, 818 F.2d, 1473 (9th Cir. 1987)..............................................  37-38

Reynolds v. Sims, 377 U.S. 533 (1964)...................................................................................................  21

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

Scheuer v. Rhodes, 416 U.S. 232 (1974)..................................................................................................4

Schwierv. Cox, No. 02-13214,2003 U.S. App. LEXIS 16410 (11th Cir. Aug. 11, 2003)........ passim

Sequihua v. Texaco, 847 F. Supp. 61 (S.D. Tex. 1994)........................................................................  38

Shecter v. Comptroller o f the City o f New York, 79 F.3d 265 (2d Cir. 1996)....................................... 4



Cases (cont’d) Page

Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994)........................................................................

Shivelhood v. Davis, 336 F. Supp. 1111 (D. Vt. 1971)........................................................................... 30

Smith v. Allwright, 321 U.S. 649 (1944).................................................. ................................................30

Stephens v. Yeomans, 327 F. Supp. 1182 (D.N.J. 1970).........................................................................  25

Stevens v. Goord, No. 99 Civ 11669, 2003 U.S. Dist. LEXIS 10118 (S.D.N.Y. June 16, 2003)..........3

Suave v. Canada, 2002 SCC 68 (2002)..............................................................................................43

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984)................................ ......................37

Textile Workers Union v. Lincoln Mills o f  Alabama, 353 U.S. 448 (1957).............................. 34-35

The Nereide, 13 U.S. (9 Cranch) 388 (1815)..........................................................................................  35

77ie Paquete Habana, 175 U.S. 677 (1900)............................................................................................  35

Underwood v. Hunter, 730 F.2d 614 (11th Cir. 1984)........................................................................... ^

United States v. Mississippi, 380 U.S. 128 (1965)......................................................................... passim

United States v. Texas, 252 F. Supp. 234 (W.D. Tex. 1966)
affd mem. per curiam, 384 U.S. 155 (1966).......................................................................... 46

United States v. West Productions, Ltd.,
95 Civ. 1424, 1997 U.S. Dist. LEXIS 313 (S.D.N.Y. Jan. 17, 1997)......................................4

United States v. Yousef, 327 F. 3d 56 (2d Cir. 2003)............................................................................  40

Village o f Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. ~52 (1977)................ 8, 9, 16 n.l 1

Washington v. Davis, 426 U.S. 229 (1976)...............................................................................................8

IVhite v. Paulsen, 997 F. Supp. 1380 (E.D. Wa. 1998)...............................................................................

Williams v. Taylor, 677 F.2d 510 (5th Cir. 1982)..................................................................................... 2

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............................. ................................................................21

York v. Story, 324 F.2d 450 (9th Cir. 1963)..............................................................................................4



US Constitution Amendment XIV................................................................................................................5

US Constitution Amendment X V ............................................................................................................... 15

Civil Rights Acts of 1957 and 1960, 42 U.S.C. § 1971.................................................................. passim

Section 2 of Voting Rights Act of 1965, 42 U.S.C. § 1973 and 42 U.S.C. § 1983 ..................... passim

Federal Rules of Civil Procedure Rule 12(c)................................................................................... passim

Cong. Globe, 41st Cong., 2d Sess..................................................................................................... 15 n.10

H.R. Rep. No. 85-291 (1957), reprinted in, 1957 U.S.C.C.A.N. 1966.................. ................................30

28 U.S.C. § 1331.... ................................................................................. .......................................... passim

Alien Tort Statute, 28 U.S.C. § 1350..... ................................................................. ........... .............. 36, 37

International Covenant on Civil and Political Rights, Article 2 5 ,1CCPR, 1966 U.S.T. LEXIS 521 ..40

Convention on the Elimination of All Forms of Racial Discrimination, Article 5, Section (c),
CERD, 1966 U.S.T. LEXIS 521......................................................................................................... 40

138 Cong. Rec. S4781-01 (daily ed. Apr. 2, 1992) ..................... ......................................................41

140 Cong. Rec. S7634-02 (daily ed. June 24, 1992)......................................... .............................. ......41

State Statutes and Legislative History

NY Constitution (1821) Article II § 1 (repealed 1870)............................................................  11 n.4, 12

NY Constitution (1821) Article II § 2 (amended 1894) became Article II § 3 (1938)............... passim

NY Constitution Article V II......................................................................................... ...........................10

New York Election Law § 5-106(2)............................................................................................... passim

New York Laws of 1822, c. CCL, § XXV.............................................................................................. 16

New York Laws of 1896, c. 909, § 34(2)..................................................................................... 17 n. 13

New York Laws of 1901, c. 654, § 2 ...................................................................................................... 17

Federal Statutes and Legislative History'



NY C riminal  Procedure § 220.50.........................................................................................................  47

NY Pena] Law § 65 (2003)........................................................................................................................  47

Maine Revised Statute Annotated title 21, § 111 (2003)................................................................42 n.27

Vermont Statutes Annotated title 17 §, 2121 (2003).......................................................................42 n.27

Laws of Puerto Rico Annotated 16 § 3001, et seq. (2003).............................................................42 n.27

Miscellaneous

2A Moore, Federal Practice (2d ed. 1968)............................... ............... ..................................................4

Nathanial Carter, William Stone, and Marcus Gould, Reports of the Proceedings and Debates of 
the Convention of 1821 (Albany: E & E Hosford, 1821)).................................................. 11, 13, 14

New York State Constitutional Convention Committee, Problems Relating to Home Rule and
Local Government (Albany, NY: J.B. Lyon Company, 1938)................................................. 12, 14

The Committee on State Legislation of ABCNY, 1935 Bulletin, No. 231 ................................... 12 n.5

Reports of the Proceedings and Debates of the Convention of 1846 (Albany: E & E Hosford,)......  14

Documents of the Convention of the State of New York, 1867-1868 No. 16, 3, Volume One
(Albany: Weed, Parsons and Company, 1868)................................................................................  15

ABA Standards for Criminal Justice (Third Edition), Collateral Sanctions and Discretionary 
Disqualification of Convicted Persons (August 2003) at
http://www.abanet.Org/leadership/2003/summary/l 01 a.pdf..................................................... 46-47

US Census 2000 at http://www.factfinder.census.gov...................................................................26 n.16

U.S. Department of Justice, Bureau of Justice Statistics, "Probation and Parole in the United States 
2002," August 2003, NCJ 201135 at http://www.ojp.usdoj.gov/bjs.......................................26 n.17

U.S. Department of Justice, Bureau of Justice Statistics, "Prison and Jail Inmates at Midyear
2002," April 2003, NCJ 198877 at http://www.ojp.usdoj.gov/bjs.......................... ............... 28 n.18

Restatement (Third) of Foreign Relations Law § 102(2)...................................................................... 40

Restatement (Third) of Foreign Relations Law § 702(f)..................................................................... 44

State Statutes and Legislative History' (cont’d)

http://www.factfinder.census.gov
http://www.ojp.usdoj.gov/bjs
http://www.ojp.usdoj.gov/bjs


PLAINTIFFS’ M EM ORANDUM  OF LAW IN OPPOSITION TO 
DEFENDANTS’ M OTION FOR JUDGM ENT ON THE PLEADINGS

Plaintiffs respectfully submit this memorandum of law in opposition to Defendants' Motion For 

Judgment On The Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, in which 

defendants ask this Court to dismiss plaintiffs’ claims that Article II, § 3 of the New York State 

Constitution and § 5-106(2) of New York's Election Law violate the First, Fourteenth, and Fifteenth 

Amendments of the United States Constitution: the Civil Rights Acts of 1957 and 1960; and customary 

international law.

PRELIMINARY STATEMENT

This case raises fundamental legal questions about the integrity of New York’s democratic 

processes generally, and their impact on its Black and Latino citizens in particular. Plaintiffs challenge 

New York’s unconstitutional and discriminatory practice of denying suffrage to persons who are 

sentenced to incarceration or subject to parole as a result of a felony conviction. The essence of 

plaintiffs’ Amended Complaint is that New York’s felon disfranchisement regime has discernible 

discriminatory origins and. not surprisingly, continuing corrosive and discriminatory effects.

This action seeks invalidation of a legal regime that has been the subject of focused analysis by 

the Court of Appeals for the Second Circuit. Nevertheless, the legal issues raised by New York’s felon 

disfranchisement law-s have defied easy resolution.1 Ignoring this reality, defendants seek to dismiss 

cognizable claims even before plaintiffs have had the opportunity to develop a record to place the full 

scope of the legal and factual issues squarely before this Court. A premature dismissal would be 

inconsistent with the liberal standard of Federal Rule of Civil Procedure 12(c), the applicable 

precedents, and the legal complexities that New York’s disfranchisement regime implicates.

See Baker v. Pataki. 85 F.3d 919 (2d Cir. 1996).



As plaintiffs make plain below, defendants attempt to achieve a favorable, threshold disposition 

by framing far less than half of the story. Of equal importance, defendants urge dismissal based upon 

their invitation to this Court to heighten the showing required of plaintiffs under Rule 12(c). 

Consistent with plaintiffs’ burden at this stage of the litigation, the Amended Complaint provides 

sufficient specificity on each claim, satisfies the pleading requirements of those claims, and provides 

adequate background to substantiate the factual allegations that form the basis of each claim. For these 

reasons, and those set forth in detail below, Defendants’ Motion For Judgment On The Pleadings 

should be denied.

BACKGROUND FACTS

Plaintiffs seek to invalidate N.Y. Const, art. II, § 3 and New York Election Law § 5-106(2), 

which unlawfully deny suffrage to incarcerated and paroled felons on account of their race.

N.Y. Const, art. II, § 3 provides:

The Legislature shall enact law-s excluding from the right of suffrage all persons convicted of 
bribery or any infamous crime.

New York Election Law § 5-106(2) 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 Amended Complaint, dated January 15, 2003, alleges that N.Y. Const, art. II, § 3 and New 

York Election Law § 5-106(2) violate the Equal Protection Clause of the Fourteenth Amendment, 

based on an unlawful statutory classification (first claim); the Due Process Clause of the Fourteenth 

Amendment (second claim); the Equal Protection Clause, based on intentional race discrimination 

(third claim): the Fifteenth Amendment (third claim); the Civil Rights Acts of 1957 and 1960, codified

_ 2 -



at 42 U.S.C. § 1971 (third claim): Section 2 of the Voting Rights Act of 1965. based on § 5-106(2)’s 

disproportionate impact on incarcerated and paroled Blacks and Latinos (fourth claim); Section 2 of 

the Voting Rights Act of 1965. based on § 5-106(2)’s dilution of the voting strength of Blacks and 

Latinos and certain minority communities in New York State (fifth claim); the First Amendment (sixth 

claim); and Customary International Law (seventh claim).

STANDARD OF REVIEW

To prevail on their Motion For Judgment On The Pleadings dismissing plaintiffs’ claims 

asserting civil rights violations, defendants must show this Court that there is simply no set of facts that 

could support those claims.

The standard for evaluating defendants’ Rule 12(c) motion is identical to that of a 12(b)(6) 

Motion for Failure to State a Claim. See Patel v. Contemporary Classics of Beverly Hills. 259 F,3d 

123, 126 (2d Cir. 2001) (citing Insh Lesbian and Gav Org. v. Giuliani. 143 F.3d 638, 644 (2d Cir. 

1998); see also Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994); Ad-Hoc Comm, of Baruch 

Black & Hispanic Alumni Ass'n v. Bernard M. Baruch Coll.. 835 F.2d 980, 982 (2d Cir. 1987)). As 

with a 12(b)(6) motion, a court evaluating a Rule 12(c) motion must read a plaintiff’s complaint 

generously, accepting as true all of the allegations in the complaint, and drawing all reasonable 

inferences in the non-moving party’s favor. See Patel, 259 F.3d at 126; Irish Lesbian and Gay Org. 

143 F.3d at 644. A court will not dismiss a case on a Rule 12(c) motion unless “it appears beyond a 

reasonable doubt that the plaintiff can prove no set of facts in support of [his] claim which would 

entitle him to relief.” Irish Lesbian and Gav Org., 143 F.3d at 644 (quoting Sheppard. 18 F.3d at 150);

- 3 -



See also Stevens v. Goord. No. 99 Civ. 11669, 2003 U.S. Dist. LEXIS 10118. at *9 n.6 (S.D.N.Y. June

16, 2003).2

Thus, in considering a Rule 12(c) motion, the trial court “is merely to assess the legal feasibility 

of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” 

United States v. West Productions. Ltd.. No. 95 Civ. 1424, 1997 U.S. Dist. LEXIS 313, *3 (S.D.N.Y. 

Jan. 17, 1997) (quoting Giesler v, Petrocelli. 616 F.2d 636, 639 (2d Cir. 1980)). Indeed. “[t]he issue is 

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

to support the claims.” Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

The Second Circuit requires that courts apply this already demanding standard for prevailing on 

a Rule 12(c) motion with “particular strictness when the plaintiff complains of a civil rights violation.” 

Irish Lesbian and Gav Ore., 143 F.3d at 644 (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 

1991)). As the Second Circuit long-ago noted in Escalera v. New York City Hous. Auth., 425 F.2d 

853 (2d Cir. 1970), “[a]n action, especially under the Civil Rights Act, should not be dismissed at the 

pleadings stage unless it appears to a certainty that plaintiffs are entitled to no relief under any state of 

the facts, which could be proved in support of their claims.” 425 F.2d at 857 (emphasis added) (citing 

Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Bames v. Memtt, 

376 F.2d 8 (5th Cir. 1967); York v. Story,' 324 F.2d 450, 453 (9th Cir. 1963), 2A Moore, Federal 

Practice para. 12.08, at 2271-74 (2d ed. 1968)); see also Shechter v. Comptroller of the City of New 

York. 79 F.3d 265, 270 (2d Cir. 1996) (noting that courts must draw all reasonable inferences in favor 

of the non-moving party on a Rule 12(c) motion, and this standard is applied with “particular strictness

See also Maher v. Runvon. No. 94 Civ. 5052, 1996 U.S. Dist. LEXIS 642, at *8 (S.D.N.Y. Jan. 24. 1996) (citing 
General Electric Capital Corp. v. Domino's Pizza. Inc.. No. 93 Civ. 5070, 1994 U.S. Dist. LEXIS 7277, at *3 
(S.D.N.Y. June 2. 1994) (“When entertaining a Rule 12(c) motion, a court may consider only the factual 
allegations of the complaint, which are taken as true; any documents attached to the complaint as exhibits or 
incorporated by reference, and any matters of which judicial notice may be taken.”).

- 4  -



when the plaintiff complains of a civil rights violation”)(mtemal citations and quotations omitted): 

Dwver v. Regan, 777 F.2d 825, 829 (2d Cir. 1985) (same).

Thus, in order to prevail on their Motion For Judgment On The Pleadings, defendants must 

satisfy a rigorous and exacting standard.

ARGUMENT

I.

RICHARDSON V. RAMIREZ DOES NOT 
DISPOSE OF PLAINTIFF'S CONSTITUTIONAL CLAIMS

Defendants argue that the Supreme Court’s decision in Richardson v. Ramirez, 418 U.S. 24 

(1974), “disposes all of the constitutional claims in this action.” Defs.’ Mot. at 8. Defendants 

characterization of Richardson’s holding, however, is grossly overstated. Indeed, the Court's decision 

in Richardson left open the issues raised here by plaintiffs’ Equal Protection, Due Process and other 

Constitutional claims.

In Richardson, the Supreme Court examined the particular question of whether the Equal 

Protection Clause, § 1 of the Fourteenth Amendment, prohibited California’s felon disfranchisement 

scheme in light of § 2 of the same Amendment, which appeared to sanction such laws. Richardson, 

418 U.S. at 27. The Court held that § 2 of the Fourteenth Amendment allows states to exclude from 

the franchise convicted felons, notwithstanding § l ’s requirement that “no state shall . . . deny to any 

person within its jurisdiction the equal protection of the law's.” U.S. Const. Amend. XIV, § 1. The 

Court looked at the Fourteenth Amendment as a whole, stating that Ҥ 1, in dealing with voting rights 

as it does, could not have been meant to bar outright a form of disenfranchisement which was 

expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for 

other forms of disenfranchisement.” Richardson, 418 U.S. at 55. The Court concluded that § 2 is “as

much a part of the Amendment as any of the other sections.” Id.

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

disfranchisement provisions: indeed it did not even close the door on Equal Protection challenges. The 

Supreme Court's own decision make this plain. Nearly a decade after deciding Richardson, the Court 

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

disfranchisement provision with discriminatory intent, and therefore in violation of the Equal 

Protection Clause, on grounds that § 2’s authorization of state disfranchisement laws did not permit 

purposeful discrimination. Hunter, 471 U.S. at 233. Thus, Richardson clearly was not the last word on 

Constitutional challenges to felon disfranchisement provisions.

Recognizing Hunter, defendants attempt to shoehorn all of plaintiffs’ non-intentional 

discrimination claims into Richardson's narrow holding, expanding Richardson to stand for the 

proposition that felon disfranchisement restrictions are never subject to a heightened level of scrutiny, 

unless the felon disfranchisement provision involves a suspect class. Defs.’ Mot. at 45. Yet. the Court 

in Richardson did not address the issues raised by plaintiffs in this case. Specifically, the Court did not 

address whether states and election officials, when enacting and implementing felon disfranchisement 

provisions, may chose among disqualifying crimes and individuals in a way that violates the 

Constitution. Indeed, Hunter struck down race-based classifications. Hunter. 471 U.S. at 232-33. 

Moreover, the Richardson Court noted that it was leaving 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.” Richardson, 418 U.S. at 56. Thus, plaintiffs 

may challenge a state’s scheme for choosing which convicted felons to disfranchise. That is precisely 

what plaintiffs here seek to do; plaintiffs’ First and Second claims for relief allege that defendants have 

maintained and administered a non-uniform practice of disfranchising persons convicted of a felony 

under the laws of New York, whereby persons convicted of a felony who receive a suspended or

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commuted sentence or are sentenced to probation or conditional or unconditional discharge are 

permitted to vote while persons convicted of a felony who are sentenced to incarceration are not. 

Amended Complaint fj[ 79, 82. Richardson simply does not dispose of these claims.

Likewise, though defendants acknowledge that “the Richardson Court did not address . . . 

directly” a Fifteenth Amendment claim, they nevertheless attempt to dismiss plaintiffs’ Fifteenth 

Amendment claim on the basis that the Fourteenth Amendment's limited sanction of felon 

disfranchisement provisions bars any claim under that amendment as well. Defs.’ Mot. at 18. Again, 

Richardson cannot be read so broadly, and plaintiffs’ Fifteenth Amendment claim must be dealt with 

on its merits, as plaintiffs do herein.

II.

PLAINTIFFS’ AMENDED COMPLAINT SUFFICIENTLY ALLEGES A CLAIM FOR 
INTENTIONAL DISCRIMINATION UNDER THE EQUAL PROTECTION CLAUSE 

OF THE FOURTEENTH AMENDMENT AND UNDER THE FIFTEENTH AMENDMENT

Defendants contend that because New York’s facially neutral felon disfranchisement provision 

is not motivated by a discriminatory purpose, plaintiffs fail to state a claim for violation of the Equal 

Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment. Defs.’ Mot. at 10-11. 

Defendants’ argument is not only factually erroneous, as it simply fails to address the reality of New 

York's long history of intentional discrimination against Blacks in voting, but it also relies on a 

misstatement of established legal principle. To survive a Rule 12(c) motion plaintiffs need only state 

facts, which taken as true, would entitle them to relief under a particular claim. See Patel, 259 F.3d at 

126. In this case, plaintiffs assert that New York’s extensive history of intentional racial 

discrimination in voting dates back to its Constitution in 1777 and spans more than a century. During 

this time, delegates to Constitutional Conventions and legislators purposefully erected barriers, 

including the enactment of a felon disqualification statute, that were intended to, and have had the

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effect of, disfranchising Blacks and other racial minorities. These allegations, taken as true, 

sufficiently state the basis for this Court to find a violation of the Equal Protection Clause ot the 

Fourteenth Amendment and the Fifteenth Amendment.

A. The Amended Complaint Contains Facts Sufficient To Satisfy The
Standard for Alleging Discriminatory Intent Under the Equal Protection 
Clause of the Fourteenth Amendment as Articulated bv the Supreme Court.

Defendants seek to heighten the standard for alleging intentional discrimination under the 

Equal Protection Clause of the Fourteenth Amendment. When presented with a facially neutral state 

law that produces disproportionate effects along racial lines, the Supreme Court requires courts to 

apply the test outlined in Village of Arlington Heights v. Metro. Hous. Dev. Corp.. 429 U.S. 252 

(1977), to determine whether the law violates the Equal Protection Clause of the Fourteenth 

Amendment. See Hunter, 471 U.S. at 228. In Arlington Heights, the Supreme Court held that 

although “[disproportionate impact is not irrelevant,” proof of “racially discriminatory intent or 

purpose is required to show a violation of the Equal Protection Clause.” 429 U.S. at 264-265 (quoting 

Washington v. Davis, 426 U.S. 229, 242 (1976)). However, “once racial discrimination is shown to 

have been a ‘substantial' or ‘motivating’ factor behind enactment of the law, the burden shifts to the 

law’s defenders to demonstrate that the law would have been enacted without this factor.” Hunter, 471 

U.S. 227 (citing Mt. Healthy Citv Board of Education v. Dovle. 429 U.S. 274. 287 (1977)).

Determining whether invidious discriminatory purpose was a motivating factor behind an 

official action “demands a sensitive inquiry into such circumstantial and direct evidence of intent as 

may be available.” Arlington Heights, 429 U.S. at 266. Accordingly, as evidence of intent courts may 

consider, among other things, whether the impact of an action bears more heavily on one race than 

another, the historical background of an official decision, and the legislative or administrative history



of an official action, particularly where there are statements by members of the decision-making body. 

See Id. at 266-67 (quoting Washington. 426 U.S. at 242). ,

In this case, the Amended Complaint sufficiently alleges that New York's restrictions on felon 

voting were enacted with the intent to discriminate against “persons incarcerated and on parole for a 

felony conviction ... on account of their race” in violation of the Equal Protection Clause of the 

Fourteenth and the Fifteenth Amendment. See Amended Complaint, ffl 85-86. To substantiate the 

allegations in the Amended Complaint that an invidious purpose was a motivating factor in the 

enactment of New York’s felon voting restrictions, plaintiffs utilize the available historical background 

and legislative history of the restrictions. Additionally, plaintiffs point to the fact that the impact of the 

action bears more heavily on Blacks and Latinos than on whites. See Arlington Heights, 429 U.S. at 

266-268.

In a further attempt to raise the Rule 12(c) standard, defendants compare the claims made by 

plaintiffs in the Amended Complaint with the “convincing direct evidence" available to plaintiffs in 

Hunter. Defs.’ Mot. at 10; see Hunter. 471 U.S. at 229-231. In that case, the Supreme Court 

invalidated a 1901 provision of the Alabama Constitution that disfranchised persons based on 

convincing direct evidence that the State had enacted the provision for the purpose of disfranchising 

Blacks. Id. Defendants’ comparison, however, is improper.

The issue is not whether plaintiffs will ultimately prevail, but whether plaintiffs are “entitled to 

offer' evidence to support the claims in the Amended Complaint. Id. (emphasis added). Thus, 

plaintiffs are not required to produce evidence, direct or otherwise, as defendants suggest here. Rather, 

plaintiffs are required to, and indeed do, sufficiently allege that New York practiced unlawful

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discrimination in violation of the Fourteenth and Fifteenth Amendments and the Supreme Court's

rulings in Arlington Heights and Hunter.J

1. New York's extensive history of intentional racial 
discrimination in voting dates as far back as the 
State's provisional constitution regarding suffrage.

Defendants assert that plaintiffs “fail to state a claim upon which relief can be granted because 

the Amended Complaint stops short of asserting that any New York constitution since 1777 

intentionally discriminated against [Bjlacks convicted of crimes,” and that the Amended Complaint 

only contains a single conclusion “that [a] State felon disqualification statute was enacted with an 

intention to discriminate against [Bjlacks.” Defs.’ Mot. at 9-10. On the contrary, plaintiffs’ Amended 

Complaint asserts throughout that New York’s extensive history of intentional racial discrimination in 

voting dates as far back as New York’s Constitution in 1777 and spans more than 100 years, during 

which time delegates to Constitutional Conventions and legislators purposefully erected barriers 

intended to prevent Blacks from voting, culminating in the development and enactment of a felon 

disqualification statute, that were intended to, and have had the effect of, disproportionately 

disfranchising Blacks and other racial minorities. Amended Complaint, 41-42, 43-46, 51-52, 57.

(a) New York State Constitution. 1777

The Amended Complaint asserts that the framers of the New York State Constitution in 1777 

intentionally excluded minorities from the polls by limiting suffrage to property holders and free men. 

Amended Complaint, % 43 (citing N.Y. Const, art. VII) (repealed 1826)). Not surprisingly, these

Although Rule 12(c) does not require plaintiffs at this stage of the litigation to provide an exhaustive history of 
New York's intentional discrimination against Blacks, and the allegations contained in the Amended Complaint 
sufficiently state the basis for this Court to find a violation of the Equal Protection Clause of the Fourteenth 
Amendment and the Fifteenth Amendment, plaintiffs here provide additional historical information to highlight the 
context in which New York's felon disfranchisement laws were enacted.

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voting requirements disproportionate]}' disfranchised Blacks, most of w hom  were neither property 

holders nor free men.

Defendants respond by stating that “the Amended Complaint recognizes that the constitution of 

1777 did not restrict voting on the part of criminals.” Defs.’ Mot. at 11. Defendants fail to recognize, 

however, that a restriction specifically disqualifying criminals from voting would have been 

unnecessary, and indeed redundant, as the goal of disfranchising Black voters was adequately 

accomplished by the limitations contained in the 1777 New York State Constitution. Moreover, 

defendants’ focus on the absence of specific language excluding criminals from voting is a distraction 

from the real issue: that the framers of New Y'ork’s Constitution crafted a document that intentionally 

excluded Blacks and other racial minorities from democratic participation in general, and suffrage in 

particular, solely on the basis of their color. Amended Complaint, f f  42-43.

In 1801 the legislature removed all property restrictions from the suffrage requirements for the 

election of delegates to New York’s first Constitutional Convention. Id. at f  45. However, to ensure 

that this act would not extend the vote to Blacks, the legislature expressly excluded Blacks from 

participating in this election. Id.

(b) New York Constitutional Convention of 1821

The historical origin of the felon disfranchisement provisions at issue here trace their roots to 

the Constitutional Convention of 1821 — a convention dominated by racist invective.

At the New York Constitutional Convention of 1821, the question of Black suffrage sparked 

heated discussions, during which delegates expressed their views that Blacks, as a “degraded” people, 

and by virtue of their natural inferiority, were unfit to participate in civil society. Nathanial Carter, 

William Stone, and Marcus Gould. Reports of the Proceedings and Debates of the Convention of 1821, 

198 (Albany: E. & E. Hosford. 1821) (hereafter “Debates of 1821”). Based on their belief in Blacks’

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unfitness for democratic participation, the delegates crafted new voting requirements that were aimed 

at stripping Black citizens of their previously held, although severely restricted, right to vote. 

Amended Complaint, ‘jj 47.

The delegates’ efforts to disfranchise Black voters were successful, as only 298 of 

approximately 29,701, or 1% of the Black population, met these new requirements. As an additional 

barrier to voting, Blacks were required to possess a freehold estate worth $250 for the year preceding 

any election. Id. N.Y. Const. (1821), art. II, § 1 (repealed in 1870). The delegates' expressed 

justification for the property requirement demonstrates that the voting condition was not designed to 

limit the franchise to the propertied classes. Rather, as articulated by one delegate at the 1821 

Constitutional Convention, the property qualification “was an attempt to do a thing indirectly which 

we appeared either to be ashamed of doing, or for some reason chose not to do directly... This freehold 

qualification is [for Blacks] a practical exclusion [from the franchise].” New York State Constitutional 

Convention Committee, Problems Relating to Home Rule and Local Government, 143 n.13 (Albany, 

NY: J.B. Lyon Company, 1938) (hereafter “Home Rule”).5 With respect to the property requirement 

for Blacks, a subsequent constitutional convention committee noted that “[the property qualification] 

was retained [for Blacks] ... not in the belief that ownership of property was a proper criterion of the 

right to vote. That retention was merely a subterfuge for keeping suffrage from the Negro.” Home 

Rule, 161.

Heightening the requirements for Black voters previously outlined in the New York State Constitution of 1777, 
delegates to the New York Constitutional Convention of 1821 required that Black males be citizens of New York 
for three years while whites were only required to be “inhabitants” for one year. N.Y. Const. (1821), art. II, § 1 
(repealed in 1870). Moreover, as an additional barrier to voting. Blacks were required to possess a freehold estate 
worth S250 for the year preceding any election. Id.

In fact, in an 1826 amendment to the Constitution. New York formally abolished all property requirements for 
white male suffrage, "except to "persons of color.'” Home Rule. 160 (quoting The Committee on State Legislation 
of AJBCNY, 1935 Bulletin, No. 231).

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New York's intentional discrimination against Blacks culminated in art. II, § 2, a new provision 

in the Constitution of 1821, which further restricted the suffrage of Blacks by permitting the state 

legislature to disfranchise persons “who have been, or may be. convicted of infamous crimes." 

Amended Complaint, <f 49; See N.Y. Const. (1821), art. II, § 2. The historical record suggests that art. 

II. § 2 was adopted for an invidious purposes.6 The language of the delegates themselves makes clear 

that N.Y. Const. (1821), art. II, § 2 was created to serve the same purposes as the heightened 

citizenship and onerous property requirements placed on Blacks: it was enacted to disfranchise

Blacks. For instance, one delegate warned his colleagues to “[l]ook to your jails and penitentiaries. 

By whom are they filled? By the very race, whom it is now' proposed to cloth wnth pow'er of deciding 

upon your political rights.” Debates of 1821. 191. Another delegate urged the convention to “{sjurvey 

your prisons — your alms houses — your bridewells and your penitenciaries and w'hat a darkening 

host meets your eye! More than one-third of the convicts and felons which those walls enclose, are of 

your sable population.” Id. at 199. As is made manifest by their own language, the delegates not only 

understood that enacting art. II, § 2 would result in the disproportionate disfranchisement of the 

“sable” or Black population, but actually intended to bring about that result to prevent Blacks from 

affecting w'hites’ political power. One delegate expressed that it was necessary to exclude Blacks from 

any “footing of equality in the right of voting,” and reasoned that “[Blacks] are a peculiar people, 

incapable ... of exercising the privilege w'ith any sort of discretion, prudence, or independence. They 

have no just concepts of civil liberty. They know not how' to appreciate it. and are consequently 

indifferent to its preservation.” Id. at 180. Another delegate summed up the goals of the delegates to

Even a subsequent constitutional committee was unable to discern any reason for its insertion or locate evidence of 
hearings, debates, or committee discussions on the new provision. Home Rule. 173. According to a report 
published by the constitutional convention committee of 1938. the felon disfranchisement provision of 1821 was 
adopted "apparently with a complete lack of preliminaries.” Id.

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the 1821 Constitutional Convention by stating that “all w ho are not white ought to be excluded from 

political rights.” Id. at 183.

Defendants’ claim that “[plaintiffs’ historical account ignores the fact that, at the same time, 

the People of the State of New York, and their Legislature, were busy abolishing slavery," Defs.' Mot. 

at 12 n.3, is not substantiated by New York’s social and political landscape at that time. The delegates 

to the convention of 1821 saw no incongruity in abolishing slavery in New York while at the same 

time barring Blacks from voting. In fact, in the debates over extending access to the franchise to 

Blacks, one delegate commented that “this exclusion [from the ballot] invades no inherent rights, nor 

has it any connection at all with the question of slavery.” Debates of 1821, 181.

(c) New York Constitutional Convention of 1846

The question of Black suffrage continued to spark heated debates at the New York 

Constitutional Convention of 1846, where delegates accepted that “prejudice against the Negro” was 

not only accepted, but was desirable. Home Rule. 144. Advocating for the denial of equal suffrage to 

Blacks, delegates continued to make explicit statements regarding Blacks’ unfitness for suffrage, 

including one delegate’s assertion that “[Blacks] were an inferior race to whites, and would always 

remain so.” Constitutional Convention of 1846, Debates of 1846, 1033 (hereafter “Debates of 1846”).

Felon disfranchisement was further solidified at the Convention of 1846. Amended Complaint, 

][ 52.' When re-enacting the felon disfranchisement provision while specifically including “any 

infamous crime” in the category of convictions that would disqualify voters, the delegates were acutely

As amended, the relevant constitutional provision stated: “Laws may be passed excluding from the right of
suffrage all persons who have been or may be convicted of bribery, of larceny, or of any infamous crime; and for 
depriving every person who shall make, or become directly or indirectly interested in any bet or wager depending 
upon the result of any election, from the right to vote at such election.’' Amended Complaint. 1 52.; See N.Y. 
Const, art. il, § 2 (amended 1984)(emphasis added).

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aware that these restrictions would have a discriminatory impact on Blacks. Amended Complaint, at 'I

53.

In one portentous reflection on the inherent injustice to w hich this action is directed, during the 

debates about whether to extend equal suffrage rights to Blacks at the 1846 Constitutional Convention, 

one delegate declared that the proportion of “infamous crime" in the minority population was more

o
than thirteen times that in the white population. Debates of 1846. 1033.

(d) New York Constitutional Convention of 1866-67

At the New York Constitutional Convention of 1866-67, the delegates determined, after 

engaging in heated debates regarding whether to eliminate the discriminatory property qualification for 

Blacks, that if Blacks w-ere ever to be afforded equal voting rights, “it must be done by the direct and 

explicit vote [via a referendum] of the electors. We are foreclosed from any other course by the 

repeated action of the State.” Documents of the Convention of the State of New' York, 1867-1868, 

No. 16, 3, Volume One. Albany: Weed, Pearsons and Company, 1868 (hereafter “Documents”).

That the electorate voted largely against this measure (to afford Blacks equal voting rights), 

however, did not at all surprise the delegates, since the electorate had previously and consistently voted 

against similar referendums regarding voting rights for Blacks.9 Indeed, as the delegates knew, asking 

the electorate to determine w'hether Blacks should receive equal voting rights w'as the functional 

equivalent of the delegates and Legislature answering that question negatively themselves. In 

elevating the “popular will” above the voting rights of Blacks, the delegates of New York’s

Moreover, the delegates to the convention were well aware of. and even admired, the success of other slaveholding 
state legislatures in excluding Blacks from the ballot. As one delegate suggested to the convention, “in nearly all 
the western and southern states ... the [BJlacks are excluded . ..would it not be well to listen to the decisive weight 
of precedents furnished in this case also?’’ Debates of 1846. 181.

For instance, an 1846 referendum to extend the universal franchise to Blacks failed by a vote of 85.306 to 223,884. 
In 1850, the reintroduced referendum failed by a vote of 197.503 to 337,984. Documents, No. 16, 3, Volume One.

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Constitutional Convention o f  1866-67 made it c lear that an equal opportunity for Blacks to vote would 

be unavailable because the “convictions of the m am  body of the constituency"’ w ould  not permit it.

New York’s explicitly race-discriminatory suffrage requirements were in place until voided tn 

1870 by the adoption of the Fifteenth Amendment to the United States Constitution. Amended 

Complaint, f  55; See U.S. Const, amend. XV. However, two years after the passage of the Fifteenth 

Amendment,10 an unprecedented committee convened and amended the disfranchisement provision in 

New York to require the state legislature, at its following session, to enact law's excluding persons 

convicted of infamous crimes from the right to vote.11 Amended Complaint, f  56; See N.Y. Const, art. 

II, § 2 (amended 1894). Until that point, the enactment of such laws had been permissive. Amended 

Complaint, f  56.

Defendants’ claim that this amendment to the disfranchisement provision is “meaningless” 

because “persons convicted of ‘infamous crimes’ had been disqualified from voting for fifty years” 

pursuant to N.Y. Laws of 1822, c. CCL, § XXV, Defs.’ Mot. at 14. is unpersuasive. Prior to the 

passage of the amendment to the disfranchisement provision, the Legislature was not required to enact 

felon disqualification laws, and could in fact choose not to (if it were later determined, for example, 

that such laws had been written into the state Constitution by delegates w'bo were — as here — 

motivated by an unlawful discriminatory purpose). The committee’s removal of discretion from the 

Legislature here is significant in light of the timing of the meeting (shortly after the passage of the 

Fifteenth Amendment), the expressed intentions of many of the delegates at prior constitutional

New York initially ratified the Fifteenth Amendment but later withdrew its ratification. Cong. Globe, 41st Cong.. 
2d Sess. at 1447-81.

This is a significant factor under Arlington Heights, where the Supreme Court held that the historical background 
of an official decision is evidence of intent that courts may consider when determining whether an invidious 
discriminatory purpose was a motivating factor behind an official action. Arlington Heights. 429 U.S. at 266-67.

- 16 -



conventions to deprive Blacks o f  the right to vote, and their clear intention for felon disqualification 

provisions to accomplish that purpose.

(e) New York Constitutional Convention of 1894

In 1894, at the New York Constitutional Convention following this amendment, the delegates 

permanently abandoned the permissive language and adopted a constitutional requirement that the 

legislature enact disfranchisement law's. Amended Complaint, ‘f 57. As amended, the provision stated 

that “[t]he legislature shall enact laws excluding from the right of suffrage all persons convicted of 

bribery or of any infamous crime.” Id.; See N.Y. Const, art. II, § 2 (emphasis added).1" This is the 

language of the Constitution (originally created in 1821) pursuant to which § 5-106(2) of the New 

York State Election Law was enacted and under which persons incarcerated and on parole for felony 

convictions are presently disfranchised in New York. Id.

Defendants claim that the Legislature did not in fact enact such laws and that the felon 

disqualification lapsed in 1896. Defs.’ Mot. at 15. “If there w'as any discriminatory intent before 

1896,” defendants allege, “that year’s lapse in felon voting disqualification broke the chain.” Id. 

First, defendants’ suggestion that the felon disqualification lapse w'as an attempt by the Legislature to 

cure any discriminatory intent before 1896 (which defendants disavow) would clearly be inconsistent 

w'ith its past intentional and numerous attempts to exclude Blacks from voting.1'’ Rather, the felon

In New York's Constitutional Convention of 1938, Article II, § 2 of the New York Constitution of 1894 became 
Article II, § 3. See N.Y. Const, art II. § 3.

ln addition to defendants’ claim that the Legislature failed to enforce voter disfranchisement laws at the close of 
the nineteenth century, defendants also allege that § 34(2) of Chapter 909 “provided for registering to vote and 
voting from State prison.” Defs.' Mot. at 15 (emphasis added). The relevant provision from chapter 909 of N.Y. 
Laws of 1896 states:

For the purpose of registering and voting no person shall be deemed to have gained or lost a residence, by 
reason of his presence of absence.. .while confined in any public prison.

N.Y. Laws of 1896. c. 909, § 34(2).

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disqualification lapse in 1896 appears to be more a product of the Legislature's carelessness than its 

desire to remedy the effects of past discrimination, as evidenced by the fact that the Legislature was 

required to enact such laws and indeed five years later, through N.Y. Laws of 1901, c. 654, § 2, did 

reinstate a felon voting disqualification. Defs.’ Mot. at 15; See N.Y. Laws of 1901. c. 654, § 2.

Moreover, defendants' notion that the mere passage of time cleanses legislation of the invidious 

intent behind its original passage is equally unpersuasive, and, in fact, was rejected by the Supreme 

Court in Hunter. Hunter, 471 U.S at 232-34. In that case, the Supreme Court found that “events 

occurring m the succeeding 80 years’- since the law was adopted did not cure it of its original 

discriminatory purpose, particularly because the law had an immediate disparate impact on Black 

voters when it was enacted, which earned on into the present day. Id. at 232-33. In fact, the Supreme 

Court upheld the 11th Circuit’s ruling that although the current administrators of the law acted in “good 

faith” in administenng the statute without reference to race, “neither impartiality nor the passage of 

time ... can render immune a purposefully discriminatory scheme whose invidious effects still 

reverberate today.” Underwood v. Hunter. 730 F.2d 614, 621 (11th Cir. 1984)), aff’d. Hunter v. 

Underwood. 471 U.S. 222 (1985).

2. The allegations contained in the Amended
Complaint are more detailed and specific than 
the allegations in the complaint submitted in Hunter.

Defendants devote several paragraphs to their attempt to distinguish plaintiffs’ allegations from 

those accepted by the Supreme Court in Hunter by distinguishing New York Constitutional

Significantly, the language of § 34(2) does not mandate or even permit felons to register to vote from prison or to 
vote at all for that matter. It merely ensures that if incarcerated citizens were ever permitted to vote, they could not 
cast ballots in the localities in which prisons were located. Moreover, defendants’ interpretation of § 34(2) in this 
way directly contradicts the mandatory disqualification provision of the N.Y. Constitution in place at that time, 
which required that “(t)he legislature shall enact laws excluding from the right of suffrage all persons convicted of 
bribery or of any infamous crime.” N.Y. Const, of 1894. art. II § 2.

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Conventions from the Alabama Constitutional Convention of 1901, where the President of the 

Convention, in his opening address, stated his desire “[t]o establish white supremacy in this State,” 

Defs.’ Mot. at 11 (quoting Hunter, 471 U.S. at 229). Defendants conclude by suggesting that unlike 

the State of Alabama, New York has never enacted any provision for the purpose of disfranchising 

Blacks. Id. at 10-11.

First, the allegations contained in the Amended Complaint are, in fact, more detailed and 

specific than those contained in the Complaint in Hunter. In Hunter, the Supreme Court relied on a 

number of historical factors presented to the District Court as evidence of a Alabama’s discriminatory 

intent, including the racial composition of members of the convention that enacted the bill, comments 

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

part of a movement to disfranchise Blacks, evidence that the crimes selected for inclusion in the 

provision were more commonly committed by Blacks, and witness testimony that the provision had an 

immediate and predictable disparate impact on Black voters. Hunter, 471 U.S at 224-30. Although 

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

Hunter and the 11th Circuit, Underwood v. Hunter, 730 F.2d 614 (1 l !h Cir. 1984), none of these factors 

were mentioned in the original Complaint filed by plaintiffs in the case. See Complaint, Underwood v. 

Hunter, CA78 Mo704S (filed June 21, 1978)14 (annexed as Exhibit A to Haygood Affirmation, 

September 9, 2003).

In contrast, the Amended Complaint in this case reveals a historical pattern of discrimination 

by New York intended to disfranchise Black voters. See Amended Complaint. 'H 39-57. The historical 

development of New York's felon disfranchisement laws in the Amended Compliant is not embodied

It is important to note here, however, that this is evidence that must be developed through discovery, including 
expert testimony, and is not required to be proven or alleged in exhaustive detail by plaintiffs at this stage in the 
litigation. Plaintiffs here should be afforded an opportunity to develop their case as plaintiffs were in Hunter.



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

disfranchising Blacks that spanned the course of more than 100 years. Id. at f !  43. 45-46. 51-52. 57. 

As a result, plaintiffs’ Amended Complaint clearly alleges Equal Protection and Fifteenth Amendment 

claims in a way that is consistent with the Supreme Court's holding in Hunter. Second, defendants' 

assertion that unlike Alabama, New' York has never enacted any provision for the purpose of 

disfranchising Blacks completely ignores New York’s history. See supra pp. 7-20.

Not surprisingly, New York's felon disqualification statutes, as intended, have had a 

predictable and lasting impact on Blacks.15 Today, 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. Amended Complaint, f  66. Collectively Blacks and Latinos make up 

86% of the total current prison population and 82% of the total current parolee population in New 

York State, while they approximate only 31% of New York’s overall population. Id. at ^ 64.

As a result, nearly 52% of those currently denied the right to vote pursuant to New' York State 

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

Latinos comprise nearly 87% of those currently dented the right to vote pursuant to New York State 

Election Law § 5-106(2). Id.

In sum, the Amended Complaint sufficiently alleges a claim for intentional discrimination 

under the Equal Protection Clause of the Fourteenth Amendment and under the Fifteenth Amendment.

Plaintiffs' allegations regarding § 5-106(2)'s disparate impact on Blacks and Latinos are also outlined in the 
Amended Complaint at 61-68.

- 20-



III.

THE AMENDED COMPLAINT SUFFICIENTLY STATES A CLAIM THAT 
DEFENDANTS’ NON-UNIFORM PRACTICES DISFRANCHISING PERSONS

CONVICTED OF A FELONY VIOLATE THE EQUAL PROTECTION CLAUSE

In support of this claim, plaintiffs assert that New York’s non-uniform practices of 

disfranchising only those felons sentenced to incarceration or serving parole are neither compelling nor 

rational. These allegations, taken as true, sufficiently state the basis for a violation of the Equal 

Protection Clause of the Fourteenth Amendment.

A. The Application Of Strict Scrutiny Is Appropriate Here.

Defendants claim that the Supreme Court’s decision in Richardson “disposes all of the 

constitutional claims in this action,” Defs.’ Mot. at 8, and attempt to expand Richardson’s narrow 

holding to stand for the proposition that felon disfranchisement restrictions are never subject to 

heightened scrutiny, unless the felon disfranchisement provision involves a suspect class. Id. at 45. In 

reality, however, the Court in Richardson did not preclude the application of strict scrutiny to felon 

disfranchisement cases. See Richardson. 418 U.S. at 56. Neither did the Court specifically address the 

issues raised by plaintiffs in this case: whether states, when enacting and implementing felon

disfranchisement statutes, may choose to disqualify felons from voting in a manner that violates the 

Constitution. Id.

Here. § 5-106(2)’s distinction among felons, that disqualifies from voting only those felons 

sentenced to incarceration and serving parole, violates the Equal Protection Clause of the Fourteenth 

Amendment, see Amended Complaint, f l  79-80. The Equal Protection Clause requires that all persons 

who are similarly situated be treated alike. Citv of Clebume v. Clebume Living Ctr., Inc., 473 U.S. 

432. 439 (1985). The “threshold question” in an equal protection challenge “is the appropriate level of 

scrutiny to be applied.” Beniamin v. Jacobson. 124 F.3d 162. 174 (2d Cir. 1997). In addressing the

- 21 -



“threshold question,” the Supreme Court has held that a statute is subjected to heightened scrutiny 

when it “burdens a fundamental right.” Id. Clearly, as noted by the Supreme Court, “voting is of the 

most fundamental significance under our constitutional structure. Burdick v. Takushi, 504 U.S. 42S, 

433 (1992); Dunn v. Blumstem, 405 U.S. 330, 336 (1972) (stating that “before the right (to vote) can 

be restricted, the purpose of the restriction and the asserted overriding interests served by it must meet 

close constitutional scrutiny”); Reynolds v. Sims, 377 U.S. 533, 562 (1964) (stating that by denying 

some citizens the nght to vote, durational residence requirements deprive them of “a fundamental 

political right, ... preservative of all rights”) (quoting Yick Wo v. Hopkms. 118 U.S. 356, 370 (1886)). 

Accordingly, the rigorousness of a Court’s inquiry into the propriety of a state election law depends 

upon the extent to which the challenged regulation burdens Fourteenth Amendment rights. Burdick, 

504 U.S. at 434 (1992). Thus, when Fourteenth Amendment rights are “subjected to ‘severe’ 

restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling 

importance.’” Id. (quoting Norman v. Reed, 502 U.S. 279 (1992)).

In this case. New' York’s application of § 5-106(2) constitutes more than a severe restriction on 

— indeed it is an absolute denial o f— the voting rights of felons who are incarcerated and on parole, 

and thus triggers strict scrutiny under Burdick and Dunn. Accordingly, this Court must rigorously 

inquire into the propriety of New York’s felon disqualification statute and sustain it only if it concludes 

that the statute is narrowly drawn to advance a compelling New York State interest. Id. at 434; see 

also Dunn, 405 U.S. at 337 (concluding that “if a challenged statute grants the right to vote to some 

citizens and denies the franchise to others, ‘the Court must determine whether the exclusions are 

necessary to promote a compelling state interest’”)

Defendants proffer two explanations, neither of which are compelling, for the Legislature’s 

1973 amendment that helped to “clearly distinguish[] between felons sentenced to prison and paroled

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and felons not sentenced to prison upon conviction.” Defs.’ Mot. at 46-47. First, defendants claim 

that the original statute was too “ambiguous, in that it referred to felon's ‘maximum sentence’ and 

‘discharge from parole, but did not contain the term ‘imprisonment.’” Id. at 47. Second, defendants 

claim that the original statute contained a “mistake that needed to be corrected” because felons not 

sentenced to prison were disfranchised for the period during which a sentence could be revoked (which 

could be life), and felons who were sentenced to prison w'ere disfranchised for the period of the 

sentence (which could also be life). Id.

Although defendants offer reasons as to why the statutory language was altered, they offer 

absolutely no reason, much less a compelling reason, for the Legislature’s distinction among similarly 

situated felons. It is conceivable, indeed likely, that under New York’s current felon disqualification 

scheme, felons who are convicted of identical crimes can either continue to exercise'their right to vote 

(if sentenced to probation), or be disqualified from the franchise (if sentenced to incarceration and 

parole). This disparate treatment of convicted felons violates the Equal Protection Clause. City of 

Cleburne. 473 U.S. at 439; See also Williams v. Tavlor. 677 F.2d 510, 516 (5th Cir. 1982) (holding that 

states may not apply facially neutral statutes in a way that arbitrarily distinguishes among — and 

thereby denies equal protection to — groups of individuals who have committed a crime).

In this case, New' York State Election Law § 5-106(2) fails strict scrutiny analysis because 

defendants have failed to proffer any justification, much less a compelling one as required here, for 

treating similarly situated felons differently. Accordingly, the Amended Complaint has more than 

sufficiently alleged facts that state a claim under the Equal Protection Clause.

B. New York Election Law § 5-106(2) Fails Strict Scrutiny Analysis 
Because It Is Not Narrowly Tailored To The State's Interest.

Even if defendants provided a reason for distinguishing among felons, New York Election Law 

§ 5-106(2) violates the Equal Protection Clause because it is not narrowly drawn to advance a state

- 23 -



interest of compelling importance. As the Court in Dunn held, statutes affecting constitutional rights

must be precisely drawn, and tailored to serve their legitimate objectives. Dunn. 405 U.S. at 343 

(holding that Tennessee’s durational residence requirement was too crude and imprecise a 

classification because it excluded too many residents)(intemal quotations omitted). “If there are other, 

reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a 

State may not choose the way of greater interference.” Id.

Like the statute in Dunn. New York Election Law § 5-106(2) is not narrowly tailored. 

Specifically, under § 5-106(2) persons who are convicted of “bribery or of any infamous crime” and 

are sentenced to incarceration and parole are not permitted to vote, whereas their counterparts who 

have been pardoned, received a suspended or commuted sentence, or been sentenced to probation or 

conditional or unconditional discharge are permitted to vote. Amended Complaint, f  60. Accordingly, 

New York Election Law § 5-106(2) fails strict scrutiny analysis because it is far from narrowly drawn, 

and in fact was tailored in a way that excludes similarly situated citizens from voting, in contravention 

of the Court’s holding in Dunn.

The Amended Complaint sufficiently alleges an Equal Protection claim because defendants’ 

disparate treatment of similarly situated individuals is neither compelling nor narrowly tailored.

C. Even If Rational Basis Scrutiny Is Applied, New York Election Law
§ 5-106(2) Fails Constitutional Review Because It Is Irrational And Arbitrary.

In addition and in the alternative, the Amended Complaint has alleged sufficient facts for this 

Court to find, under rational basis review, that defendants’ practice of disfranchising similarly situated 

felons is irrational and arbitrary and therefore violates the Equal Protection Clause of the Fourteenth 

Amendment. See Amended Complaint, | |  59-60, 79-80. Under rational basis review-, statutes are 

granted a presumption of constitutionality unless no rational relationship exists between the “disparate 

treatment [caused by the state action] and a legitimate governmental purpose.” Benjamin, 124 F.3d at

- 24 -



175; see also Heller v. D o e . 509 U.S. 312, 320 (1993) (A Court under rational basis review will uphold 

a statute if it legitimately advances a reasonable and conceivable state goal.)

In this case, no rational relationship exists between defendants' non-uniform practices of 

disfranchising only incarcerated and paroled felons and a legitimate New' York purpose. Defendants 

proffer two explanations for the distinction among similarly situated felons: (I) the language of the 

statute prior to the 1973 amendment was too “ambiguous,” Defs.’ Mot. at 47; and (2) the original 

statute contained a “mistake that needed to be corrected” because both felons sentenced to prison and 

felons not sentenced to prison could be disfranchised for life. Id.

Neither of defendants’ explanations for the amendments to the original statute articulate a 

reason, much less a rationally related reason, for the Legislature’s distinction among felons. Instead, 

the amendments simply make distinguishing among felons easier, but do not address the underlying 

justification for the distinction. Indeed the idea itself (that felons convicted of identical crimes are 

either permitted to vote (if sentenced to probation) or disqualified from the franchise (if sentenced to 

incarceration and/or parole)) is completely irrational. See Stephens v. Yeomans, 327 F. Supp. 1182, 

1188 (D.N.J. 1970) (declaring that the statute disfranchising a subset of felons [e.g. defrauders, 

extorters, embezzlers, bribers of judges and legislators, and kidnappers] is unconstitutional because the 

classifications had no rational basis). Accordingly, § 5-106(2) fails rational basis review under 

Beniamin and Heller because defendants have failed to articulate a rational relationship -  or any 

relationship for that matter -  between the disparate treatment caused by the state action and a 

legitimate governmental purpose. Indeed, it is completely unclear what state goal -  legitimate or 

otherwise -  is advanced by the distinction made among felons that is contained § 5-106(2). See Heller, 

509 U.S. at 320. For these reasons, the Amended Complaint has sufficiently stated a claim under the 

Equal Protection Clause of the Fourteenth Amendment.

-25 -



IV.

THE AMENDED COMPLAINT SUFFICIENTLY STATES A FIRST AMENDMENT 
CLAIM ON BEHALF OF PERSONS WHO ARE INCARCERATED OR ON PAROLE

Defendants incorrectly claim that because “the Second Circuit has rejected a First Amendment 

challenge to New York's felon voting restrictions," plaintiffs fail to state a claim for violation of the 

First Amendment. Defs.’ Mot. at 26. Defendants’ argument relies on a misstatement of legal 

precedents. Here, plaintiffs assert that New York’s disfranchisement laws constitute a severe and 

unwarranted restriction on the right to vote that do not further any compelling state interests. 

Amended Complaint, 1 95. This allegation, taken as true, is sufficient to survive defendants' Rule 

12(c) motion.

A. New York’s Disfranchisement Laws Impose 
A Severe Restriction On The Right To Vote.

As citizens of the United States who are otherwise qualified to vote, New York’s 

disfranchisement laws impose a severe — indeed complete — restriction on plaintiffs' right to vote for 

the entire period of their incarceration and parole. See Amended Complaint, 'll 95. This is particularly 

true for felons sentenced to life imprisonment or lifetime parole. In addition to the named plaintiffs, 

New York's felon disfranchisement laws currently disqualify over 72.000 prisoners16 and nearly 

56,000 parolees.1' Of those disfranchised, 87% or nearly 110,000 are Black or Latino, Amended 

Complaint, 1 68, and are within plaintiffs' proposed class.

The Supreme Court has held that a prisoner “retains those First Amendment rights that are not 

inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections

The U.S. Census 2000 reported 72.535 prisoners in State and Federal prisons in New York. See
hitp://facttinder.census-eov.

The U.S. Department of Justice reports that there were 55.990 persons serving parole in New York State in
December 2002, Bureau of Justice Statistics, “Probation and Parole in the United States 2002," August 2003. NCJ
201135. www.oip.usdoj.uov/bis.

- 2 6 -

http://www.oip.usdoj.uov/bis


system .” Pell v. Procumer. 417 U.S. 817, 822 (1974) (upholding the constitutionality  of prison 

regulations that prohibited visits from the media). Balancing the interests of the state with the First 

Amendment rights of the prisoners, the Court in Pell noted that the state’s interests included 

deterrence, prevention, rehabilitation and internal security of the prison system. Pell. 417 U.S. at 823. 

Significantly, the Court paid special attention to the alternative forms of communications that were still 

available to prisoners before it upheld the visitation prohibitions. Id. at 823-824; See also Procunier v. 

Martinez. 416 U.S. 396 (1974)(invalidating prison regulations that censored prisoner mail on First 

Amendment grounds).

In this case, New York has disqualified plaintiffs from exercising core First Amendment rights 

that incarcerated and paroled felons should retain under Pell. As the states of Maine and Vermont have 

made clear, retaining basic First Amendment rights in general, and the right to vote in particular, is 

consistent with plaintiffs’ status as inmates and parolees and in no way hinders New York’s legitimate 

penological objectives. Moreover. New York’s disfranchisement statutes do not provide plaintiffs with 

an alternative means of voting, which is also significant under Pell.

Accordingly, plaintiffs have clearly stated facts, which taken as true, would entitle them to 

relief under this claim.

B. Defendants Erroneously Interpret Green and Richardson To Foreclose 
A First Amendment Challenge To Felon Disfranchisement Laws.

Defendants' improperly interpret Green v. Board of Elections. 380 F.2d 445 (2d. Cir. 1967), to 

“preclude a felon’s First Amendment claim such as plaintiffs allege here.” Defs.’ Mot. at 27. 

However, the court in Green did not address the First Amendment claims at issue in that case. In 

Green, the district court, after recognizing that the Supreme Court had never fully addressed the felon 

disfranchisement issues raised in that litigation, upheld the challenged statute only “by means of dicta,” 

and not binding precedent. Green. 259 F.Supp. at 292. The district court then dismissed Green’s case

- 27 -



without analyzing the First Amendment claim. Id. at 293. On appeal, the Second Circuit affirmed the 

dismissal, but did not address Green’s First Amendment claims in any way. Green. 380 F.2d at 452. 

Thus, Green’s holding simply cannot be read to foreclose plaintiffs First Amendment claim here.

Nor does Richardson, as defendants erroneously contend, bar plaintiffs' First Amendment 

challenge to New York’s felon disfranchisement statute. Like the court in Green, the Court in 

Richardson did not apply a First Amendment analysis to the burden created by disfranchisement laws, 

nor did it hold that felon disfranchisement could never place an unconstitutional burden on the right to 

vote. See Richardson. 418 U.S. at 24. Indeed, Richardson must be read in light of a number of 

subsequent First Amendment cases. See Burdick, 504 U.S. at 434 (when a constitutional right is 

severely restricted, “the regulation must be ‘narrowly drawn to advance a state interest of compelling

importance’”) (quoting Norman v. Reed, 502 U.S. 279, 289, (1992); Buckley v._American

Constitutional Lav.' Foundation. Inc., 525 U.S. 182, 207 (1999) (While there is “no bright line 

separating severe from lesser burdens.” it is well established that strict scrutiny applies where the state 

law regulates core political speech.)

In this case, this Court could find under Green and Richardson that New York felon 

disfranchisement statute violates plaintiffs’ First Amendment rights. It is axiomatic that voting is 

quintessential First Amendment activity. The extreme burdens placed by New \  ork on plaintiffs and 

many additional citizens and on the integrity of the State’s electoral process exceed the acceptable 

constitutional limits placed on New York. New York’s felon disqualification statutes not only restrict 

plaintiffs’ freedom of expression and the freedom of association with persons of like political 

persuasion, but provide no alternative mechanism for plaintiffs and the tens of thousands of felons in 

New York to exercise their political voice. While not determinative, it is noteworthy that there are 

currently over 128.000 disfranchised felons in New York, and over 111.000 of them are either Black or

- 28 -



Latino. Supra, p. 26. According to the U.S. Department of Justice, New York has the fourth highest

1 8 rprison population among all states behind California. Texas and Florida. New York's 

disfranchisement scheme is, therefore, anti-democratic.

Accordingly, the Amended Complaint has sufficiently stated a claim that New York’s felon 

disfranchisement laws violate plaintiffs’ First Amendment rights.

V.

THIS COURT HAS SUBJECT MATTER JURISDICTION TO HEAR
PLAINTIFFS' CLAIM UNDER THE CIVIL RIGHTS ACTS OF 1957 AND 1960.

AND PLAINTIFFS HAVE STANDING TO ASSERT SUCH A CLAIM

Defendants assert that a private cause of action does not lie under the Civil Rights Acts of 1957 

and 1960, Defs.’ Mot. at 21. However, case law supports the existence of such claims. Indeed, just 

last month, in a thorough analysis, the Eleventh Circuit Court of Appeals held that a private right of 

action exists under the Acts. Schwier v, Cox, No. 02-13214, U.S. App. LEXIS 16410. at *25-32 (11th 

Cir. Aug. 11. 2003) (analyzing the history of enforcement under the Acts and their relevant legislative 

history).1 Moreover, defendants fail to address 42 U.S.C. § 1983 as an additional vehicle for 

jurisdiction under 42 U.S.C. § 1971. To support their reading, defendants ask this Court to accept the 

circular proposition that § 1971 cannot be used to challenge laws that establish eligibility for voting no 

matter how discriminatory those eligibility, criteria may be — a proposition rejected by the Supreme 

Court in United States v. Mississippi. 380 U.S. 128, 137-138 (1965), the very case upon which 

defendants rely. Defendants’ arguments are unpersuasive.

U.S. Department of Justice. Bureau of Justice Statistics, “Prison and Jail Inmates at Midyear 2002,” April 2003, 
NCJ 198877. wwu.oip.usdoi.gov/bis

In their brief, defendants assert that "... no circuit elsewhere in the country that has considered the issue, has found 
an implied right of action under § 1971.” and “it has been over tw'enty-five years since any court has opined that 
the section affords a private right of action.” Defs.’ Mot. at 23. While defendants cannot be fairly charged with a 
duty of clairvoyance, it now seems that these characterizations have little force. See Schwier. at *25-32.

- 29 -



A. Section § 1971 Impliedly Creates A Private Right of Action 
Under Which Plaintiffs* May Challenge Defendants*
Unlawful Discrimination Against Black and Latino Felons.

Section 1971(c) authorizes the Attorney General to sue to enforce § 1971. The question of 

whether the Civil Rights Acts of 1957 and 1960, codified at 42 U.S.C. § 1971,20 impliedly confer a 

private cause of action has not been settled in this circuit. The existence of Attorney General 

enforcement authority does not, however, foreclose a private cause of action.

The issue of whether a private cause of action is implied turns on whether it can be inferred that 

Congress intended to create a right enforceable in this manner. See euj. Alexander v. Sandoval,, 532 

U.S. 275, 286-289 (2001). Courts may infer a private cause of action w'here a statute does not 

explicitly preclude it. The relevant test for determining whether a private cause of action is statutorily 

implied is set out in Cort v. Ash, 422 U.S. 66 (1975). Under Cort, courts must weigh four factors: (1) 

whether the plaintiff is a member of the class for whose benefit the statute was enacted; (2) whether 

legislative intent establishes or denies a private cause of action; (3) whether it is “consistent with the 

underlying purpose” of the statute to imply such a cause of action; and (4) whether the cause of action 

is “one traditionally relegated to state law,” and w'here it would be inappropriate to create a right or 

remedy based solely on federal law. Id. at 78.

The Cort factors dictate the result that a private right of action exists. First, it is beyond cavil 

that the Civil Rights Acts of 1957 and 1960, like the Voting Rights Act of 1965 were intended to 

protect African-Americans from racially discriminatory voting laws and practices. See 42 U.S.C. § 

1971(a)(1); United States v. Mississippi. 380 U.S. 128, 136 (1965).

Second, the legislative history of the Civil Rights Acts of 1957 and 1960 reflects that Congress 

intended to expand the means of enforcement and provides no evidence that Congress also intended to

20 Plaintiffs assert claims under the Civil Rights Acts of 1957 and 1960. codified at 42 U.S.C. §§ 1971 (a)(1) and
1971 (a)(2)(A).

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foreclose a private cause of action. Instead, during the passage of § 1971(c), authorizing the Attorney 

General to sue, Congress indicated that the Attorney General authorization would add to the 

protections already afforded under § 1971, which included individual private suits to enforce its 

provisions. See Schwier, at *28-29 (citing, inter alia, Smith v. Allwright, 321 U.S. 649 (1944)). The 

House Judiciary Committee, which recommended the passage of § 1971(c), noted that its purpose was 

“to provide a means of further securing and protecting the civil rights of persons within the jurisdiction 

of the United States.” H.R. Rep. No. 85-291 (1957), reprinted in, 1957 U.S.C.C.A.N. 196621

The third prong of the Cort analysis also is satisfied, as a private cause of action here is 

consistent with the underlying purpose of the statute. History and practice support a dual enforcement 

scheme. See Schwier. at *27-28: cf. Allen v. Board of Elections, 393 U.S. 544 (1969)(finding 42 

U.S.C. § 1973(c) enforceable by private right notwithstanding Attorney General enforcement 

authority); Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)(same: analyzing 42 U.S.C. § 

1973(b)).

The fourth prong of Cort is met since voting rights are considered fundamental rights22 and are 

specifically protected by, inter alia, the Fourteenth and Fifteenth Amendments. Accordingly, the 

assertion of a private cause of action under § 1971 is comfortably within Cort’s parameters.

Prior to Cort. a series of cases established that individuals could pursue claims under § 1971. 

In Brier v. Luser. the court held that the fatal defect in plaintiffs pleading was not standing, but rather 

a “failure to produce sufficient evidence to support” his claim — the plaintiffs right to seek a remedy 

based on § 1971 was presumed by the court. Brier v. Luger. 351 F. Supp. 313, 316 (M.D. Pa. 1972).

The Eleventh Circuit recently noted in this very context that “it is highly unlikely that in enacting civil rights 
legislation for the first time since the Reconstruction era [Congress] would simultaneously withdraw existing 
protection from § 1971.” Schwier. at *31 (internal citations omitted).

See cases cited supra pp. 21-22.

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In Shivelhood v. Davis, the court granted § 1971 injunctive relief for class of students denied equal

access to voter registration in an action by private individuals. Shivelhood v. Davis. 336 F.Supp. 1111. 

1116 (D. Vt. 1971). In Ball v. Brown, the court upheld plaintiff's right to bring suit as a private 

citizen, opining that although § 1971 actions “are generally instituted by the Attorney General." federal 

courts had recognized the right of private citizens to bring such claims. Ball v. Brown. 450 F. Supp. 4, 

7 (N.D. Ohio 1977). In a case involving voter intimidation, the court in Brooks v. Nacrelli agreed with 

plaintiff that a private right of action existed under § 1971(b), but ruled that race was not a factor. 

Brooks v. Nacrelli, 331 F.Supp. 1350, 1352 (E.D. Pa. 1971).

B. In Addition And In The Alternative, Plaintiffs May Bring A Claim
For Defendants’ Violation of 42 U.S.C. § 1971 Through 42 U.S.C. § 1983.

In addition and in the alternative, plaintiffs may bring a claim for defendants’ violation of 42 

U.S.C. § 1971 through 42 U.S.C. § 1983. Section 1983 imposes liability on anyone who. under color 

of state law, deprives a person “of rights, privileges, or immunities secured by the Constitution and 

laws.” 42 U.S.C. § 1983. The provision provides “a broad remedy for violations of federally protected 

civil rights.” Monell v. Dep’t of Social Servs.. 436 U.S. 658, 685 (1978). Indeed, “a principal purpose 

of [section 1983] was to ‘ensure that federal legislation providing for equality of rights would be 

brought wathin the ambit of the civil action[s] authorized by that statute.’” Maine v. Thiboutot, 448 

U.S. 1, 7 (1980) (quoting Chapman v. Houston Welfare Rts. Org., 441 U.S. 600, 637 (1979)), and thus 

the provision may be used against state actors to enforce rights created by federal statutes as well as by 

the Constitution. Maine, 448 U.S. at 4. Here, plaintiffs have standing to enforce their 42 U.S.C. § 

1971 rights through a § 1983 action. See Schwier, *13-15 (applying relevant Blessing v. Freestone, 

520 U.S. 329. 341 (1997) and Gonzaga University v. Doe, 536 U.S. 273 (2002) analyses and finding § 

1971 enforcement appropriate through § 1983).

- 3?



Accordingly, plaintiffs m ay bring their claim for defendants’ violation of 42  U.S.C. § 1971 

pursuant to § 1983.

C. Section 1971 Can Reach Challenges To Discriminatory Voting Qualifications.

Plaintiffs clearly allege that they possess the eligibility criteria for voting. See Amended 

Complaint, f j  5-25. Indeed, but for defendants’ disfranchisement scheme, plaintiffs are otherwise 

qualified to vote under 42 U.S.C. § 1971. Defendants claim that plaintiffs cannot use § 1971 to 

challenge New York’s discriminatory voting qualification laws that prevent them from voting. 

However, defendants’ strained and illogical reading collapses under its own weight.

Defendants’ interpretation of 42 U.S.C. § 1971 would preclude a challenge to the very 

qualification that allegedly causes the harm at issue. This tortured reading of § 1971 would reverse a 

number of previous cases that permit the use of § 1971 to challenge the voter qualifications that are 

allegedly discriminatory. For example, in Ball v. Brown, supra, plaintiff was disqualified from voting 

by operation of state law, which cancelled the voter registrations of women who married, on the 

assumption that women assumed their husbands’ surname. Ball v. Brown. 450 F.Supp. at 9-10. 

Contrary to this statutory presumption, plaintiff retained her family name and won a judgment in her 

favor after trial that the state violated her rights under 42 U.S.C. § 1971. Id. Similarly, in Schwier v. 

Cox, supra, the Eleventh Circuit addressed a claim by voters who refused to disclose their social 

security numbers on their voter registrations. Schwier, *2. In that case, plaintiffs’ refusal to produce 

such information resulted in the rejection of their registrations, thereby disqualifying them from voting 

under state law. Id. Nevertheless, plaintiffs' challenge under § 1971 to the laws that established voter 

eligibility was successful. Id. at *36.

Defendants rest their reliance on this circular argument on United States v. Mississippi. 380 

U.S. 128 (1965). but fail to provide the full language of the cited portions of this Supreme Court

- 33 -



opinion. Significantly, the omitted portion clearly supports plain tiffs’ § 1971 claims. See A m ended

Complaint, f f  66-67. In that case, the Court reviewed Mississippi laws that impeded Blacks from

voting. Mississippi, 380 U.S. at 133-135. Mississippi argued that § 1971(c) notwithstanding, the

federal government was not authorized by Congress to bring suit against states for alleged violations.

Id. at 137. The Court could rationalize the state’s argument only by noting that it must be relying on

the terms “otherwise qualified by law” to vote in § 1971(a). Id. at 136-137. In rejecting this

argument, the Court recognized that private parties could bring § 1971 claims:

By stressing these words the majority below reached the conclusion that if Negroes were 
kept from voting by state laws, even though those state laws w-ere unconstitutional, instead 
of being barred by unlawful discriminatory application of law's otherwise valid, then they 
w-ere not “otherwise qualified” and so § 1971 did not apply to them. In other words, while 
private persons might file suits under § 1971 against individual registrars who 
discriminated in applying otherwise valid laws, and while such suits might even be filed by 
the Government, the statute did not authorize the United States to bring suits challenging 
the validity of the State’s voting laws as such, how'ever discriminatory they may be. We 
can find no possible justification for such a construction o f § 1971 (a) and § 1971 (c). 
Subsection (a) explicitly stated the legislative purpose of protecting the rights of colored 
citizens to vote notwithstanding “any constitution, law', custom, usage or regulation of any 
State.” The phrase “otherwise qualified by law to vote” obviously meant that Negroes 
must possess the qualifications required of all voters by valid state or federal laws.

Id. at 137-138 (emphasis added). Thus, the full language of the quote in United States v. Mississippi

clearly supports a private claim, as here, against laws that are allegedly invalid because they

discriminate against them in violation of § 1971.

The Amended Complaint has clearly alleged facts sufficient to establish a claim under the Civil 

Rights Acts of 1957 and 1960. As noted in Point II, supra p. 7, plaintiffs have also sufficiently alleged 

a claim for intentional discrimination in the creation and maintenance of New York's felon 

disfranchisement laws. These allegations clearly state a basis under 42 U.S.C. § 1971(a)(1).

Furthermore, as noted in Point III, supra p. 20, New York’s non-uniform practice of disfranchising 

only those felons sentenced to incarceration and parole has created a racial disparity in voter eligibility.

- 34 -



See Amended Complaint, 66-67. In sum, these allegations are sufficient to make out a claim under

42 U.S.C. § 1971(a)(2)(A).

VI.

THE AMENDED COMPLAINT SUFFICIENTLY STATES A CLAIM 
THAT § 5-106(2) AND ARTICLE II, § 3 OF THE NEW YORK STATE 
CONSTITUTION VIOLATE CUSTOMARY INTERNATIONAL LAW

A. The Court Has Subject Matter Jurisdiction To Hear Plaintiffs’
Claims As The Law Of Nations Is Part Of The Federal Common Law.

Plaintiffs bring their customary international law claims under 28 U.S.C. § 1331, the federal 

question s t a t u t e . Th i s  court properly exercises jurisdiction over these claims, which are grounded in 

federal common law.

It is well-settled that Section 1331 provides federal courts with jurisdiction over claims founded 

on federal common law. Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972); Textile Workers 

Union v. Lincoln Mills of Alabama. 353 U.S. 448, 451 (1957). Moreover, it is long-settled that federal 

common law incorporates international law. As the Supreme Court noted in The Paquete Habana. 175 

U.S. 677 (1900):

International law is part of our law, and must be ascertained and administered by the courts 
of justice of appropriate jurisdiction as often as questions of right depending upon it are 
duly presented for their determination. For this purpose, where there is no treaty and no 
controlling executive or legislative act or judicial decision, resort must be had to the 
customs and usages of civilized nations, and, as evidence of these, to the works of jurists 
and commentators who by years of labor, research, and experience have made themselves 
particularly well acquainted with the subjects of which they treat.

175 U.S. at 700. See also The Nereide. 13 U.S. (9 Cranch) 388, 423 (1815) (stating “[T]he Court is

bound by the law of nations which is part of the law of the land.”). Indeed, the Second Circuit has

Section 1331 slates, in pertinent part:

The district courts shall have jurisdiction of all civil actions arising under the Constitution, laws, or 
treaties of the United States.”

- 35 -



noted that “ [t]he law of nations forms an integral part o f the com m on law, and a review of the history 

surrounding the adoption of the Constitution demonstrates that it became a part of the common law of 

the United States upon the adoption of the Constitution.” Filartiga v. Pena-Irala. 630 F.2d 876, 886 (2d 

Cir. 1980). The Supreme Court's recent inquiries into international law norms when deciding 

domestic claims underscore the inclusion and relevance of customary international law in federal 

common law. See Lawrence v. Texas, 123 S. Ct. 2472, 2483 (2003)(citmg decisions by the European 

Court of Fluman Rights as support for the proposition that the right of homosexual adults to engage in 

intimate, consensual conduct is “an integral part of human freedom”); Atkins v. Virginia, 536 U.S. 

304, 316 n.21 (2002) (in case holding that execution of the mentally retarded is unconstitutional, citing 

amicus brief of the European Union for the proposition that “within the world community, the 

imposition of the death penalty for crimes committed by mentally retarded offenders is 

overwhelmingly disapproved”). As plaintiffs’ international law claims are clearly a part of federal 

common law, this Court properly exercises subject matter jurisdiction over them pursuant to Section 

1331.

The Second Circuit has recognized that international law may form the basis for federal 

question jurisdiction under § 1331. In Filartiga, the Second Circuit established that the Alien Tort Act, 

28 U.S.C. § 1350, validly creates federal court jurisdiction for suits alleging torts committed against 

aliens in violation of the law of nations. Filartiga, 630 F.2d at 878. In so finding, the Court first held 

that torture violates the law' of nations, and thus “arises under the laws of the United States.” Id. 

Specifically, the Court noted that “the law of nations is a part of the law of the land to be ascertained 

and administered in the appropriate case.” Id. Significantly, in holding that United States federal 

courts have jurisdiction over international law claims alleging torture by state officials, the court noted 

that its reasoning might sustain jurisdiction under the general federal question provision, 28 U.S.C. §

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1331, though it eventually rested its holding on the Alien Tort Statute, 28 U.S.C. § 1350, given that the 

facts of that case more closely tracked the provisions of that statute. Id. at 887 n.22.

The Second Circuit revisited the issue in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), 

addressing whether federal courts have jurisdiction over claims alleging violations of the laws of 

nations, particularly when they are not committed by heads of state. The Second Circuit reversed a 

finding that courts have no subject matter jurisdiction over such claims, holding that the Alien Tort 

Act, 28 U.S.C. § 1350, specifically provides for such junsdiction. Id. at 242-44. Although the lower 

court also found that § 1331 did not provide subject matter jurisdiction, the Second Circuit again 

declined to decide the issue, noting that, though it had previously “recognized the possibility of § 1331 

jurisdiction in Filartiga.’ 70 F.3d at 246 (citing Filartiga, 630 F 2d at 387 n.22), the Alien Tort Act and 

the Torture Victims Act nevertheless provided a remedy for plaintiffs’ claims in the case before it, and 

thus the court “need not rule definitively on whether any causes of action not specifically authorized by 

statute may be implied by international law standards as incorporated into United States law and 

grounded on section 1331 jurisdiction.” Id.

In its determination that 28 U.S.C. § 1350 provided subject matter jurisdiction over plaintiffs’ 

international law claims, thus obviating the need to determine whether § 1331 did, the Second Circuit 

in Kadic recognized Judge Edwards’ concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 

(D.C. Cir. 1984), in which he “expressed the view that section 1331 did not supply junsdiction for 

claimed violations of international law unless plaintiffs could point to a remedy granted by the law of 

nations or argue successfully that such a remedy is implied.” Kadic, 70 F.3d at 246 (citing Tel-Oren, 

726 F.2d at 779-80 n.4). Yet the court also recognized that a number of district courts have held that 

section 1331 does indeed provide junsdiction for international law violations. Id. (citing Abebe-Jiri v. 

Negewo, No. 90-2010. 1993 U.S. Dist. LEXIS 21158 (N.D. Ga. Aug. 20. 1993). aff’d other grounds.

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72 F.3d 844 ( l l Ih Cir. 1996); M artinez-Baca v. S uarez-M ason . No. 87-2057, 1988 U.S. Dist. LEXIS 

19470, at *5-6 (N.D. Cal. Apr. 22. 1988); Forti v. Suarez-Mason. 672 F. Supp. 1531. 1544 (N.D. Cal. 

1987)). The court did not analyze the validity of these holdings, but found it was unnecessary to 

determine the issue, given the availability of other international law jurisdictional bases.

While the Second Circuit has not decided the issue, other courts have found that subject matter 

jurisdiction under § 1331 is appropriate in cases asserting international law violations. While these 

cases of course do not establish precedent here, they are nevertheless instructive. For example, as the 

Second Circuit recognized in Kadic, in Forti v. Suarez-Mason, the district court found that § 1331 

provided federal subject matter jurisdiction, given the long-standing recognition that federal common 

law incorporates international law, and that § 1331 clearly provides for jurisdiction over claims 

founded on federal common law. Forti v. Suarez-Mason, 672 F. Supp. 1531, 1543-44 (N.D. Cal. 

1987). Though defendants attempt to discredit this case, noting its citation to the Ninth Circuit's 

decision in Republic of Philippines v. Marcos, 818 F.2d 1473 (9th Cir. 1987), the court's citation to that 

case was not dispositive, rather the court simply relied on that case for the proposition that the standard 

of review on a 12(b)(6) motion is “exceedingly generous,” and that a claim must not be wholly 

unsubstantial and frivolous.” Forti. 672 F. Supp. at 1544 (citing Republic of Philippines. 818 F.2d at 

1477).

The district court in Sequihua v. Texaco also found that federal question jurisdiction was 

appropriate, as “issues of international relations are incorporated into federal common law, which 

presents a federal question under § 1331.” Sequihua v. Texaco, 847 F. Supp. at 61, 62 (S.D. Tex. 

1994). The case was later dismissed on forum non conveniens grounds.

The district court in Abebe-Jin v. Negewo, (N.D. Ga. Aug. 20, 1993), found that it. too, had 

subject matter jurisdiction over plaintiffs' international law claims because “[t]he claims of all of the

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N e g e w o. at

*9. The Court of Appeals affirmed the case on other grounds, namely the court’s jurisdiction under 28 

U.S.C. § 1350. Abebe-Jiri v. Negewo, 72 F.3d 844 (1 l !h Ctr. 1996).24

Although other courts have found that there is no § 1331 jurisdiction for international law 

claims, see Defs.’ Mot. at 31- 32, the question remains open in this circuit, and defendants’ attempts to 

paint the issue as settled are unpersuasive.

Moreover, defendants’ attempts to trivialize plaintiffs’ international law claims by 

differentiating them from claims where § 1331 jurisdiction has been recognized, namely in cases of 

genocide, torture, rape, and environmental abuse, see Defs.’ Mot. at 32-33, are faulty and myopic. The 

Supreme Court has consistently recognized that voting is a fundamental right in this country and 

necessary to the participation in civil society and the democratic functioning of our Nation. See, e.g., 

supra, pp. 21-22. Moreover, as more fully explicated below, customary international law firmly 

establishes the fundamental human right to political participation, regardless of race, color, descent or 

national or ethnic origin. Yet New York’s felon disfranchisement laws currently operate to disqualify 

over 128.000 citizens, see Section IV, supra, of which 87% are either Black or Latino. Amended 

Complaint, <f 68. Defendants’ suggestion that the right to vote is insignificant grossly undervalues the 

critical function that the free and open franchise plays in our democracy and the struggle and sacrifice 

that thousands of citizens, mostly people of color, have made in the fight to make this democracy a 

reality. Defendants' enforcement of felon disfranchisement laws violate this fundamental right, which 

is clearly incorporated in the federal common law.

24 See also Maria v. McElrov. 68 F. Supp. 2d 206, 233-235 (E.D.N.Y. 1999) (in context of claims brought under the
Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996. recognizing that customary international law is "part of the law of the United States,” 
and though the International Covenant on Civil and Political Rights (“ICCOR”) creates no private cause of 
action, it does not eliminate the obligations of U.S. governments to follow its obligations).

plaintiffs 'anse under’ United States law, which includes customary international law."

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Accordingly, this court properly exercises jurisdiction  over p la in tif fs’ custom ary  intentional 

law claims.25

B. Plaintiffs Have Alleged Sufficient Facts To Establish 
A Violation Of Customary International Law.

Defendants allege that because European countries “demonstrate a broad range of practices” in 

regards to felon voting restrictions, plaintiffs fail to state a claim for violation of customary 

international law. Defs.’ Mot. at 34. Defendants’ argument, however, is not only factually suspect, 

but relies on a misinterpretation of settled legal principle. To survive a Rule 12(c) motion, plaintiffs 

only need to state facts which, taken as true, would entitle them to relief under a particular claim. See 

Patel, 259 F.3d at 126. In this case, plaintiffs assert that New York's election laws were enacted under 

the state’s constitution with the intent to disfranchise Blacks. Moreover, these laws currently deny 

persons who are incarcerated or on parole for a felony conviction the right to vote, which has a 

disparate effect on Blacks and Latinos on account of their race, color, descent, or national or ethnic 

origin. As a result, plaintiffs are denied the enjoyment of guaranteed political rights, most importantly, 

the right to participate in the political process. These allegations, taken as true, sufficiently state the 

basis for the finding of a violation of customary international law.

“Customary international law is comprised of those practices and customs that states view as 

obligatory and that are engaged in or otherwise acceded to by a preponderance of States in a uniform 

and consistent fashion.” United States v. Yousef. 327 F.3d 56, 91 n.24 (2d Cir. 2003). See also Buell

Moreover, the Supreme Court’s increasing willingness to consider the norms, customs and laws of the 
international community in addressing some of the most difficult and controversial issues facing the Court in 
recent years, see e.g., Lawrence. 123 S.Ct. at 2481; Grutter v. Bollinger. 123 S.Ct. 2325. 2347 (2003) (Ginsburg, 
J„ concurring); Atkins. 536 U.S. at 316. makes clear that courts may consider customary international law in 
deciding cases grounded in domestic law. as well. Here, plaintiffs allege that New York's felon disfranchisement 
provisions deny them, on the basis of race and/or with a disproportionate impact on racial minorities, of the 
universally recognized right to participate in the democratic process. Thus, the customs and norms, and 
particularly the evolving standards, prevalent in the international community with regards to felon 
disfranchisement provisions provide useful background information for the court's consideration of plaintiffs’ 
claims grounded in domestic law as well.

- 4 0 -



v M itchell , 274 F.3d 337. 372 (6th Cir. 2001) (“custom ary international law results from a general and 

consistent practice of states followed by them from a sense of legal obligations”)(quoting 

Restatement (Th ir d ) of  F o reig n  R e l a t io n s  L a w  § 102(2)). Thus, in order to state a claim for a 

violation of such law, it must be shown that a particular governmental practice contradicts “universally 

recognized norms of international law.” Kadic, 70 F.3d at 239. If a practice is determined to 

constitute customary international law, it is binding on all nations, including the United States. See 

Filartiga. 630 F.2d at 880; Man a, 68 F.Supp.2d at 233.

Article 5, Section (c) of the Convention on the Elimination of All Forms of Racial 

Discnmination (“CERD”) and Article 25 of the International Covenant on Civil and Political Rights 

(“ICCPR”) reflect widely accepted principles of customary international law. These pnnciples 

guarantee every citizen certain fundamental rights, including “universal and equal suffrage” without 

“unreasonable restrictions” and without regard to “race, colour, or national or ethnic origin.” CERD, 

1966 U.S.T. LEXIS 521 at *58-59; ICCPR, 1966 U.S.T. LEXIS 521 at *112-113. New York’s 

disfranchisement laws are entirely inconsistent with the principles of non-discnmination contained in 

both the ICCPR and CERD, as § 5-106(2) was originally enacted with racial animus and has a 

disproportionate impact on the black population.26 The United States has ratified both the ICCPR and 

the CERD. See 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992)(ratifying ICCPR); 140 Cong. Rec. 

S7634-02 (daily ed., June 24, 1994)(ratifying CERD). Thus, the ICCPR and the CERD are the law of 

the United States. See, e^g., Maria, 68 F. Supp. 2d at 231-32 (“Although the ICCPR is not self­

executing . . .  it is an international obligation of the United States and constitutes a law of the land. ’).

It is worth noting that the CERD does not impose the requirement of discriminatory intent for a finding of 
discrimination. Rather, it requires signatory members to eliminate laws or practices which may be race-neutral 
on their face but which have “the purpose or effect” of restricting rights on the basis of race. CERD, 1966 U.S.T. 
LEXIS 521 at *54.

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D efendants attempt to undermine plaintiffs’ claims by bolstering the proposition that neither of 

these international treaties confer rights enforceable by private parties. See Defs. Mot. at 40-43. To 

the contrary, plaintiffs do not contend that there exists under these treaties a private cause of action for 

a violation of their provisions. Rather, reference to these international agreements is made only to 

illustrate the universally recognized principle of equal suffrage for all, without regard to race, ethnicity 

or national origin. Plaintiffs’ amended complaint does not assert a cause of action under either the 

ICCPR or CERD, but rather states that these treaties “reflect principles of customary international 

law.” Amended Complaint, |76 .

C. Evolving Notions Of Customary International 
Law Support The Right to Vote For Felons.

Defendants claim that felon voting does not “command the general assent of civilized nations,” 

and thus plaintiffs’ claims under customary international law should fail. Defs.’ Mot. at 34. This 

argument is without merit, as it is clear that evolving notions of international law do, in fact, support 

the right of all citizens, including those convicted of felonies, to participate in the political process. 

Relying on a dissenter's analysis in a case decided by the Supreme Court of Canada, defendants draw 

attention to divergent practices concerning felon disfranchisement laws in European countries. 

Defendants also refer to a memorandum of the Commission of the European Communities and a 

directive of the Council of the European Union for the observation that there is a “lack of consensus” 

amongst European nations in regards to felon voting restrictions. Defs.’ Mot. at 35-40. But the 

absence of consensus in Europe is not fatal. Although customary international law results from a 

general and consistent practice of states, that does not mean that a particular practice must be 

universally followed, but only that it reflect wide acceptance among the states particularly involved in 

the relevant activity. See Buell, 274 F.3d at 372.

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D efendants cannot show wide acceptance in the international com m unity  of felony 

disfranchisement laws that are as restrictive as those utilized in New \o rk . Conveniently ignored in 

defendants’ analysis, for example, are Canada and South Africa, countries which have recently 

abandoned or rejected legislative attempts to disfranchise felons as inconsistent with notions of 

democracy or declared felon disfranchisment inconsistent with their constitutions. See Sauve v. 

Canada, 2002 SCC 68 (2002); August and Another v. Electoral Commission and Others, 1999 (4) 

BCLR 363 (CC).27

Sauve provides a strong example of the growing recognition in the international community 

that all citizens of democratic states have the right to participate in the political process. In that case, 

the Supreme Court of Canada reviewed a constitutional challenge to a law passed by the Canadian 

Parliament which denied the right to vote to “every person who is imprisoned in a correctional 

institution serving a sentence of two years or more.” Sauve, 2002 SCC 68 at 2. Recognizing the right 

to vote as being fundamental to the rule of law, the court struck down the legislation as being 

inconsistent with the respect for the dignity of every person that lies at the heart of democracy. See id. 

at 13. The court rejected the government's stated reasons for the denial of the right to vote, including 

the propositions that felony disfranchisement would enhance civic responsibility, respect for the rule of 

law and the general purpose of the criminal sanction. The Chief Justice, speaking for the court, 

explained that:

[djenymg felons the right to vote misrepresents the nature of our rights and obligations 
under the law and consequently undermines them. In a democracy such as ours, the power 
of lawmakers flows from the voting citizens and lawmakers act as the citizens’ proxies.
This delegation from voters to legislators gives the law its legitimacy or force...In sum the 
legitimacy of the law and the obligation to obey the law flow directly from the right of 
every citizen to vote . . . The government gets this connection exactly backwards when it

In addition to the countries noted infra. Vermont . Maine, and the U.S. territory of Puerto Rico also do not deny 
felons the right to participate in the political process through disfranchisement. See Me Rev. STAT. Ann. TIT. 21, 
§111 (2003): Vt. StaT. Ann. tit 17. § 2121 (2003); 16 P.R. Laws Ann. § 3001, et seq. (2003).

-43 -



attempts to argue that depriving people o f  a voice in government teaches them  to obey the 
law. The “educative message” that the government purports to send by disenfranchising 
inmates is both anti-democratic and internally self-contradictory. Denying a citizen the 
right to vote denies the basis of democratic legitimacy.

Id. at 31-32.

Putting aside the omissions in describing the “international community” to the court, 

defendants’ argument that felony disfranchisement is the rule, rather than the exception, remains 

seriously flawed. For instance, even assuming defendants’ summary of European-focused 

disfranchisement laws is accurate, careful scrutiny of that analysis illustrates that far from being a 

widely accepted norm, felony disfranchisement to the extent mandated by New York law is clearly a 

disfavored practice in the European community.

New York state election law denies persons convicted of a felony the right to vote. There are 

few exceptions to the law, including allowing political participation only for those who are pardoned, 

sentenced to probation or who have served their maximum sentence. Defendants cite only nine 

European countries (Armenia, Bulgaria, the Czech Republic, Estonia, Hungary, Luxembourg, 

Romania, the United Kingdom and Russia) which appear to allow for broad disfranchisement for those 

convicted of felonious crimes. Defs.’ Mot. at pp. 34-36. Yet, seventeen European nations do not 

restrict felons from voting at all (Bosnia. Croatia, Cyprus, Denmark, Iceland, Ireland, Finland, Latvia, 

Lithuania, Macedonia, Netherlands, Poland, Slovenia, Spain, Sweden, Switzerland and the Ukraine) 

and another nine (Greece, Austria, Malta, San Marino, Belgium, Italy, Norway, France and Germany) 

allow only limited forms of felon voting restrictions.28 Id.

Using defendants' own analysis and simple math, it can hardly be disputed that total felon 

disfranchisement is a practice among only a minority of European nations. Adding the nations that

Germany, for example, only allows for disfranchisement of those convicted of crimes related to anti-government 
offenses such as treason or electoral fraud.

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defendants omitted from their survey only furthers the argument that felon disenfranchisement is not 

the international norm, but rather a practice that will undoubtedly wither in light of the international 

community’s increasing embrace of basic human rights and democratic principles. Moreover, none of 

defendants’ arguments address the real issues raised by plaintiffs: whether voting restrictions intended 

to disfranchise a particular group on the basis of race violate customary international law' and/or 

whether voting restrictions w'hich have a disproportionate impact on particular racial and ethnic groups 

violate the same. American law incorporates the customary international law prohibition on racial 

discrimination. See Restatement (Th ir d ) o f  F o r e ig n  R e l a t io n s  L aw' § 702. Thus, plaintiffs’ 

allegations, taken as true, sufficiently state the basis for finding a violation of customary international 

law.

VII.

DEFENDANTS’ PRACTICE OF DISFRANCHISING PERSONS 
WITHOUT NOTICE OR HEARING VIOLATES THE DUE PROCESS 

CLAUSE OF THE FOURTEENTH AMENDMENT

Plaintiff's procedural due process claim seeks to invalidate Article II, § 3 of the New York 

Constitution and § 5-106(2) of New York’s Election Law, which deprive incarcerated and paroled 

felons of due process of law under the Fourteenth Amendment.

Defendants argue that judgment on the pleadings is justified on plaintiffs’ procedural due 

process claim because § 5-106(2) automatically requires disfranchisement of any felon sentenced to a 

term of incarceration or on parole. Defs.’ Mot. at 49-51. This argument gives short shrift to the 

constitutional foundation of procedural due process claims, and oversimplifies the requisite analysis.

The Supreme Court has consistently stated that the failure to give notice “violatefs] the most 

rudimentary demands of due process of law'.’’ Armstrong v. Manzo. 380 U.S. 545, 550 (1965); see 

also Mullane v. Central Hanover Bank & Trust Co.. 339 U.S. 306. 313 (1950) (“ ...there can be no

-45 -



doubt that at a minimum [due process] requirefs] that deprivation of life, liberty or property by 

adjudication be preceded by notice. . .”)■ Nevertheless, New York courts regularly pronounce 

sentences after trial and accept guilty pleas from defendants without providing notice that a sentence 

including a term of incarceration will automatically lead to a termination of their voting rights. See, 

e.g., NY CRIM. PROC. § 220.50 (explaining the procedural requirements for a guilty plea). If this court 

denies plaintiffs’ claims requesting that the disenfranchisement statute be invalidated, plaintiffs 

maintain that defendants’ practice of disfranchising people without adequate notice of such 

consequences or an opportunity to be heard on that issue at the time of sentencing, constitutes a 

violation of procedural due process. See Amended Complaint, I f  82-83.

In Matthews v. Eldridge, 424 U.S. 319, (1976), the Supreme Court outlined a three-pronged 

balancing test for assessing an alleged denial of procedural due process. Matthews requires a court to 

weigh:

First, the private interest that will be affected by the official action; second, the risk of an 
erroneous deprivation of such interest through the procedures used, and the probable value, if 
any, of additional or substitute procedural safeguards; and finally, the Government’s interest, 
including the function involved and the fiscal and administrative burdens that the additional or 
substitute procedural requirement would entail.

Id. at 335. Accord Little v. Streater, 452 U.S. 1, 6 (1981). No single factor is dispositive. After 

applying these factors here, it becomes clear that New York does not currently provide plaintiffs with 

adequate procedural due process.

Indeed, courts have recognized that the fundamental nature of the right to vote gives rise to a 

liberty interest entitled to due process protection. See, e.g.. Doe v. Rowe, 156 F.Supp,2d 35, 48 (D. 

Me. 2001) (finding procedural due process violation after reasoning “that the denial of the right to vote 

is a denial of a fundamental liberty. An examination of procedural due process is particularly 

appropriate in this case because the State has chosen to categorically define as ineligible to vote a

- 4 6 -



subset n f  persons__ Raetzel v. Parks/BeHemont Absentee Election B d . , 762 F.Supp. 1354, 1357 (D.

Artz. 1990)(“Because voting is a fundamental right, the nght to vote is a ‘liberty7 interest which may 

not be confiscated without due process.77); United States v. Texas, 252 F.Supp. 234, 250 (W.D. Tex. 

1966)(finding that the right to vote is entitled to due process protection because as a fundamental right 

it is “included within the concept of liberty”), aff’d mem., 384 U.S. 155 (1966). Under the current 

practice in New York criminal courts, every year many thousands of persons are sentenced to a term of 

incarceration for felony convictions without knowing the significant collateral consequence of their 

sentence.

Although under New York law this constitutional problem exists for all convicted felons who

are sentenced to prison, the full magnitude of the procedural due process violation is best illustrated by

sentences pursuant to guilty pleas. Recognizing the scope of the problem of these “collateral

sanctions,” the American Bar Association (ABA) recently adopted standards, including a

recommendation for mandatory notification of collateral sanctions before a plea of guilty. Standard

19-2.3, ABA Standards for Criminal Justice (Third Edition), Collateral Sanctions and Discretionary

Disqualification of Convicted Persons (August 2003). ABA Standard 19.23 reads:

The rules of procedure should require a court to ensure, before accepting a plea of 
guilty, that the defendant has been informed of collateral sanctions made applicable to 
the offense or offenses of conviction under the law' of the state of temtory where the 
prosecution is pending, and under federal law...

Id. The ABA explained the importance of such a notice requirement:

There is no justification for the legal system to operate in ignorance of the effects of its 
actions. Prosecutors when deciding how to charge, defendants when deciding how to 
plead, defense lawyers when advising their clients, and judges w'hen sentencing should 
be aware, at least, of the legal ramifications of the decisions they are making.

Id. at R-6. The Matthew's test requires this court to assess the “probable value’7 of the additional

procedures sought here. Plaintiffs submit that procedures that permit defendants to make informed

- 4 7 -



decisions, accompanied by an opportunity to be heard, are of great importance to each individual 

defendant, and to the equity and integrity of New York’s criminal justice system.

It is also noteworthy that § 5-106(2). when read together with the latitude that sentencing 

judges possess in felony cases in certain circumstances, see N.Y. Penal Law § 65 (2003), could, after 

an opportunity to be heard, permit a judge to preserve a felon’s right to vote by imposing a sentence 

other than incarceration. In the plea situation the procedural due process right could affect both the 

defendant’s decision to plead and that of judge in imposing sentence, in ways that might preserve the 

fundamental voting right. However, current law neither requires notice to defendants about a central 

collateral consequence of conviction through trial or plea, nor directs (and may, in the view articulated 

by the Attorney General, not even permit) the trial judge to consider this consequence in imposing 

sentence.

New' York could satisfy the mandates of procedural due process by simply requiring courts to 

confirm on the record that the defendant understands that her or his conviction or guilty plea will 

trigger a loss of fundamental voting rights and by providing defendants an opportunity to address the 

Court on that issue. In fact, both the ease and appropriateness of this process already have a parallel in 

New York criminal law. The State already requires courts to give every defendant notice regarding the 

collateral deportation consequences of a guilty plea for non-citizens. NY CRIM. PROC. § 220.50.7 

(2003).

It stands to reason that a criminal justice system that requires notice of deportation 

consequences to all defendants pleading guilty to a felony in order to protect non-citizens must provide 

protections to citizens w'ho face the loss of the constitutional right deemed “preservative” of all others. 

The additional fiscal and administrative burdens of requiring a court to inform defendants that a guilty 

plea will result in disfranchisment are negligible, and perhaps non-existent. Moreover, it is hard to

-48 -



imagine what legitimate, much less compelling, governmental interest could justify the deprivation of 

the fundamental right to vote without notice of the deprivation.

Another federal court has already assessed a procedural due process claim demanding 

mandatory notice of collateral voting rights consequences during a judicial hearing. Doe, 156 F.Supp. 

2d at 49 (finding a violation of procedural due process when persons at a hearing to determine 

guardianship by reason of mental illness were deprived of notice that the outcome would affect their 

right to vote). The Doe court determined that the additional fiscal and administrative costs would “not 

be overly burdensome on the State.” Id. (“[I]t would be fairly simple to incorporate a specific notice 

regarding the right to vote.”)

Weighing the three Matthews factors, it appears that the current procedures utilized by the New 

York courts fail to provide persons sentenced to prison for felony convictions w'ith adequate procedural 

due process. The right at issue involves a fundamental liberty interest of highest importance in our 

representative democracy. At a bare minimum, the contemplated procedural due process would be of 

significant value because it could ensure that persons considering a guilty plea are fully aware, that a 

fundamental right is at stake, and would allow those persons to be heard and to make a more informed 

decision. Moreover, these procedures can be provided by the State at virtually no cost.

Finally, defendants’ “operation of law” argument is unpersuasive. As an initial matter, 

procedural due process claims typically arise in a situation where an administrative or legal rule, 

statute or constitutional provision requires an adverse action if a condition precedent is satisfied. See, 

e.g., Cleveland Bd. of Ed, v. LaFleur, 414 U.S. 632, 648 (1974) (administrative presumption that 

teacher cannot teach after fourth month of pregnancy violates due process); Doe, 156 F.Supp.2d 35 (D. 

Me. 2001)(constitutional and statutory rule automatically disfranchising mentally incompetent persons 

violates due process). Indeed, procedural due process provides a remedy specifically where the law

- 49 -



would operate to deprive an individual of a substantial liberty or property interest without an adequate 

process for fully and openly evaluating the circumstances of the deprivation.

Doe is probative on this issue because it involved an interpretation of a provision of Maine's 

Constitution and relevant implementing statutes. Doe, 156 F.Supp.2d at 35. In Doe, the applicable 

law disfranchised citizens without provision for procedural due process in the underlying heanng to 

determine mental capacity. Id. In other words, by operation of Maine law, “persons who are ‘under 

guardianship for reasons of mental illness’ are prohibited from registering to vote or voting in any 

election.” Id. at 38. Notwithstanding the compulsory nature of Maine’s mental illness disqualification 

laws, the court granted summary judgment for plaintiffs on their procedural due process claim. Id. at 

39, 59.

The fact that a federal court granted summary judgment for plaintiffs on a procedural due 

process disfranchisement claim strongly suggests that the similar procedural due process claim urged 

here should survive this Rule 12(c) challenge. Accordingly, Doe disproves defendants’ “operation of 

law” argument.

- 50 -



CONCLUSION

For the foregoing reasons. Defendants’ Motion For Judgment On The Pleadings should be

denied.

Dated: New York, New York 
September 9, 2003

Todd A. Cox 
NAACP Legal Defense 

and Educational Fund, Inc.
1444 Eye Street, 10^ Floor 
Washington, D.C. 20005 
(Tel.) 202-682-1300 
(Fax) 202-682-1312

Respectfully submitted,

aygood (RH-7549)

Elaine R. Jones 
Director-Counsel 

Theodore M. Shaw 
Norman J. Chachkin 
Janai S. Nelson 
Debo P. Adegbile 
NAACP Legal Defense 

and Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013-2S97 
(Tel.) 212-965-2200 
(Fax) 212-226-7592 
rhavsood@naacpldf.org

Risa Kaufman 
Community Service Society 

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

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mailto:rhavsood@naacpldf.org
mailto:jcartagena@cssnv.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 
jgibbs3926@aol.com

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mailto:jgibbs3926@aol.com


IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK

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; JESSICA SANCLEMENTE; 
PAUL SATTERFIELD; and BARBARA 
SCOTT, on behalf of themselves and all 
individuals similarly situated,

Plaintiffs,

v.

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

Defendants.

Case No.: 00 Civ. 8586 (LMM)(HBP)

AFFIRMATION

Ryan Paul Haygood, an attorney duly admitted to practice in the State of New York and before 

this Court, under penalty of perjury affirms:

1. I am an Assistant Counsel at the NAACP Legal Defense and Educational Fund, Inc., 

counsel for plaintiffs in this action, and I respectfully submit this affirmation in support of Plaintiffs’ 

Memorandum Of Law In Opposition To Defendants’ Motion For Judgment On The Pleadings, for 

purposes of providing the Court with the following exhibit:



Exhibit A: Amended Complaint, Underwood v. Hunter, CA78 Mo704S (filed June 21, 1978).

Dated: New York, New York 
September 9, 2003

NAACP Legal Defense 
and Educational Fund, Inc.

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A-1

IN THF. UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

VICTOR UNDERWOOD and )
CARMEN EDWARDS, for (Item- )
selves and all Olliers similarly )
situated )

)
PLAINTIFFS. )

)
vs. ) CA78 M0704S

)
NELL HUNTER, JOSEPH |. )
TRUCKS, individually and as mem- )
hers of the,Board of Registrars of )
Jefferson Co., and THOMAS A. )
JERNIGNAN, CLARICE B. )
ALLEN, CLEO F. CHAMBERS, )
individually and as members of )
the Board of Registrars of Mont- )
goniery Co., on behalf of all other )
members of Boards of Registrars )
in the State of Alabama )

)
DEFENDANT'S. )

COMPLAINT

1. This action arises tinder the First. Filth, Thirteenth, 
Fourteenth and Fifteenth Amendments ol the Constitution nl 
the United States and 42 IJ.S.C. 881971. 197,‘f, 1981 and 1083. 
Jurisdiction is vested in this Court by 28 U.S.C. 8§LU1 (a) 
!34.‘!(!5) and (-1), and 2201. The matter in controversy ex­
ceeds, exclusive of interests and costs, the sum of ten thousand 
dollars. This is an action for appropriate equitable relief and 
declaratory judgment of the unconstiintiotiulity of Ain. Cowl, 
Art. VIII, 8182 (1901), to the extern that it disqualifies front



A-2

hdng registered or voting persons eonvicted of certain offenses, 
and to prevent deprivation under color of state law, statute, 
ordinance, regulation, custom or usage of rights, privileges and 
immunities secured to plaintiff, including the rights to due 
process, equal protection, anti the unabridged participation in 
the electoral process protected by the First, Fifth, Thirteenth, 
Fourteenth, and Fifteenth Amendments of the Constitution of 
the United States and by Title 42 of the United Slates Code, 
tjijH)71, | ‘)73, 1981 and 1983.

y Plaintiff Victor Underwood is a white citizen of Ala­
bama, over the age of 21 years, and a resident of Jefferson 
County.

Plaintiff Carmen Edwards is a black citizen of Alabama, 
over the age of If) years, and a resident of Montgomery County.

4. Defendants Nell Hunter and Joseph J. Trucks arc mem­
bers of the Hoard of Registrars of Jefferson County. There is 
presently a vacancy on said board. Defendants Thomas A. 
Jernignan, Clarice R. Allen, and Cleo F. Chambers are mem­
bers of the Hoard of Registrars of Montgomery County. All 
defendants are sued individually and in their official capaci­
ties as members of the Hoards of Registrars, and as representa­
tives of the class of all members of the Hoards of Registrars of 
the counties of the State of Alabama.

f>. Attorney General William Baxley shall be served a copy 
of this complaint so that he may defend the constitutionality 
tif die State Constitution provision challenged herein. 28 
U.S.C. §2403(li); Ala. Codr, §0-0-227 (1075).

0. The plaintiffs bring ibis action on their own behalf and 
on behalf of all others similarly situated and against the de­
fendants in their official capacities, as individuals and as rep­
resentatives of their class pursuant to Rule 23 of the F.R.Civ.P. 
The plaintiffs' class includes all persons disqualified from be­
ing registered or voting by operation of Ain. Const., Art. VIII, 
§182 (1901). The defendants' class includes members of 
boards of registrars of Alabama. The prerequisites of subsec­
tions (a) and (b) (2) of Rule 23 arc satisfied. There are
common questions of law and fact affecting the several rights

A-3

of citizens to register and to vote. The members of tlie classes 
are so numerous as to make it impracticable to bring them all 
before this Court. The claims or defenses of the parties are 
typical of the claims or defenses of the classes as a whole. A 
common relief is sought. The interests of each class are atic- 
quately represented by the named parties, and die panics up. 
posing each class have acted or refused to act on grounds gen­
erally applicable to the class, thereby making appropriate final 
injunctive and declaratory relief with respect to the class as a 
whole.

7. Ain. Const., Art. VIII, §182 (1901), disenfranchises per­
sons who have been eonvicted of certain named offenses, any 
crime punishable by imprisonment in die penitentiary, or any 
infamous crime or crime involving moral turpitude. Because 
any crime carrying a maximum penalty of more than one year 
is "punishable by imprisonment in die penitentiary,” only cer­
tain offenses carrying a penally of 12 months or less, or a fine 
(hereinafter referred to as misdemeanors and minor felonies) 
are disenfranchising offenses, namely, die ones listed in §182 
and those “involving moral turpitude."

8. Victor Underwood was a dtdy qualified and registered 
voter in Jefferson County. Because of a conviction for issuing 
a worthless check, bis name was purged from the registration 
rolls by the Jefferson County Board of Registrars. Carmen 
Edwards is otherwise qualified to register to vote in Montgom­
ery County but lias been denied registration by die Montgom­
ery County Board of Registrars because of her conviction for 
issuing a worthless check, an offense which is considered to lie 
a “crime involving moral turpitude.”

9. I here is between the parties an actual controversy as 
herein set forth. The plaintiffs and others similarly situated 
and affected on whose behalf this suit is brought suffer irrep­
arable injury by reason of the acts herein complained of. Plain 
tiffs have no plain, adequate or complete remedy to redress tbe 
wrongs and unlawful acts herein complained of other than this 
action for a declaration of rights and an injunction. Any rem­
edy to which plaintiffs and those similarly situated could lit



remitted would be attended witli such uncertainties and delays 
as to deny substantial relief, would involve multiplicity of suits 
and cause them further irreparable injury, damage and incon­
venience.

I' IRS f  CAUSE OF ACTION

10. The misdemeanors and minor felonies listed in §182 as 
disenfranchising offenses unconstitutionally impinge upon the 
franchise because they deny the franchise without a compelling 
state interest in violation or the First, Fifth, and Fourteenth 
Amendments ol the Constitution of the United States.

SECOND CAUSE OF ACTION

I 1. The misdemeanors and minor felonies listed in §182 as 
disenfranchising offenses deny plaintiffs and the class they rep­
resent the equal protection of the laws as guaranteed by the 
Fourteenth Amendment ol the Constitution of the LInited 
States because more serious offenses are not disabling.

TIIIRI) CAUSE OF ACTION

12. Disfranchisement for conviction of a 'crime involving 
moral turpitude" is based on a definition that is vague and in­
definite and denies plaintiffs and the class they represent the 
right to register and to vote in violation of the First, Filth, and 
Fourteenth Amendments of the Constitution of the United 
States.

f o u r t h  c a u s e  o f  a c t io n

13. The list contained in §182 was specifically adopted be­
cause of its supposed disproportionate impact on blacks, with 
the intent to disfranchise blacks.

14. The disfranchising provisions of §182 abridge the right 
to vote on the basis of race, in violation of the First, Fifth, 
Thirteenth, Fourteenth anti Fifteenth Amendments of the 
Constitution of the United States, and 42 U.S.C. §§1981 and 
1983,

A-5

RELIEF

WHEREFORE, Plaintiffs respectfully pray that this Court [ 
will take jurisdiction of this cause and do the following:

A. Find that the named plaintiffs and defendants are ade­
quate representatives of their respective classes and allow this 
cause to proceed as a class action;

B. Grant the plaintiffs a preliminary injunction, to he made 
permanent later, requiring that they and the class they repre 
sent be restored to the rolls of those registered to vote or be 
allowed to register without regard to Ala. Const., Art. VIII, 
§182 (1901);

C. Declare Ala. Const., Art. VIII, §182 (1901), to he un 
constitutional insofar as it applies to offenses carrying a penalty 
of one year or less, and enjoin its further application;

D. Grant the plaintiffs their costs and reasonable attorneys' 
fees and expenses.

.Submitted by,

/s /  Edwaru St i i .l,

Edward Still ~
fiOI Title Building 
Birmingham, Al, 35203 
205/322-1094

Of Counsel 
Laughlin McDonald 
Neil Bradley 
Christopher Coates 
52 Eairlie Street, NW 
Atlanta, C.A 30303



CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of Plaintiffs’ Memorandum of Law In 
Opposition to Defendants’ Motion For Judgment On The Pleadings and the affirmation of Ryan 
Paul Haygood, dated September 9, 2003, were furnished to the following counsel by U.S. First- 
Class Mail, and by Federal Express, on September 9, 2003:

Eliot Spitzer, Esq.
Attorney General of State of New York 

Joel Graber, Esq.
Assistant Attorney General of State of New York 

120 Broadway — 24th Floor 
New York, New York 10271-0332

Patricia L. Murray, Esq.
First Deputy Counsel
New York State Board of Election
40 Steuben Street
Albany, New York 12207-2109

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