Sweatt v. Painter Motion and Brief Amicus Curiae

    04-3886-PR
To be argued by

__________ ____________________________________________________________________ Janai S. Nelson, Esq.

United States Court of Appeals
for the

Second Circuit

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

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

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

- against -
Plaintiffs-Appellants,

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

Defendants-Appellees.

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

BRIEF FOR PLAINTIFFS-APPELLANTS

Naacp Legal Defense & Educational 
Fund, Inc .

Theodore M. Shaw 
Director-Counsel 

Norman J. Chachkin 
Janai S. Nelson 
Ryan P. Haygood

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

[Listing of Counsel Continued Inside Cover]



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

Debo P. Adegbile 
Alaina C. Beverly 
99 Hudson Street
New York, New York 10013-2897 
(212) 965-2200

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 fo r Appellants



CORPORATE DISCLOSURE STATEMENT

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

NAACP Legal Defense and Educational Fund, Inc., Community Service Society of 

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

and through the undersigned counsel, make the following disclosures:

Counsel for plaintiffs-appellants, all not-for-profit corporations of the State 

of New York, are neither subsidiaries nor affiliates of a publicly owned 

corporation.

Janai S. Nelson, Esq.
Director of Political Participation 

NAACP Legal Defense & 
Educational Fund, Inc.

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

i

mailto:inelson@naacpldf.org


TABLE OF CONTENTS

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

TABLE OF CONTENTS............................................................................................... ii

TABLE OF AUTHORITIES......... .............................   iv

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

STATEMENT OF SUBJECT MATTER AND JURISDICTION ............................2

ISSUES PRESENTED FOR REVIEW.......................     2

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

STATEMENT OF FACTS.................................................................................   5

A. New York’s Felon Disfranchisement Laws..............................   5

B. The Amended Complaint.......................................................   6

C. The Public Record......................................................................................... 10

D. The District Court’s Opinion Regarding the Claims on Appeal..............14

SUMMARY OF THE ARGUMENT..........................................................................16

STANDARD OF REVIEW...............   16

ARGUMENT.........................................................................................................  17

I. The District Court Substantially Misapplied the Standard for
Dismissal Under Rule 12(c).............     17

A. The District Court’s Premature Dismissal of Plaintiffs’
Amended Complaint is Contrary to the Law of this Circuit
and Supreme Court Precedent...........................................................19

ii



II. Plaintiffs Met the Pleading Requirements of Rule 8(a) by Alleging 
Facts that Put Defendants on Notice of Their Claims, and of 
Rule 12(c) by Setting Forth Sufficient Facts to State Legally 
Cognizable Causes of Action................................................................ 23

A. Intentional Discrimination Claim................................  26

1. Elements of an Intentional Discrimination Claim............. 26

2. The District Court Incorrectly Applied the Pleading
Standard and Mischaracterized the Allegations in the 
Amended Complaint.............................   28

B. Applying Rational Basis Review in a Wholly Deferential
Manner, the District Court Dismissed Plaintiffs’ Claim that New 
York State’s Non-uniform Felon Disfranchisement Scheme 
Violates Equal Protection Guarantees prior to Affording Plaintiffs 
the Opportunity to Develop and Present Evidence Regarding 
Defendants’ Justifications for the L aw ...........................................35

1. The district court erred in dismissing Plaintiffs’ 
equal protection claims without subjecting §5-106
to strict scrutiny......................................................................37

2. Even if rational basis is the appropriate level of review
for Plaintiffs’ equal protection claims, the district court erred 
in applying the standard in a wholly deferential manner 
and finding a rational basis for New York’s felon 
disfranchisement regime.......................................................40

C. Voting Rights Acts Claims......................................   42

CONCLUSION 43



TABLE OF AUTHORITIES

Cases Pages

Beniamin v. Jacobson,
124 F.3d 162 (2d Cir. 1997), vacated on other grounds,
172 F.3d 144 (2d Cir. 1999)........................................................................37

Burdick v. Takushi,
504U.S.428 (1992)...................................................................... .......38, 39

City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985).....................................................................................37

Conley v. Gibson,
355 U.S. 41, 47 (1957)...........................................................................21,22

Davis v. Beason,
133 U.S. 333 (1890).............................................................................. 42n.9

De Jesus v. Sears, Roebuck & Co.,
87 F.3d 65 (2d Cir. 1995)......................................................................17n.5

DeMuria v. Hawkes,
328 F.3d 704 (2d Cir. 2003).....................................................19, 20, 24, 36

Dioguardi v. Duming,
139 F.2d 774 (2d Cir. 1944)........................................................................20

Dunn v. Blumstein,
405 U.S. 330 (1972)..................................................................... 38,41 n.10

Dwyer v. Regan,
777 F.2d 825 (2d Cir. 1985), modified on other grounds,
793 F.2d 457 (2d Cir. 1986)....................................................................... 20

Farrakhan v. Washington,
359 F.3d 1116 (9th Cir. 2004), petition for cert, filed,
72 U.S.L.W. 3741 (U.S. May 24, 2004)................................... ............... .42

Friedlander v. Cimino,
520 F.2d 318 (2d Cir. 1975)....................................................................... 22

IV



Cases (cont’d) Pages

Geisler v. Petrocelli,
616 F.2d 636 (2d Cir. 1980)....................... ......................................... 20, 24

Hayden v. Pataki,
No. 00 Civ. 8586, 2004 WL. 1335921 (S.D.N.Y. June 14, 2004).... 17, 39

Heller v. Doe, ex rel. Doe,
509 U.S. 312 (1993)............................. ............... ............ .......................... 42

Hunter v. Underwood,
471 U.S. 222 (1985)................ ................................................ 27, 32, 33, 34

Irish Lesbian & Gay Organization v. Giuliani,
143 F.3d 638 (2d Cir. 1998)................................................................. 18, 20

Kramer v. Union Free School District No. 15,
395 U.S. 621 (1969)..................................... ........... ...................................37

McDonnell Douglas Com, v. Green,
411 U.S. 792 (1973).............. ......................................................... 21, 21 n.6

Muntaqim v. Coombe,
366 F.3d 102 (2d Cir. 2004), petition for cert, filed,
73 U.S.L.W. 3113 (U.S. July 21, 2004)............................... 4, 5, 16, 42, 43

Nagler v. Admiral Corp.,
248 F.2d 319 (2d Cir. 1957)....................................... ............................... 21

Norman v. Reed,
502 U.S. 279 (1992)..................................................................... ..............38

Patel v. Contemporary Classics of Beverly Hills,
259 F.3d 123 (2d Cir. 2001)................................................. ...............18, 19

Phillip v. University of Rochester, 
316 F.3d 291 (2d Cir. 2003)..... 22



Cases (cont’d) Pages

Reynolds v. Sims,
377 U.S. 533 (1964)................................................................................... 38

Romer v. Evans,
517 U.S. 620(1996)............ ........................ ................................... ....40,41

Ryder Energy Distributing Corn, v. Merrill Lynch Commodities, Inc.,
748 F.2d 774 (2d Cir. 1984).......................................................................20

Salahuddin v. Cuomo,
861 F.2d 40 (2d Cir. 1988).................................................................. 22, 23

Scheuer v. Rhodes, 416 U.S. 232 (1974),
overruled on other grounds. Davis v. Scherer,
468 U.S. 183 (1984).............. ....................................................................29

Scutti Enterprises. LLC v. Park Place Entertainment Com.,
322 F.3d 211 (2d Cir. 2003).......................................................................19

Shechter v. Comptroller of the City of New York,
79 F.3d 265 (2d Cir. 1996).........................................................................20

Swierkiewicz v. Sorema, N.A.,
534 U.S. 506 (2002)..................................................................... 21, 22, 29, 34

Underwood v. Hunter,
730 F.2d 614 (11th Cir. 1984), aff, 471 U.S. 222 (1985)....................... 33

Vargas v. City of New York,
377 F.3d 200 (2d Cir. 2004).......................................................................16

Village of Arlington Heights v. Metropolitan Housing Development
Com., 429 U.S. 252 (1977).............................................. 24, 27, 28, 30, 31

Washington v. Davis,
426 U.S. 229(1976)................................................................................... 28

vi



Cases (cont’d) Pages

Williams v. Apfel,
204 F.3d 48 (2dCir. 1999).......................................................................... 19

Williams v. Taylor,
677 F.2d 510 (5th Cir. 1982)............... ....................................................... 39

Yick Wo v. Hopkins,
118 U.S. 356 (1886)....... .............................................................................38

Ziemba v. Wezner,
336 F.3d 161 (2d Cir. 2004))].....................................................................17

Constitutions, Statutes & Rules

U.S. Const, amend. XIV, § 1.......... ......... .................................. .................. 27

N.Y. Const. (1821), art. II, § 1 (repealed 1870)...........................  12

N.Y. Const, art. II, § 2 ........................................................................................ 9

N.Y. Const. (1821), art. II, § 2 ...........................................................................7

N.Y. Const, art. II, § 2 (amended 1894).......................................................... 8,9

N.Y. Const, art. II, § 3 .......................................................................   5

28 U.S.C. §§ 1331............................................................................................... 2

28 U.S.C. §§ 1343......................................................................    2

42 U.S.C. §§ 1973........................................................................   1,2

42 U.S.C. §§ 1983.......................................................................       2

Fed.R.Civ.P. 8 ............................................................................................passim

Fed.R.Civ.P. 12..........................................................................................passim

N.Y.Elec. Law § 5-106.........................................................................3, 5, 9, 16
vii



Miscellaneous

Cong. Globe, 41st Cong., 2d Sess...................................................................14

Constitutional Convention of 1846, Debates of 1846............. ..................... 12

Documents of the Convention of the State of New York,1867-1868,
No. 16, 3, Vol. One (Albany: Weed, Pearsons & Co. 1868 ) ............13, 14

Nathaniel Carter, William Stone, & Marcus Gould,
Reports of the Proceedings and Debates of the Convention of 1821,

(Albany: E. & E. Hosford, 1821)......... .............................................10, 11

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

viii



PRELIMINARY STATEMENT

Plaintiffs-Appellants (hereinafter, “Plaintiffs”) seek to challenge the New 

York State laws that deny the franchise to voting-age citizens incarcerated or on 

parole for a felony conviction on the grounds that such laws (1) were enacted with 

the intent to discriminate against African Americans, (2) have the present-day 

effect of disfranchising African Americans and Latinos on account of race at a rate 

vastly disproportionate to Whites, and (3) are applied unequally among persons 

convicted of a felony in New York State. Plaintiffs appeal from those portions of 

the final judgment and order of the United States District Court for the Southern 

District of New York (Hon. Lawrence M. McKenna, J.) dated and entered on June 

14, 2004, dismissing Plaintiffs’ claims for relief under the Equal Protection Clause 

of the Fourteenth Amendment of the United States Constitution, the Fifteenth 

Amendment of the United States Constitution, and Section 2 of the Voting Rights 

Act of 1965, codified at 42 U.S.C. § 1973, et seq, (“Voting Rights Act” or 

“VRA”). The premature dismissal of Plaintiffs’ claims is directly contrary to 

controlling precedent of the Supreme Court and this Court concerning pleading 

requirements generally and the elements of equal protection claims in particular 

and, therefore, should be reversed.

1



STATEMENT OF SUBJECT MATTER 
AND APPELLATE JURISDICTION

Plaintiffs’ claims for declaratory and injunctive relief arise under the 

Fourteenth and Fifteenth Amendments of the United States Constitution and under 

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

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

U.S.C. §§ 1973(f) and §1983. The final judgment and order dismissing Plaintiffs’ 

claims was entered on June 14, 2004. On July 13, 2004, Plaintiffs filed their notice 

of appeal in the district court.

ISSUES PRESENTED FOR REVIEW

I. Whether the district court improperly and against the weight of relevant case law 

heightened the pleading requirements for Plaintiffs’ amended complaint in 

dismissing their claims under Federal Rule of Civil Procedure 12(c).

II. Whether Plaintiffs’ amended complaint, which alleges that New York’s felon 

disfranchisement laws were originally enacted with the intent to exclude Blacks 

from the franchise, states a claim under the Equal Protection Clause of the 

Fourteenth Amendment and under the Fifteenth Amendment.

III. Whether Plaintiffs’ amended complaint, which alleges that, without adequate 

justification, New York law disfranchises only those persons with felony 

convictions who are incarcerated or on parole, but not persons receiving other

2



sentences for felony convictions, states a claim under the Equal Protection Clause 

of the Fourteenth Amendment.

IY.Whether the district court erred in applying a wholly deferential standard of 

rational basis review to Plaintiffs’ equal protection claim against New York’s non- 

uniform practices of disfranchising only those persons with felony convictions who 

are incarcerated or on parole and in finding a rational basis for such practices.

STATEMENT OF THE CASE

This case was originally filed pro se by plaintiff Joseph Hayden on 

November 9, 2000, in the Southern District of New York, alleging that New York 

Election Law § 5-106, which prohibited him from voting in New York solely 

because of his felony conviction and incarceration, violated his rights under the 

Voting Rights Act and under the U.S. Constitution. Defendant Carol Berman, 

Chairperson of the New York State Board of Elections (“Berman”), and 

Defendants George Pataki (“Pataki”), Governor of the State of New York, and 

Glenn Goord, Commissioner of New York State Department of Correctional 

Services (“Goord”), filed answers on January 5, 2001 and on February 28, 2001, 

respectively.

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

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

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

3



injunctive relief. Judge McKenna granted this motion on February 21, 2003. The 

amended complaint added new plaintiffs1 2 and expanded the claims in this action 

against defendants Pataki and Berman in their official capacities. The Amended 

Complaint includes detailed allegations in support of the Constitutional and Voting 

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

York’s felon disfranchisement laws, as well as claims under the First Amendment, 

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

1957 and 1960, and customary international law. Defendants Berman and Pataki 

answered this amended pleading on April 8, 2003, and April 14, 2003, 

respectively.

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

discovery until this Court adjudicated Muntaaim v. Coombe, 366 F.3d 102 (2d Cir. 

2004), pet, for cert, filed, 73 U.S.L.W. 3113 (U.S. July 21, 2004) (No. 04-175), a 

pro se case challenging New York’s felon disfranchisement laws under the Voting

1 The additional Plaintiffs may be grouped within three separate subclasses: a) 
Blacks and Latinos eligible to vote but for their incarceration for a felony 
conviction; b) Blacks and Latinos eligible to vote but for their parole for a felony 
conviction; c) Black and Latino voters who reside in specific communities in New 
York City and whose collective voting strength is unlawfully diluted because of 
New York’s disfranchisement laws. Plaintiffs filed a motion to certify these 
subclasses on November 3, 2004, which the district court denied as moot in its 
June 14, 2004 judgment and order granting Defendants’ Motion for Judgment on 
the Pleadings.

2 Goord was not named as a defendant in the amended complaint and is no longer a 
party to this action.

4



Rights Act. Discovery by all parties commenced pursuant to a scheduling order 

issued by Magistrate Judge Henry Pitman on May 19, 2003. Defendants filed a 

motion for judgment on the pleadings in July 10, 2003 and Plaintiffs filed a brief in 

opposition in September 9, 2003.

All parties actively engaged in discovery through June 14, 2004, at which 

time Judge McKenna issued a final Memorandum and Order granting Defendants’ 

Motion for Judgment on the Pleadings in its entirety. The district court held that 

Plaintiffs’ Voting Rights Act claims must be dismissed in light of the ruling by a 

panel of this Court earlier this year in Muntaqim v. Coombe, which held that the 

VRA does not apply to felon disfranchisement laws. The court below further held 

as a matter of law that Plaintiffs had not alleged facts sufficient to state claims 

against Defendants under the Fourteenth and Fifteenth Amendments. This appeal 

followed.

STATEMENT OF FACTS

A. New York’s Felon Disfranchisement Laws

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

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

infamous crime.”3 Id. New York Election Law § 5-106(2) provides:

3 The term “infamous crime” has come to mean felony under New York State 
law. (JA 00107 [FAC 149]).

5



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.

B. The Amended Complaint

In eighteen separate allegations in their amended complaint (Joint Appendix 

(“JA”) 00105-109 [First Amended Complaint (“FAC”) f l  39 -  57]), Plaintiffs 

outline over one-hundred years of constitutional history in New York and made 

allegations of specific acts of intentional discrimination to deny the franchise to 

Blacks.

The allegations of the amended complaint detail how the framers of the New 

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

limiting suffrage to property holders and free men (JA 00106 [FAC 1 43]), 

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

1801 the legislature removed all property restrictions from the suffrage 

requirements for the election of delegates to New York’s first Constitutional

6



Convention, at the same time it expressly excluded Blacks from participating in 

this election. (JA 00106 [FAC f  45]).

New York’s felon disfranchisement provisions originated in this historical 

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

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

(JA 00107 [FAC 148]). Delegates clearly expressed their conviction that Black 

New Yorkers were unequipped and unfit to be part of the democratic process (JA 

00106-107 [FAC H  46-47]) and crafted new voting requirements that were aimed 

at stripping Blacks of their previously held, albeit severely restricted, right to vote. 

Id. Race-based suffrage requirements, such as heightened property requirements 

applicable only to Blacks, were written into Article II of the New York State 

Constitution. (JA 00107 [FAC 148]). The discriminatory effect of these measures 

was evident; only 298 out of 29,701 Blacks, or less than 1% of the Black 

population of the State, met these new requirements. Id. New citizenship 

requirements were also devised and applied in a racially discriminatory manner. 

Id.

The delegates to the 1821 Constitutional Convention also adopted a 

provision that permitted the legislature to exclude from the franchise those “who 

have been, or may be, convicted of infamous crimes.” (JA 00107 [FAC 1 49, 

quoting N.Y. Const. (1821), art. II, § 2]). In 1826, the State Constitution was

7



amended to expand White male suffrage without any alteration of either the 

onerous property requirements for Black males, or the felon disfranchisement 

provision. (JA 00107 [FAC f  50]).

Delegates to New York’s 1846 Constitutional Convention made explicit 

references to their belief that Blacks were unfit to vote. (JA 00107 [FAC J[ 51]). 

They adopted a new Constitutional provision expanding the Legislature’s 

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

convicted of bribery, of larceny, or of any infamous crime.” (JA 00107-108 [FAC 

<f 52, quoting N.Y. Const, art. II, § 2 (amended 1894)]). As in 1821, the delegates 

to the 1846 Constitutional Convention acted with knowledge that felon 

disfranchisement would disproportionately reduce the numbers of Black voters (JA 

00108 [FAC f  53); one speaker, for example, noted that “the proportion of 

‘infamous crime’ in the minority population was more than thirteen times that in 

the white population.” (JA 00107 [FAC f  51]). The delegates were, therefore, 

aware of the racially discriminatory impact of the felon disfranchisement law. (JA 

00108 [FAC f 53]).

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

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

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

8



but rejected. (JA 00108 [FAC f  54]). And the felon disfranchisement provision 

was not removed or altered. Id.

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

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

(JA 00108 [FAC f  55]). But two years after the passage of the Fifteenth 

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

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

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

from the franchise. (JA 00108 [FAC f  56], see, N.Y. Const, art. II, § 2 (amended 

1894)). Until that point, enactment of such laws had been permissive. (JA 00108 

[FAC '[[ 56]). This new mandate for felon disfranchisement was reaffirmed at a 

Constitutional Convention in 1894. (JA 00108-109 [FAC ][ 57]).

Plaintiffs’ allegations in their amended complaint thus describe the genesis 

of present Article II, § 3 of the New York Constitution in the 1821 and 1846 

Constitutional Conventions, reaffirmed and extended in 1872 and 1894, and which 

resulted in New York Election Law § 5-106 under which Blacks and Latinos 

incarcerated and on parole for felony convictions are presently disfranchised in 

New York State.

9



C. The Public Record

In addition to the allegations in the amended complaint, which by 

themselves suffice to state cognizable claims against defendants, the district court 

below had before it numerous references from the public record, the laws of New 

York, and historical scholarship that supported and elaborated upon the detailed 

allegations in the amended complaint that race, indeed, played a significant role in 

the adoption of New York’s felon disfranchisement laws.4 These references 

included the following:

1) At the New York Constitutional Convention of 1821 the question 

of Black suffrage sparked heated debates 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. Nathaniel Carter, William Stone, & Marcus Gould, 

Reports of the Proceedings and Debates of the Convention of 1821,

4 Plaintiffs introduced these facts in opposition to Defendants' Motion for 
Judgment on the Pleadings in order to provide additional context for their legally 
sufficient allegations of intentional discrimination and to offer a sample of the 
evidence that exists to support such claims. Plaintiffs provided these references 
without the benefit of the full expert reports by the historians they retained, since, 
as noted above, Judge McKenna’s decision was issued while the parties were in the 
throes of discovery. Moreover, while this showing is not necessary to withstand a 
motion for judgment on the pleadings, it provided the district court with ample 
information with which to measure the strength of plaintiffs’ allegations.

10



at 198 (Albany: E. & E. Hosford, 1821) (hereafter “Debates of 

1821”).

2) One delegate to the 1821 convention instructed 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 with power of 

deciding upon your political rights.” Id  at 191.

3) Another delegate to the 1821 convention urged the other delegates 

to “[sjurvey your prisons -  your alms houses -  your bridewells and 

your penitentiaries and what 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.

4) As is made manifest by their own language, the delegates not only 

understood that enacting the felon disfranchisement provision 

would result in the disproportionate disfranchisement of Blacks, but 

actively sought to preserve the franchise for Whites only: “[A]ll 

who are not white ought to be excluded from political rights.” Id. 

at 183.

5) As articulated by one delegate to the 1821 Constitutional 

Convention, the new property qualification “was an attempt to do a 

thing indirectly which we appeared to either be ashamed of doing,

11



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, at 143 n.13 (Albany, NY: J.B. Lyon Co., 1938).

6) 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 1870).

7) Moreover, as an additional barrier to voting, in 1821 it was decided 

that Blacks were required to possess a freehold estate worth $250 

for the year preceding any election. Id

8) In the 1846 Constitutional Convention, the delegates continued to 

advocate for the denial of equal suffrage to Blacks 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, at 1033 (hereafter “Debates of 1846”).

12



9) The understanding by the delegates that Blacks were thirteen times 

more likely to commit “infamous crimes” than Whites, set out in 

151 (JA 00107) of the amended complaint, was substantiated by a 

citation to the record of those debates, Debates of 1846, at 1033.

10) Moreover, the delegates were well aware of and sought the same 

the success of other slaveholding states 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?” Id  at 181.

11) In the 1866-67 Constitutional Convention, instead of abolishing the 

suffrage distinction for Blacks, the delegates favored a separate 

submission to the voters on the issue of equal Black suffrage. “[I]t 

must be done by the direct and explicit vote 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, 

1867-68, No. 16, 3, Vol. One (Albany: Weed, Pearsons & Co. 

1868) (hereafter “1867-68 Documents”).

12) Previous separate submissions to the voters on equal Black suffrage 

had proven that it was an unsuccessful way to abolish the legacy of

13



the 1821 Convention. For instance, an 1846 referendum to extend 

the 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, Vol. One.

13) During Reconstruction, additional measures were taken that would 

reveal the racial motivation of the state actors with regard to voting; 

for example, after initially ratifying the Fifteenth Amendment, New 

York withdrew its ratification. Cong. Globe, 41st Cong., 2d Sess., 

at 1447-81.

In short, the sampling of historical references that Plaintiffs highlighted to 

the district court, even in the absence of full expert discovery, demonstrated to the 

court that Plaintiffs could proffer evidence to bolster the specific allegations in 

their amended complaint. The district court’s premature dismissal of Plaintiffs’ 

claims, however, foreclosed further development of the case.

D. The District Court’s Opinion Regarding the Claims on Appeal

In evaluating Plaintiffs’ claims for intentional discrimination, the district 

court stated that Plaintiffs could withstand judgment on the pleadings “only if 

[they] sufficiently allege[d] that New York’s decision to disenfranchise 

incarcerated and paroled felons was motivated by discriminatory intent. (JA

14



00018 [00 Civ. 8586 Mem. & Order, at 7]). The court then referred to plaintiffs’ 

allegations in support of this claim and held that they do not “necessarily mean 

New York Constitution Article II, § 3 and § 5-106(2) or their predecessors were 

. . . enacted with [discriminatory] intent.” (JA 00019 [00 Civ. 8586 Mem. &Order, 

at 8]). The court further held that “[t]he majority of allegations” in support of the 

intentional discrimination claim are “entirely conclusory in nature,” stating that 

only one of plaintiffs’ factual allegations “could possibly support a finding of 

discriminatory intent.” (JA 00019 [00 Civ. 8586 Mem. & Order, at 8]). The 

district court then determined that “this one allegation is simply an insufficient 

basis, even under the liberal standards of a 12(c) motion, from which to draw the 

inference that these provisions or their predecessor were enacted with 

discriminatory intent.” (JA 00020 [00 Civ. 8586 Mem & Order, at 9]).

With respect to plaintiffs’ claim that New York’s non-uniform practices 

violate equal protection guarantees, the district court did not explicitly challenge 

the sufficiency of plaintiffs’ pleadings concerning this claim. Rather, the district 

court applied a wholly deferential standard of rational basis review and asserted, 

sua sponte, a justification for New York’s non-uniform felon disfranchisement 

laws. (JA 00020-23 [00 Civ. 8586 Mem. & Order, at 9-12]). For these reasons, 

the district court dismissed Plaintiffs’ well-pleaded claims for intentional

15



discrimination and non-uniform application of New York’s felon disfranchisement 

laws,

SUMMARY OF THE ARGUMENT

Plaintiffs alleged specific facts regarding the history of official 

discrimination against racial and ethnic minorities in New York State, including 

facts from which to infer intentional discrimination in the enactment of New 

York’s felon disfranchisement provisions. Moreover, Plaintiffs specifically 

alleged facts concerning the unequal application of New York Election Law § 5- 

106(2) that set forth a violation of the Equal Protection Clause of the Fourteenth 

Amendment because, Plaintiffs alleged, there is neither a compelling state interest 

nor a rational basis for the distinction in the law or the resulting disparity. Because 

these allegations easily satisfy the liberal pleading requirements under Rules 12(c) 

and 8(a), the district court’s dismissal of Plaintiffs’ Fourteenth and Fifteenth 

Amendment claims should be reversed. Moreover, the district court’s dismissal of 

Plaintiffs’ VRA claims should be vacated pending disposition of the Petition for 

Certiorari filed seeking review of this Court’s ruling in Muntaqim v. Coombe.

STANDARD OF REVIEW

An appellate court reviews the district court’s ruling on a Rule 12(c) motion 

for judgment on the pleadings de novo. Vargas v. City of New York, 377 F.3d 

200, 205 (2d Cir. 2004).

16



ARGUMENT

I. The District Court Substantially Misapplied the Standard for 
Dismissal Under Rule 12(c)

The district court substantially misapplied — and indeed heightened — the 

pleading requirements under Federal Rule of Civil Procedure 12(c) in deciding the 

Defendants’ motion for judgment on the pleadings. Despite recognizing that Rule 

12(c) requires it to “accept[] the allegations contained in the complaint as true and 

draw[] all reasonable inferences in favor of the [Plaintiffs],” (JA 00015-00016 

[Hayden v. Pataki, No. 00 Civ. 8586, 2004 WL 1335921, at *4-5 (S.D.N.Y. June 

14, 2004), (quoting Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004))]), the 

district court conducted a cursory analysis of Plaintiffs’ legally cognizable claims 

and, without regard to relevant and controlling case law, granted Defendants’ 

motion. Moreover, the district court incorrectly held that plaintiffs’ amply- 

pleaded complaint stated mere legal conclusions and did not set forth sufficient 

factual allegations. Id.5

5 The district court incorrectly relied on the inapposite case of De Jesus v. Sears, 
Roebuck & Co., 87 F.3d 65 (2d Cir. 1995), which held that conclusory allegations 
unsupported by factual assertions are insufficient to satisfy 12(b)(6), to support its 
improper dismissal of the plaintiffs’ complaint. In that case, however, this Court 
upheld the dismissal of the plaintiffs’ complaint against a parent company for the 
alleged fraudulent activity of its subsidiary because plaintiffs’ pleadings did not 
allege “any specific facts or circumstances . . . from which it may be inferred” that 
the parent company or its employees exercised actual domination over the 
subsidiary. Id- at 70 (emphasis in original). The facts of the instant case are 
clearly distinguishable from De Jesus, as the Plaintiffs’ amended complaint

17



Here, Plaintiffs’ allegations, far from merely stating general legal 

conclusions, are well supported by factual assertions that sufficiently satisfy the 

Rule 12(b)(6) (and, therefore, Rule 12(c)) standard. See Patel v. Contemporary 

Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citing Irish Lesbian & 

Gav Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). Specifically, Plaintiffs’ 

amended complaint asserts that New York’s extensive history of intentional racial 

discrimination against Blacks 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 requiring the 

Legislature to enact a felon disqualification statute, that were intended to, and have 

had the effect of, disfranchising Blacks and other racial minorities. Plaintiffs also 

allege that without any adequate justification, New York disfranchises only those 

persons with felony convictions who are incarcerated or on parole, but not those 

persons convicted of felonies but given probation, a suspended or commuted 

sentence, or other form of conditional or unconditional discharge.6 These facts,

specifically alleges facts and circumstances from which it can be inferred, without 
much effort, that New York’s felon disfranchisement laws were enacted with intent 
to disqualify Blacks from voting,

6 For ease of reference in the balance of this Brief we generally refer to such 
alternate forms of sentence or disposition upon conviction of a felony as 
“probation.”

18



taken as true, sufficiently state the basis for this Court to reverse the district court’s 

ruling and remand this case for trial.

A. The District Court’s Premature Dismissal of Plaintiffs’
Amended Complaint is Contrary to the Law of this Circuit 
and Supreme Court Precedent

While its uncertain which standard of review the district court may have 

applied to Plaintiffs’ claims, it is clear that the district court failed to follow the 

current precedent of the Supreme Court and this Circuit on pleading requirements. 

The standard for evaluating Defendants’ motion for judgment on the pleadings 

under Rule 12(c) is identical to that of a 12(b)(6) motion for failure to state a 

claim. See Patel, 259 F.3d at 123. Thus, in deciding a Rule 12(c) motion, a court 

must accept the allegations in the complaint as true and draw all reasonable 

inferences in favor of the plaintiff. DeMuria v. Hawkes, 328 F.3d 704, 706 (2d 

Cir. 2003) (citing Scutti Enters.. LLC v. Park Place Entm't Corn., 322 F.3d 211, 

214 (2d Cir. 2003)); see also Williams v. Apfel, 204 F.3d 48,49 (2d Cir. 1999)).

In applying this liberal pleading standard, “[t]he court may not dismiss a 

complaint unless it appears beyond doubt, even when the complaint is liberally 

constmed, that the plaintiff can prove no set of facts which would entitle him to 

relief.” DeMuria, 328 F.3d at 706. In addition, in considering a Rule 12(c) 

motion, the court’s function “is merely to assess the legal feasibility of the 

complaint, not to assay the weight of the evidence which might be offered in

19



support thereof.” Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, 

Inc., 748 F.2d 774, 779 (2d Cir. 1984); Giesler v. Petrocelli, 616 F.2d 636, 639 (2d 

Cir. 1980). In assessing the sufficiency of a pleading under Rule 12(c), “[t]he issue 

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

to offer evidence to support the claims.” DeMuria, 328 F.3d at 706.

This Court requires that this already demanding standard for prevailing on a 

Rule 12(c) motion be applied with “particular strictness when the plaintiff 

complains of a civil rights violation.” Irish Lesbian & Gay Org„ 143 F.3d at 644; 

see also Shechter v. Comptroller of New York, 79 F.3d 265, 270 (2d Cir. 1996); 

fDwver v. Regan, 777 F.2d 825, 829 (2d Cir. 1985), modified on other grounds, 

793 F.2d 457 (2d Cir. 1986)(same)).

In addition to the foregoing, courts must be mindful of the relatively low 

standard and relaxed rules of pleading, which require a plaintiff to provide only a 

“short and plain statement of the claim showing that the pleader is entitled to 

relief,” Fed. R. Civ. P. 8(a)(2), that “[a]ll pleadings shall be so constructed as to do 

substantial justice.” Fed. R. Civ. P. 8(f)- Consistent with the spirit of Rule 8, this 

Court has made clear that the Rule does not even require that a plaintiff plead all 

relevant facts. Dioguardi v. Duming, 139 F.2d 774, 775 (2d Cir. 1944) (finding 

that although plaintiff could not demonstrate precisely how medical tonics were 

improperly disposed of, it was sufficient to plead that an impropriety had been

20



committed). Indeed, presentation of voluminous and/or specific evidence during 

the pleading, rather than at the discovery phase, is not only unnecessary, but also 

undesirable. See Nagler v. Admiral Corn., 248 F.2d 319, 326 (2d Cir. 1957).

In Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), the Supreme Court 

unanimously rejected a heightened pleading standard upon the plaintiff. In 

Swierkiewicz, a panel of this Court had affirmed the dismissal of the plaintiffs 

lawsuit against his former employer on the grounds that his complaint did not 

adequately allege facts constituting a prima facie case of racial discrimination 

under the McDonnell Douglas7 standard. See 534 U.S. at 509-510. In reversing 

the panel’s decision, the Supreme Court noted that a heightened pleading standard 

in employment discrimination cases is inappropriate because “the prima facie case 

under McDonnell Douglas . . .  is an evidentiary standard, not a pleading 

requirement.” Id. at 510.

The Supreme Court also held that a heightened pleading requirement 

conflicted with Federal Rule of Civil Procedure 8(a)(2), which provides that a 

complaint must only include “a short and plain statement of the claim showing that 

the pleader is entitled to relief.” Id  at 512. Such a statement, the Supreme Court 

reasoned, must simply “give the defendant fair notice of what the plaintiffs claim 

is and the grounds upon which it rests.” Id  (quoting Conley v. Gibson, 355 U.S.

7 McDonnell Douglas Corn, v. Green, 411 U.S. 792, 802 (1973).

21



41, 47 (1957)). Under this simplified pleading standard, “[a] court may dismiss a 

complaint [under Rule 12] only if it is clear that no relief could be granted under 

any set of facts that could be proved consistent with the allegations.” Id  at 514.

Relying on the Supreme Court’s mling in Swierkiewicz, this Court in Phillip 

v. University of Rochester, 316 F.3d 291, 298-99 (2d Cir. 2003), announced that it 

would apply the lowered pleading standard set forth in Swierkiewicz. Indeed, even 

before the Supreme Court’s ruling in Swierkiewicz, this Court had recognized that 

“[w]hile clarity and precision are desirable in any pleading, the Federal Rules of 

Civil Procedure (F.R.C.P.) require little more than an indication of the type of 

litigation that is involved. A generalized summary of the claims and defenses, 

sufficient to afford fair notice to the parties is enough.” Friedlander v. Cimino, 520 

F.2d 318, 319 (2d Cir. 1975) (citing Conley, 355 U.S. at 41, 47) (emphasis added). 

Accordingly, this Court has acknowledged that dismissal on the pleadings is 

reserved only for the cases in which “the complaint is so confused, ambiguous, 

vague, or otherwise unintelligible that its true substance, if any, is well disguised.” 

Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

The district court appears to have dismissed Plaintiffs’ amended complaint 

for both failure to meet Rule 8(a)’s pleading requirements, and for failing to set 

forth sufficient facts to state a legal claim. However, as set forth above, on either

22



ground, it is clear that the district court did not apply the appropriate standard of 

review and its ruling should therefore be reversed.

II. Plaintiffs Met the Pleading Requirements of Rule 8(a) by Alleging 
Facts that Put Defendants on Notice of Their Claims, and of Rule 
12(c) by Setting Forth Sufficient Facts to State Legally Cognizable 
Causes of Action

Notwithstanding the district court’s application of a heightened pleading 

standard in the instant case, Plaintiffs’ amended complaint contains clear and 

sufficient allegations of intentional discrimination and violations of equal 

protection to withstand a dismissal at this stage of litigation. Far from asserting 

conclusory allegations, the complaint is well supported by factual averments that 

satisfy the Rule 12(c) standard. Plaintiffs’ amended complaint also clearly gave 

Defendants fair notice of the basis for the claims and the grounds upon which the 

claims rested and stated claims upon which relief could be granted.

As noted above, the principal goal of Rule 8(a), particularly the “short and 

plain statement” requirement, is to guarantee that adverse parties receive notice of 

legal actions to which they must respond. Salahuddin v. Cuomo, 861 F,2d at 42 

(holding that a “statement should be plain because the principal function of 

pleadings under the Federal Rules is to give the adverse party fair notice of the 

claim asserted so as to enable him to answer and prepare for trial.”) (citing Geisler 

v. Petrocelli, 616 F.2d at 640.. Plaintiffs’ amended complaint more than 

adequately puts Defendants on notice that they are challenging the racial animus

23



behind the original enactment of felon disfranchisement laws in New York, as well 

the equal protection violations inherent in a scheme that distinguishes among 

individuals with felony convictions, denying the right to vote to those sentenced to 

incarceration or serving parole, but not to those sentenced to probation. Likewise, 

Plaintiffs set forth sufficient allegations to support a cognizable cause of action, as 

required to survive a Rule 12(c) motion, and thus are “entitled to offer evidence to 

support [their] claims.” DeMuria v. Hawkes. 328 F.3d at 706. The district court 

erred in not allowing Plaintiffs to proceed to that stage.

Plaintiffs amended complaint contains numerous, specific allegations that 

would support a complete review of the “circumstantial and direct evidence of 

intent as may be available,” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 

429 U.S. 252, 266 (1977), regarding the role of race in the enactment of felon 

disfranchisement laws in New York. As detailed, infra, the complaint contains 

allegations that the framers of New York law in the 18th and 19th centuries, both the 

Legislature and the delegates to the various New York State Constitution 

Conventions intended to, and did, discriminate against persons of color with 

respect to the franchise and made “explicit statements of [their] intent” to that 

effect. (JA 00106 [FAC 1 41]). The amended complaint sets forth the 

unmistakable, de jure limitations on the ability of Black New Yorkers to vote? (JA

24



00106 [FAC f l  43-45]), that provided an historical context for the actions taken at 

the 1821 New York Constitutional Convention.

Additionally, the amended complaint sufficiently alleges that these actions 

had the discriminatory effect that the delegates had hoped for. For example, the 

delegates remarked explicitly that Blacks were thirteen times more likely than 

whites to be convicted of “infamous crime[s].” (JA 00107 [FAC 151]). Likewise, 

Plaintiffs included allegations regarding the equal protection violations that occur 

when the State discriminates among similarly situated individuals, denying the 

right to vote to some individuals convicted of a felony conviction but not others, 

and the racially disparate disfranchisement that results from this unequal 

application of law. (JA 0012 [FAC f f  77-79]).

Accordingly, Plaintiffs’ amended complaint represents the very “short and 

plain statement” contemplated by Rule 8(a), that would put any reader on notice 

that the role of race in the initial adoption of felon disfranchisement laws in New 

York is at the core of this case. Plaintiffs have also alleged sufficient facts setting 

forth a cognizable claim of intentional discrimination which, under the standard for 

assessing a Rule 12(c) Motion, allows them to proceed to discovery on these 

claims. Finally, Plaintiffs have alleged sufficient facts to put Defendants on notice 

of their race-neutral Equal Protection claim and to proceed to discovery on these 

claims.

25



A. Intentional Discrimination Claim

The amended complaint sufficiently alleges that New York’s felon 

disfranchisement laws 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. (JA 00113 [FAC fj[ 85-86]). In dismissing Plaintiffs’ 

intentional discrimination claim, the district court held that they did not allege any 

facts to support a finding of intentional discrimination and referred to a subset of 

the Plaintiffs’ allegations, which it said, even if tme, could not support a finding of 

intentional discrimination. This conclusion is patently in error, not only because it 

misstates the burden of pleading, but also because it fails to take into account the 

breadth of allegations in the amended complaint.

1. Elements of an Intentional Discrimination Claim.

Although Plaintiffs are not required to state each element of an intentional 

discrimination claim in order to survive a motion to dismiss or for judgment on the 

pleadings, it is useful nonetheless to understand the scope of such a claim in order 

to appreciate the extent to which Plaintiffs’ claim of intentional discrimination 

easily satisfies the requirements of Rule 8(a) and 12(c). In Richardson v. Ramirez, 

418 U.S. 24 (1974), the Supreme Court held that § 2 of the Fourteenth Amendment 

allows states to exclude from the franchise convicted felons, notwithstanding § l ’s

26



requirement that “[n]o state shall . . . deny to any person within its jurisdiction the 

equal protection of the laws.” U.S. Const, amend. XIV, § 1.

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. 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. Hunter, therefore, stands for the proposition that racially motivated 

disfranchisement statutes violate the Equal Protection Clause even if Richardson 

otherwise sanctions such laws (not adopted with discriminatory' intent) under the 

Fourteenth Amendment. Id. at 232-33.

Facially neutral state laws that have a racially disparate impact, like New 

York’s felon disfranchisement laws, are subject to the test outlined in Arlington 

Heights in order to determine whether such laws violate 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

27



Washington v. Davis, 426 U.S. 229, 242 (1976)), Indeed, 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.

2. The District Court Incorrectly Applied the Pleading 
Standard and Mischaracterized the Allegations in the 
Amended Complaint.

The district court provided a handful of cursory and conclusory reasons for 

dismissing Plaintiffs’ intentional discrimination claim, which are addressed in turn.

First, the district court took in isolation certain allegations concerning New 

York State’s history of discrimination in voting, stating that “just because some 

laws were enacted in the early to mid-1800s with the intent to discriminate against 

blacks and other minorities does not necessarily mean that New York Constitution 

Article II, § 3 and § 5-106(2) or their predecessors were similarly enacted with 

such intent.” (JA 00019 [00 Civ. 8586 (Mem. & Order, at 8)]). The district court’s

28



reasoning in this instance is a clear example of its misapplication of the pleading 

standard.

To substantiate the allegations in the amended complaint that an invidious 

racial purpose was a motivating factor in the enactment of New York’s felon 

voting restrictions, Plaintiffs utilized the available historical background and 

legislative history of the restrictions, (JA 00105-109 [FAC Hf 39-60]), and their 

disproportionate impact on Blacks and Latinos. (JA 00109-00111 [FAC f f  61- 

71]). However, the district court failed to read Plaintiffs’ allegations in the light 

most favorable to them, as is indicated by the court’s determination that such 

history “does not necessarily” signify the state’s intent to discriminate through its 

felon disfranchisement laws. This is plainly the wrong standard. The question is 

not whether past racial discrimination in voting “necessarily” means that New 

York’s felon disfranchisement laws were enacted with the intent to discriminate. 

Rather, the question is whether such allegations, which include facts concerning 

the enactment of the felon disfranchisement statute specifically, could support such 

a finding or entitle Plaintiffs to “offer evidence in support” of a finding that they 

were enacted for that purpose. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 

(2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 

grounds. Davis v. Scherer, 468 U.S. 183 (1984)); see also DeMuria v. Hawkes, 328 

F.3d at 706. The answer in this case is in the affirmative.

29



Arlington Heights holds that proof of intent to discriminate can be derived 

from a contextual analysis of a variety of factors that collectively support an 

inference of racial animus. 429 U.S. at 266 (finding that “whether invidious 

discriminatory purpose was a motivating factor demands a sensitive inquiry into 

such circumstantial and direct evidence of intent as may be available.”). This 

analysis would include examining allegations such as Plaintiffs’ assertions that 

African Americans were routinely intentionally denied suffrage on an equal basis 

as Whites, (JA 00105-107 [FAC f f  39-50]), openly regarded and referred to as 

being unfit for suffrage, (JA 00106-107 [FACf][ 46, 51]), and described as being 

13 times as likely as Whites to commit infamous crimes, (JA 00107 [FAC 151]) 

and that, “two years after the passage of the Fifteenth Amendment, an 

unprecedented committee convened and amended the disfranchisement provision 

of the New York Constitution to require the state legislature, at its following 

session, to enact laws excluding person convicted of infamous crimes from the 

right to vote . . . .  Theretofore, the enactment of such laws was permissive.” (JA 

00108 [FAC 156]).

Plaintiffs further alleged that the present-day impact of New York’s felon 

disfranchisement laws has the intended effect of denying the franchise to Blacks 

and Latinos in numbers vastly disproportionate to Whites. Specifically, Plaintiffs 

alleged that Blacks and Latinos are sentenced to incarceration at substantially

30



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

higher rates than Blacks and Latinos. (JA 00110 [FAC 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. (JA 00110 [FAC ][ 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 denied 

the right to vote pursuant to New York State Election Law § 5-106(2). Id.

Arlington Heights requires an evaluation of these factors as a whole, in order 

to appreciate the full context of the origin and effect of the laws in question, and 

not in isolation as the district court did here. (JA 00019-20 [Mem. & Order 00 Civ 

8586, at 8-9]). The district court specifically addressed only “this one allegation” 

of Plaintiffs, that Blacks are 13 times more likely to commit a crime than Whites, 

and found it insufficient to state a claim for intentional discrimination. Id.

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

allegations in the amended complaint tell a persuasive story of a pattern of 

historical intentional discrimination in voting, including repeated explicit 

statements about Blacks’ fitness for suffrage, their perceived criminality, and the 

codification of mandatory disfranchisement during an unprecedented special

31



session at a time when overt denial of the franchise to African Americans was

newly outlawed by the Fifteenth Amendment. These allegations are more than

sufficient to notify Defendants of the claims lodged against them and are not meant

or required to be exhaustive of all knowledge or evidence in Plaintiffs’ possession.

Finally, the district court attempted to compare the allegations in the

amended complaint to the evidence presented in Flunter after the plaintiffs in that

litigation had the benefit of discovery and a trial on the merits. Even in making

this inappropriate comparison for purposes of a 12(c) motion, the district court

failed to recognize the actual similarities in the facts alleged in the instant case and

those proven in Hunter. The district court notes that in Hunter:

[T]he plaintiffs in Hunter provided strong factual support showing a 
long history of racial discrimination including actual testimony of 
specific discriminatory statements made during the 1901 
Constitutional Convention where a “zeal for white supremacy ran 
rampant.” Here, plaintiffs have not alleged any such facts with 
respect to the enactment of New York Constitution Article II, § 4 and 
§ 5-106(2) or their predecessors.

(JA 00020 [Mem. & Order 008586, at 9 n.3]) (citations omitted).

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

32



required enactment of a felon disqualification statute), that were intended to, and 

have had the effect of, disproportionately disfranchising Blacks and other racial 

minorities. (JA 00106-108 [FAC f f  41-42, 43-46, 51-52, 57]). These allegations, 

taken as true, sufficiently state the basis for this Court to find a violation of the 

Equal Protection Clause of the Fourteenth Amendment and the Fifteenth 

Amendment.

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 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 (11th Cir. 

1984), aff’d 471 U.S. 222 (1985), none of these factors was mentioned in the

33



original complaint filed by plaintiffs in the case. See Compl., Underwood v. 

Hunter. No. CA-78-Mo704S (N.D. Ala., filed June 21, 1978).8

By contrast, the amended complaint in this case reveals a historical pattern 

of discrimination by New York intended to disfranchise Black voters. (JA 00105- 

108 [FAC f]l 39-57]). The historical development of New York’s felon 

disfranchisement laws in the amended compliant is not embodied in merely 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. 

(JA 00106-108 [FAC f f  43, 45-46, 51-52, 57]). As a result, Plaintiffs’ amended 

complaint clearly alleges Equal Protection and Fifteenth Amendment claims 

consistent with the Supreme Court’s holding in Hunter. Finally, 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. See Swierkiewicz, 534 

U.S. at 511. Thus, Plaintiffs are not required to produce evidence, direct or 

otherwise, or necessarily allege facts identical to those in Hunter as the district 

court suggests. Rather, Plaintiffs are required to, and indeed do, sufficiently allege

g
It is important to note here, however, that this is evidence that must be 

developed through discovery, including expert testimony, and was not required 
to be proven or alleged in exhaustive detail by plaintiffs at the stage of the 
litigation in which the complaint was dismissed. Plaintiffs-appellants should 
be afforded an opportunity to develop their case as plaintiffs were in Hunter.
(JA 00033-35).

34



that New York practiced unlawful discrimination in violation of the Fourteenth and 

Fifteenth Amendments and the Supreme Court’s rulings in Arlington Heights and 

Hunter.9

B. Applying Rational Basis Review in a Wholly Deferential Manner, the 
District Court Dismissed Plaintiffs’ Claim that New York State’s 
Non-Uniform Felon Disfranchisement Scheme Violates Equal 
Protection Guarantees Prior to Affording Plaintiffs the Opportunity 
to Develop and Present Evidence Regarding Defendants’ 
Justifications for the Law.

In addition to an intentional race discrimination claim, Plaintiffs assert that 

§5-106(2)’s felon disfranchisement scheme violates equal protection guarantees 

because it distinguishes among felons, denying the right to vote only to those 

felons sentenced to incarceration or serving parole, and not to those sentenced to 

probation. The district court erred in dismissing these claims at the pleading stage, 

without subjecting the distinction to strict scrutiny review, and without providing 

Plaintiffs an opportunity to prove that no rational basis is served by the felon 

disfranchisement scheme.

9 As noted above, 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.

35



As a threshold matter, Plaintiffs meet Rule 8(a)’s pleading standard for 

alleging an equal protection claim. Plaintiffs allege that, as a result of New York’s 

felon disfranchisement scheme, persons who are convicted of “bribery or of any 

infamous crime” and are sentenced to incarceration and/or 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. (JA 00109 [FAC 1 58-59]). In 

addition to allegations regarding the racial animus underlying the felon 

disfranchisement scheme, (JA 00105-108 [FAC fj[ 38-56]), Plaintiffs’ amended 

complaint contains allegations that this distinction described above has a racially 

disproportionate impact on Blacks and Latinos, who are prosecuted, convicted and 

sentenced to incarceration at rates vastly disproportionate to Whites. (JA 00109- 

110 [FAC f|[ 60-67]). Thus, Plaintiffs sufficiently state an equal protection claim. 

See DeMuria, 328 F.3d at 707 (finding that allegations of impermissible motive 

and animus is sufficient to allow plaintiffs to proceed with equal protection claim 

“at this earliest stage of the proceedings”). The court nevertheless dismissed 

Plaintiffs’ claims, applying the incorrect standard of review and prohibiting 

Plaintiffs from presenting any evidence to counter the purported justification for 

the felon disfranchisement scheme.

36



1. The district court erred in dismissing Plaintiffs’ equal 
protection claims without subjecting §5-106 to strict 
scrutiny.

The Equal Protection Clause requires that all persons who are similarly 

situated be treated alike. City of Cleburne v. Cleburne 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 this “threshold question,” the Supreme Court has 

held that a statute is subject to “heightened scrutiny” when it “burdens [a] 

fundamental right.” Id. Here, as Plaintiffs alleged in their amended complaint, 

New York’s felon disfranchisement scheme strips individuals who are convicted of 

a felony and sentenced to incarceration or parole of the right to vote, while leaving 

the voting rights of those sentenced to probation intact. (JA 00109 [FAC 1 58- 

59]). Because it severely burdens the fundamental right to vote of one class of 

individuals with felony convictions, the statute must be strictly scrutinized. See 

Kramer v. Union Free Sch. Dist. No. 15. 395 U.S. 621, 626-27 (1969) (“If a 

challenged state statute grants the right to vote to some bona fide residents of 

requisite age and citizenship and denies the franchise to others, the Court 

must determine whether the exclusions are necessary to promote a compelling state 

interest.”). In dismissing Plaintiffs’ equal protection claim, the district court 

applied a deferential standard wholly inconsistent with this heightened scrutiny

37



requirement, thereby failing to perform its own searching analysis of Defendants’ 

asserted justification for the voting ban. And, by dismissing Plaintiffs’ claim at 

this stage of litigation, the court denied Plaintiffs the opportunity to develop and 

present such an analysis to the court as well.

As the Supreme Court has stated, “voting is of the most fundamental 

significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428,

433 (1992), see also Reynolds v. Sims, 377 U.S. 533, 562 (1964) (stating that, by 

denying some citizens the right to vote, durational residence requirements deprive 

them of a “fundamental political right, . . . preservative of all rights.”) (quoting 

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). When Fourteenth Amendment 

rights are “subjected to ‘severe’ restrictions, the regulation must be ‘narrowly 

drawn to advance a state interest of compelling importance.”’ Burdick, 504 U.S. at

434 (1992) (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)); see also Dunn v. 

Blumstein, 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”). A heightened standard of review is 

applicable in this case because New York’s felon disfranchisement scheme directly 

deprives Plaintiffs’ of their fundamental right to vote, and indeed denies the right 

to vote to felons who are incarcerated or on parole, while preserving the voting 

rights of individuals convicted of similar offenses yet sentenced to probation.

38



To perform this rigorous inquiry, the court was required to examine the 

propriety of New York’s felon disqualification statute and sustain it only if it 

concluded that the statute is drawn narrowly to advance a compelling New York 

State interest. Burdick, 504 U.S. at 434. Yet, the district court did no such thing. 

Rather, in dismissing Plaintiffs’ equal protection claims, the district court found 

that New York’s non-uniform scheme of disfranchising only those felons 

sentenced to incarceration or serving parole met the deferential standard of 

“rational, not arbitrary.” Hayden v. Pataki, No. 00 Civ. 8586, at *10 (quoting 

Williams v. Taylor, 677 F.2d 510, 516 (5th Cir. 1982)). The court simply accepted 

Defendants’ explanation for the legislature’s 1973 amendment, namely, that the 

amendment helped to make consistent the statutory scheme. Id  Moreover, going 

beyond the Defendants’ articulated rationale, the district court consulted Black’s 

Law Dictionary for the definitions of parole and probation to conclude that 

denying suffrage to one group and not the other “is certainly not arbitrary.” (JA 

00022 [00 Civ. 8586 Mem. & Order, at 11]). Thus, the district court did no 

searching review of justifications for the felon disfranchisement scheme. And in 

dismissing the Plaintiffs’ claims at this early stage of the litigation, the Court 

denied Plaintiffs the opportunity to inquire into Defendants’ justification, as well.

39



2. Even if Rational Basis is the Appropriate Level of Review 
for Plaintiffs’ Equal Protection Claims, the District Court 
Erred in Applying the Standard in a Wholly Deferential 
Manner and Finding a Rational Basis for New York’s Felon 
Disfranchisement Regime.

In addition and in the alternative, the district court should have applied 

rational basis review with some analysis of Defendants’ asserted justification for 

the felon disfranchisement scheme, and only after providing Plaintiffs with the 

opportunity to present evidence to counter that justification. Specifically, the court 

should have looked beyond Defendants’ articulated justifications when 

determining whether the felon disfranchisement scheme, which in some cases 

results in a lifetime ban on voting, is rational. At the very least, the Court should 

have provided Plaintiffs with the opportunity to develop and provide its own 

evidence regarding the purposes served by the law.

As the Supreme Court noted in Romer v. Evans, even when applying 

rational basis review, courts can “insist on knowing the relation between the 

classification adopted and the object to be attained.” 517 U.S. 620, 632 (1996). 

This “search for the link between classification and objective gives substance to 

the Equal Protection Clause.” IcL Indeed, “[b]y requiring that the classification 

bear a rational relationship to an independent and legitimate legislative end, we 

ensure that classifications are not drawn for the purpose of disadvantaging the 

group burdened by the law.” IdL

40



In Romer, the Court examined the constitutionality of an amendment to the

Colorado state constitution which effectively repealed state and local provisions 

barring discrimination on the basis of sexual orientation. Applying a rational basis 

level of the review, the court nonetheless found that the provision was “at once too 

narrow and too broad. It identifies persons by a single trait and then denies them 

protection across the board.” Id. at 633.10

Here, by disfranchising individuals who are convicted of a felony and 

sentenced to parole, but not similarly situated individuals who are sentenced to 

probation, New York’s felon voting ban, too, makes a distinction based on the 

status of the individual. Moreover, this distinction results in the denial of a 

fundamental right — the right to vote. Further, in the case of individuals with a 

lifetime parole sentence, the distinction results in permanent disfranchisement. 

Plaintiffs assert that there is simply no rational justification for disfranchising — 

and in some cases permanently banning from voting — tax-paying citizens. As 

was the case in Romer, here, Defendants’ justification for the distinction must be

10 Rejecting the dissent’s reliance on the case of Davis v. Beason, 133 U.S. 333 
(1890), the Court noted that to the extent that Davis “held that the groups 
designated in the statute may be deprived of the right to vote because of their 
status, its ruling could not stand without surviving strict scrutiny, a most doubtful 
outcome.” Romer, 517 U.S. at 635 (citing Dunn, 405 U.S. at337. Although the 
court noted that Davis’ ruling that a convicted felon may be denied the right to vote 
under the equal protection clause, id  at 635 (citing Richardson), that statement did 
not address, and thus is not relevant to, the equal protection implications of 
singling out one group of similarly situated felons for disfranchisement.

41



examined in a manner more searching than done by the district court. At the very 

least, Plaintiffs should have been provided the opportunity to develop and present 

evidence concerning the interests served by the voting ban and whether the 

distinction is rational.

Even under the most deferential standard, when applying rational basis 

review, “[t]he burden is on the one attacking the legislative arrangement to 

negative every conceivable basis which might support it.” Heller v. Doe, ex reL 

509 U.S. 312. 322 (1993). By dismissing Plaintiffs’ claims at this point, the Court 

denied Plaintiffs the opportunity to engage in this analysis. The district court thus 

erred in dismissing Plaintiffs’ equal protection claims after applying a wholly 

deferential standard of rational basis review.

C. Voting Rights Acts Claims

As noted above, the district court dismissed Plaintiffs’ Voting Rights Act 

claims based upon this court’s mling in Muntaqim v. Coombe, 366 F.3d 102 (2d 

Cir. 2004), which held that the Voting Rights Act does not apply to felon 

disfranchisement laws. On July 21, 2004, Muntaqim, the plaintiff-appellant, filed 

a petition for a writ of certiorari that is currently pending before the United States 

Supreme Court.2 See 73 U.S.L.W. 3113 (U.S. July 21, 2004) (No. 04-175). In 

addition, there is a fully-briefed petition for writ of certiorari pending in a Ninth 

Circuit case, Farrakhan v. Washington, that presents the same question of whether

42



the Voting Rights Act applies to felon disfranchisement laws. 359 F.3d 1116 (9th 

Cir. 2004), petition for cert, filed. 72 U.S.L.W. 3741 (U.S. May 24, 2004) (No. 03- 

1597). In order to preserve their claims under the Voting Rights Act pending final 

resolution in Muntaqim v. Coombe, Plaintiffs appealed the district court’s 

judgment dismissing those claims. In light of the pendency of Muntaqim and 

Farrakhan before the Supreme Court, the judgment below should be vacated with 

instructions to the District Court to reconsider its dismissal in light of any action 

taken by the Supreme Court in those matters.

43



CONCLUSION

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

reversed in part, vacated in part, and the case remanded for further proceedings.

Dated: New York, New York
September 27, 2004

Theodore M. Shaw 
Director-Counsel 

Norman J. Chachkin 
Ryan P. Haygood 
Debo P. Adegbile 
Alaina C. Beverly 
NAACP Legal Defense

and Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013-2897 
(Tel.) 212-965-2200 
(Fax) 212-226-7592 
inelson@naacpldf.org

Juan Cartagena 
Risa Kaufman 
Community Service Society

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

Joan P. Gibbs 
Esmeralda Simmons 
Center for Law and Social Justice 

at Medgar Evers College

44

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


1150 Carroll Street 
Brooklyn, NY 11225 
(Tel.) 718- 270-6296 
(Fax) 718-270-6190 
ioangibbs@hotmail.com

45

mailto:ioangibbs@hotmail.com


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

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

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

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

prepare this brief, I hereby represent that the brief of the NAACP Legal Defense 

and Educational Fund, Inc., Community Service Society of New York, and the 

Center for Law and Social Justice at Medgar Evers College for Plaintiffs- 

Appellants contains 9,217 words, not including the corporate disclosure statement, 

table of contents, table of authorities, and certificates of counsel, and is therefore 

within the word limit for 14,000 set forth under Fed. R. App. P. 32(a)(7)(B).

Janai S. Nelson, Esq.
Director of Political Participation 

NAACP Legal Defense & 
Educational Fund, Inc.

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

Dated: September 27, 2004

mailto:inelson@naacpldf.org


CERTFICATE OF SERVICE

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

September 27, 2004,1 served upon the following, by United States Postal Service

priority mail, postage prepaid, two tme and correct copies of the attached BRIEF

FOR PLAINTIFFS-APPELLANTS:

Patricia L. Murray, Esq.
First Deputy Counsel 

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

Joel Graber, Esq.
Assistant Attorney General of State of New York 

120 Broadway -  24th Floor 
New York, New York 10271-0332 
Counsel for Defendant Governor George Pataki

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

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

designated by that service.

Janai S. Nelson, Esq.
Director of Political Participation 

NAACP Legal Defense & 
Educational Fund, Inc.

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