Ebguna v. Time-Life Libraries, Inc. Petition for Writ of Certiorarig

    04-3886-PR
JOSEPH HAYDEN; LUMUMBA 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 SATTERFIELD; and 

BARBARA SCOTT, on behalf of themselves and all individuals similarly situated,

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

To be argued by 
Janai S. Nelson, Esq.

United States Court of Appeals
for the

Second Circuit

Defendants-Appellees.

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

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

Naacp Legal Defense & Educational 
Fund, Inc. Juan Cartagena 

Risa Kaufman

Community Service Society of New York

Theodore M. Shaw 
Director-Counsel 105 E. 22nd Street 

New York, NY 10010 
(212) 260-6218

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

[Listing of Counsel Continued Inside Cover]



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

Alaina C. Beverly 
Debo P. Adegbile 
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 for Appellants



TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................... a

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

ARGUMENT............................................................................................................ 2

I- Defendant, Like the District Court, Misapplies the Rule 12(c)
Standard..................................................................................................2

II. Plaintiffs Have Alleged Sufficient Facts of Intentional Discrimination
that Are Not Refuted by Defendant’s Misleading Interpretation of the 
Legislative History of New York’s Felon Disfranchisement Laws ......7

A. Defendant and the District Court Ignore the Arlington Heights
Standard for Pleading Intentional Discrimination that Plaintiffs 
Have Clearly Met........................................................................... 8

B. Defendant Misstates the Legislative Record in Support of His
Purge Argument, which Fails Both As A Matter of Law and Fact 
at this Stage ..................................................................................13

III. Defendant Has Not Proven that New York’s Felon Disfranchisement
Laws Were Purged of Their Discriminatory Taint, Nor Is that 
Determination Appropriate for a Rule 12(c) Proceeding......................19

IV. Plaintiffs’ Equal Protection Claim Is Not Barred by Richardson or
Baker Nor Is It Subject to Rule 12(c) Dismissal without Further 
Development of the Record...................................................................24

V. Plaintiffs’ Voting Rights Act Claims Should be Preserved Pending
Final Disposition in Muntaqim.............................................................30

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

i



Papes

TABLE OF AUTHORITIES

Baker v. Cuomo. 58 F.3d 814 (2d Cir. 1995), vacated bv
Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996)...............6, 24, 25, 28, 29, 30

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

Carolene Prod. Co. v United States.
323 U.S. 18 (1944).................................................................................. 5

Chen v. City of Houston, cert, denied.
206 F.3d 502 (5th Cir. 2000), cert, denied. 532 U.S. 1046 (2001)... 21 n.5

Clark v. Jeter.
486 U.S. 456(1988)................................................................................. 27

Cotton v. Fordice.
157 F.3d 388 (5th Cir. 1998)..................................................................21

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

Dunn v. Blumstein.
405 U.S. 330(1972)................................................................................. 28

Enslev Branch. NAACP v. Siebels.
31 F.3d 1548, 1575 (11th Cir. 1994)......................................................22

Green v. Bd. of Elections.
380 F.2d 445 (2d Cir. 1967).............................................................28, 29

Hunter v. Underwood.
471 U.S. 222 (1985)................................  11, 12, 14 n.3, 20, 21 n.4, 22, 24

Illinois Bd. of Elections v. Socialist Workers Party.
440 U.S. 173 (1979)................................................................................  27

Irish Lesbian & Gay Org. v. Giuliani.
143 F.3d 638 (2d Cir. 1998)....................................................................... 3

ii



Cases (Cont’d) Pages

Knight v. Alabama.
14 F.3d 1534(11th Cir. 1994)................................................................. 22

Landell v. Sorrell. 382 F.3d 91, 135 n.24 (2d Cir. 2004)
382 F.3d 91(2d Cir. 2004)......................................................................... 5

Mt. Healthy City Bd. of Educ. v. Dovle.
429 U.S. 274(1977)................................................................................. 20

Muntaqim v. Coombe.
366 F.3d 102 (2d Cir. 2004), pet, for cert, filed.
73 U.S.L.W. 3113 (U.S. July 21, 2004)....................................... 2, 30, 31

Patel v. Contemporary Classics of Beverly Hills.
259 F.3d 123 (2d Cir. 2001).............................................................. 3, 7-8

Personnel Adm’r of Mass, v. Feeney.
442 U.S. 256 (1979)................................................................................. 20

Phillip v. Univ. of Rochester.
316 F.3d 291 (2d Cir. 2003)............................................................. 20 n.4

Ramos v. Town of Vernon.
353 F.3d 171 (2d Cir. 2003).............................................................. 27,28

Reynolds v. Sims,
377 U.S. 533 (1964)................................................................................  27

Richardson v. Ramirez.
418 U.S. 24 (1974),......................................................... 24, 25, 26, 28, 29

Romer v. Evans.
517 U.S. 620(1996)................................................................................. 29

Scutti Enter.. LLC v. Park Place Entm’t Corn..
322 F.3d 211 (2d Cir. 2003).....................................................................3

Underwood v. Hunter.
730 F.2d 614 (11th Cir. 1984), affd . 471 U.S. 222 (1985)...................  12

iii



United States v. Hemandez-Fundora.
58 F.3d 802 (2d Cir. 1995)....................................................................... 4

United States v. Coleman.
166 F.3d 428 (2d Cir. 1999)(per curiam)............................................... 27

United States v. Fordice.
505 U.S. 717(1992).........................................................................  21,22

Village of Arlington Heights v. Metro. Hous. Dev. Corn..
429 U.S. 252 (1977)........................................................................  8, 9, 10

Williams v. Apfel.
204 F.3d 48 (2d Cir. 1999).......................................................................3

Constitutions, Statutes & Rules

U.S. Const. Amend. XIV....................................................................... 16, 17

N.Y. Const, art. II, § 2 .................................................................................17

Fed. R. Civ. P. 12(c)...............................................................................passim

Fed. R. Civ. P. 56............................................................................................ 2

Fed. R. Evid. 201, Notes of Advisory Committee on Rules........................... 4

Fed. R. Evid. 201(e)......................................................................................  6

N.Y. Elec. Law § 5-106................................................................... 24, 27 n.6

Miscellaneous

Edwin G. Burrows & Mike Wallace, Gotham: A History of New
York City to 1898 (19981.......................................................................15

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

Cases (Cont’d) pages

IV



Kenneth Davis. An Approach to Problems of Evidence in the 
Administrative Process. 55 Harv . L. Rev . 364 (1942)..... 4

Phyllis F. Field, The Politics of Race in New York: The Struggle for
Black Suffrage in the Civil War Era (19821..................................... 14, 15

David Nathaniel Gellman & David Quigley, Jim Crow New York: A 
Documentary History of Race and Citizenship. 1777-1877 (NYU 
Press 2003)..............................................................................................15

John T. Hoffman Address (Jan. 5, 1869) in Messages from the
Governor. Vol. 6 (T 869-18761 (Charles Z. Lincoln, ed. 1909)............. 16

John T. Hoffman Address (Jan. 1870) in Messages from the
Governor. Vol. 6 0869-1876) (Charles Z. Lincoln, ed. 1909).............16

John T. Hoffman, Speech to Erie County Democrats in Buffalo (Sept.
8, 1868) in N.Y. Times, Sept. 9,1868.....................................................  16

Irish Citizen. October 19, 1867....................................................................  16

Journal of the New York State Constitutional Convention Committee,
Begun and Held in the Common Council Chamber, in the City of 
Albany, on the Fourth Day of December. 1872 (Weed, Parsons &
Co., 1873)...............................................................................................  18

Charles Z. Lincoln, The Constitutional History of New York from the 
Beginning of the Colonial Period to the Year 1905. Showing the 
Origin. Development, and Judicial Construction of the 
Constitution (1906)............................................................................  16-17

David Quigley, Second Founding: New York City. Reconstruction.
and the Making of American Democracy (2004)...................................  16



PRELIMINARY STATEMENT

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

dismissal of their claims challenging New York’s felon disfranchisement laws 

under the Fourteenth and Fifteenth Amendments of the United States Constitution 

was in error. As a threshold matter, Defendant George Pataki1 concedes that 

Plaintiffs meet the basic pleading requirements for an intentional discrimination 

claim and does not challenge the sufficiency of the pleadings with respect to any of 

the claims on appeal. Moreover, not only does Defendant Pataki’s response2 offer 

no reliable justification for upholding the decision below, it highlights the 

searching and exacting factual inquiry merited by Plaintiffs’ claims that was 

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

Defendant attempts to circumvent this inquiry by misleading the court on the 

content and interpretation of the legislative history at issue and by limiting the 

analysis of Plaintiffs’ claims to the legislative record when a fuller examination is

1 Defendant George Pataki, Governor of the State of New York, (“Defendant 
Pataki” or “Defendant”) submitted a brief in response to Plaintiffs’ opening brief 
on appeal on behalf of himself and Glenn S. Goord, Commissioner of New York 
State Department of Correctional Services. Commissioner Goord was dismissed 
from this action upon the filing of Plaintiffs’ First Amended Complaint (“Amended 
Complaint”) in January 15, 2003. Carol Berman, Chairperson of the New York 
State Board of Elections, who is a current Defendant in this lawsuit, did not file a 
response to Plaintiffs’ brief on appeal.

'  Brief for Defendants-Appellees Pataki and Goord [sic] (“Defendant’s Response” 
or “Def’s Br.”).

1



required. However, Plaintiffs have pleaded sufficient facts that are supported by 

the legislative record and historical context, to withstand dismissal under Rule 

12(c). Likewise, Plaintiffs have shown that the disparate application of New York 

State’s felon disfranchisement statute among persons with felony convictions is 

subject to heightened scrutiny that requires further factual development by the 

parties. Finally, the intervening petition for rehearing en banc in Muntaaim v. 

Coombe. counsels toward vacating the district court’s dismissal of Plaintiffs’ 

Voting Rights Act claims.

ARGUMENT

I. DEFENDANT, LIKE THE DISTRICT COURT, MISAPPLIES THE 
RULE 12(c) STANDARD

While it is unclear what standard the district court used in dismissing 

Plaintiffs’ claims, Defendant stipulates that “the complaint’s allegations satisfy [] 

minimal pleading requirements.” Defs Br. at 12. However, like the district 

court’s opinion below, Defendant’s Response conflates the standard for 

withstanding a Rule 12(c) motion with the standard required to prevail on a Rule 

56 motion for summary judgment, and urges the Court to engage in an 

unwarranted investigation of the merits of this case.

2



As set forth in their opening brief, Plaintiffs’ Amended Complaint alleges 

specific facts demonstrating intentional discrimination and disparate application of 

New York’s felon disfranchisement laws. If construed in the light most favorable 

to the Plaintiffs and accepted as true, as required by Rule 12(c), these allegations 

entitle Plaintiffs to relief. DeMuria v. Hawkes. 328 F.3d 704, 706 (2d Cir. 

2003)(citing Scuttie Enters, v. Park Place Entm’t Corp.. 322 F.3d 211, 214 (2d Cir. 

2003)); Patel v. Contemporary Classics of Beverly Hills. 259 F.3d 123, 126 (2d 

Cir. 2001)(citing Irish Lesbian & Gay Org. v, Giuliani. 143 F.3d 638, 644 (2d Cir. 

1998)). By presenting issues of fact that were never raised before the district court, 

and inviting interpretations of legislative history that are at best contested, 

Defendant seeks to have this Court conduct an evidentiary exercise that is 

improper at this stage in litigation.

Specifically, Defendant suggests that this Court should blindly accept his 

narrow and misleading interpretation of the legislative history of New York’s felon 

disfranchisement provisions. However, Defendant’s argument that the legislative 

history of New York’s felon disfranchisement provisions “decisively 

demonstrates,” Def’s Br. at 9, his position that subsequent re-enactments of the 

laws removed any discriminatory intent is nothing more than Defendant’s opinion 

about a severely contested factual issue that cannot be resolved without a remand 

for further discovery. See Williams v. Apfeh 204 F.3d 48, 50 (2d Cir. 1999)

3



(vacating a district court judgment and remanding for further proceedings where 

the administrative record was undeveloped).

Defendant asks this Court to take judicial notice of his interpretation of the 

legislative history of the laws in question. Def s Br. at 12-14. However, the 

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

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

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

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

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

Rules citing Kenneth Davis, An Approach to Problems of Evidence in the 

Administrative Process. 55 Harv. L. Rev. 364, 404-407 (1942). Defendant admits 

in his brief that “legislative intent is not an adjudicative fact but a legislative one,” 

Def s Br. at 14, making it clear that his proffered interpretation of legislative 

history does not fall under Rule 201. See also United States v. Hemandez- 

Fundora, 58 F.3d 802, 811 (2d Cir. 1995) (“[RJesolution of the jurisdictional issue 

[ ] requires the determination of legislative facts, rather than ‘adjudicative facts’ 

within the meaning of Rule 201(a), with the result that Rule 201(g) is 

inapplicable.”).

4



Although courts have taken judicial notice of legislative history showing the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

notice of Defendant’s proffered interpretation of the legislative history of New

5



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

12(c) determination. Moreover, should this Court determine that judicial notice is 

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

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

Plaintiffs’ Amended Complaint also sufficiently alleges that New York’s 

felon disfranchisement provisions, as applied, make impermissible distinctions 

among persons with felony convictions. Defendant argues that Baker v. Cuomo. 

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

1996), forecloses Plaintiffs’ Equal Protection claim. Def’s Br. at 25, 28-29. 

However, Baker does not foreclose Plaintiffs’ argument that this case should be 

vacated and remanded for development of a complete factual record necessary to 

support heightened scrutiny, or a rational basis equal protection analysis, regarding 

the severity of the crimes committed by individuals sentenced to incarceration or 

parole (as compared to probationers) and the implications of prohibiting such 

individuals to exercise their fundamental right to vote. See Baker. 58 F.3d at 818- 

819. Therefore, dismissal below should be reversed and this case remanded for 

further proceedings.

6



II. PLAINTIFFS HAVE ALLEGED SUFFICIENT FACTS OF 
INTENTIONAL DISCRIMINATION THAT ARE NOT REFUTED 
BY DEFENDANT’S MISLEADING INTERPRETATION OF THE 
LEGISLATIVE HISTORY OF NEW YORK’S FELON 
DISFRANCHISMENT LAWS

Against the weight of legislative history to the contrary, Defendant alleges 

that the “legislative histories of the challenged [felon disfranchisement] provisions 

demonstrate that the plaintiffs’ allegation of discriminatory legislative intent fail 

[sic] as a matter of law.” Def’s Br. at 10. To support this assertion, Defendant 

attempts to divert this Court’s attention from the discriminatory origins of New 

York’s felon disfranchisement statute (the corrosive effects of which endure to this 

day) by claiming that an alleged “redrafting of the constitutional provisions” more 

than half a century later in 1874 and “statutory amendments of 1971 and 1973” 

purged the provisions of their discriminatory intent. Id. “Consequently,” 

Defendant concludes, “the plaintiff[s] can prove no facts” in support of their 

intentional discrimination claim that would entitle them to relief. Id, at 10-11. As 

we show below, Defendant’s argument is factually erroneous because (like the 

opinion below) it fails to address the naked reality of New York’s long history of 

intentional discrimination against Blacks in voting.

Defendant also relies on a misstatement of established legal principle. To 

satisfy a Rule 12(c) motion, Plaintiffs need only state facts, which taken together as 

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

7



126. Here, 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 (culminating in the mandated enactment of 

a felon disqualification statute) that were intended to, and have had the 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 of the Fourteenth Amendment and the Fifteenth Amendment.

A. Defendant and the District Court Ignore the Arlington Heights 
Standard for Pleading Intentional Discrimination that Plaintiffs 
Have Clearly Met.

By suggesting that Plaintiffs attempted in their Amended Complaint to make 

a “prima facie case” that New York’s felon disfranchisement statute was “enacted 

with the intent to “disenfranchise [sic] Blacks,” Def’s Br. at 11, Defendant, like the 

district court, seeks to heighten the standard for alleging intentional discrimination 

under the Equal Protection Clause of the Fourteenth Amendment. The appropriate 

test for determining whether a facially neutral state law that has a racially disparate 

impact violates the Equal Protection Clause was outlined by the Supreme Court in 

Village of Arlington Heights v. Metro. Hous. Dev. Corp.. 429 U.S. 252 (1977). In 

Arlington Heights, the Supreme Court held that proof of intent to discriminate can 

be derived from a contextual analysis of a variety of factors that collectively

8



support an inference of racial animus — including that 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. 

429 U.S. at 266-267 (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”).

Arlington Heights requires an evaluation of these factors taken as a whole— 

and not in isolation as the Defendant and the district court did here—in order to 

appreciate the full context of the origin and effect of a challenged law. Contrary to 

the holding of Arlington Heights, however, Defendant relies exclusively on limited 

portrayals of “legislative histories of the most recent substantive amendments to 

the challenged statutory and constitutional provisions,” Def’s Br. at 12, to 

demonstrate a nondiscriminatory legislative intent, and proffers that inadequate, 

narrow interpretation as the justification for the district court’s dismissal.

To substantiate their intentional racial discrimination claim, Plaintiffs cited 

telling portions of the available historical background and legislative history of 

New York’s felon disfranchisement restrictions, (JA 00105-109 [FAC 39-60]), 

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

9



11 61-71]). Plaintiffs’ Amended Complaint contains numerous, specific 

allegations that support a complete review by the trial court of the “circumstantial 

and direct evidence of intent as available,” Arlington Heights. 429 U.S. at 266, 

regarding the central role of race in the enactment of New York’s felon 

disfranchisement laws.

Specifically, the Amended Complaint alleges that, in the 18th and 19th 

centuries, both the Legislature and delegates to the various New York State 

Constitutional Conventions — intended to, and did, discriminate against Blacks 

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 

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

the 1821 New York Constitutional Convention — a convention dominated by an 

express, racist purpose to deprive the vote from “men of color.” (JA 00107 [FAC 

148]). Plaintiffs’ Amended Complaint also alleges that Blacks in New York have 

been routinely denied suffrage on an equal basis as whites, (JA 00105-107 [FAC 

11 39-50]), were openly regarded by various state legislators and delegates 

to constitutional conventions as being biologically inferior and, therefore, unfit for 

suffrage, (JA 00106-107 [FAC11 46, 51]), and were described as being 13 times as 

likely as whites to commit infamous crimes. (JA 00107 [FAC 151]).

10



Rather than refuting the discemable discriminatory origins of New York’s 

felon disfranchisement regime at the 1821 Constitutional Convention, Defendant 

assumes, arguendo, that New York’s “provision was added in 1821 and then 

retained in 1846 with the purpose of disenfranchising [B]lacks.” Def s Br. at 18, 

and then asserts that an 1874 amendment, allegedly enacted for “an independent, 

non-discriminatory purpose,” broke the causal chain. Def’s Br. at 18. Defendant’s 

attempt to distract the Court by masking the central issue of New York’s original 

discrimination through a tale of revisionist history is unavailing for two reasons.

First, contrary to Defendant’s and the district court’s erroneous conclusions, 

the allegations contained in Plaintiffs’ Amended Complaint are clearly sufficient 

under Hunter, and are, as set out in detail in Plaintiffs’ opening brief, Pis.’ Mem. at 

18-20, more detailed and specific than those alleged in the complaint in Hunter.

Second, Defendant puts forth unsupported assertions that the “extensive 

redrafting of the constitutional provisions in 1874,” and the “recent statutory 

amendments of 1971 and 1973 clearly demonstrate a permissible 

nondiscriminatory intent,” Def’s Br. at 10, that can cure the invidious intent hat 

gave rise to New York’s original felon disfranchisement provision. These 

assertions are not only unsupported, but they are also insufficient under Hunter. 

Hunter v. Underwood, 471 U.S at 222, 232-33 (1985). There, the Supreme Court

11



found that the enactment of Alabama’s felon disfranchisement provision in 1901 

was “motivated by a desire to discriminate against blacks on account of race and 

the section continue [d] to have that effect” more than 80 years later. Id, “As 

such,” the Court concluded, “it violates equal protection under Arlington Heights.” 

Id. The Supreme Court also upheld the Eleventh Circuit’s ruling that, although the 

current administrators of the law acted in “good faith” and 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).

Plaintiffs’ Amended Complaint sufficiently alleges the discriminatory 

origins of the New York’s felon disfranchisement provision, and Defendant has 

failed to show that the subsequent re-enactments purged New York’s felon 

disfranchisement law of its discriminatory intent or effect. Defendant does not 

demonstrate that later amendments to the felon disfranchisement laws were guided 

by a recognition of the discriminatory origins of the provisions and a purpose to 

remove the taint of racial bias or to demonstrate, as required by Hunter, 471 U.S. at 

228, that prior discrimination is not still a motivating or substantial factor behind 

New York’s felon disfranchisement laws. Defendant also ignores that the effects

12



of New York’s purposefully discriminatory felon disfranchisement law still 

reverberate today.

B. Defendant Misstates the Legislative Record in Support of His Purge 
Argument, which Fails Both As A Matter of Law and Fact at This 
Stage.

Even if Defendant properly dealt with the original discrimination that 

infected the enactment of New York’s felon disfranchisement statute, which he did 

not, there is yet another deeply problematic aspect of Defendant’s argument: It 

misstates the history of New York State between 1867 and 1874 in order to 

persuade this Court that legislative action in the latter year was nondiscriminatory. 

Specifically, Defendant asserts that the 1874 amendment to New York’s 

Constitution, which replaced the permissive “may” with respect to felon 

disfranchisement laws with the mandatory “shall,” was originated by delegates to 

the 1867 Constitutional Convention who sought not intentionally to 

“disenfranchise [B]lacks or other minorities, but [acted] as part of a larger project 

aimed at preventing vote buying and other forms of ballot-box corruption.” Defs 

Br. at 18-20. Defendant also asserts that “there is strong evidence of a concern to 

protect the franchise for minorities.” Id, However, Defendant’s reference is to the 

proceedings of 1867-68 Constitutional Convention, not the 1872-73 Constitutional 

Commission and is, therefore, misleading and unreliable. See id.

13



Moreover, Defendant completely fails to recognize or account for the 

political hurricane that stormed through New York between 1867 and 1874, 

removing from power the Radical Republicans, who were sympathetic to Black 

equal manhood suffrage, in favor of Democrats, who were vehemently opposed to 

the same. This failure on Defendant Pataki’s part obscures rather than facilitates 

an accurate understanding as to why the “shall” language was adopted in 1874. It 

is to a discussion of the historical backdrop against which the 1874 amendment 

was created that we briefly turn.3

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

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

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

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

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

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

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

3 It is important to note that this historical context is evidence that must be 
developed through discovery, including expert reports and testimony, and is not 
required to be proven or alleged in exhaustive detail by Plaintiffs at this stage in 
the litigation. As in Hunter, Plaintiffs here should be afforded an adequate 
opportunity to develop their case. Toward that end, Plaintiffs have retained an 
expert who has conducted substantial research in support of their intentional 
discrimination claim. However, the district court dismissed Plaintiffs’ claims 
before discovery was concluded.

14



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

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

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

New York in 1869, with the express understanding and expectation that New 

Yorkers would oppose such a measure. See id. In 1869, New Yorkers, as 

expected, voted to maintain the racially discriminatory language of the 1821 

Constitution. David Nathaniel Gellman & David Quigley, Jim Crow New York: A 

Documentary History of Race and Citizenship. 1777-1877 293 (NYU Press 2003). 

Indeed, it was not until the enactment of the Fifteenth Amendment (which New 

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

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

of 1870 and 1871, that equal manhood suffrage came to the Empire State, despite 

the opposition of New York’s voters and political leadership, dominated by anti- 

Black Democrats in 1870 and 1871. David Quigley, Second Founding: New York 

City, Reconstruction, and the Making of American Democracy Ch. 5 (2004).

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

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

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

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

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

15



that “the people of the North are not willing . . . that there should be [N]egro 

judges, [Njegro magistrates, [Njegro jurors, [Njegro legislators, [Njegro 

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

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

white man is subject to the domination of the [Njegro. [Applause.] That by an act 

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

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

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

his deeply held racist beliefs, Governor Hoffman opposed the Fifteenth 

Amendment, complaining that it was “another step in the direction of centralized 

power.” Hoffman’s Address, January 5, 1869, Messages from the Governor. 

Volume 6 (1869-1876) (Charles Z. Lincoln, ed. 1909). In 1870, Governor 

Hoffman wrote: “I protest against the revolutionary course of Congress with 

reference to amendments of the Constitution.” Hoffman’s Address, January 1870, 

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

1909).

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

appointed the members (who are normally elected) to the State Constitutional 

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

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

16



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

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

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

Defendant suggests, the Radical Republicans who grappled with issues of equal 

manhood suffrage for Blacks at the 1867-68 Constitutional Convention. Indeed, 

only six (or fewer than 20 percent) of the 32 delegates of the 1872-73 Convention 

were veterans of the 1867-67 Convention. Id,

Though the 1872-73 Constitutional Commission strenuously debated 

whether to replace the word “may” with “shall” in Article II, Section 2 of New 

York’s Constitution, there was no clear move to embrace the anti-discriminatory 

language of the Radical Republicans of 1867. Id. at 22, 96-97, 170. Instead, the 

1872-73 Constitutional Commission, recognizing the impossibility of erecting 

explicitly racial barriers in the aftermath of the Fifteenth Amendment, supported a 

range of barriers — each of which disproportionately impacted New York’s Black 

population.

First, as Plaintiffs alleged in their Amended Complaint, “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 persons

17



convicted of infamous crimes from the right to vote . . . .  Theretofore, the 

enactment of such laws was permissive.” (JA 00108 [FAC f  56]). Second, they 

urged the incorporation of literacy tests for suffrage in New York State. Journal of 

the Constitutional Commission of the State of New York. Begun and Held in the 

Common Council Chamber, in the City of Albany, on the Fourth Day of 

December. 1872 339-93 (Weed, Parsons & Co. 1873). Third, they proposed a new 

Article of the Constitution, number XIV, which focused on municipal government 

and created a new Board of Audit for New York’s large cities, id. at 318, 373-74, 

397; however, reminiscent of the 1821 property requirement that existed for Blacks 

only until the passage of the Fifteenth Amendment, only voters with $250 in 

property would be allowed to elect members of such boards. Id. at 282.

Against this historical backdrop, Defendant’s assertion that the Radical 

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

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

Black Democrats] in 1874,” Def’s Br. at 23, is simply unsupported by a fair and 

accurate reading of the historical record. Accordingly, Defendant’s conclusion — 

that “[g]iven the lack of the ambiguity in the published record, this court should 

conclude that no amount of extrinsic or circumstantial evidence” could provide 

evidence of discriminatory intent, Def’s Br. at 24, is simply unreliable, and is an

18



unfortunate attempt to preclude New York’s historical discrimination against 

Blacks in voting from coming to light.

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

allegations in the Amended Complaint tell a persuasive story of a pervasive pattern 

of historical intentional discrimination in voting, including repeated explicit 

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

codification of mandatory disfranchisement during an unprecedented special 

session at a time when overt denial of the franchise to Blacks was newly outlawed 

by the Fifteenth Amendment. These allegations satisfy the Rule 12(c) standard, 

and justify reversal of the district court’s ruling.

III. DEFENDANT HAS NOT PROVEN THAT NEW YORK’S FELON 
DISFRANCHISEMENT LAWS WERE PURGED OF THEIR 
DISCRIMINATORY TAINT, NOR IS THAT DETERMINATION 
APPROPRIATE ON A RULE 12(c) MOTION

In order to prevail on his argument that New York’s felon disfranchisement 

laws have been purged of any original discriminatory intent, Defendant has the 

burden of proving that the legislature enacted the 1874 amendment for wholly non-

19



discriminatory reasons, notwithstanding the racist origins of the felon 

disfranchisement provision.4 Defendant has failed to meet his burden.

As the Supreme Court stated in Hunter, proof of discriminatory intent 

underlying a specific policy in the past raises an inference that the discriminatory 

purpose continues into the present, the passage of time and subsequent changes to 

the policy notwithstanding. Hunter, 471 U.S. at 233. Indeed, as the Court noted, 

“[o]nce racial discrimination is shown to have been a ‘substantial’ or ‘motivating’ 

factor behind enactment of the law, the burden shifts to the law’s defenders to 

demonstrate that the law would have been enacted without this factor.” 471 U.S. at 

228 (citing Mt. Healthy City Bd. of Educ. v. Dovle. 429 U.S. 274, 287 (1977)).

Here, Plaintiffs have clearly shown the discriminatory origins of the felon 

disfranchisement provision. Thus, Defendant has the burden of proving that any 

subsequent amendment to the law was enacted without a discriminatory intent, to 

the extent that the amendment so changes the intention of the original enactment 

that it cleanses it of its original discriminatory purpose. See Personnel Adm’r of 

Mass, v. Feeney, 442 U.S. 256, 266-70 (1979) (indicating that the gender

4 Defendant Pataki further recognizes that “on a 12(c) motion to dismiss the 
defendants bear the burden of showing that ‘it appears beyond doubt that the 
plaintiffs can prove no set of facts in support of his claim which would entitle him 
to relief.’” Def’s Br. at 16 n.l (quoting Phillip v. Univ. of Rochester. 316 F.3d 
291,293 (2d Cir. 2003)).

20



discriminatory purpose of veteran’s preference law may be found in its 1896 

origins, notwithstanding the enactment of a number of subsequent amendments). 

Indeed, as Justice Thomas noted in his concurring opinion in United States v. 

Fordice, once a law is infected with racist intent, it is not easily cleansed: “[GJiven 

an initially tainted policy, it is eminently reasonable to make the State bear the risk 

of nonpersuasion with respect to intent a some future time, both because the State 

has created the dispute through its own prior unlawful conduct, and because 

discriminatory intent does tend to persist through time.” United States v. Fordice. 

505 U.S. 717, 746-47 (1992) (Thomas, J., concurring). But see Cotton v. Fordice. 

157 F.3d 388 (5th Cir. 1998) (requiring pro se plaintiff to prove that state enacted 

amendment with discriminatory purpose).5

Likewise, in the context of de jure segregation, courts routinely examine 

whether race-neutral policies have the effect of perpetuating past intentional racial 

discrimination. In such cases, courts require that the state show that the original 

taint of discriminatory intent has been purged and, that the state has taken 

affirmative steps to remove the effects of past discrimination. See Fordice. 505

5 In Chen v. City of Houston. 206 F.3d 502, 521 (5th Cir. 2000), cert, denied. 532 
U.S. 1046 (2001), the Fifth Circuit noted that the Cotton decision “broadly stands 
for the important point that when a plan is reenacted — as opposed to merely 
remaining on the books like the provision in Hunter — the state of mind of the 
reenacting body must also be considered.”

21



U.S. at 729 (reiterating that states have an affirmative duty to dismantle the 

vestiges of past de jure desegregation in higher education, which is not satisfied 

“through the adoption and implementation of race-neutral policies alone”); see also 

Knight v. Alabama, 14 F.3d 1534, 1540 (11th Cir. 1994) (requiring state to prove 

that it has dismantled past discrimination “root and branch”) (quoting Fordice. 505 

U.S. at 728).

In this context, proving that an amendment neutralizes the original 

discriminatory purpose of New York’s felon disfranchisement law thus requires a 

meaningful and demanding inquiry into the legislative history of the amendment. 

Indeed, in order to neutralize a discriminatory law by showing that “the law would 

have been enacted without [the discriminatory motive],” Hunter. 471 U.S. at 228, 

Defendant must show that the prior discrimination is not still one of the motivating 

or substantial factors behind the challenged policy. The state cannot merely 

reenact or amend a purposefully discriminatory policy and thereby perpetuate its 

prior discrimination. See Enslev Branch. NAACP v. Siebels. 31 F.3d 1548, 1575 

(11th Cir. 1994) (noting that, in an employment context, “[pjublic employers 

cannot escape their constitutional responsibilities merely by adopting facially- 

neutral policies that institutionalize the effects of prior discrimination and thus 

perpetuate de facto discrimination”).

22



Here, after a long history of using felon disfranchisement to prevent Blacks 

from voting, New York’s legislators sought to amend the state’s constitution to 

mandate such disfranchisement. Defendant takes numerous occurrences and 

statements out of context to assert that the justification for the amendment was 

nondiscriminatory. See supra Section II. Defendant’s meager evidence, however, 

fails to prove that the 1874 amendment was enacted with a wholly non­

discriminatory purpose. Had Defendant shown, for example, that delegates to the 

1874 Constitutional Convention were actually aware of the felon disfranchisement 

provision’s past discriminatory purpose and contemporary effect, but nevertheless 

re-enacted it for a different, bona fide, nondiscriminatory reason, the result might 

be different. However, Defendant offers no evidence that the legislature 

acknowledged the discriminatory genesis of the law and adopted the amendment 

for a wholly different purpose. Defendant does not even offer convincing proof 

that the amendment was enacted for the non-discriminatory reasons he states. He 

offers only fragments of ahistorical evidence from a previous constitutional 

convention, which it contends is incontrovertible proof that the 1874 amendment 

was enacted for nondiscriminatory reasons. In fact, the amendment can reasonably 

be interpreted as intending to perpetuate the past discriminatory purpose while at 

the same time guaranteeing its continuation. Additionally, Plaintiffs have been 

denied the opportunity to refute Defendant’s evidence with historical fact and

23



expert opinion. See supra Section I. Thus, Defendant has failed to prove that the 

1874 amendment to New York’s felon disfranchisement scheme adequately 

cleansed the provision of its discriminatory purpose.

Similarly, Defendant’s failure to show that the 1874 Constitutional Convention 

purged the original discriminatory intent of New York’s constitutional felon 

disfranchisement provision defeats his argument that the 1971 and 1973 

amendments, which were enacted pursuant to the 1874 Constitutional Convention, 

do not “contain the slightest hint of discriminatory intent.” Defs Br. at 17. 

Moreover, Defendant’s argument regarding the 1971 and 1973 amendments fails to 

satisfy the standards in Hunter and, therefore, does not provide a basis for 

upholding the district court’s dismissal of Plaintiffs’ intentional discrimination 

claims.

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

Plaintiffs allege that New York’s felon disfranchisement scheme further 

violates the Equal Protection guarantees of the Fourteenth Amendment by 

impermissibly distinguishing between individuals convicted of a felony who are 

sentenced to incarceration and/or serving a sentence of parole, on the one hand, 

and those convicted of a felony who are pardoned, who receive a suspended or

24



commuted sentence, or who are sentenced to probation or conditional or 

unconditional discharge, on the other. In his attempt to skirt any meaningful 

scrutiny of New York’s non-uniform felon disfranchisement scheme, Defendant 

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

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

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

contention that the equal protection claims raised by Plaintiffs are foreclosed under 

Baker fails to recognize key distinctions between the allegations in this case and 

those at issue both in Baker and Richardson v. Ramirez, 418 U.S. 24 (1974), upon 

which Defendant also relies.

In Richardson, the Supreme Court held that felon disfranchisement is not 

prohibited under the Equal Protection Clause of the Fourteenth Amendment. 

Richardson did not, however, foreclose all constitutional challenges to felon 

disfranchisement provisions. Nor did it, as the panel in Baker incorrectly suggests, 

mandate that all challenges to disfranchisement schemes—other than those 

alleging race or other suspect classifications—be reviewed under a highly 

deferential rational basis standard of scrutiny. The Richardson Court rejected strict 

scrutiny analysis only for a facial challenge to laws that disfranchise individuals 

convicted of an infamous crime.

25



Neither the Court in Richardson nor the Second Circuit panel in Baker 

addressed the Equal Protection issues raised by Plaintiffs in this case. Specifically, 

neither court addressed whether states and election officials, when enacting and 

implementing felon disfranchisement provisions, may disfranchise only some 

individuals with felony convictions but not others—or settled the question whether 

“rational basis” or “strict scrutiny” review would be applied to such a statute if 

challenged. Indeed, the Richardson Court noted that it was leaving open to 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.

In contrast to the wholesale challenge to felon disfranchisement at issue in 

Richardson, Plaintiffs here challenge specific features of New York’s felon 

disfranchisement scheme: the non-uniform practice of disfranchising persons 

convicted of a felony who are sentenced to incarceration and/or on parole but 

allowing those who receive a suspended or commuted sentence, or are sentenced to 

probation or conditional or unconditional discharge, to vote. (JA 00112-113

26



[Compl. 79; 82]).6 Richardson does not dispose of these claims or reject 

application of strict scrutiny to them.

In addition and in the alternative, Plaintiffs urge the Court to apply an 

intermediate level of scrutiny to their equal protection claims. As this Court 

recently noted in Ramos v. Town of Vernon. 353 F.3d 171 (2d Cir. 2003), 

intermediate scrutiny, which lies “between [the] extremes of rational basis review 

and strict scrutiny,” 353 F.3d at 175 (quoting Clark v. Jeter. 486 U.S. 456, 461 

(1988)), is appropriate to review quasi-suspect classifications such as gender or 

legitimacy, as well as to review “a law that affects ‘an important, though not 

constitutional, right.’” 353 F.3d at 175 (quoting United States v, Coleman. 166 

F.3d 428, 431 (2d Cir. 1999) (per curiam)).

Similarly, it has long been recognized that the right to vote is “of the most 

fundamental significance under our constitutional structure.” Burdick v. Takushi. 

504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers 

Party, 440 U.S. 173 (1979)); see also Reynolds v. Sims. 377 U.S. 533, 561-562

6 Furthermore, Plaintiffs have alleged that as a result of disparities in prosecution, 
conviction and sentencing, Blacks and Latinos are sentenced to incarceration at 
substantially higher rates than whites and sentenced to probation at substantially 
lower rates than whites. (JA 00108-109 [FAC ffi[ 60-65]). Plaintiffs contend that 
as a result of these racial disparities, as well as the disfranchisement of only certain 
classes of individuals with felony convictions, Blacks and Latinos collectively 
comprise nearly 87% of those currently denied the right to vote pursuant to §5- 
106(2), (JA 00110 [FAC f  67]), which underscores the Equal Protection violation.

27



(1964); Dunn v. Blumstein. 405 U.S. 330, 336 (1972). While the Baker court

rejected strict scrutiny to protect the otherwise fundamental right to vote of felons 

in cases where there was no allegation of discrimination on the basis of race or 

other suspect criteria, Baker. 58 F.3d at 820, in this case, which challenges New 

York’s felon disfranchisement scheme because it denies the right to vote to persons 

who are convicted of a felony and sentenced to incarceration and/or parole but not 

similarly situated individuals who are sentenced to probation, the court should 

review Plaintiffs’ claims under a heightened, intermediate scrutiny standard.

However, even assuming, arguendo, that rational basis review applies to 

Plaintiffs’ claims, Defendant nevertheless errs in arguing that Baker controls the 

instant case. In Baker, this Court interpreted the plaintiffs’ Equal Protection claim 

as a challenge to the way in which New York disfranchises incarcerated felons but 

not those who are not incarcerated. Baker. 58 F.3d at 820. Citing Richardson v. 

Ramirez to reject heightened scrutiny, and relying on its previous decision in 

Green v. Bd. of Elections. 380 F.2d 445 (2d Cir. 1967), the Court applied rational 

basis review and held that such a classification “is not irrational.” Id.

Unlike in Baker. Plaintiffs’ Equal Protection claim also focuses on 

distinctions among individuals who live in their communities, subject to state 

supervision. New York’s felon disfranchisement scheme distinguishes between

28



those individuals living in the community on parole and those on probation. (JA 

00109 [FAC 58-59]). Thus, the Baker Court’s determination of the rationality 

of distinctions between incarcerated felons and felons who are not incarcerated is 

not controlling for purposes of disposing of Plaintiffs’ claims.

Moreover, application of rational basis scrutiny need not be wholly 

deferential, particularly where the challenged distinction is based solely on the 

status of the individual—here, whether he or she is convicted of a felony and 

sentenced to incarceration and/or parole or sentenced to probation. Rather, in such 

cases, courts may apply rational basis review in such a way as to inquire into “the 

relation between the classification adopted and the object to be attained.” Romer 

v. Evans, 517 U.S. 620, 632 (1996). While Baker held that the distinction between 

incarcerated and non-incarcerated persons with felony convictions was “not 

irrational,” both Baker and of Green, upon which Baker relies, were decided prior 

to the Supreme Court’s decision in Romer v. Evans. 517 U.S. 620 (1996), in which 

the Court applied a more searching rational basis review. Such review is 

warranted here.

Thus, even if this court determines that rational basis is the appropriate level 

of review, the district court still must allow Plaintiffs the opportunity to develop 

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

29



distinction is, in fact, rational. By dismissing Plaintiffs’ claims prematurely, the 

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

V. PLAINTIFFS’ VOTING RIGHTS ACT CLAIMS SHOULD BE 
PRESERVED PENDING FINAL DISPOSITION IN MUNTAOIM

The district court dismissed Plaintiffs’ Voting Rights Act claims based upon 

this Court’s intervening ruling in Muntaqim v. Coombe. 366 F.3d 102 (2d Cir. 

2004), which held that the Voting Rights Act does not apply to New York’s felon 

disfranchisement laws. Subsequently, the plaintiff-appellant in Muntaqim filed a 

petition for a writ of certiorari in the United States Supreme Court. Muntaqim v. 

Coombe, 385 F.3d 793 (2d Cir. 2004), pet, for cert, filed, 73 U.S.L.W. 3113 (U.S. 

July 21, 2004) (No. 04-175). Since Plaintiffs’ filed their opening brief in this 

appeal and while the petition in Muntaqim was pending before the United States 

Supreme Court, this Court, sua sponte, conducted a poll on whether to rehear 

Muntaqim en banc. Muntaqim v. Coombe, 385 F.3d 793 (2d Cir. 2004) (denying 

petition for rehearing en banc). The suggestion for rehearing did not gamer a 

sufficient number of votes and, therefore, failed. Id. But see id. at 795 (Jacobs, J., 

dissenting) (“[A] majority [of this court] now expresses—or signals—an interest in

7 Although Plaintiffs disagree with the holding in Muntaqim concerning the 
application of the Voting Rights Act to felon disfranchisement laws, we recognize 
that it is the law of this circuit and, therefore, have appealed from the district 
court’s dismissal of their Voting Rights Act claims to preserve the issue and seek 
the limited relief described below.

30



hearing this appeal in banc.”). The petition for certiorari in Muntaqim was 

subsequently denied and the plaintiff-appellant then petitioned this Court for a 

rehearing en banc. See Pet. for Reh’g En Banc, in Muntaqim v. Coombe. 366 F.3d 

102 (2d Cir. 2004) (No. 01-7260) filed Nov. 16, 2004.

The disposition of the pending petition in Muntaqim will have a direct 

bearing on Plaintiffs’ Voting Rights Act claims. Accordingly, Plaintiffs request 

that this Court vacate the judgment below, with instructions to the district court to 

reconsider its dismissal in light of any action taken by this court in Muntaqim.

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
December 8, 2004

. Nelson

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

31



(Tel.) 212-965-2200 
(Fax) 212-226-7592 
inelson@naacpldf.org

Juan Cartagena 
Risa E. Kaufman 
Community Service Society

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

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

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

32

mailto:inelson@naacpldf.org
mailto:icartagena@cssnv.org
mailto:ioangibbs@hotmail.com


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

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

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

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

prepare this brief, I 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 6,963 words, not including the table of contents, table of 

authorities, and certificate of counsel, and is therefore within the word limit for 

7,000 set forth under Fed. R. App. P. 32(a)(7)(B)(ii).

Director of Political Participation 
NAACP Legal Defense & 

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

Dated: December 8, 2004

mailto:inelson@naacpldf.org


CERTFICATE OF SERVICE

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

December 8, 2004, I served upon the following, by United States Postal Service 

priority mail, postage prepaid, a true and correct copy of the attached REPLY 

BRIEF FOR PLAINTIFFS-APPELLANTS:

Eliot Spitzer
Attorney General of New York 

Michelle Aronowitz 
Deputy Solicitor General 

Gregory Klass 
Assistant Solicitor General 

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

Patricia L. Murray 
First Deputy Counsel 

New York State Board of Elections 
40 Steuben Street 
Albany, New York 12207-0332 
Counsel for Defendant Carol Berman

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.

Director of Political Participation 
NAACP Legal Defense & 

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