Tough Day for Voting Rights

Ezekiel Edwards

Tough Day for Voting Rights

In a disappointing decision last week, the Second Circuit Court of Appeals dismissed a suit brought by the NAACP Legal Defense Fund alleging that New York law, by depriving its prisoners and parolees the right to vote, violated the Voting Rights Act of 1965 (VRA). As a result of the Court's ruling, tens of thousands of New York residents remain outside of the political process, unable to register their opinions on issues of critical importance to their communities.

The NAACP argued both that New York State's felony disfranchisement laws were enacted with a discriminatory purpose and that since a disproportionate number of inmates and parolees in New York are African-American and Latino, prohibiting them from voting offended the VRA's prohibition against "members [of protected minority groups] hav[ing] less [of an] opportunity than other members of the electorate to participate in the political process and elect representatives of their choice."

The decision, participated in by the full 13-member court and resulting in a whopping ten separate opinions, was 8-5 in favor of dismissing the claim. The court's majority reasoned that Congress never intended for the VRA to apply to felons who had been stripped of their voting rights, based on Congress' silence on the subject of felony disenfranchisement in the VRA and its subsequent amendments, congressional statements and reports explicitly leaving out felony disenfranchisement laws from the VRA, and the rejection of bills attempting to include such laws within the provisions of the VRA. The majority emphasized the 14th Amendment's specific approval of felony disenfranchisement laws and the "long history and continuing prevalence" of such laws in the United States.

The dissent countered that historic policies and legislative histories were irrelevant under the current VRA; rather, if the Court were to read the VRA --- a decidedly remedial statute --- broadly, the question would not be the original congressional intent behind the statute, but rather simply whether New York law as applied resulted in discriminatory voting restrictions. The dissent observed that the plaintiffs had stated a case for discriminatory results by alleging that (1) African-Americans and Latinos are "prosecuted, convicted, and sentenced to incarceration at rates substantially disproportionate to those of Whites"; (2) that "Whites receive probation three times as frequently as similarly situated Blacks or Latinos for similar crimes"; and (3) that the drug war is waged in minority neighborhoods while those areas where Whites abused the same illegal drugs at the same rates enjoyed peace and quiet. Consequently, the dissent reasoned, the plaintiff's case should not have been dismissed.

The majority's decision is unfortunate. The disenfranchisement of felons in New York has had a tremendously lopsided effect on African-Americans and Latinos. A disproportionate number of minorities grow up in impoverished communities with broken schools and few job opportunities. For decades, we have fought a war on drugs concentrated against lower classes and people of color and aggressively policed those same communities, which has resulted in thousands of astronomically long sentences for non-violent offenses. Combine these factors with this country's long history of institutionalized racism along with other complex economic and social barriers, and the result is that while around 31% of New York State is African-American and Latino, the two groups make up around 82% of the prison population. Consequently, depriving inmates and parolees their right to vote in New York has had a severely disparate impact on the ability of African-Americans and Latinos to participate equally in the political process.

If the NAACP had brought this claim forty years ago, when the recently enacted VRA applied only to laws that were discriminatory on their face, the majority's opinion would have made more sense, since New York's law applies to all inmates and parolees, regardless of race (discriminatory intent might have been very difficult to prove). However, the VRA was amended in 1982 to encapsulate laws that resulted in discrimination when applied, regardless of their stated (or clandestine) purpose. Even in 1982, the plaintiffs might well have been unable to state such a compelling claim, since the size of our prison population was much lower --- lessening the overall impact disenfranchisement laws had on our democracy --- and its embarrassing racial disparities were considerably less noticeable --- minimizing the impact on minority voting rights specifically.

However, since the VRA is now both result- and purpose-oriented, and since in the last 25 years our prison population and its racial discrepancy have skyrocketed, the Court of Appeals should have recognized the modern-day disastrous effect of New York's disenfranchisement laws on its minority populations and held that the NAACP made out a powerful prima facie case that New York law violated the VRA. If it had done so, the decision would have been an important step towards greater inclusion of African-Americans and Latinos in our electoral process and thus an important step towards restoring legitimacy to our democracy.

Two small but extremely faint glimmers of hope: first, there is a split among the Circuit Courts on this issue (unlike the 2nd and 11th Circuits, the 9th Circuit ruled that the VRA does permit challenges to felony disenfranchisement laws), so there is a chance the Supreme Court might visit the issue in the near future. However, given the Supreme Court's current membership, I suspect its decision would mirror the 2nd Circuit's, yet carrying even greater weight, as it would apply nationwide.

Second, the NAACP's claim of voter-dilution --- that free African-Americans and Latinos in communities with high incarceration rates lack equal opportunity to participate in our democracy because of the Census Bureau's practice of counting inmates as residents of the districts in which they are incarcerated, thereby transferring political power from urban communities in New York City to the rural upstate communities that host almost all of the state's prisons --- was remanded to a lower court for further consideration.

Overall, though, a resoundingly tough day for voting rights' advocates.