by Justin Levitt, Associate Counsel, Brennan Center for Justice at NYU School of Law. The Brennan Center participated as amici curiae in support of the Plaintiffs-Appellants in this case.
Yesterday, from the U.S. Courthouse named for former Supreme Court Justice Thurgood Marshall, the Second Circuit effectively amended the Voting Rights Act, giving the green light to racial discrimination.
The text of the Voting Rights Act states that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure" may be used to deny or dilute the right to vote on account of race. It is a landmark law: after two centuries of racial discrimination in voting, Congress finally responded with the full power of the Fifteenth Amendment. No denial or dilution of the vote on account of race. Period.
This context makes the Second Circuit's en banc decision in Hayden v. Pataki doubly remarkable. It ignores the clear and categorical statutory text of the Voting Rights Act, to carve out one electoral restriction that, unlike any other, may be freely used in a way that discriminates on the basis of race. And it does so in an opinion that barely acknowledges that racial discrimination is at issue.
In Hayden, the en banc court addresses New York Election Law § 5-106, which strips voting rights from New Yorkers with felony convictions while they are incarcerated or on parole. (Misdemeanants and probationers retain their civil rights.) 131,000 New Yorkers have lost the right to vote under this law - including named plaintiff Joseph "Jazz" Hayden.
More than 80% of the New Yorkers disenfranchised by § 5-106 are Blacks or Latinos, who lose their right to vote at more than ten times the rate of other citizens. The plaintiffs here credibly claim that this racial disparity is linked to disparate prosecution, conviction, and sentencing practices explained only by racial bias - such as the length of sentences and the likelihood of probation (which does not result in disenfranchisement). All else equal, states the complaint, Blacks and Latinos receive harsher sentences on account of their race, and are thereby disproportionately barred from voting.
This should make for a straightforward case. The Voting Rights Act was meant to eradicate the electoral effects of practices with a racially disparate impact on the right to vote. The plain text of the Voting Rights Act includes all such practices, without exception. Open and shut: now onto the evidence.
But according to the Hayden court, the Voting Rights Act doesn't mean what it says.

The Hayden majority opinion begins by acknowledging, as it must, that the literal language of the Voting Rights Act encompasses felony disenfranchisement laws. And then, it begins to search for reasons to ignore the statutory text.
Ultimately, the opinion seizes upon the particular method allegedly used to discriminate: the felony disenfranchisement law. The court catalogues constitutional and statutory approval of felony disenfranchisement provisions, historical and contemporary. See, e.g., Richardson v. Ramirez, 418 U.S. 24 (1974). And from this affirmation of felony disenfranchisement laws in general, the court concludes that Congress did not intend such laws to fall within the Voting Rights Act's scope. This is one of those "rare cases," states the court, in which "the literal application of a statute [would] produce a result demonstrably at odds with the intentions of its drafters."
The court's extensive history would be persuasive - if the legality of felony disenfranchisement in general were at stake. It is not. As the principal dissent recognizes, the court asks and amply answers the wrong question entirely. Instead, the court was asked to decide whether felony disenfranchisement laws that discriminate on the basis of race - like all other laws that discriminate on the basis of race - are within the Voting Rights Act's purview.
On this question, the opinion is all but silent, but - even assuming there is reason to look beyond the statutory text - Congressional intent is abundantly clear. In 1965, Congress amply documented the recurring pattern of states' shifting discrimination. States repeatedly changed the means, but not the aim or effect, of denying minorities an effective vote. But don't take my word for it: "Indeed, even after apparent defeat resisters seek new ways and means of discriminating. Barring one contrivance too often has caused no change in result, only in methods." H.R. Rep. No. 89-439, reprinted at 1965 U.S.C.C.A.N. 2437, 2441. Congress recognized the futility of naming each practice that could be employed to discriminatory ends. So it banned all voting practices that denied the right to vote on account of race, without exception. The unmistakable intent was to ferret out racial discrimination in voting, no matter what means were pressed into service.
The Second Circuit misses this boat entirely. Instead, the court focuses on the particular electoral practice, and ignores the resulting racial discrimination entirely . . . which is precisely the approach that caused Congress to pass the Voting Rights Act of 1965 in the first place. (The opinion also dives into a novel interpretation of the "clear statement rule," but that discussion is not supported by a plurality of the court.)
The dissenting judges - in five separate opinions - believe that Congress meant what it said, and had good reason to do so. Therefore, if Hayden and his fellow plaintiffs could show that, through social and historical discrimination (such as racial bias in the criminal justice system), Election Law § 5-106 results in a denial of the right to vote on account of race, the Voting Rights Act should provide relief.
This view, of course, did not prevail, and the Hayden plaintiffs have been denied the chance to prove that their right to vote has been abridged on account of race. The law of the circuit now identifies one - and only one - electoral practice carved out of the Voting Rights Act's discrimination-free zone. In this respect, the Second Circuit has joined the Eleventh Circuit, which came to a similar conclusion last year in Johnson v. Bush. The Ninth Circuit, to the contrary, has left the statutory text of the Voting Rights Act intact, and a case in Washington State is currently proceeding on motions for summary judgment.
This split means that, as Hayden acknowledged, "absent Congressional clarification, [the question] will only be definitely resolved by the Supreme Court." Circuit judges are already jockeying for pride of place in an eventual Court decision; see, e.g., Chief Judge Walker's Hayden concurrence, or Judge Kozinski's dissent from denial of rehearing en banc in the Ninth Circuit's Farrakhan v. Washington (now Farrakhan v. Gregoire). (The prospect of certiorari may also help to explain why nine of the thirteen judges of the en banc Second Circuit wrote separate opinions.) It is possible, of course, that Congress will address the matter before the Court does - though many advocates expect little from either actor.
Though tidings are grim on the federal level, advocates may yet take heart from developments in the states. On the same day that Hayden was handed down, the Rhode Island Senate approved a bill that would allow persons with felony convictions to vote once they are no longer incarcerated, if a November referendum to amend the state Constitution should pass. This would mark the twelfth legislative change in ten years protecting or expanding the franchise for people with felony convictions. It's heartening to see that some states can stand up for voting rights, even if the courts are making it difficult for Congress do so.