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