After years of expressing little interest, the U.S. Supreme Court on Monday asked the Obama administration to weigh in on whether laws that bar felons from voting violated the federal Voting Rights Act.
The request came in the case of Simmons v. Galvin, in which the 1st U.S. Circuit Court of Appeals upheld Massachusetts Article 120, an amendment to the state constitution in 2000 that barred felons from voting while in prison. Massachusetts is one of 13 states with similar prohibitions, while 35 other states extend the ban to the period of parole or probation or beyond. Only Maine and Vermont allow felons to vote without restriction during and after their imprisonment.
Civil rights groups have attacked the laws as a deprivation of the vote under the 45-year-old federal Voting Rights Act. "The struggle to free the vote is the next stage of the voting rights movement," said Ryan Haygood, lawyer with the NAACP Legal Defense and Educational Fund. Thirty-eight percent of the 5.3 million felons or ex-felons who have been barred from voting are African-American, leading to the claim that because of their disparate impact on blacks, the laws violate the Voting Rights Act. "They are eroding and contracting democracy," Haygood said.
By asking the U.S. solicitor general's office to file a brief on the issue, the Supreme Court is putting the Obama administration on the spot. The legal defense fund's Haygood said the administration has not yet taken a position on felon disenfranchisement. The Court, which has not yet decided whether to take up the Massachusetts case, asks for the solicitor general's views in a handful of cases each term in which the United States is not a party, but may have an interest. In its brief, Massachusetts cited several federal laws that authorize or require states to purge disenfranchised felons from their voter rolls for federal elections. Even though five federal circuits have ruled on challenges to the felon voting laws before the 1st Circuit ruled in the Simmons case, the Supreme Court has not taken up the issue.
Four appeals courts -- the 2d, 4th, 6th and 11th circuits -- have rejected claims on Voting Rights Act or procedural grounds. Justice Sonia Sotomayor, while a judge on the 2nd Circuit, dissented from that court's decision.
In contrast, the 9th Circuit ruled in a case involving Washington state's felon law that the Voting Rights Act claim could proceed. That decision would have set up a circuit conflict, making the issue more attractive for high court review. But the 9th Circuit announced last week it was reviewing its decision in Farrakhan v. Gregoire en banc, making it possible that the 9th Circuit will ultimately rule in line with the other circuits. Massachusetts informed the high court of the 9th Circuit action, suggesting it undermined the argument by petitioners, a group of prison inmates, that the circuit split necessitated review. "Review at this time would be premature," wrote Assistant Massachusetts Attorney General Kenneth Salinger in urging the Court not to review the case.
Christopher Silva of Edwards Angell Palmer & Dodge in Boston argued in his petition that the "broad and unambiguous language" of the Voting Rights Act covered felon disenfranchisement laws.