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It comes too late to affect the Nov. 2 election, but the Supreme Court may soon decide to consider the legality of policies in effect in 48 states that disenfranchise convicted felons. Two of the cases set for discussion at the Court’s private conference Nov. 5 ask the Court to determine whether felon disenfranchisement laws violate Section 2 of the 1965 Voting Rights Act. That provision bars the imposition of any requirement that results in denial of the right to vote “on account of race or color.” The Court will also meet in conference on Nov. 12. Civil rights groups cite statistics showing that more than 40 percent of the roughly 5 million people who cannot vote because of a past conviction are black, and more than half are of color. Frank Askin, general counsel of the American Civil Liberties Union, describes felon disenfranchisement laws, which are most severe in the South, as “the last vestige of slavery in our country.” All states except Maine and Vermont block convicted felons from voting, although some have provisions that allow felons to regain voting privileges under certain circumstances. The Court in the 1974 case Richardson v. Ramirez said disenfranchisement laws could not be challenged under the equal protection clause of the Fourteenth Amendment, so more recent challenges have been brought under the Voting Rights Act. The cases before the Court are Locke v. Farrakhan, No. 03-1597, from Washington state, and Muntaqim v. Coombe, No. 04-175, from New York. In Locke, brought initially by Muhammad Farrakhan and five other convicted felons who are minorities, Washington Attorney General Christine Gregoire asks the justices to overturn a ruling issued last July by the U.S. Court of Appeals for the 9th Circuit. That ruling said the Voting Rights Act could be applied to the state’s felon disenfranchisement law, and required the courts to consider how disenfranchisement “interacts with racial bias in Washington’s criminal justice system to deny minorities an equal opportunity to participate in the state’s political process.” Judge Richard Paez wrote the decision. The 9th Circuit panel remanded the case to the District Court, prompting the state to request rehearing en banc. The request was denied, with seven judges dissenting from the denial. One of the dissenters, Judge Alex Kozinski, said it was “crystal clear” that the Voting Rights Act was not intended to cover voter disenfranchisement laws. Gregoire, citing “significant conflict among the circuits” on the issue, asks the Supreme Court to review the 9th Circuit decision. Congress did not intend the Voting Rights Act to apply in this area, she contends, adding it raises considerable federalism issues by interfering with state sovereignty. Lawyers for the disenfranchised Washington residents reply that the 9th Circuit got it right, and that any interference with states is justified because of the mandate of the Voting Rights Act to enforce voting rights in the states. Lawrence Weiser of Gonzaga University School of Law wrote the brief, urging the Court not to take up the case. In the New York case, the U.S. Court of Appeals for the 2nd Circuit reached an opposite conclusion from the 9th Circuit. Judge Jose Cabranes, writing for a unanimous panel, said that without a “clear statement” from Congress indicating its intent to apply the Voting Rights Act to disenfranchisement, the suit, brought initially by a black New York prison inmate, “fails as a matter of law.” Though lawyers for inmate Jalil Muntaqim did not seek rehearing en banc, members of the 2nd Circuit polled themselves anyway, and a majority said they wanted to rehear the case if the high court denies review. Jonathan Rauchway of Davis Graham & Stubbs in Denver, who represents inmate Muntaqim, urges the Supreme Court to reverse the 2nd Circuit. “The impact of felon-disenfranchisement laws is felt nationwide, and the application of the VRA to this problem is an issue of manifest public importance that only this Court can resolve.” But New York Solicitor General Caitlin Halligan says the high court should not grant review, noting the 2nd Circuit wants to rehear the case. She also says the provision at issue in Muntaqim relates only to disenfranchisement of current inmates, a narrower category than all ex-felons. OTHER CASES UP FOR REVIEW Nov. 5 conference: •� American Chiropractic Association v. Trigon Healthcare Inc., No. 04-312. Antitrust dispute over boycott by medical doctors of chiropractors. Nov. 12 conference: •� Irving Pulp & Paper Ltd. v. Capital Factors Inc., No. 04-181. Modification of bankruptcy court orders. •� C.M.C. v. G.A.L., No. 04-184. Interstate issues relating to federal Parental Kidnapping Prevention Act. •� NXIVM Corp. v. Ross Institute, No. 04-233. Fair use defense under Copyright Act. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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