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The Supreme Court is about to face its first major voting rights dispute since the arrival of new Chief Justice John Roberts Jr., who was criticized for opposing voting rights legislation as an aide in the Reagan Justice Department two dozen years ago. At issue is a challenge to Florida’s 1968 law that permanently disenfranchises more than 800,000 convicted felons in the state. The case, Johnson v. Bush, will be one of dozens discussed at the Court’s private conference on Nov. 10 to determine if they should be added to the docket for review. Lawyers for a class of 613,000 felons who have completed their sentences claim that the Florida law disproportionately affects African-Americans, disenfranchising 10 percent of voting-age blacks in the state compared with 4 percent of the non-African-American population. That contrast cannot be explained solely by higher arrest rates or higher participation in crimes by blacks, says Catherine Weiss, a lawyer for the Brennan Center for Justice who represents the class. Because of “bias in the criminal justice system” at every step, Weiss asserts, more African-Americans than whites are convicted of felonies, sentenced, and denied clemency. That, in her view, amounts to a violation of Section 2 of the Voting Rights Act, which prohibits voting qualifications that result in denial of voting rights because of race. A district court judge summarily dismissed the suit in 2002, but in 2003 a panel of the U.S. Court of Appeals for the 11th Circuit reversed, ordering that the case should go to trial. But on en banc review, the full circuit again granted summary judgment to the state, ruling that the Voting Rights Act does not apply to felon disenfranchisement laws. That conflicts with a ruling by the U.S. Court of Appeals for the 9th Circuit in Farrakhan v. Washington, a similar challenge to Washington state’s disenfranchisement law. That 2003 ruling said that felon disenfranchisement is plainly a “voting qualification” covered by the Voting Rights Act. A New York state case on the same issue, Muntaqim v. Coombe, was heard en banc by the 2nd Circuit in June, with no ruling yet. All states except Maine and Vermont bar felons from voting, though, unlike Florida, some allow felons to regain their right to vote in some circumstances. Representing Florida, Charles Cooper of Washington’s Cooper & Kirk asserts that Congress could not have intended to allow Section 2 of the Voting Rights Act to be used to “cast into doubt the criminal justice system of 48 states.” He also affirms that the Florida law was not enacted with any racially discriminatory intent and its justice system operates “in a race-neutral manner.” Moreover, Cooper’s brief says the tradition of preventing convicted criminals from voting is “deeply rooted in the nation’s history.” As evidence, Cooper cites a 1976 ruling written by the late appeals judge Henry Friendly, who wrote, “A contention that the equal protection clause requires New York to allow convicted mafiosi to vote for district attorney or judges would not only be without merit but as obviously so as anything can be.” Friendly is the judge for whom Roberts clerked before clerking for the late Chief Justice William Rehnquist. Weiss and other civil rights advocates view the merits of felon disenfranchisement as far from obvious, especially in Florida, where the issue played a significant role in reducing voter turnout in both 2000 and 2004. Nationwide, the Sentencing Project estimates that more than 4 million citizens are barred from voting because of the disenfranchisement laws. The Supreme Court, in the 1974 case Richardson v. Ramirez, said that felon disenfranchisement could not be challenged under the 14th Amendment’s equal protection clause, so recent suits have been brought mainly under the Voting Rights Act. The Florida challenge does include both a 14th and 15th Amendment argument, however, with Weiss claiming that the law’s discriminatory intent carries over from its precursor, enacted after the Civil War. The fact that the new Florida disenfranchisement law was passed in 1968, a few years after the Voting Rights Act increased the number of blacks who could vote, is “no historical accident,” Weiss says. “There is clearly a split in the circuits, but whether the Court wants to deal with it now is not certain,” says Jacqueline Berrien, associate director-counsel of the NAACP Legal Defense and Educational Fund, which is also fighting felon disenfranchisement laws. Berrien also says that Roberts’ record on the issue is “something to be concerned about.” The legal defense fund’s report on Roberts, issued before he was confirmed, called him “a pivotal player” in shaping the Reagan administration’s opposition to legislation that added an “effects test” to the Voting Rights Act — the very section invoked by the challenges to felon disenfranchisement. It noted that, as an aide to then-Attorney General William French Smith, Roberts wrote 25 memorandums on the issue, some questioning the constitutionality of an effects test. In response to questioning during his confirmation hearing on Sept. 13, Roberts indicated he no longer questioned the statute once it was signed into law. The Brennan Center’s Weiss says she is not “jumping up and down with joy” about Roberts’ views on the Voting Rights Act, but adds, “I am of the mind to take him at his word” as expressed at his confirmation hearing. OTHER CASES UP FOR REVIEWAir Conditioning & Refrigeration Institute v. Energy Resources Conservation and Development Commission, No. 05-331. Whether the federal Energy Policy and Conservation Act pre-empts state regulations requiring the disclosure of information about the energy efficiency of appliances. • Jenkins v. First American Cash Advance of Georgia, No. 05-347. Arbitration of class action claims against payday loan agreements. • Woodford v. Ngo, No. 05-416. Exhaustion of administrative remedies under the Prison Litigation Reform Act. NOV. 23 CONFERENCELeone v. United States, No. 05-111. Interpretation of the Hobbs Act requirement that the defendant’s conduct must have affected interstate commerce. • Williams v. Michigan, No. 05-197. Whether reasonable suspicion of criminal activity is required before a police officer may extend a traffic stop beyond its initial scope. • Columbus, Ohio v. Golden, No. 05-354. Whether the government’s termination of water service to rental property violates the equal protection rights of innocent tenants.
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. Goldstein’s firm participated in Johnson v. Bush , 05-212 and 05-354, but the counsel of record was Stanford Law School professor Pamela Karlan. Tony Mauro can be contacted at [email protected].

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