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New York’s law prohibiting incarcerated felons and parolees from voting does not violate the federal Voting Rights Act, the 2nd U.S. Circuit Court of Appeals has ruled. The court rejected an inmate’s claim that racial disparity in sentencing results in violations of the act. Congress did not clearly state its intent to include disenfranchisement statutes when it moved to toughen the law in 1982, the court said. The issue decided in Muntaqim v. Coombe, 01-7260, was identical to one that deadlocked a 10-judge en banc review by the circuit in 1996. This time the court was responding to a challenge to the disenfranchisement statute, N.Y. State Election Law � 5-106, brought by prisoner Jalil Abdul Muntaqim. The application of the federal act “to felon disenfranchisement statutes such as that of New York would infringe upon the state’s well-established discretion to deprive felons of the right to vote,” the court said. Muntaqim, a black man incarcerated at the Shawangunk Correctional Facility, claimed the law violated � 2 of the Voting Rights Act of 1965, 42 U.S.C. � 1973, because “it results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Muntaqim argued that while the statute did not intentionally discriminate, it had the practical effect of diluting black and Hispanic voter rolls because the racial disparity in New York’s prisons is driven, in part, by discriminatory sentencing practices. As part of his argument, he said that although blacks and Hispanics make up less than 30 percent of the voting-age population in New York, they make up more than 80 percent of the inmates in the state prison system. Muntaqim turned to the 2nd Circuit after the state’s motion for summary judgment was granted by Northern District Judge Norman A. Mordue. Second Circuit Judge Jose A. Cabranes said that 1982 amendments to the law prohibit any voting qualification or standard that “‘results’ in the denial of the right to vote ‘on account of’ race.” In the 1996 review of the same issue in Baker v. Pataki, 85 F.3d 919, five members of the circuit found that “it is not unmistakably clear that, in amending � 1973 in 1982 to incorporate the ‘results’ test, Congress intended the test be applicable to felon disenfranchisement statutes.” An equal number said the statute clearly applies to felon disenfranchisement statutes. They rejected the argument “that there is ambiguity in the Voting Rights Act that requires it contain a plain statement of congressional intent to affect felon disenfranchisement.” Cabranes noted that further division on the issue has emerged recently with the 11th and 9th circuits’ concluding that the act applies to felon-disenfranchisement statutes. CONGRESSIONAL INTENT Explaining the 2nd Circuit panel’s disagreement, he wrote:
In light of relevant Supreme Court precedents, including decisions of the Supreme Court that post-date Baker, we believe that the application of � 1973 to � 5-106 would alter the traditional balance of power between the States and the Federal Government. Accordingly, we conclude that, in the absence of a clear statement from Congress indicating Congress’s intent to infringe upon the states’ authority to prohibit felons from voting, � 1973 should not be construed to extend to state felon disenfranchisement statutes.

The circuit, he said, had found no such clear statement from Congress “or even in its legislative history.” “On the one hand, despite the presence of the word ‘results’ in � 1973, it is apparent that � 1973 does not prohibit all voting restrictions that have a racially disproportional effect,” he wrote of the Voting Rights Act. “On the other hand, the main purpose of the 1982 amendment to the VRA was to establish that a state actor can violate the VRA without engaging in purposeful discrimination.” In passing the 1982 amendment, he said, Congress was “responding to a well-documented problem — namely, that State legislators motivated by racial animus were voiding the strictures of the Voting Rights Act by enacting facially neutral election laws that disproportionately affected black voters.” But in the circumstances presented by this case, he said, even though � 1973 as amended in 1982 does not require plaintiffs to show that legislators “acted with invidious, discriminatory purpose in enacting a challenged voting rule, we conclude that � 1973 … requires some demonstrable causal connection between a challenged voting rule and purposeful racial discrimination.” TEST UNKNOWN He said the court did not need to decide “exactly how” a plaintiff would prove this connection or determine “how direct the causal connection between the racial discrimination and a challenged voting rule must be to meet the requirements of � 1973.” “For our purposes, it is enough to conclude that, based on both the language of the amended VRA and the statute’s legislative history, a plaintiff must allege that racial discrimination has caused either vote denial or vote dilution,” he said; ” … however, a plaintiff need not allege that the specific rule or qualification at issue was itself motivated by racial bias.” In conclusion, he said the judges “believe that felon disenfranchisement statutes — in light of their longstanding and widespread acceptance throughout the country, as reflected in the text of the Fourteenth Amendment — enjoy a presumption of constitutionality that is not necessarily attached to other voting rules.” Judges Thomas Meskill and Richard J. Cardamone joined in the opinion. Jonathan W. Rauchway, J. Peter Coll Jr., Cleo A. Jones and Tara J. Myslinski of Orrick, Herrington & Sutcliffe represented Muntaqim. Assistant Solicitor General Julie M. Sheridan, Solicitor General Caitlin J. Halligan and Senior Counsel Peter H. Schiff represented New York state.

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