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The entire active roster of the 2nd U.S. Circuit Court of Appeals has agreed to rehear an April decision upholding a section of New York state’s election law that denies prisoners and paroled felons the right to vote. The court has voted to rehear en banc Muntaqim v. Coombe, 01-7260, in which a three-judge panel found that New York Election Law �5-106 does not violate �2 of the federal Voting Rights Act of 1965, 42 U.S.C. �1973. Jalil Abdul Muntaqim, a black man incarcerated at Shawangunk Correctional Facility in Wallkill, N.Y., acknowledged that the law was not intentionally discriminatory. Instead, he argued that it had the practical effect of diluting black and Hispanic voter rolls because the racial disparity in New York’s prison population is driven, in part, by discriminatory sentencing practices. The issue has troubled the circuit for some time. In 1996, a 10-judge panel sitting in banc deadlocked on the same question in the case of Baker v. Pataki, 85 F.3d 919. This time, the issue came to the circuit from Northern District Judge Norman A. Mordue, who granted the state summary judgment on Muntaqim’s claim. In their decision last April, a 2nd Circuit panel of Judges Jose Cabranes, Thomas Meskill and Richard Cardamone concluded that the statute was constitutional. Writing for the panel, Cabranes addressed the impact of 1982 amendments to the Voting Rights Act that were an attempt by Congress to strengthen the law by forbidding any voter qualification or standard that “results” in the denial of the right to vote “on account of race.” Muntaqim claimed that in New York, where blacks and Hispanics make up less than 30 percent of the voting age population but more than 80 percent of the prison population, the disenfranchisement law has the practical effect of resulting in the denial of the right to vote because of race. But he said there was no clear indication that Congress, in passing the 1982 amendments, intended to include felon disenfranchisement statutes. Even though the amendments do not require a showing that legislators “acted with invidious discriminatory purpose in enacting a challenged voting rule,” Cabranes said, the panel concluded that the section “requires some demonstrable causal connection between the challenged voting rule and purposeful racial discrimination.” He said 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.” The decision to rehear the case en banc was made by a vote of the court’s 13 active judges. It will be heard on April 7. Meskill and Cardamone, both senior judges, will participate because they were part of the original panel that decided the case. In a two-page notice released by Clerk Roseann B. MacKechnie, the judges ask the parties to brief whether the U.S. Supreme Court’s “clear statement rule” requires Congress to have clearly stated that the Voting Rights Act was intended to infringe on the states’ rights to pass felon disenfranchisement laws and whether “Congress did in fact make that intent clear.” Should Mordue’s judgment be modified or vacated, the circuit judges also want to know what sort of data demonstrating racial bias in sentencing should be considered and what sort of comparisons should be made between sentences in the state and federal systems. The judges also want briefed the question: “How might such evidence of racial disparity be considered in light of the Voting Rights Act’s ‘totality of the circumstances’ test” in 42 U.S.C. �1973(b)? Finally, the judges want argument on whether Muntaqim is a proper class representative for the class of minority voters alleging vote dilution or whether he would first have to prove that his own sentence was the result of racial discrimination.

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