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GIVING THE BARKING DOG A BITE:
CHALLENGING FELON
DISENFRANCHISEMENT UNDER THE VOTING
RIGHTS ACT OF 1965
Lauren Handelsman*
INTRODUCTION
Felon disenfranchisement—the practice of denying the right to vote
to currently incarcerated felons, those serving terms of probation or
parole, and former felons—prevents over four and one-half million
men and women from voting in local, state, and federal elections.1
Felon disenfranchisement laws are particularly troublesome when
viewed in light of their racially disparate impact. While AfricanAmericans comprise approximately 12% of the United States
population,2 they comprise 36% of the population that has lost the
right to vote due to a criminal conviction.3
The right to vote has been declared fundamental by the United
States Supreme Court,4 yet states, which are constitutionally
empowered to control voter qualifications, continue to disenfranchise
felons and ex-felons in staggering numbers. Consequently, some of
the state laws that restrict the voting rights of felons have been
challenged as impermissible violations of that fundamental right.
These challenges have traditionally proceeded as claims of violations
of the Equal Protection Clause, the Due Process Clause, and the
Attempts
to
overturn
felon
Fifteenth
Amendment.5
disenfranchisement laws have, however, been largely unsuccessful.

* J.D. Candidate, 2006, Fordham University School of Law.
1. In this Note, the term “felon disenfranchisement,” which is also commonly
called “prisoner disenfranchisement” or “felony disenfranchisement,” is used to refer
generally to the practice of denying a citizen the right to vote due to a criminal
conviction, including both felony and even some misdemeanor convictions. In this
Note, the term “felon” refers to any individual who is disenfranchised under such a
law.
2. U.S. Census Bureau, The Black Population: 2000 (Aug. 2001), available at
http://www.census.gov/prod/2001pubs/c2kbr01-5.pdf.
3. Jamie Fellner & Marc Mauer, Losing the Vote: The Impact of Felony
Disenfranchisement Laws 1 (1998).
4. See Reynolds v. Sims, 377 U.S. 533, 561-62 (1964).
5. See infra Part I.C.1.

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The Voting Rights Act of 1965 (“VRA”),6 which prohibits states
from imposing racially discriminatory voting practices, has emerged in
the last decade as a potentially powerful tool for challenging felon
disenfranchisement laws. The VRA was revised in 1982 to prohibit
voting restrictions that have a racially discriminatory impact,
abandoning the previous version of the Act which prohibited only
voting restrictions that were enacted with discriminatory intent.7
Because felon disenfranchisement statutes disproportionately impact
African-Americans,8 plaintiffs have attempted to use the revised
version of the VRA to challenge the legality of state felon
disenfranchisement laws. These challenges have not yet resulted in
the overturning of a state felon disenfranchisement law. Yet if VRA
challenges to these laws are permitted to proceed in a meaningful
way, because the racial impact of felon disenfranchisement is so great,
many of these laws could be declared impermissible restrictions on the
right to vote.
The federal circuit courts are divided on whether the VRA provides
a valid means to challenge felon disenfranchisement laws because
such challenges involve application of a federal law to state statutes in
an area of law typically under state control. Four recent cases in three
circuits have addressed this issue head on. In each, convicted felons
who at the time were incarcerated, on probation or parole, or have
already fully served their sentences alleged that their state’s felon
disenfranchisement scheme violated the VRA. These cases have not
yet addressed whether the state felon disenfranchisement statutes
under review must be struck down for having a racially discriminatory
impact. Rather, these four cases have addressed only whether a VRA
challenge to a state felon disenfranchisement statute can proceed.
The three federal circuit courts that have addressed this issue
disagreed about the use of the VRA in the context of state felon
disenfranchisement statutes. The disagreement is largely about the
allowable scope of the VRA as legislation passed pursuant to the
enforcement powers of the Fourteenth and Fifteenth Amendments.
The circuits also disagree about whether there must be a “clear
statement” from Congress that it intended the VRA to apply to felon
disenfranchisement statutes, the underlying congressional intent that
accompanied the amendment of the VRA in 1982, and whether the
VRA, as applied to felon disenfranchisement laws, is congruent and
proportional legislation under the Fourteenth and Fifteenth
Amendments. All of these factors inform whether the VRA, a federal
law, may be used to challenge state felon disenfranchisement statutes.

6. 42 U.S.C. § 1973 (2000).
7. See infra notes 116-21 and accompanying text.
8. See infra notes 59-71 and accompanying text.

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The U.S. Court of Appeals for the Second Circuit ruled in two
separate cases, Baker v. Pataki9 and Muntaqim v. Coombe,10 that
VRA challenges to felon disenfranchisement statutes cannot proceed.
Application of the VRA to felon disenfranchisement, the Second
Circuit concluded in both cases, would impermissibly alter the
state/federal balance of power, as states have traditionally enjoyed
exclusive control of establishing voter qualifications. Moreover, the
Second Circuit held that an interpretation that the VRA applies to
these state statutes would violate rules of constitutional construction.
The Eleventh and Ninth Circuits took the opposite approach from
the Second Circuit. In Farrakhan v. Washington, the Ninth Circuit
ruled that the VRA can be used to challenge the Washington law that
prohibits convicted felons from voting.11 The Eleventh Circuit
embraced this approach in Johnson v. Governor of Florida, where the
court determined that a VRA challenge to Florida’s statutory scheme,
which disenfranchises not only current felons but all ex-felons, should
These two circuits determined that
be allowed to proceed.12
permitting application of the VRA to felon disenfranchisement laws
does not violate the established balance of power between the states
and Congress, nor do such challenges offend notions of constitutional
construction.
On November 8, 2004, the United States Supreme Court denied
petitions for certiorari in two of these cases—the Ninth Circuit’s
decision in Farrakhan and the Second Circuit’s decision in
Muntaqim.13 Both petitions specifically requested that the Court
decide whether felons and ex-felons can challenge their state felon
disenfranchisement laws as having a racially discriminatory impact
under the VRA. The Supreme Court’s decision not to hear these
cases cemented the circuit split that has been developing over the last
ten years.14

9. 85 F.3d 919 (2d Cir. 1996).
10. 366 F.3d 102 (2d Cir.), cert. denied, 125 S. Ct. 480 (2004) (mem.), reh’g en banc
granted, No. 01-7260, 2004 WL 2998551 (2d Cir. Dec. 29, 2004). The Second Circuit
recently decided to rehear this case en banc, but did not vacate its previous decision.
See Muntaqim, 2004 WL 2998551, at *1.
11. Farrakhan v. Washington, 338 F.3d 1009, 1011-12 (9th Cir. 2003).
12. Johnson v. Governor of Fla., 353 F.3d 1287 (11th Cir. 2003), reh’g en banc
granted, opinion vacated by 377 F.3d 1163 (11th Cir. 2004). Johnson was recently
granted rehearing en banc, vacating the court’s previous decision, and is currently
pending decision. No petition for certiorari was filed in that case. See Johnson, 377
F.3d at 1163.
13. Muntaqim, 125 S. Ct. at 480; Locke v. Farrakhan, 125 S. Ct. 477 (2004) (mem.);
see also Linda Greenhouse, Supreme Court Declines to Hear 2 Cases Weighing the
Right of Felons to Vote, N.Y. Times, Nov. 9, 2004, at A19; James Vicini, Justices
Refuse to Review Inmate Voting Rights, Reuters, Nov. 8, 2004, available at
http://news.orb6.com/stories/nm/20041108/court_voting_dc.php.
14. See Tony Mauro, Mixed Signals from Supreme Court on Felon Voting Rights,
Legal Times, Nov. 9, 2004 (claiming that the Court “sent conflicting signals” on the

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The Ninth, Eleventh, and Second Circuit decisions highlighted
fundamental disagreements over the correct reading of the language
of the Fourteenth Amendment, and the breadth of Congress’s
enforcement powers under the Fourteenth and Fifteenth
Amendments as they relate to the application of federal legislation to
areas of traditional state control. Specifically, this Note examines: (1)
how to address inherent contradictions within the language of the
Fourteenth Amendment; (2) whether the VRA, as applied to felon
disenfranchisement statutes, exceeds Congress’s enforcement powers
under the Fourteenth and Fifteenth Amendments; (3) whether the
clear statement rule applies when interpreting section 2 of the VRA;
and (4) whether Congress intended that the VRA apply to felon
disenfranchisement statutes, using the recent litigation regarding the
permissibility of challenging state felon disenfranchisement statutes
under the VRA, as a means of understanding the disparate views of
the federal circuit courts. This Note also proposes a possible solution
to the current split among the three circuits that have addressed the
issue.
Part I of this Note explores the history of felon disenfranchisement
and the history of racially discriminatory voting practices in the
United States. Part I also explores some of the key areas of conflict
between the Second, Ninth, and Eleventh Circuits regarding the use
of the VRA in felon disenfranchisement statute challenges. Part II of
this Note examines the specific tensions between the circuits in the
four recent cases in the Second, Ninth, and Eleventh circuits and
describes in detail the different approaches taken in the opinions
issued by these courts.
Part III of this Note argues that the Supreme Court’s denial of
certiorari in the Ninth and Second Circuit decisions leaves an
irreconcilable conflict that is best resolved by allowing the application
of the VRA in felon disenfranchisement statute challenges. Part III
posits that there is no inherent constitutional conflict that prevents
VRA challenges to felon disenfranchisement statutes from
proceeding. It further contends that federalism concerns do not
preclude the application of the VRA to felon disenfranchisement
statutes because the VRA, as applied to felon disenfranchisement
statutes, does not exceed Congress’s enforcement powers. Therefore,
in applying the VRA to felon disenfranchisement statutes, federal
courts need not look at the congressional intent behind the VRA or
whether there has been a clear statement. Thus, the VRA can
properly be applied to state felon disenfranchisement statutes.

issue of felon disenfranchisement, but that “the high court may yet decide the issue in
a future case”), at http://www.law.com/jsp/article.jsp?id=1099927152958.

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I. FELON DISENFRANCHISEMENT AND RACIAL DISCRIMINATION IN
VOTING: HISTORY AND CHALLENGES
A. Felon Disenfranchisement in the United States
In the United States, a felony conviction carries not only criminal
repercussions, but also civil ones.15 Civil consequences include the
loss of the right to hold public office, the loss of the right to serve as a
juror, and the loss of the right to vote.16 Approximately 4.7 million
Americans were prohibited from voting in elections in the year 2000
because they were incarcerated due to criminal convictions, had
previous criminal convictions, were still serving terms of probation or
parole for criminal convictions, or had fees outstanding that were
imposed as a condition of a criminal conviction.17
Felon disenfranchisement has its roots in ancient Greece, ancient
Rome, and Medieval Europe, where those who committed crimes
were banished from their communities and subject to loss of their
property rights and the ability to inherit or pass down property to
their heirs.18 Early European felon disenfranchisement was limited to
cases of serious crimes and was imposed on a case-by-case basis by
judicial pronouncement.19 Colonists brought the practice to the
United States, though they abandoned other European civil
disabilities, such as loss of inheritance rights.20
Early felon disenfranchisement laws in the United States were, for
the most part, limited to a few particular offenses.21 By the mid-1800s,
more than half of the states prohibited felons who had committed
serious offenses from voting.22 Today, citizens may be disenfranchised
for committing minor offenses, including misdemeanors and felonies
that do not impose a sentence of incarceration.23 Disenfranchisement
15. See Fellner & Mauer, supra note 3, at 2; Carlos M. Portugal, Comment,
Democracy Frozen in Devonian Amber: The Racial Impact of Permanent Felon
Disenfranchisement in Florida, 57 U. Miami L. Rev. 1317, 1318 (2003).
16. See Fellner & Mauer, supra note 3, at 2.
17. See Christopher Uggen & Jeff Manza, Democratic Contraction? Political
Consequences of Felon Disenfranchisement in the United States, 67 Am. Soc. Rev. 777,
780, 797 (2002).
18. See Fellner & Mauer, supra note 3, at 1, 2; Alec C. Ewald, “Civil Death”: The
Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002
Wis. L. Rev. 1045, 1060; Portugal, supra note 15, at 1318-19.
19. See Ewald, supra note 18, at 1061.
20. See Fellner & Mauer, supra note 3, at 2.
21. See Angela Behrens & Christopher Uggen, Ballot Manipulation and the
“Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the
United States, 1850-2002, 109 Am. J. Soc. 559, 563 (2003).
22. At that time, the right to vote was not universal. Women, many racial and
ethnic minorities, people who could not read, and those who did not own property
were not permitted to vote. See Fellner & Mauer, supra note 3, at 3.
23. See id. at 5 (citing, as an example, the loss of voting rights for a conviction for
passing a bad check in Mississippi). In Richardson v. Ramirez, Justice Marshall,

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can even be imposed on a first-time offender who enters a guilty plea,
as most first-time offenders do, regardless of guilt or innocence.24
Felon disenfranchisement imposed by state legislatures continues
despite the fact that the Supreme Court has declared voting to be a
fundamental right that requires the application of strict scrutiny
analysis under the Equal Protection Clause.25 The United States
Constitution grants states, and not the federal government, the power
to establish voter qualifications.26 There is therefore no federal law
that disenfranchises felons,27 as states have the inherent power to
establish “[t]he Times, Places and Manner of holding Elections for
Senators and Representatives.”28 Most states do not distinguish state
from federal offenses in applying felon disenfranchisement statutes.29
Because the practice of felon disenfranchisement is imposed at a state
level, there is a resulting “national crazy-quilt of disqualifications and
restoration procedures.”30

dissenting, noted that felon disenfranchisement could even be imposed for convictions
“for seduction under promise of marriage, or conspiracy to operate a motor vehicle
without a muffler . . . vagrancy in Alabama or breaking a water pipe in North
Dakota . . . [e]ven a jaywalking or traffic conviction.” Richardson v. Ramirez, 418
U.S. 24, 75 n.24 (1974) (Marshall, J., dissenting) (citations omitted).
24. See Fellner & Mauer, supra note 3, at 5.
25. See Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (“Undoubtedly, the right of
suffrage is a fundamental matter in a free and democratic society. . . . [A]ny alleged
infringement of the right of citizens to vote must be carefully and meticulously
scrutinized.”); see also Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966)
(invalidating a poll tax as a voting qualification that does not meet strict scrutiny
analysis); Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to
Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?,
92 Geo. L.J. 259, 309 (2004). The Equal Protection Clause of the Fourteenth
Amendment prohibits states from depriving all citizens of “equal protection of the
laws.” U.S. Const. amend. XIV, § 1. Strict scrutiny demands that states demonstrate
that a voting restriction advances a compelling state interest, is narrowly tailored, and
is the least restrictive means to achieve the state’s ends. See, e.g., Dunn v. Blumstein,
405 U.S. 330, 342-43 (1972) (employing “strict equal protection” in analyzing
durational residence laws); Oregon v. Mitchell, 400 U.S. 112, 241-42 (1970) (applying
strict scrutiny equal protection analysis to restrictions on the right to vote); Kramer v.
Union Free Sch. Dist. No. 15, 395 U.S. 621, 626-27 (1969) (same).
26. U.S. Const. art. I, § 2, cl. 1; see John M. Mathews, Legislative and Judicial
History of the Fifteenth Amendment 12 (Da Capo Press 1971) (1909) (“[R]egulation
of the suffrage was a matter properly belonging to the state governments.”). States
also have the authority to regulate criminal law. The Tenth Amendment to the
United States Constitution gives the states police powers to protect the health, safety,
and welfare of their citizens. See U.S. Const. amend. X; Medtronic, Inc. v. Lohr, 518
U.S. 470, 475 (1996).
27. See
Right
to
Vote,
FAQ,
at
http://www.righttovote.org/upload/facts/290_uFile_FAQ%20for%20Web.doc
(last
visited Jan. 31, 2005).
28. U.S. Const. art. I, § 4, cl. 1; see id. amend. XVII.
29. See Fellner & Mauer, supra note 3, at 6.
30. Margaret Colgate Love & Susan M. Kuzma, U.S. Dep’t of Justice, Civil
Disabilities of Convicted Felons: A State-by-State Survey 1 (1996).

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Only two states—Vermont and Maine—do not restrict the voting
rights of felons, permitting them to vote from prison.31 The remaining
forty-eight states and the District of Columbia prohibit felons from
voting while incarcerated.32 Of those forty-eight states, twenty-nine
also extend the prohibition to parolees, and thirty-two extend the
prohibition to both parolees and probationers.33 In fourteen states exprisoners are not permitted to vote for some period of time after the
completion of all terms of their sentences, and in some of these states
ex-felons are not permitted to vote for the duration of their lives.34
Restoring one’s right to vote is purportedly possible—even in states
that permanently disenfranchise felons—by way of pardon, executive
order, or a clemency proceeding, although there may be a waiting
period before such action is permitted.35
The United States is the only democratic country in the world that
disenfranchises so many felons.36 This is, in large part, due to the
soaring incarceration rate in the United States. The incarceration rate
was 686 per 100,000 people in the United States in the year 2000,
while the rate in Canada was only 105 per 100,000, the rate in
Germany was only 95 per 100,000, and the rate in Japan was only 45
per 100,000.37 As a result, “the United States stands at an extreme end

31. Angela Behrens, Note, Voting—Not Quite a Fundamental Right? A Look at
Legal and Legislative Challenges to Felon Disenfranchisement Laws, 89 Minn. L. Rev.
231, 239 (2004). Utah recently passed a state constitutional amendment that took
away voting rights for currently incarcerated felons. The state had previously allowed
incarcerated felons to vote. See Utah Const. art. IV, § 6. Similarly, Massachusetts
passed a state constitutional amendment in 2000. Mass. Const. art. of amend. III; see
also Mass. Gen. Laws Ann. ch. 51, § 1 (West 2004).
32. Debra Parkes, Ballot Boxes Behind Bars: Toward the Repeal of Prisoner
Disenfranchisement Laws, 13 Temp. Pol. & Civ. Rts. L. Rev. 71, 77 (2003).
33. Behrens & Uggen, supra note 21, at 563 tbl.1; Parkes, supra note 32, at 77.
34. See Fellner & Mauer, supra note 3, at 1.
35. See id. at 5-6. This process may be time or cost prohibitive, rendering it
“illusory.” Marc Mauer, Disenfranchisement: The Modern-Day Voting Rights
Challenge, 40 C.R. J. 40, 42 (2002); see Fellner & Mauer, supra note 3, at 5-6.
36. See Fellner & Mauer, supra note 3, at 1. The United States also has the lowest
voter participation rate of any democracy in the Western world. Mauer, supra note
35, at 43. In the 2000 presidential election, the voter turnout rate was 51.3%. Parkes,
supra note 32, at 73 n.4. The estimated voter turnout rate for the 2004 presidential
election was 59.6%. See Press Release, Comm. for the Study of the Am. Electorate,
President Bush, Mobilization Drives Propel Turnout to Post-1968 High, Kerry,
Democratic
Weakness
Shown
(Nov.
4,
2004),
available
at
http://www.fairvote.org/reports/CSAE2004electionreport.pdf. By contrast, Italy’s
voter turnout rate from 1945-1998 was 92.5%. See IDEA Int’l, Voter Turnout: A
Global Survey, available at http://www.idea.int/voter_turnout/voter_turnout2.html
(last visited Jan. 31, 2005).
37. Jeff Manza & Christopher Uggen, Punishment and Democracy:
Disenfranchisement of Nonincarcerated Felons in the United States, 2 Persp. on Pol.
491, 500 (2004).

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of the spectrum in comparison to other democratic nations” when it
comes to limiting prisoner and ex-prisoner voting rights.38
The trends in legislative activity in the area of felon
disenfranchisement demonstrate mercurial attitudes toward the
practice. In the 1860s and 1870s, the country saw a spike in more
restrictive felon disenfranchisement practices, a period of white
legislative backlash to Reconstruction.39 In the 1960s and 1970s,
however, the country saw another spike in legislative activity
characterized by the “liberalization” of such statutes.40 The 1990s
were “once again restrictive rather than liberal.”41 In February 2002,
however, a United States Senate measure that would restore voting
rights to all ex-felons in federal elections garnered enough support to
make it to the floor of the Senate, a possible move back towards
expansion of voting rights.42 This measure was ultimately voted
down.43
Proponents of felon disenfranchisement argue that when citizens
commit crimes, they forfeit their right to engage in voting and deserve
to suffer a “civil death.”44 Another common rationale supporting
felon disenfranchisement laws is that these restrictions maintain the
“purity of the ballot box.”45 This argument turns on the claim that
felons pose a serious threat to the integrity of the voting process—
namely, that they will engage in fraud to distort the outcomes of
elections.46 Proponents of felon disenfranchisement laws also assert
38. Civic Participation and Rehabilitation Act of 1999: Hearing on H.R. 906
Before the Subcomm. on the Constitution of the Comm. on the Judiciary, House of
Representatives, 106th Cong. 31 (1999) (statement of Marc Mauer, Assistant Director,
The Sentencing Project); see Pamela S. Karlan, Convictions and Doubts: Retribution,
Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147,
1168-69 (2004) (noting that “consensus ‘within the world community’ is uniformly
against lifetime disenfranchisement” and that “the states that continue to exclude all
felons permanently are outliers, both within the United States and in the world”).
39. See Behrens & Uggen, supra note 21, at 582-83.
40. Id. at 583.
41. Id.
42. See id. at 572.
43. The bill was defeated by a vote of 63 to 31. Id. at 599; cf. Marc Mauer, Felon
Disenfranchisement: A Policy Whose Time Has Passed?, 31 Hum. Rts. 16, 17 (2004).
44. But see George P. Fletcher, Disenfranchisement As Punishment: Reflections
on the Racial Uses of Infamia, 46 UCLA L. Rev. 1895, 1899 (1999) (arguing that the
concept of “civil death” made sense in an age where all felons were sentenced to
death, and those still living had “little ground to complain”). See generally Ewald,
supra note 18.
45. Alice E. Harvey, Comment, Ex-felon Disenfranchisement and Its Influence on
the Black Vote: The Need for a Second Look, 142 U. Pa. L. Rev. 1145, 1162-63 (1994).
But see Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and
“The Purity of the Ballot Box,” 102 Harv. L. Rev. 1300, 1317 (1989) (challenging the
soundness of this argument).
46. See Washington v. State, 75 Ala. 582, 585 (1884) (arguing that the purpose of
disenfranchisement is “to preserve the purity of the ballot box, which is the only sure
foundation of republican liberty, and which needs protection against the invasion of
corruption”). But see Fletcher, supra note 44, at 1899 (claiming that this argument

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that states are empowered by the Constitution to impose appropriate
criminal penalties upon felons, and disenfranchisement is simply one
of those penalties.47
Despite these assertions, opponents of felon disenfranchisement
argue that the practice must end because the right to vote is at “the
heart of representative government.”48 Voting is a right that has been
declared fundamental by the Supreme Court, these critics argue, and
should not be denied to such a large number of people; over 2% of the
voting-age population in the United States is not permitted to vote
due to felon disenfranchisement.49 This point is highlighted by the
nation’s growing incarceration rate.50 While state legislatures have
tended to limit the use of permanent disenfranchisement over time,
the gross number of people disenfranchised by such laws continues to
balloon.51 Some commentators have recognized the actual impact that
felon disenfranchisement has on the outcomes of both state and
federal elections, including presidential elections.52 The incredibly
close vote in Florida in the 2000 presidential race contributed to a
resurgence in the movement to abolish felon disenfranchisement
statutes.53 In the wake of that election, the National Commission on
cannot “withstand a minute of rational argument” and that the claim of “metaphysical
taint has no place in a secular legal culture, and it seems obvious that electoral
officials can, with proper measure, protect the honesty of the balloting process”).
47. See Fellner & Mauer, supra note 3, at 16; cf. supra note 26 and accompanying
text.
48. Reynolds v. Sims, 377 U.S. 533, 555 (1964).
49. See Behrens, supra note 31, at 239.
50. See Developments in the Law—The Law of Prisons, 115 Harv. L. Rev. 1838,
1940-41 (2002) [hereinafter The Law of Prisons]. Pamela Karlan notes that the
incarceration rate is six times higher today than it was in 1974. See Pamela S. Karlan,
Ballots and Bullets: The Exceptional History of the Right to Vote, 71 U. Cin. L. Rev.
1345, 1364 (2003).
51. See Fletcher, supra note 44, at 1899.
52. See Uggen & Manza, supra note 17, at 781, 789, 792-93. Uggen and Manza’s
analysis of the impact of felon disenfranchisement in the national presidential race in
2000 reveals that had Florida not had any felon disenfranchisement statute, Al Gore
would have defeated George W. Bush by a margin of approximately 84,000 votes in
Florida. Id. at 792-93.
Had Florida’s felon disenfranchisement statute only
disenfranchised current felons and not ex-felons, Al Gore would have defeated
George W. Bush by over 60,000 votes. Id. Uggen and Manza assert that “[s]ince 1978,
there have been over 400 Senate elections, and we find 7 outcomes that may have
been reversed if not for the disenfranchisement of felons and ex-felons.” Id. at 789.
They also estimate that had there been no felon disenfranchisement laws in the
United States, the Democratic Party would have held majority control in the United
States Senate from 1986-2002. Id. at 794. Professor Gabriel Chin also notes that
because African-Americans are overwhelmingly Democrats, “Republicans have a
terrible conflict of interest with respect to African-American voter turnout and its
connection to felon disenfranchisement.” Chin, supra note 25, at 307.
53. Pamela Karlan notes:
For a variety of reasons, the aftermath of Election 2000 seems to have
reinvigorated the voting rights restoration movement. The scope of felon
disenfranchisement and its disproportionate impact on members of minority
groups has received far greater national attention and state-level political

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Federal Election Reform recommended that all states end the practice
of ex-felon disenfranchisement.54
Critics of felon disenfranchisement advance a number of other
compelling arguments. Some argue that the country has extended the
concept of universal suffrage over the last 150 years, and should
complete that movement by re-enfranchising felons.55 Some argue
that disenfranchising ex-felons does little good in terms of
rehabilitation, deterrence, or the other policy rationales that underlie
the criminal justice system and serve to stigmatize ex-felons who are
disenfranchised.56 Critics also argue that because the United States is
one of the only Western democracies that permanently bans felons
from voting, the practice marginalizes the country from the global
community.57 Opponents also point to the lack of public support for
felon disenfranchisement laws. One recent survey revealed that 80%
of Americans favor restoring voting rights to former felons once they
have served their sentences.58
One of the strongest arguments that critics advance for eliminating
felon disenfranchisement laws in the United States is that such laws
disproportionately
impact
African-American
communities.
Imprisonment rates for African-Americans have continuously
exceeded the rates for white Americans since the Civil War.59 In 1996,
African-American men were 8.5 times more likely than white men to
be imprisoned and since 1988 the rate of incarceration for AfricanAmerican men has increased ten times faster than that of white men.60
Nearly 1.5 million African-Americans are disenfranchised, which
accounted for 36% of the total population of felons disenfranchised in
1998.61 At this rate, 40% of African-American men could be
disenfranchised in the states where ex-offenders as well as those
currently incarcerated, serving probation, or on parole, are all
efforts have restored the voting rights of nearly a half-million people. By
contrast, litigation challenging even lifetime felon disenfranchisement has
been uniformly unsuccessful.
Karlan, supra note 50, at 1365.
54. See Mauer, supra note 43, at 17. Former Presidents Carter and Ford chair the
Commission. Id.
55. See Fellner & Mauer, supra note 3, at 14.
56. See id. at 17; Ewald, supra note 18, at 1105; Fletcher, supra note 44, at 1896
(noting that some lifelong sanctions “flout the retributive principle that the offender
should be required (and permitted) to pay his debt in full to society”).
57. See Brandon Rottinghaus, Int’l Found. for Election Systems, Incarceration
and Enfranchisement: International Practices, Impact and Recommendations for
Reform 28 (2003), available at http://www.ifes.org/research_comm/manatt.htm.
58. Jeff Manza et al., Public Attitudes Toward Felon Disenfranchisement in the
United States, 68 Pub. Opinion Q. 275, 281 (2004). The same survey revealed that
only 60% favor re-enfranchising those on parole or probation, and only 31% favor reenfranchising currently incarcerated felons. Id. at 280.
59. Behrens & Uggen, supra note 21, at 560.
60. Fellner & Mauer, supra note 3, at 12.
61. Id. at 1.

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disenfranchised,62 and 30% of all African-American men are
predicted to face disenfranchisement either permanently or
temporarily in their lifetimes.63 This is partially the result of disparate
targeting by police, disparate prosecutorial activity, and disparate
sentencing trends.64
Alabama and Florida have some of the most stringent felon
disenfranchisement statutes.65 As a result, in these two states, a
staggering 31% of the African-American male voting-age population
is prohibited from voting.66 In Iowa, Mississippi, New Mexico,
Virginia, and Wyoming one in four African-American men is
permanently disenfranchised.67 In California, 70% of those sentenced
under the state’s “three strikes” law are African-American or
Hispanic.68 Approximately 8400 ex-felons have had their voting rights
restored after a period of disenfranchisement in Florida since 1997.69
Only 25% of these restorations were granted to African-Americans.70
Of the full pardons granted in the state since 1987, only 15% were
granted to African-American ex-felons.71
Many consider the racially-disparate impact of felon
disenfranchisement intolerable. The numerous arguments against the
practice of felon disenfranchisement prompted Professor George P.
Fletcher to comment that it is obvious that the country cannot
continue to disenfranchise such a significant portion of the
population.72 “The only question,” he asserts, “is whether the
reinstatement of voting rights for felons—both in prison and out—will
come by the way of legislative change or constitutional ruling.”73
62. Id.
63. See id. at 12-13. Disparate drug offense conviction rates greatly contribute to
these trends. See id. at 13.
64. See Alexander Keyssar, The Right to Vote: The Contested History of
Democracy in the United States 307 (2000); Sentencing-Guidelines Study Finds
Continuing Disparities, N.Y. Times, Nov. 27, 2004, at A11. Angela Behrens and
Christopher Uggen, who conducted a study of felon disenfranchisement laws
throughout the past 150 years, concluded as follows:
Our key finding can be summarized concisely and forcefully: the racial
composition of state prisons is firmly associated with the adoption of state
felon disenfranchisement laws.
States with greater nonwhite prison
populations have been more likely to ban convicted felons from voting than
states with proportionally fewer nonwhites in the criminal justice system.
Behrens & Uggen, supra note 21, at 596.
65. See The Law of Prisons, supra note 50, at 1943-46.
66. Fellner & Mauer, supra note 3, at 8; see The Law of Prisons, supra note 50, at
1944-45.
67. Fellner & Mauer, supra note 3, at 8.
68. Id. at 11.
69. The Law of Prisons, supra note 50, at 1945.
70. See id. (citing Gary Kane & Scott Hiaasen, Clemency Process Unfair to
Blacks?, Palm Beach Post, Dec. 23, 2001, at 1A).
71. See id. at 1945-46.
72. Fletcher, supra note 44, at 1901-02.
73. Id. Fletcher’s article does not highlight section 2 of the VRA as a potentially

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B. The History of Racially Discriminatory Voting Practices in the
United States
The history of voting in the United States has been characterized by
both restricted voting rights for felons and ex-felons, and by restricted
voting rights for racial minorities. Both types of voting restrictions
have an interwoven past, and have, at times, collided head on. In
particular, many felon disenfranchisement statutes that were enacted
and/or enforced after the Civil War were imposed with the express
purpose of preventing African-Americans from voting.74
Additionally, even felon disenfranchisement statutes that were not
enacted with the specific intent of discriminating on the basis of race
have had a racially discriminatory impact on the African-American
population of the country.75
Still, felon disenfranchisement has been but one voting restriction
intended to dilute the African-American community’s voting strength.
The recent cases in the Second, Ninth, and Eleventh Circuits that
address the permissibility of using the VRA to challenge felon
disenfranchisement statutes consider not only the history of felon
disenfranchisement, but also the nation’s history of denying AfricanAmericans the right to vote through a variety of methods. An
examination of this country’s general history of racial discrimination
in voting—both through felon disenfranchisement and other
schemes—sheds light on the current debate over whether the VRA
should be permitted to apply to felon disenfranchisement statutes.
1. Early History of Voting Rights and the Civil War Amendments
The United States Constitution of 1787 did not expressly deny the
right to vote to any group,76 yet only 6% of the population at the time
was permitted to vote.77 Prior to the Civil War, the Constitution also
failed to provide any sort of voting protections for its citizens.78 At
that time only a few states permitted African-Americans to vote at
all.79 After the Civil War concluded, however, Congress passed the
Military Reconstruction Act of 1867,80 which permitted former
effective judicial tool, though this Note argues that the VRA may be the most
effective litigation tool currently available for challenging felon disenfranchisement
laws.
74. See infra notes 96-100 and accompanying text.
75. See supra notes 59-73 and accompanying text.
76. See Behrens & Uggen, supra note 21, at 561.
77. See Mauer, supra note 43, at 16.
78. U.S. Dept. of Justice, Introduction to Federal Voting Rights Laws, Before the
Voting Rights Act, at http://www.usdoj.gov/crt/voting/intro/intro_a.htm (last visited
Jan. 31, 2005).
79. Id. None permitted women to vote. See Behrens & Uggen, supra note 21, at
562 (noting that the passage of the 19th Amendment finally gave women the right to
vote).
80. 14 Stat. 428 (1867).

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Confederate states to rejoin the Union if each conceded to permitting
universal male suffrage.81
The Military Reconstruction Act was followed by the amendment
of the United States Constitution.
In 1868, the Fourteenth
Amendment was ratified, conferring citizenship on all persons born or
naturalized in the country and extending equal protection and due
process requirements.82 In 1870 the Fifteenth Amendment was
ratified, which provided that “[t]he right of citizens of the United
States to vote shall not be denied or abridged by the United States or
by any State on account of race, color, or previous condition of
servitude. The Congress shall have power to enforce this article by
appropriate legislation.”83 These two Amendments are known
together with the Thirteenth Amendment as the Civil Rights
Amendments.84
The Fifteenth Amendment, in theory, overcame any state law that
prohibited African-Americans from voting.85 Congress also passed
the Enforcement Act of 187086 to impose criminal penalties on those
who interfered with Fifteenth Amendment protections and the Force
Act of 187187 which imposed federal oversight of federal elections.88
As a result of this legislation, former slaves registered to vote,
African-Americans could be elected to public office at all levels of
government, and African-Americans emerged as voting majorities in
many states.89
Many of the most egregious racially discriminatory voting practices
were enacted during the Civil War and Reconstruction to halt this
trend of African-American voting.90 A number of white terrorist
organizations used violence and threats to prevent the
81. See U.S. Dep’t of Justice, supra note 78; see also Chin, supra note 25, at 270271 (noting that the Military Reconstruction Act “established military governance of
the South and provided for trial of offenses” and resulted in the enfranchisement of
approximately one million African-Americans).
82. U.S. Const. amend. XIV.
83. U.S. Const. amend. XV. Gabriel Chin argues that Congress proposed the
Fifteenth Amendment with its direct approach to enfranchising African-Americans
because the mandate of the Fourteenth Amendment failed to gain traction in the
former Confederate states. Chin, supra note 25, at 260-61. Chin also notes that
Thaddeus Stevens, the Chair of the Joint Committee on Reconstruction, a
congressional committee tasked with proposing constitutional amendments to resolve
political conflicts following the Civil War, had commented that he had already started
to draft the Fifteenth Amendment to grant African-Americans the right to vote even
before the Fourteenth Amendment was ratified. Id. at 270.
84. The Thirteenth Amendment abolished slavery. U.S. Const. amend. XIII.
85. See U.S. Dep’t of Justice, supra note 78.
86. 16 Stat. 141 (codified as amended at 18 U.S.C. § 241 (2000)).
87. 16 Stat. 433 (codified as amended at 2 U.S.C. § 9 (2000), 28 U.S.C. §§ 1357,
1442, 1446-47, 1449-50 (2000)).
88. For a description of the history of these two acts, see Anderson v. United
States, 417 U.S. 211, 237, 242 (1974) (Douglas, J., dissenting).
89. See U.S. Dep’t of Justice, supra note 78.
90. See Fellner & Mauer, supra note 3, at 3.

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enfranchisement of African-Americans, which worked to reverse the
impact of the Fifteenth Amendment.91 Through the process of
“Redemption”—gerrymandering election districts to reduce the
strength of African-American voting populations—white citizens
regained control of political offices and voting strength.92 Some states,
driven by particularly strong racial discrimination, even amended their
state constitutions to support white voting power.93 These states also
enacted poll taxes, private primaries, and literacy tests, all specifically
intended to reduce African-American voting strength.94
It was during this era that felon disenfranchisement emerged as a
tool for disenfranchising African-Americans. Despite the intention of
the Fourteenth Amendment to require states to meet the mandates of
the Equal Protection Clause and Due Process Clause, Section 2 of the
Fourteenth Amendment also provided constitutional support for felon
disenfranchisement. The Amendment provides, in part:
But when the right to vote at any election for the choice of electors
for President and Vice President of the United States,
Representatives in Congress, the Executive and Judicial officers of a
State, or the members of the Legislature thereof, is denied to any of
the male inhabitants of such State, being twenty-one years of age,
and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such
male citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.95

In the years following the passage of the Fifteenth Amendment,
many Southern states embraced Section 2 of the Fourteenth
Amendment, using felon disenfranchisement as another means of
Many of these states
disenfranchising African-Americans.96
specifically designed their felon disenfranchisement laws “to increase
the effect of these laws on black citizens.”97
91. See U.S. Dep’t of Justice, supra note 78.
92. See id.
93. See id.
94. See id.
95. U.S. Const. amend. XIV, § 2 (emphasis added).
96. The court in McLaughlin v. City of Canton, 947 F. Supp. 954, 977 (S.D. Miss.,
1995), noted the following:
Virtually all historians agree that [the attempt to enfranchise AfricanAmericans] was greeted by obstructionist whites with alarm. Virtually all
historians also agree that disenfranchising tactics and methods, including
literacy and property tests, poll taxes, understanding clauses, and
grandfather clauses were adopted in hopes of reducing the enthusiasm and
lessening the impact of the black vote. Some historians have remarked that
disenfranchising provisions in state constitutions for convictions of certain
“black” crimes was one additional method explored.
Id.
97. Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the
Voting Rights Act: A New Strategy, 103 Yale L.J. 537, 540 (1993); see Chin, supra note

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One way that these Southern states disenfranchised AfricanAmericans through felon disenfranchisement statutes without
explicitly violating the Fifteenth Amendment was by disenfranchising
those who had committed a particular group of crimes—those
committed most often by African-Americans—while exempting felons
convicted of crimes typically committed by whites.98 For example, in
1901 the Alabama legislature designated crimes committed
predominately by African-Americans as crimes of “moral turpitude,”
and determined that the commission of such crimes warranted
imposition of disenfranchisement as a term of punishment.99 In South
Carolina, the crime of murder, which was committed in roughly equal
numbers by African-Americans and whites, was not included under
the felon disenfranchisement statute, while the crime of adultery,
which was committed more often by African-Americans, was
included.100
Despite the significant advances in African-American voting rights
achieved by 1867, by 1910 nearly all of the headway made by the
passage of the Fifteenth Amendment and its accompanying legislation
was negated, hardly any African-American public officials were still in
office, and nearly all African-American voters were disenfranchised.101
The Supreme Court attempted to fight these racist tactics in a number
of decisions.102 None of these decisions, however, eliminated the caseby-case analysis of whether a voting law violated the Fifteenth
Amendment, and thus reversing the effects of racially discriminatory
election laws proved difficult.103 Moreover, none of these Supreme
Court decisions addressed felon disenfranchisement as an
impermissibly racist tactic. African-American voter registration in a
25, at 305 (“There is strong evidence that the crimes leading to disenfranchisement
were manipulated to accomplish the disenfranchisement of African-Americans.”);
Ewald, supra note 18, at 1065 (“After Reconstruction, several Southern states
carefully re-wrote their criminal disenfranchisement provisions with the express intent
of excluding blacks from suffrage.”).
98. See Mauer, supra note 43, at 16 (noting that such laws went unchallenged for
100 years).
99. See Hunter v. Underwood, 471 U.S. 222, 223 (1985).
100. See Shapiro, supra note 97, at 541.
101. See Gabriel J. Chin, The “Voting Rights Act of 1867”: The Constitutionality of
Federal Regulation of Suffrage During Reconstruction, 82 N.C. L. Rev. 1581, 1591-92
(2004); Shapiro, supra note 97, at 538 (noting that only five African-Americans were
elected to state legislatures and Congress by 1900, a drop from 324 in 1872, and that in
1867 almost 70% of eligible African-Americans were registered to vote in Mississippi,
yet by 1892 the rate had dropped to only 6%).
102. See Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that Alabama’s
gerrymandering strategy for city boundaries violated the Fifteenth Amendment);
Smith v. Allwright, 321 U.S. 649 (1944) (holding that a state “white primary” violated
the Fifteenth Amendment); Guinn v. United States, 238 U.S. 347 (1915) (declaring
“grandfather clauses,” which required stringent literacy and property qualifications
for all voters except those descendants of men who voted before 1867, invalid under
the Fifteenth Amendment).
103. See U.S. Dep’t of Justice, supra note 78.

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number of southern states continued to be much lower than white
registration rates, despite Supreme Court action.104
2. The Voting Rights Act of 1965
Congress enacted the Voting Rights Act of 1965 in reaction to the
ineffectiveness of the Fourteenth Amendment, the Fifteenth
Amendment, their progeny legislation, and Supreme Court action.105
The legislature and President Lyndon B. Johnson crafted the VRA in
1965 to specifically counter southern states’ resistance to
implementing equal voting rights legislation.106 While the VRA
provides a wide range of protections, section 2 of the Act is perhaps
its most important provision. Section 2 guarantees that
[n]o voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to vote
on account of race or color.107

The Supreme Court explained that section 2 of the VRA prohibits
“any standards, practices, or procedures which result in the denial or
abridgement of the right to vote of any citizen who is a member of a
protected class of racial and language minorities.”108 Section 2 is also
the provision of the VRA recently used to challenge felon
disenfranchisement laws.109
a. Early History of the VRA
The VRA was signed into law on August 6, 1965, and those
opposing it immediately challenged its constitutionality. The Supreme
Court quickly affirmed, in a series of cases, that Congress could
constitutionally prohibit voting practices that perpetuated the effects
of past intentional discrimination through the VRA, even if such

104. See id.
105. Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as
amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2000)). The VRA was passed
pursuant to Congress’s authority under both the Fourteenth and Fifteenth
Amendments. See United States v. Bd. of Comm’rs of Sheffield, 435 U.S. 110, 126-27
(1978); Katzenbach v. Morgan, 384 U.S. 641 (1966); South Carolina v. Katzenbach,
383 U.S. 301 (1966).
106. See U.S. Dep’t of Justice, Introduction to Federal Voting Rights Laws, The
Voting Rights Act of 1965, at http://www.usdoj.gov/crt/voting/intro/intro_b.htm (last
visited Jan. 31, 2005) (stating that Congress had “determined that the existing federal
anti-discrimination laws were not sufficient to overcome the resistance by state
officials to enforcement of the 15th Amendment” and that case-by-case litigation had
proved ineffective).
107. 42 U.S.C. § 1973(a).
108. Thornburg v. Gingles, 478 U.S. 30, 43 (1986).
109. See infra Part II.

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practices considered alone were not themselves constitutional
violations.
In the first case affirming the VRA’s constitutionality, the landmark
decision of South Carolina v. Katzenbach, the Supreme Court
indicated that the purpose of the VRA was to “rid the country of
racial discrimination in voting.”110 The opinion also explicitly upheld
the constitutionality of the VRA:
Congress had found that case-by-case litigation was inadequate to
combat widespread and persistent discrimination in voting, because
of the inordinate amount of time and energy required to overcome
the obstructionist tactics invariably encountered in these lawsuits.
After enduring nearly a century of systematic resistance to the
Fifteenth Amendment, Congress might well decide to shift the
advantage of time and inertia from the perpetrators of the evil to its
victims.111

The Court also stressed that there was “reliable evidence of actual
voting discrimination in a great majority of the States and political
subdivisions affected by the new remedies of the Act.”112
Congress amended the VRA to expand its protections in the 1970s
after hearings revealed that the electorate was still subject to
gerrymandering, at-large elections, and other systematic tools used to
exclude the African-American and other minority groups from
voting.113 Throughout the 1970s and into the 1980s, the Supreme
Court continued to uphold the constitutionality of various VRA
provisions.114 The Act was successfully used to strike down numerous
state voter restrictions enacted with racially discriminatory intent,
prompting the Justice Department to declare the VRA the most
effective piece of civil rights legislation Congress has ever passed.115
b. Failure to Provide an Entirely Effective Tool—The 1982
Amendment
Despite the protections to the African-American vote provided by
the VRA, the Civil Rights movement suffered another setback with
the Supreme Court’s 1980 decision in City of Mobile v. Bolden.116 In
the opinion, the Supreme Court concluded that to prevail on a claim
110. Katzenbach, 383 U.S. at 315.
111. Id. at 328.
112. Id. at 329.
113. U.S. Dep’t of Justice, supra note 106.
114. See, e.g., City of Rome v. United States, 446 U.S. 156 (1980) (holding that a
seven-year extension on the VRA’s preclearance requirement was constitutional);
Oregon v. Mitchell, 400 U.S. 112 (1970) (holding that a VRA ban on literacy tests and
durational state residency requirements was constitutional).
115. U.S. Dep’t of Justice, Introduction to Federal Voting Rights Laws, at
http://www.usdoj.gov/crt/voting/intro/intro.htm (last visited Jan. 31, 2005).
116. 446 U.S. 55 (1980) (plurality opinion).

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of minority voting dilution under the VRA of 1965, there must be
proof of a racially discriminatory purpose driving the passage of the
legislation under review.117 The opinion also stressed that the VRA
had “an effect no different from that of the Fifteenth Amendment
itself,” which had been interpreted to cover “action by a State that is
racially neutral on its face . . . only if motivated by a discriminatory
purpose.”118
In 1982, largely in response to the City of Mobile decision, Congress
again revised the VRA to establish a “results” test that made clear
that discriminatory intent is not necessary to establish a violation of
section 2.119 With this amendment, the Act provided that a violation is
established when, through the “totality of circumstances,” the impact
of a challenged voting practice is discriminatory.120 The Senate report
for the 1982 amendment identified “typical factors” that could be
relevant in a section 2 analysis, including a history of not only voting
discrimination, but discrimination in society at large to the extent such

117. Id. at 62. This requirement was acknowledged to be difficult to prove. See
Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (noting that the discriminatory intent
test is “inordinately difficult” to meet (internal quotations omitted)); Ruiz v. City of
Santa Maria, 160 F.3d 543, 557 (9th Cir. 1998) (noting Congress’s conclusion that the
discriminatory intent test demanded by the City of Mobile decision was
“unnecessarily divisive” and “placed an inordinately difficult burden of proof on
plaintiffs” (internal quotations omitted)); see also S. Rep. No. 97-417, at 36 (1982),
reprinted in 1982 U.S.C.C.A.N. 177, 214.
118. City of Mobile, 446 U.S. at 61, 62.
119. See Harvey, supra note 45, at 1176. The revised VRA provides, in part:
(a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision
in a manner which results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color . . . . A violation of
subsection (a) of this section is established if, based on the totality of
circumstances, it is shown that the political processes leading to nomination
or election in the State or political subdivision are not equally open to
participation by members of a class of citizens protected by subsection (a) of
this section in that its members have less opportunity than other members of
the electorate to participate in the political process and to elect
representatives of their choice.
42 U.S.C. § 1973 (2000) (emphasis added). This version replaced the original
language “to deny or abridge” with “which results in a denial or abridgement.” In
Thornburg v. Gingles, the Supreme Court outlined key reasons for revision of section
2:
The intent test was repudiated for three principal reasons—it is
unnecessarily divisive because it involves charges of racism on the part of
individual officials or entire communities, it places an inordinately difficult
burden of proof on plaintiffs, and it asks the wrong question. . . . The right
question . . . is whether as a result of the challenged practice or structure
plaintiffs do not have an equal opportunity to participate in the political
processes and to elect candidates of their choice.
Thornburg, 478 U.S. at 44 (internal quotations and citations omitted).
120. See 42 U.S.C. § 1973(a).

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discrimination interferes with a racial minority group’s ability to
participate fully in the political process.121
In the 1986 case Thornburg v. Gingles, the Supreme Court
determined that the amended version of the VRA required that the
Court employ a “flexible, fact-intensive test for § [1973] violations”
and incorporate the factors discussed in the Senate report on the 1982
amendment, which the Court determined to be “neither
comprehensive nor exclusive.”122 After Thornburg, the federal courts
allowed section 2 challenges to proceed and conducted a totality of
the circumstances analysis in a variety of voting practice challenges.123
The amendment of the VRA also provided a clearer opportunity for
opponents of felon disenfranchisement to challenge such statutes. In
theory, plaintiffs challenging felon disenfranchisement statutes needed
to prove only racially discriminatory effects of felon
disenfranchisement, and not that such laws were enacted with
discriminatory intent.
121. See S. Rep. No. 97-417, at 28-29, reprinted in 1982 U.S.C.C.A.N. 177, 206-07.
The report listed these factors for consideration:
(1) the extent of any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority group to
register, to vote, or otherwise to participate in the democratic process; (2)
the extent to which voting in the elections of the state or political subdivision
is racially polarized; (3) the extent to which the state or political subdivision
has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that may
enhance the opportunity for discrimination against the minority group; (4) if
there is a candidate slating process, whether the members of the minority
group have been denied access to that process; (5) the extent to which
members of the minority group in the state or political subdivision bear the
effects of discrimination in such areas as education, employment and health,
which hinder their ability to participate effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle
racial appeals; (7) the extent to which members of the minority group have
been elected to public office in the jurisdiction. Additional factors that in
some cases have had probative value as part of plaintiffs’ evidence to
establish a violation are: whether there is a significant lack of responsiveness
on the part of elected officials to the particularized needs of the members of
the minority group[,] whether the policy underlying the state or political
subdivision’s use of such voting qualification, prerequisite to voting, or
standard, practice or procedure is tenuous. While these enumerated factors
will often be the most relevant ones, in some cases other factors will be
indicative of the alleged dilution. The cases demonstrate, and the
Committee intends that there is no requirement that any particular number
of factors be proved, or that a majority of them point one way or the other.
Id. (footnotes omitted).
122. Thornburg, 478 U.S. at 45, 46.
123. See, e.g., League of United Latin Am. Citizens, Council No. 4434 v. Clements,
986 F.2d 728, 813 (5th Cir. 1993) (holding that a method of electing district court
judges violated section 2 of the VRA); McMillan v. Escambia County, 748 F.2d 1037,
1047 (5th Cir. 1984) (holding that county at-large election system violated section 2 of
the VRA); United States v. Marengo County Comm’n, 731 F.2d 1546, 1574 (11th Cir.
1984) (finding county at-large elections were a “clear” violation of section 2 of the
VRA).

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C. Challenges to Felon Disenfranchisement
Limiting the voting rights of convicted felons remained “largely
unquestioned” until after 1950.124 In the latter half of the twentieth
century, however, challenges to felon disenfranchisement statutes
began to gain some momentum. Initially, challenges to state felon
disenfranchisement laws proceeded primarily under the Fourteenth
Amendment as due process and equal protection challenges and did
not allege racial discrimination.125 Those that did make an allegation
of racial discrimination underlying a felon disenfranchisement law
were initially forced to rely on the Fifteenth Amendment or the
original version of the VRA to provide relief, both of which
demanded a showing that a felon disenfranchisement law was passed
with the intent of discriminating on the basis of race, a difficult
element to prove.126
The 1982 amendment to the VRA eclipsed the protections of the
Fifteenth Amendment and emerged as a potential tool for challenging
While
racially discriminatory felon disenfranchisement laws.127
challenges to felon disenfranchisement laws brought under the
Fourteenth and Fifteenth Amendments largely failed because proving
discriminatory intent was difficult, the revision of the VRA in 1982 to
employ a “results” test has revived interest in challenging felon
disenfranchisement laws. To date, the federal circuit courts are split
on whether the VRA’s “results” test can be applied to felon
disenfranchisement statutes and whether they can be struck down for
having a racially discriminatory impact.128
1. Early Challenges to the Constitutionality of Felon
Disenfranchisement
Much of the debate regarding whether challenges to felon
disenfranchisement laws can proceed under the amended section 2 of
124. The Law of Prisons, supra note 50, at 1939 n.2.
125. The success of these challenges was mixed. See, e.g., Owens v. Barnes, 711
F.2d 25, 28 (3d Cir. 1983) (holding that the Pennsylvania felon disenfranchisement
scheme did not violate equal protection); Shepherd v. Trevino, 575 F.2d 1110, 1115
(5th Cir. 1978) (holding that the Texas reenfranchisement scheme for state felons did
not violate equal protection). But see Hobson v. Pow, 434 F. Supp. 362, 366-67 (N.D.
Ala. 1977) (holding that a misdemeanor disenfranchisement law was arbitrary and
violated equal protection).
126. See, e.g., Jones v. Edgar, 3 F. Supp. 2d 979, 980 (C.D. Ill. 1998) (holding that
the state constitutional provision that denied voting rights to incarcerated felons did
not violate the Fifteenth Amendment); see also supra notes 117-19 and accompanying
text.
127. One student commentator suggested that “plaintiffs are most likely to succeed
in challenging criminal disenfranchisement laws if they allege that these laws violate
the Voting Rights Act because they disproportionately affect minorities.” Shapiro,
supra note 97, at 544.
128. See infra Part II.

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the VRA has been shaped by earlier challenges under the Fourteenth
and Fifteenth Amendments and the original version of the VRA. In
Richardson v. Ramirez, the Supreme Court concluded that the Equal
Protection Clause does not require states to advance a compelling
interest before denying citizens who have been convicted of crimes
the right to vote.129 The Court relied on the language of Section 2 of
the Fourteenth Amendment that appears to authorize felon
disenfranchisement in reaching its conclusion that the Constitution
explicitly permits states to disenfranchise felons, despite the fact that
Section 1 of that same Amendment requires that states do not deny
citizens equal protection of the laws.130 The Richardson Court
highlighted that “those who framed and adopted the Fourteenth
Amendment could not have intended to prohibit outright in § 1 of
that Amendment that which was expressly exempted from the lesser
sanction of reduced representation imposed by § 2 of the
Amendment.”131 The Court also concluded that Section 2 of the
Fourteenth Amendment effectively exempts felon disenfranchisement
laws from strict scrutiny and distinguishes them from other types of
laws that affect voting rights.132
Justice Marshall, dissenting in Richardson, argued that equal
protection analysis applies in full force to felon disenfranchisement
statutes.133 The crafting of the language of Section 2 of the Fourteenth
Amendment, he argued, had nothing to do with authorizing felon
disenfranchisement, and had everything to do with the 39th
Congress’s fear of increased congressional representation of the
southern states.134 Congress worried, Justice Marshall asserted, that
this increased representation “might weaken their own political
dominance.”135 Section 2 of the Fourteenth Amendment, therefore,
forced southern states to enfranchise former slaves—who were
aligned with the interests of Northern congressmen—or lose
representation, he argued, and this constitutional provision was a
“compromise.”136 Therefore, according to Justice Marshall, Section 2
of the Fourteenth Amendment was not intended to limit other
129. Richardson v. Ramirez, 418 U.S. 24, 54 (1974).
130. See U.S. Const. amend. XIV, § 1. Green v. Board of Elections, a Second
Circuit decision, was the earliest opinion that determined that the text of Section 2 of
the Fourteenth Amendment exempted felon disenfranchisement statutes from strict
scrutiny review. Green v. Bd. of Elections, 380 F.2d 445 (2d Cir. 1967), cert. denied,
389 U.S. 1048 (1968); see Chin, supra note 25, at 313.
131. Richardson, 418 U.S. at 43.
132. Id. at 54 (“We hold that the understanding of those who adopted the
Fourteenth Amendment . . . is of controlling significance in distinguishing such laws
from those other state limitations on the franchise which have been held invalid under
the Equal Protection Clause by this Court.”).
133. Id. at 77-78 (Marshall, J., dissenting).
134. Id. at 73.
135. Id.
136. Id. at 73-74.

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sections of the same amendment and did not exempt state felon
disenfranchisement practices from strict scrutiny analysis.137
Despite Justice Marshall’s strong dissent, the majority opinion in
Richardson continues to dominate the debate over the constitutional
permissibility of felon disenfranchisement.138 The Court’s holding in
Richardson prompted one scholar to argue that “[a]bsent a
Constitutional amendment, constitutional approval of felon
disenfranchisement in section 2 [of the Fourteenth Amendment]
forever precludes felons from invoking equal protection under section
1, even where the criminal justice system enforces its laws in a racially
discriminatory fashion.”139 Despite some lower courts’ agreement that
Richardson effectively “closed the door on the equal protection
argument” being applied in felon disenfranchisement challenges,
when the challenges alleged that felon disenfranchisement statutes
intentionally discriminated on the basis of race, the debate took a new
turn.140
In Hunter v. Underwood, decided over a decade after Richardson,
the Supreme Court concluded that felon disenfranchisement laws that
were passed with the intent of discriminating on the basis of race
violate the Equal Protection Clause.141
The Alabama statute
challenged in the case disqualified persons convicted of crimes of
moral turpitude from voting, a category of crimes that included minor
misdemeanor offenses like petty larceny and omitted more serious
offenses such as second-degree manslaughter.142 The Court affirmed
the lower court’s finding that the Alabama state legislature had
deemed crimes of “moral turpitude” as those that warranted
disenfranchisement because those crimes were more often committed
The Alabama felon
by African-Americans than by whites.143
disenfranchisement scheme had therefore been passed with racial
animus.144
The Hunter opinion, written by Justice Rehnquist who had also
written for the majority in Richardson, concluded, “we are confident
that §2 [of the Fourteenth Amendment] was not designed to permit
the purposeful racial discrimination attending the enactment and
operation of [the statute being challenged] which otherwise violates §
1 of the Fourteenth Amendment. Nothing in our opinion in
137. Id. at 74.
138. See infra Parts II.A.1, II.B.1.
139. Portugal, supra note 15, at 1325.
140. The Law of Prisons, supra note 50, at 1950 (quoting Allen v. Ellisor, 664 F.2d
391, 395 (4th Cir.), vacated mem., 454 U.S. 807 (1981)). For examples of successful
action, see Hunter v. Underwood, 471 U.S. 222 (1985), and McLaughlin v. City of
Canton, 947 F. Supp. 954 (S.D. Miss. 1995).
141. Hunter, 471 U.S. at 233.
142. Id. at 226-27.
143. Id. at 224, 233.
144. Id. at 233.

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Richardson v. Ramirez . . . suggests the contrary.”145 The Hunter
standard was a stringent one, however, requiring a plaintiff to prove
that a felon disenfranchisement law was passed with racially
discriminatory legislative intent, a notoriously difficult showing to
make.146
Other courts embraced the Hunter holding and rejected
Richardson’s abandonment of strict scrutiny analysis of felon
disenfranchisement laws. In McLaughlin v. City of Canton, the U.S.
District Court for the Southern District of Mississippi analyzed the
Mississippi legislature’s decision to disenfranchise those who had
committed misdemeanor offenses under strict scrutiny rather than the
lower-level standard of review set by Richardson.147 The court
concluded that the state had not provided a compelling enough
justification for disenfranchising the plaintiff for pleading guilty to a
misdemeanor offense, and therefore the felon disenfranchisement
regime was a violation of equal protection as applied.148 The
McLaughlin court would not go so far as to hold that the felon
disenfranchisement statutory regime was enacted with a racially
discriminatory purpose absent a full evidentiary investigation, but left
room for such an inquiry.149 McLaughlin, however, “represents the
exception rather than the rule” in its willingness to explore racial
animus as a reason to strike down a felon disenfranchisement law.150
Other courts have limited the impact of Hunter.151 In Cotton v.
Fordice, the Fifth Circuit held that although Mississippi’s legislature
was motivated by a desire to discriminate against African-Americans
in enacting its felon disenfranchisement statute, “each amendment [to
the felon disenfranchisement statute] superseded the previous
provision and removed the discriminatory taint associated with the
original version.”152 The court reached this conclusion despite the fact
that the “core of the discriminatory law remained intact.”153 The

145. Id.
146. See id.; supra note 126 and accompanying text.
147. McLaughlin v. City of Canton, 947 F. Supp. 954, 976 (S.D. Miss. 1995)
(“Under strict scrutiny, the state must demonstrate a ‘substantial and compelling
reason’ for its disenfranchisement of the plaintiff for a misdemeanor false pretenses
conviction.”). The McLaughlin court also argued that the “the State cannot choose
means that unnecessarily burden or restrict constitutionally protected activity.
Statutes affecting constitutional rights must be drawn with ‘precision.’” Id. (quoting
NAACP v. Button, 371 U.S. 415, 438 (1963)).
148. Id. at 976-77.
149. Id. at 976-78. The parties had not fully briefed the issue of racially
discriminatory intent motivating the felon disenfranchisement framework, so the
court only briefly addressed this issue. Id. at 976.
150. The Law of Prisons, supra note 50, at 1952 n.110.
151. See id. at 1951.
152. Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998).
153. The Law of Prisons, supra note 50, at 1951.

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plaintiff’s challenge to the Mississippi statute therefore failed to satisfy
the Hunter standard.
Because the Supreme Court in Richardson concluded that the
Equal Protection Clause does not require states to advance a
compelling interest before denying convicted citizens the right to vote,
courts have consistently held that felon disenfranchisement laws not
passed with discriminatory intent do not violate either the Due
Process Clause or the Fifteenth Amendment.154 Until the 1982
amendment, the VRA and the Fifteenth Amendment provided coextensive protections. Therefore, like the Equal Protection Clause,
Due Process Clause, and Fifteenth Amendment, the VRA could only
be used to challenge felon disenfranchisement statutes passed with
racial animus. When the Act was amended in 1982, opponents of
felon disenfranchisement saw a new opportunity to challenge felon
disenfranchisement laws that had a racially discriminatory impact but
were not passed with a provable discriminatory intent.155
2. VRA Challenges to Felon Disenfranchisement Following the 1982
Amendment
With the amendment of section 2 of the VRA in 1982 offering more
expansive protections than the Fourteenth and Fifteenth
Amendments under which it was authorized, the Act emerged as a
possible mechanism for challenging felon disenfranchisement statutes
that had only a racially discriminatory impact.156 The use of the
revised VRA in the felon disenfranchisement context, however, has
continued to be difficult. As this Note highlights in Part II, recent
VRA challenges to felon disenfranchisement statutes have not been
uniformly decided and the Supreme Court has declined to address the
applicability of the revised VRA to felon disenfranchisement laws.
Despite the series of successful challenges to other racially
discriminatory voting practices that employed the amended section 2
of the VRA, few plaintiffs have succeeded in challenges to felon
disenfranchisement statutes using the Act.157
The first challenge to a felon disenfranchisement law under the
revised section 2 of the VRA was the Sixth Circuit case of Wesley v.
154. See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 65 (1980) (plurality opinion)
(holding that an at-large voting system did not violate Fifteenth Amendment); Butts
v. City of New York, 779 F.2d 141, 143 n.1 (2d Cir. 1985) (holding that a requirement
of run-off election in city primary did not violate Fifteenth Amendment).
155. See generally Shapiro, supra note 97.
156. See generally id.
157. There are two typical claims raised under section 2 of the VRA: (1) vote
denial occurs when the ability to vote is denied on account of race; (2) vote dilution
occurs when a voting practice diminishes “the force of minority votes that were duly
cast and counted.” Holder v. Hall, 512 U.S. 874, 896 (1994) (Thomas, J., concurring in
judgment). Courts have often failed to distinguish between vote dilution and vote
denial claims. See Shapiro, supra note 97, at 555.

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Collins.158 The Wesley plaintiffs alleged that the Tennessee felon
disenfranchisement statute under review diluted the AfricanAmerican vote, and sought to strike it down under section 2 of the
VRA.159 The district court concluded in rejecting the plaintiff’s claim
that the statute “does not deny any citizen, ab initio, the equal
opportunity to participate in the political process and to elect
candidates of their choice.
Rather, it is the commission of
preascertained, proscribed acts that warrant the state to extinguish
certain individuals’ rights” to vote.160
The Fourth Circuit also briefly applied the VRA to a felon
disenfranchisement statute in Howard v. Gilmore, an unpublished,
two-page opinion.161 The court held that the plaintiff, an incarcerated
felon, failed to state a claim under the VRA upon which relief could
be granted.162 In only a few sentences, the court concluded that
because the felon disenfranchisement statute in question pre-dated
the Fifteenth Amendment (meaning that it could not have been
enacted in response to the Fifteenth Amendment) and because the
plaintiff failed to demonstrate “any nexus between the
disenfranchisement of felons and race,” his claim had to fail.163
Wesley and Howard, however, did not mark the end of the use of
the amended section 2 of the VRA in the felon disenfranchisement
context. Neither of the Wesley and Howard courts’ opinions
addressed the permissibility of applying section 2 to felon
disenfranchisement laws and merely proceeded under the assumption
that such a challenge was permitted. Recent litigation has called this
assumption into question.164
a. An Overview of the Recent Litigation
Only four cases—Baker and Muntaqim from the Second Circuit,
Johnson from the Eleventh Circuit, and Farrakhan from the Ninth
Circuit—have specifically explored the permissibility of using the
amended section 2 of the VRA in the context of felon
disenfranchisement challenges. Each challenge was brought by
plaintiffs who were either incarcerated at the time, serving a term of
probation or parole, or had already served a term of incarceration.
All these plaintiffs asserted that their state felon disenfranchisement
statutes violated the amended section 2 of the VRA because they had
a racially disparate impact.

158.
159.
160.
161.
162.
163.
164.

605 F. Supp. 802, 804 (M.D. Tenn. 1985), aff’d, 791 F.2d 1255 (6th Cir. 1986).
Id.
Id. at 813.
No. 99-2285, 2000 WL 203984, at *1 (4th Cir. Feb. 23, 2000).
Id.
Id.
See infra Part II.

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The first of these cases, Baker, decided in 1996 by the Second
Circuit, sitting en banc, reviewed the district court’s dismissal of the
plaintiff’s claim that New York State’s felon disenfranchisement law
violated section 2 of the VRA.165 The ten Second Circuit judges who
heard the appeal were deadlocked, issuing three opinions, and
ultimately affirming the district court’s dismissal of the plaintiff’s
claim.166 These Baker opinions represented the most comprehensive
analysis of the application of the amended section 2 of the VRA in a
state felon disenfranchisement statute challenge at the time.167
In July 2003, the Ninth Circuit had occasion to address this same
issue in Farrakhan.168 After a decision allowing the VRA to be
applied to the state felon disenfranchisement statute, the defense
moved for a hearing en banc, which was denied over a vigorous
dissent.169 On November 8, 2004, the Supreme Court denied certiorari
in the case.170 Only months later, the Eleventh Circuit embraced a
similar approach in Johnson and permitted the amended section 2 of
the VRA to apply in a challenge to Florida’s felon disenfranchisement
statutory scheme.171 The Eleventh Circuit then agreed to rehear this
case en banc, and vacated its previous decision.172
The Second Circuit recently had an opportunity to re-examine its
Baker reasoning in 2004’s Muntaqim.173 Unlike in Baker, the
Muntaqim court was not evenly divided, coming out definitively
against the use of the VRA in felon disenfranchisement statute
challenges, deepening the circuit split. On October 1, 2004, the
Second Circuit rejected one judge’s request that the court rehear the
Muntaqim case en banc.174 When the petition for certiorari was

165. Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996).
166. Id. at 921. Because the bench was evenly divided, the opinions have no
precedential effect, and the district court decision was affirmed.
167. The Law of Prisons, supra note 50, at 1954 n.124.
168. 338 F.3d 1009 (9th Cir. 2003).
169. Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004). Judge Kozinski,
joined by six judges, dissented.
170. Locke v. Farrakhan, 125 S. Ct. 477 (2004) (mem.). Now that the Supreme
Court has denied the petition for certiorari, the case will proceed back to the district
court for trial, per the instructions of the Ninth Circuit opinion. See Mauro, supra note
14.
171. Johnson v. Governor of Fla., 353 F.3d 1287, 1293 (11th Cir. 2003), reh’g en
banc granted, opinion vacated by 377 F.3d 1163 (11th Cir. 2004).
172. Johnson, 377 F.3d at 1163. Oral arguments have been reheard in the case, but
no decision has been issued. See Greenhouse, supra note 13. The vacated Eleventh
Circuit opinion will still be examined in Part II of this Note, as the court’s reasoning is
helpful in understanding the current circuit split.
173. 366 F.3d 102 (2d Cir.), cert. denied, 125 S. Ct. 480 (2004) (mem.), reh’g en banc
granted, No. 01-7260, 2004 WL 2998551 (2d Cir. Dec. 29, 2004).
174. Muntaqim v. Coombe, 385 F.3d 793, 794 (2d Cir. 2004), cert. denied, 125 S.Ct.
480 (2004) (mem.), reh’g en banc granted, No. 01-7260, 2004 WL 2998551 (2d Cir.
Dec. 29, 2004).

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denied, however, the Second Circuit reconsidered and decided to
rehear the case en banc without vacating its previous decision.175
These four cases produced numerous opinions—plurality opinions,
majority opinions, dissenting opinions, opinions accompanying
decisions to grant or deny rehearing en banc, and district court
opinions—which have disagreed on the viability of section 2 of the
VRA challenges to felon disenfranchisement laws. Moreover, these
cases are still in flux, and several may not be resolved in the
immediate future. The circuit split, therefore, will continue to
develop. Part I.C.2.b of this Note explains the key points of dispute
between these opinions, particularly the disagreement over the
importance of Section 2 of the Fourteenth Amendment, whether the
clear statement rule applies to section 2 of the VRA, and whether
section 2 of the VRA is congruent and proportional legislation. Part
I.C.2.b also discusses the origins of these points of dispute and lays the
groundwork for understanding the approaches embraced by the
opinions in Baker, Farrakhan, Johnson, and Muntaqim.
b. Understanding Key Points of Dispute
Part II of this Note examines the reasoning of the opinions in these
four cases—Baker, Farrakhan, Johnson, and Muntaqim—and explores
the circuit split in detail. To better understand the reasoning
advanced in the opinions in these four cases it is important to
understand the foundations underlying their points of disagreement.
Specifically, the application of the amended version of section 2 of the
VRA to felon disenfranchisement laws in these four cases has raised
issues of both constitutional interpretation and federalism that did not
surface in the Wesley v. Collins or Howard v. Gilmore decisions.176
Two central related points of dispute emerged in these four cases.
First, some opinions gave great weight to the constitutional
authorization of felon disenfranchisement in the Fourteenth
Amendment.177 The reference to felon disenfranchisement in the
actual text of the Constitution, these opinions argued, affords the
practice of felon disenfranchisement special, protected status.178
Other opinions deferred less to the textual authorization of felon
disenfranchisement in the Fourteenth Amendment, instead giving
more credence to the other sections of the Fourteenth Amendment
and to the Fifteenth Amendment, which they argued support the
application of the VRA to felon disenfranchisement laws.179
175. See Muntaqim, 2004 WL 2998551, at *1. Oral argument for the rehearing has
been scheduled for April 7, 2005. Id. at *2.
176. See supra notes 158-63 and accompanying text.
177. See infra Part II.A.1.
178. See infra Part II.A.1.
179. See infra Part II.B.1.

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Second, the circuits are split on whether application of the amended
section 2 of the VRA to felon disenfranchisement laws exceeds
congressional authority to legislate under the Civil War
Amendments.180 In a related area of disagreement, the opinions
disputed whether the clear statement rule—the rule that Congress
must make an unambiguous statement of its intent for legislation to
alter the constitutional balance between the states and Congress in
order for that legislation to do so—applied to these cases, and
whether the legislative history of the 1982 amendment to the VRA
indicates the requisite clear statement from Congress of its intent to
exceed the normal balance of state and federal power.181 These
opinions were also divided on whether the VRA’s “results test”
constitutes “congruent and proportional” legislation.”182 These points
of dispute will be described more fully in turn.183
i. The Constitutional Conflict
The affirmative constitutional grant of power to states to control
election law does not ordinarily exempt state voting restrictions from
application of strict scrutiny equal protection analysis.184
The
Supreme Court rejected the idea that states can “impose burdens on
the right to vote, where such burdens are expressly prohibited in other
constitutional provisions,” including the Equal Protection Clause.185
180. See infra Parts II.A.2, II.B.2.
181. See infra Parts II.A.2, II.B.2.
182. See infra Part II.A.2.
183. The opinions also disagreed about what type of causal connection between the
alleged racially discriminatory effect and the disenfranchisement of felons a plaintiff
must establish to be successful in a challenge under section 2 of the VRA. Some
opinions concluded that felon disenfranchisement statutes are distinct from other
voting laws analyzed under the VRA because they lack a sufficient causal link to
racial discrimination. See Muntaqim v. Coombe, 366 F.3d 102 (2d Cir. 2004);
Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004) (Kozinski, J., dissenting);
Johnson v. Governor of Fla., 353 F.3d 1287 (11th Cir. 2003) (Kravitch, J., dissenting),
reh’g en banc granted, opinion vacated by 377 F.3d 1163 (11th Cir. 2004). These
opinions embraced the argument asserted in Wesley v. Collins that “[f]elons are not
disenfranchised based on any immutable characteristic, such as race, but on their
conscious decision to commit an act for which they assume the risks of detection and
punishment.” 605 F. Supp. 802, 813 (M.D. Tenn. 1985), aff’d, 791 F.2d 1255 (6th Cir.
1986). Other opinions in these four cases argued that the fact that racial minorities
are targeted for prosecution, receive more severe sentences, and are overrepresented
in prisons sufficiently supports a causal connection between felon disenfranchisement
and a violation of section 2 of the VRA, and that a more stringent requirement would
read a higher causation standard into the VRA than the drafters intended. See
Johnson, 353 F.3d at 1287; Farrakhan, 338 F.3d at 1009. The conflict over the
causation standard demanded by section 2 of the VRA will undoubtedly continue to
develop absent Supreme Court resolution. This area of dispute, however, will not be
specifically addressed in this Note, as it is arguably not as extensively developed.
184. Deborah S. James, Note, Voter Registration: A Restriction on the Fundamental
Right to Vote, 96 Yale L.J. 1615, 1618 n.15 (1987).
185. Williams v. Rhodes, 393 U.S. 23, 29 (1968); see Rodriguez v. Popular

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Chief Justice Rehnquist, writing for the majority in Richardson v.
Ramirez, recognized the difficulty of applying these concepts in the
felon disenfranchisement context.186
While Section 2 of the
Fourteenth Amendment appears to authorize state felon
disenfranchisement practices, the Equal Protection Clause of the same
amendment appears to limit the ability of states to impose racially
discriminatory laws.187 In addressing the language of Section 2 of the
Fourteenth Amendment, Rehnquist gave that section effect despite
the mandates of equal protection:
The legislative history bearing on the meaning of the relevant
language of § 2 is scant indeed; the framers of the Amendment were
primarily concerned with the effect of reduced representation upon
the States, rather than with the two forms of disenfranchisement
which were exempted from that consequence by the language with
which we are concerned here. Nonetheless, what legislative history
there is indicates that this language was intended by Congress to
mean what it says.188

To bolster his argument, Justice Rehnquist noted the existence of
provisions in twenty-nine state constitutions that either prohibited or
allowed state legislatures to prohibit those convicted for crimes to
vote at the time the Fourteenth Amendment was ratified, meaning
that the laws could not have been passed in response to the
Fourteenth Amendment.189
Justice Marshall’s dissent in Richardson revealed an alternative
approach to understanding the Fourteenth Amendment’s
contradictory directives. Concerned about allowing text in Section 2
of the Fourteenth Amendment to guide a determination of the
constitutionality of felon disenfranchisement, in light of the Equal
Protection Clause, Justice Marshall stated:
The political motivation behind § 2 was a limited one. It had little
to do with the purposes of the rest of the Fourteenth Amendment.
As one noted commentator explained: “‘It became a part of the
Fourteenth Amendment largely through the accident of political
exigency rather than through the relation which it bore to the other
sections of the Amendment. . . .’” “[I]t seems quite impossible to
conclude that there was a clear and deliberate understanding in the
House that § 2 was the sole source of national authority to protect
voting rights, or that it expressly recognized the states’ power to
deny or abridge the right to vote.”190
Democratic Party, 457 U.S. 1, 10 (1982) (“[A] citizen has a constitutionally protected
right to participate in elections on an equal basis with other citizens in the
jurisdiction.” (internal quotations omitted)).
186. Richardson v. Ramirez, 418 U.S. 24, 43 (1974).
187. See supra notes 95-100 and accompanying text.
188. Richardson, 418 U.S. at 43.
189. Id. at 48.
190. Id. at 74 (Marshall, J., dissenting) (footnotes omitted) (quoting Van Alstyne,

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Justice Marshall likewise did not find persuasive the fact that felon
disenfranchisement statutes were common in the states at the time the
Fourteenth Amendment was ratified. Concepts such as equal
protection, he argued, must adapt to changing realities and are “not
immutably frozen like insects trapped in Devonian amber.”191 Rigid
readings of Section 2 of the Fourteenth Amendment, therefore, are
not appropriate, according to Justice Marshall.192
Some of the opinions issued in the four cases discussed in Part II
demonstrated reliance on the language of Section 2 of the Fourteenth
Amendment in prohibiting the use the VRA to evaluate felon
These opinions advocated an
disenfranchisement statutes.193
originalist approach to the Constitution, and argued that the actual
words of the document carry the greatest weight in understanding the
overall meaning of the Constitution. They asserted that courts must
recognize the importance of Section 2 of the Fourteenth Amendment
in section 2 of the VRA challenges to felon disenfranchisement laws
as Chief Justice Rehnquist did in Richardson v. Ramirez.194 The
mention of felon disenfranchisement in Section 2 of the Fourteenth
Amendment itself, these opinions emphasized, gives the states special
power to disenfranchise felons, and the practice enjoys protection
when considering Congress’s enforcement powers.195

The Fourteenth Amendment, the “Right” to Vote, and the Understanding of the ThirtyNinth Congress, 1965 Sup. Ct. Rev. 33, 43-44 (1965). Prof. Alec C. Ewald notes the
following:
Section 2 was enacted with a clear racial purpose: to assess a penalty should
resurgent Southern whites disenfranchise black men, while permitting them
to do so. . . . [One authority] writes that Section 2 was designed “indirectly to
help Negroes in the South without antagonizing whites in the North,” many
of whom were unwilling to confront racial discrimination directly at the
national level.
Abolitionist Wendell Phillips denounced the entire
amendment as a “fatal and total surrender” because “it implicitly
acknowledged the right of states to limit voting because of race.” The
Supreme Court declared implicitly in Richardson that this “original
understanding” of Section 2 is constitutionally irrelevant. For legal
challenges, that is a significant obstacle.
Ewald, supra note 18, at 1133-34.
191. Richardson, 418 U.S. at 76 (Marshall, J., dissenting) (citing Dillenburg v.
Kramer, 469 F.2d 1222, 1226 (9th Cir. 1972)).
192. Id. at 78. Justice Marshall noted:
[B]ecause Congress chose to exempt one form of electoral discrimination
from the reduction-of-representation remedy provided by § 2 does not
necessarily imply congressional approval of this disenfranchisement. By
providing a special remedy for disenfranchisement of a particular class of
voters in § 2, Congress did not approve all election discriminations to which
the § 2 remedy was inapplicable, and such discriminations thus are not
forever immunized from evolving standards of equal protection scrutiny.
Id. at 75-76.
193. See infra Part II.A.1.
194. See infra Part II.A.1.
195. See infra Part II.A.1.

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The opinions opposing this approach argued that allowing Section 2
of the Fourteenth Amendment to prevail over the rest of the
amendment would result in an inherent contradiction.196 These
opinions adhered instead to Justice Marshall’s dissent in Richardson v.
Ramirez.197 One critic summarized this core “paradox” of the
Fourteenth Amendment:
A constitutional amendment was enacted to support the voting
rights of emancipated slaves. The text of this amendment refers to
the possibility of disenfranchising people who have committed
crimes. Because patterns of law enforcement have changed over the
years, because the number of felons convicted has greatly increased
and because a large percent of those convicted are black, the policy
of felon disenfranchisement sharply reduces the voting rights of
African Americans. Thus, a constitutional provision designed in
1868 to improve the political representation of blacks has turned
out . . . to have precisely the opposite effect.198

Some opinions in the four cases described in Part II of this Note
agreed with this understanding and argued that the constitutional
language authorizing felon disenfranchisement is not dispositive.199
Rather, these opinions argued, the text of Section 2 of the Fourteenth
Amendment does not permit purposeful racial discrimination to
continue in any circumstance.200 The VRA, the opinions asserted,
seeks to weed out such purposeful, invidious discrimination by use of
a “results test.”201
Scholars have advanced a series of more aggressive arguments
regarding the conflict within the Fourteenth Amendment.202 Some
196. See infra Part II.B.1.
197. See infra Part II.B.1.
198. Fletcher, supra note 44, at 1901; see Parkes, supra note 32, at 78 n.38.
Professor George P. Fletcher also asserted that the issue resolved in Richardson, that
Section 2 of the Fourteenth Amendment authorizes and endorses the practice of felon
disenfranchisement, warrants reconsideration. He emphasized that Marshall’s dissent
in Richardson highlighted the inherent problems evident in the majority’s approach.
Fletcher, supra note 44, at 1903-04. Fletcher also argued that Section 2 of the
Fourteenth Amendment must be read in its historical context—that Section 2, like
Section 3 and Section 4 of the Amendment, was merely a provision included to
address problems presented by the Civil War. Section 2, he argued, “was not meant
to provide lasting constitutional guidance.” Id. at 1906.
199. See infra Part II.B.1.
200. See Portugal, supra note 15, at 1331 (arguing that “[t]he Fourteenth
Amendment was specifically created to enable the federal government to police states
for violations of the constitutional rights of racial minorities”).
201. See infra Part II.B.1.
202. The Richardson decision prompted scholarly backlash. Professor Laurence H.
Tribe argued that the Supreme Court’s approach in the case was “fundamentally
misconceived.” Laurence H. Tribe, American Constitutional Law § 13-16, at 1094
(2nd ed. 1988). Professor David L. Shapiro argued that the Richardson Court’s
decision was a “construction sustaining states’ rights that finds little warrant in the
language of the amendment or its legislative history.” David L. Shapiro, Mr. Justice
Rehnquist: A Preliminary View, 90 Harv. L. Rev. 293, 304 (1976).

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argued that Section 2 of the Fourteenth Amendment had been
completely disregarded by courts prior to the Richardson decision.203
Others argued that Section 2 of the Fourteenth Amendment was
effectively repealed by the ratification of the Fifteenth Amendment.204
John Hart Ely asserted that Section 2 of the Fourteenth Amendment
has been “no big deal” in practice, and that “Congress has never
invoked it.”205 Accordingly, lending legitimacy to Rehnquist’s reading
in Richardson v. Ramirez would give legitimacy to a practice that is
out of date.206

203. Ewald argued that the Supreme Court’s “previous disregard for Section 2,
together with subsequent Amendments and the Court’s interpretation of those
Amendments, have effectively made Section 2 a dead letter.” Ewald, supra note 18, at
1070. He continued: “Scholars today refer to Section 2 as an obsolete and never
enforced provision, and a never-exercised tool; it is a Reconstruction-era measure[] of
no lasting significance, which is no longer operative and has never had a practical
impact.” Id. at 1070-71 (internal quotations and footnotes omitted). He also assessed
the impact of the Richardson decision: “[T]he Court plucked a phrase from a longslumbering sentence and breathed new life into it, reading the Fourteenth
Amendment in isolation from subsequent Amendments and constitutional
jurisprudence. The result was a ruling which cannot be coherently reconciled with a
generation of Supreme Court decisions protecting voting rights.” Id. at 1071-72; see
Chin, supra note 25, at 304 (“After a century of vigorous nonenforcement, and just as
the ink was drying on the Voting Rights Act of 1965, Section 2 was revived as a
justification not to subject felon disenfranchisement laws to equal protection
scrutiny.”).
204. See Chin, supra note 25. Chin argued that because Section 2 of the Fourteenth
Amendment was intended by Congress to be repealed by the passage of the Fifteenth
Amendment, it cannot provide textual support for felon disenfranchisement, and the
courts that analyze felon disenfranchisement challenges under the VRA are wrong to
rely on Section 2 of the Fourteenth Amendment as it is a “nonexistent constraint.” Id.
at 316. He also argued that after 1870, it appeared that the Constitution had “two
provisions regulating the same subject. Section 2 reduced the basis of representation
for racial disenfranchisement, and the Fifteenth Amendment prohibited racial
disenfranchisement.” Id. at 272. The Fifteenth Amendment, “Congress’s last word on
African-American suffrage,” did not give an express authorization of felon
disenfranchisement as Section 2 of the Fourteenth Amendment had. Id. at 315; see
Parkes, supra note 32, at 78 (“Section 2 of the Fourteenth Amendment was rendered
largely superfluous by the Fifteenth Amendment.”).
205. John Hart Ely, Interclausal Immunity, 87 Va. L. Rev. 1185, 1195 (2001).
206. John Hart Ely argued:
We know perfectly well, for example, that most of the [Fourteenth]
amendment’s framers and ratifiers did not believe that they were
invalidating racially segregated schools either, but it would be next to
impossible today to find a judge or commentator who believes for that
reason that Brown v. Board of Education was incorrectly decided. Not
everything that was assumed to be constitutional in 1868 remains immune to
the Equal Protection Clause (assuming it ever was) and Section 2 says
nothing stronger on the subject of denying felons the franchise than that in
1868 it was assumed to be constitutional.
Id.

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ii. State Authority and Congress’s Enforcement Powers—The Balance
of Power
Under the Constitution, judicial authority to determine the
constitutionality of state laws is based on the concept that “powers of
the legislature are defined and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written.”207 In the area
of the Civil War Amendments, Section 5 of the Fourteenth
Amendment and Section 2 of the Fifteenth Amendment define the
scope of Congress’s enforcement powers.208 “Legislation which deters
or remedies constitutional violations can fall within the sweep of
Congress’ enforcement power even if in the process it prohibits
conduct which is not itself unconstitutional and intrudes into
‘legislative spheres of autonomy previously reserved to the States.’”209
Congress’s enforcement powers are not without limitation.210
Legislation under the Fourteenth and Fifteenth Amendments can
only “secure to all persons the enjoyment of perfect equality of civil
rights and the equal protection of the laws against State denial or
invasion, if not prohibited.”211
The most critical point of disagreement between the circuits in the
four recent cases addressing the applicability of section 2 of the VRA
to felon disenfranchisement laws is whether that application exceeds
Congress’s enforcement powers under Section 2 of the Fifteenth
Amendment and Section 5 of the Fourteenth Amendment. Because
the VRA is legislation passed pursuant to the Civil War Amendments,
it must meet the standards established for enforcement power
legislation.212

207. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
208. The Fourteenth Amendment provides, in relevant part: “The Congress shall
have power to enforce, by appropriate legislation, the provisions of this article.” U.S.
Const. amend. XIV, § 5. The Fifteenth Amendment provides, in relevant part: “The
Congress shall have power to enforce this article by appropriate legislation.” U.S.
Const. amend. XV, § 2.
209. City of Boerne v. Flores, 521 U.S. 507, 518 (1997) (quoting Fitzpatrick v.
Bitzer, 427 U.S. 445, 455 (1976)).
210. See Oregon v. Mitchell, 400 U.S. 112, 128 (1970). The Rehnquist Court has
handed down several decisions that severely restrict Congress’s enforcement powers.
See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (concluding that Congress
may not regulate noneconomic violent criminal conduct based solely on its aggregate
effects on interstate commerce); United States v. Lopez, 514 U.S. 549 (1995) (holding
the Gun-Free School Zones Act of 1990 unconstitutional). But see Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (concluding that Metropolitan
Transit Authority was not entitled to Tenth Amendment immunity from the Fair
Labor Standards Act).
211. Ex parte Virginia, 100 U.S. 339, 346 (1879).
212. See infra Parts II.A.2, II.B.2. The enforcement powers of Congress under the
Civil War Amendments is limited, and Congress: (1) may not repeal Constitutional
provisions with such legislation; (2) cannot strip states of the power of self-governance
and convert the government into one of “unrestrained authority”; and (3) may only

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Some of the opinions in the four cases adhered to the view that the
application of the VRA to felon disenfranchisement laws exceeds
Congress’s enforcement powers because it upsets the delicate balance
between state and federal power in the areas of criminal and election
law, which are traditionally under the authority of states.213 Some of
these opinions concluded that allowing challenges to felon
disenfranchisement statutes under the VRA to proceed will call the
constitutionality of the Act into question because it would push the
boundaries of congressional enforcement power too far.214 These
opinions expressed fear that an interpretation of the VRA that allows
for challenging the validity of felon disenfranchisement statutes may
result in the Supreme Court striking down “all but the most limited
applications of Section 2 [of the VRA].”215
Other opinions in these four cases, however, decided that
application of the “results test” of the VRA to felon
disenfranchisement statutes does not exceed Congress’s enforcement
powers under the Civil War Amendments.216 These opinions argued
that the application of the VRA to felon disenfranchisement laws is
legitimate congressional action designed to ensure that states comply
with the mandates of the Fourteenth and Fifteenth Amendments.217
This dispute between the circuits becomes more complicated when
one considers whether or not the clear statement rule applies to the
VRA in felon disenfranchisement statute challenges.218 Gregory v.
Ashcroft, a leading case on the clear statement rule, concluded that
the statutory rule of construction applies to both Commerce Clause
legislation, as well as legislation under Section 5 of the Fourteenth
Amendment.219 In that case, the Court held that Congress may use its
exercise its enforcement powers with “appropriate legislation.” Portugal, supra note
15, at 1331-32 (internal quotations omitted).
213. See infra Part II.A.2. Gabriel Chin argued that the Fifteenth Amendment,
unlike the Fourteenth Amendment, “gave no deference to state authority over
suffrage.” Chin, supra note 25, at 272. He also argued that “[t]he modern Supreme
Court pays lip service to the idea that ‘the States have the power to impose voter
qualifications.’ In practice, however, voter qualifications have been almost wholly
federalized.” Id. at 308-09 (quoting Dunn v. Blumstein, 405 U.S. 330, 336 (1972)).
214. See infra Part II.A.2.
215. The Law of Prisons, supra note 50, at 1957. That article argued that those
advocating for the end of felon disenfranchisement might achieve more favorable
results by focusing on legislative action and not the judicial process. Id. at 1957-63.
216. See infra Part II.B.2.
217. See infra Part II.B.2.
218. The clear statement rule is sometimes referred to as the plain statement rule.
219. Gregory v. Ashcroft, 501 U.S. 452, 467-68 (1991). Gregory considered the
application of the federal Age Discrimination Employment Act to Missouri’s
mandatory retirement policy for judges. The court concluded that Congress had not
made it unmistakably clear that it intended to interfere with Missouri legislators’
judgments requiring the age qualifications of judges. Id. Some courts have identified
two slightly different standards for what circumstances invoke the clear statement
rule. NLRB v. Catholic Bishop, which reviewed the National Labor Relations
Board’s exercise of power, was one of the primary cases advancing the clear

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delegated powers to “upset the usual constitutional balance of federal
and state powers”220 only when it makes its intent to do so
“unmistakably clear in the language of the statute.”221
Chisom v. Roemer,222 decided the same day as Gregory v. Ashcroft,
did not embrace the clear statement rule. The Chisom majority
opinion held that section 2 of the VRA applies to the election of state
judges but did not seek to discern whether the clear statement rule
applied to the Act, failing to even mention the rule.223 Only Justice
Scalia, dissenting, noted the absence of the rule:
[W]e tacitly rejected a “plain statement” rule as applied to the
unamended §2 in City of Rome v. United States, though arguably
that was before the rule had developed the significance it currently
has. I am content to dispense with the “plain statement” rule in the
present cases—but it says something about the Court’s approach to
this decision that the possibility of applying that rule never crossed
its mind.224

He also conceded, “[w]hile the ‘plain statement’ rule may not be
applicable, there is assuredly nothing whatever that points in the
opposite direction, indicating that the ordinary meaning here should
not be applied.”225
As the cases described in Part II of this Note reveal, there is a deep
divide over whether the clear statement rule applies in a section 2 of
the VRA challenge to a state felon disenfranchisement statute. Some
opinions argued that Gregory v. Ashcroft demands that the clear
statement rule and required only that an act of Congress alter the balance of power
between the federal and state governments for the rule to apply. NLRB v. Catholic
Bishop, 440 U.S. 490 (1979). Gregory, unlike Catholic Bishop, suggested that a
statute must also be “ambiguous” before the clear statement rule applies. See
Muntaqim v. Coombe, 366 F.3d 102, 126-28 (2d Cir.) (discussing the differences
between these two rules), cert. denied, Muntaqim v. Coombe, 125 S. Ct. 480 (2004)
(mem.), reh’g en banc granted, Muntaqim v. Coombe, No. 01-7260, 2004 WL 2998551
(2d Cir. Dec. 29, 2004).
220. Gregory, 501 U.S. at 460.
221. Id. (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989)); see
Calvin R. Massey, Etiquette Tips: Some Implications of “Process Federalism,” 18
Harv. J.L. & Pub. Pol’y 175, 192 (1994) (noting that the clear statement rule is derived
from the “requirement imposed upon Congress when it seeks to abrogate state
immunity from suit under the Eleventh Amendment, or when Congress assertedly
pre-empts the historic powers of the States, or when Congress intends to enforce the
guarantees of the Fourteenth Amendment upon states” (internal quotations and
footnotes omitted)).
222. 501 U.S. 380 (1991).
223. Id. at 404. Chisom addressed the same provision of the VRA under review in
the four felon disenfranchisement statute challenges described in detail in Part II of
this Note. See Nickolai G. Levin, Constitutional Statutory Synthesis, 54 Ala. L. Rev.
1281, 1365 (2003) (arguing that “[i]f state autonomy of process interests are
important, they should be acknowledged uniformly, even if they are occasionally
trumped by national policies such as the VRA” (internal quotations omitted)).
224. Chisom, 501 U.S. at 412 (Scalia, J., dissenting) (citations omitted).
225. Id.

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statement rule must be invoked in such cases.226 These opinions also
argued that because the clear statement rule applies, the court must
examine the congressional intent behind the VRA.227 These opinions
concluded that the legislative history of the VRA, including the record
for the 1982 amendment, does not indicate a clear intent from
Congress that the Act should apply to felon disenfranchisement
statutes, and therefore it cannot apply.228
Other opinions in the four cases argued that the clear statement
rule does not apply to section 2 of the VRA because there is not
sufficient ambiguity in the Act’s language to trigger it, and because
Chisom v. Roemer did not employ it.229 According to these opinions,
the clear statement rule only applies in certain cases and to certain
types of legislation.230 The Chisom majority’s silence on the clear
statement rule was dispositive in these opinions and supported the
idea that the clear statement rule does not apply to legislation passed
pursuant to the Fourteenth Amendment.231 Those opinions adhering
to the opposite view asserted that the clear statement rule was either
overlooked or merely forgotten by the Justices deciding Chisom.232
Opinions that did not embrace the clear statement rule also
consistently argued that the Fourteenth and Fifteenth Amendments
already altered the state/federal balance of power, and the VRA’s
application to felon disenfranchisement statutes does nothing to
further alter this balance.233
226. See infra Part II.A.2.a.
227. See infra Part II.B.2.a.
228. See infra Part II.A.2.a.
229. See Portugal, supra note 15, at 1331 (“Given the constitutional foundation
upon which the Act relies, I suggest the ‘plain statement’ rule is redundant as applied
to the Voting Rights Act.”); infra notes 355-66 and accompanying text. For an
alternative argument, see Michael P. Lee, Comment, How Clear is “Clear”?: A
Lenient Interpretation of the Gregory v. Ashcroft Clear Statement Rule, 65 U. Chi. L.
Rev. 255 (1998), which argues for a “lenient” clear statement rule, and notes that
while the interests protected by the Gregory rule are important, they “must be
weighed against the harm that an overly stringent rule may cause.” Id. at 258. This
proposed approach, he argued “provides sufficient protection for state sovereignty
while providing Congress the power to utilize its limited resources efficiently.” Id.
230. See infra notes 355-77 and accompanying text.
231. See id.
232. See id.
233. See infra Part II.B.2. One student commentator argued that the clear
statement rule should not be a consideration when interpreting the VRA’s reach,
because
the Supreme Court consistently has recognized that Congress has the power
to enforce the Fourteenth and Fifteenth Amendments through the Voting
Rights Act, despite the burdens those measures placed on the states. . . . The
Voting Rights Act is a byproduct of the Civil War Amendments, which
inevitably altered the federal/state balance of power as contemplated by the
original Constitution. Additionally, since the Civil War there have been six
Constitutional amendments specifically designed to increase participation in
the vote.
Portugal, supra note 15, at 1331 (internal quotations omitted).

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Another issue that arose in these four cases, in a somewhat more
limited manner, was whether the VRA is adequately “congruent” and
“proportional” legislation under the Civil Rights Amendments.234 In
City of Boerne v. Flores, the Supreme Court held that Congress’s
enforcement powers under these Amendments could be exercised
only when doing so would be congruent and proportional.235 In noting
that Congress’s enforcement powers are not unlimited, the Court in
City of Boerne concluded that “[t]he design of the [Fourteenth]
Amendment and the text of § 5 [of the Fourteenth Amendment] are
inconsistent with the suggestion that Congress has the power to
decree the substance of the Fourteenth Amendment’s restrictions on
the States. . . . Congress does not enforce a constitutional right by
changing what the right is.”236 The Court noted that while Congress
must have broad power to remedy a constitutional violation, there still
“must be a congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.”237
Additionally, the Court demanded that Congress identify a pattern
and history of discrimination by the states in order for legislation to fit
the congruence and proportionality requirement.238 Because the VRA
has met these requirements, the Supreme Court has consistently held
that it is congruent and proportional legislation.239
Some opinions described in Part II were split on whether
application of the VRA to felon disenfranchisement laws would
violate the congruence and proportionality requirement.240 Some
argued that an interpretation of section 2 of the VRA that allows it
“to prohibit felon disenfranchisement might sweep too broadly to

234. See infra Part II.A.2.b.
235. City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
236. Id. at 519.
237. Id. at 520.
238. See id. at 531-32. The Supreme Court has specifically distinguished the VRA
from other federal legislation as being congruent and proportional, in part, because it
has the requisite congressional record of racial discrimination in voting practices. See,
e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368-70, 373 (2001)
(distinguishing the VRA from the Americans with Disabilities Act and noting the
failure to demonstrate that Congress had a record of a pattern of employment
discrimination by the states against the disabled); Fla. Prepaid Postsecondary Educ.
Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 640 (1999) (distinguishing the VRA
from the Patent Remedy Act); City of Boerne, 521 U.S. at 530-31 (distinguishing the
VRA from the Religious Freedom Restoration Act (“RFRA”) and holding that the
RFRA was not congruent and proportional in part because the legislative record did
not adequately demonstrate a pattern of unconstitutional conduct).
239. See, e.g., Mixon v. Ohio, 193 F.3d 389, 398 (6th Cir. 1999) (concluding that the
VRA is a valid exercise of congressional authority); United States v. Marengo County
Comm’n, 731 F.2d 1546, 1550 (11th Cir. 1984) (holding that the amended section 2 of
the VRA is constitutional); Jones v. City of Lubbock, 727 F.2d 364, 372-75 (5th Cir.
1984) (holding that section 2 of the VRA’s “results” test is appropriate legislation
under the Fourteenth and Fifteenth Amendments).
240. See infra Part II.A.2.b.

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satisfy the Boerne congruence and proportionality test.”241 A related
criticism was that allowing section 2 of the VRA to prevail in the felon
disenfranchisement context would result in the overturning of many
existing state laws, rendering it disproportionate.242 Other opinions
took an alternative approach and argued that the VRA is clearly
congruent and proportional legislation and that no court has ever held
otherwise.243
II. CHALLENGING FELON DISENFRANCHISEMENT UNDER THE
VRA: DISPUTING THE IMPORTANCE OF SECTION 2 OF THE
FOURTEENTH AMENDMENT AND THE APPROPRIATE BALANCE OF
STATE AND FEDERAL POWER
Since the VRA was amended in 1982, only four federal circuit court
cases have directly addressed whether section 2 of the VRA should
apply to felon disenfranchisement statutes. The outcomes of these
cases have serious implications. If such challenges are permitted to
proceed and plaintiffs can successfully prove that these laws result in a
racially disparate impact, the states where felon disenfranchisement
has the most racially disparate effects could see their statutes declared
impermissible.244
To date, however, the federal circuit courts have not uniformly held
that section 2 of the VRA can apply to felon disenfranchisement
statutes. Instead, a circuit split has developed, with the Second Circuit
on one side of the debate, and the Ninth Circuit on the other. It is
unclear which side of the debate the Eleventh Circuit will ultimately
join, as its previous decision in Johnson245 to permit section 2 of the
VRA to be applied to Florida’s felon disenfranchisement law, was
recently vacated and granted rehearing en banc.246 Similarly, because
the Second Circuit has decided to rehear Muntaqim, its position in the
circuit split is also questionable.247
As illustrated in Part I of this Note, the points of disagreement
between the circuits are serious and numerous and may not be
resolved without Supreme Court action. This part describes the
disputed issues that currently divide the circuits in greater detail and
241. The Law of Prisons, supra note 50, at 1956.
242. See id. at 1954.
243. See infra Part II.B.2.
244. It is not yet clear what statistical evidentiary showing would be required to
prove a racially disparate impact. See Muntaqim v. Coombe, No. 01-7260, 2004 WL
2998551, at *1 (2d Cir. Dec. 29, 2004) (requesting the parties brief the issue).
245. Johnson v. Governor of Fla., 353 F.3d 1287 (11th Cir. 2003), reh’g en banc
granted, opinion vacated by 377 F.3d 1163 (11th Cir. 2004).
246. This Note will explore the reasoning in the vacated Eleventh Circuit opinion
in Johnson v. Governor of Florida. While this opinion no longer has precedential
value, its reasoning is useful in framing the current debate between the circuits. See
supra note 172.
247. Muntaqim, 2004 WL 2998551, at *1.

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highlight the reasoning employed in Baker, Muntaqim, Johnson, and
Farrakhan. Part II.A explains the analysis advanced by the opinions
that conclude that section 2 of the VRA cannot be applied to felon
disenfranchisement laws. These opinions argue that applying section
2 of the VRA to felon disenfranchisement statutes would contradict
the language of Section 2 of the Fourteenth Amendment and would
upset the balance of state and federal power. Part II.B explains the
rationale advanced by the opinions that determine that section 2 of
the VRA can be applied to felon disenfranchisement laws. These
opinions maintain that racially discriminatory voting laws cannot be
sustained, regardless of the language of Section 2 of the Fourteenth
Amendment, and that application of section 2 of the VRA to felon
disenfranchisement statutes does not upset the balance of state and
federal power.
A. Opinions Rejecting the Application of Section 2 of the VRA in
Felon Disenfranchisement Statute Challenges
The Second Circuit, in the prevailing Baker opinion248 and in the
Muntaqim opinion,249 concluded that section 2 of the VRA cannot be
applied in challenges to state felon disenfranchisement statutes.250
248. Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996). The action in Baker was brought
by African-American and Hispanic incarcerated felons, who alleged that New York’s
felon disenfranchisement provision disproportionately deprived African-Americans
and Hispanics of the right to vote, resulting in a violation of section 2 of the VRA. Id.
at 923. The plaintiffs alleged, in part, that African-American and Hispanics comprise
approximately 22% of the New York state population, but comprise 82% of the New
York State prison population, and that a state Chief Judge-commissioned study on
the presence and effect of racism in the state court system revealed that there was a
racial disparity in conviction rates and sentence types. Id. The district court opinion
concluded that since the plaintiffs lost the right to vote because of their decision to
commit a crime, and not their race, the disproportionate racial impact of felon
disenfranchisement did not itself establish a violation of section 2 of the VRA,
“absent other reasons to find discrimination.” Baker v. Cuomo, 842 F. Supp. 718, 722
(S.D.N.Y. 1993), vacated by reh’g en banc sub nom. Baker, 85 F.3d at 919. Because
the Second Circuit was deadlocked in its decision, the district court’s decision to
dismiss the plaintiffs’ complaint was affirmed. The first opinion in the Second
Circuit’s decision, authored by Judge Mahoney, which agreed with the district court’s
dismissal, is referred to as the “prevailing” opinion in this Note. Baker, 85 F.3d at 921.
249. In Muntaqim, a convicted felon serving a life sentence in a New York state
prison brought an action against the New York State Department of Correctional
Services alleging that New York’s felon disenfranchisement statute violates section 2
of the VRA. Muntaqim v. Coombe, 366 F.3d 102, 104-05 (2d Cir.), cert. denied, 125 S.
Ct. 480 (2004) (mem.), reh’g en banc granted, 2004 WL 2998551, at *1.
250. Both Baker and Muntaqim challenged New York’s felon disenfranchisement
statute, § 5-106(2)-(5), which provides, in part:
No person who has been convicted of a felony pursuant to the laws of this
state, shall have the right to register for or vote at any election unless he
shall have been pardoned or restored to the rights of citizenship by the
governor, or his maximum sentence of imprisonment has expired, or he has
been discharged from parole.
N.Y. Elec. Law § 5-106(2) (McKinney 2005); see also id. § 5-106(3)-(5).

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Both the prevailing Baker and Muntaqim opinions reasoned that
allowing such challenges to proceed would cause a serious
constitutional conflict between the different sections of the
Fourteenth Amendment, interfere with the balance of state and
federal power in the area of voting law, allow Congress to exceed its
enforcement authority under the Civil War Amendments, and run
afoul of both the clear statement rule and the legislative intent
accompanying the VRA’s enactment in 1965 and amendment in 1982.
The dissenting opinion in the decision to deny a rehearing en banc in
the Ninth Circuit’s Farrakhan opinion,251 as well as the dissenting
opinion in Johnson,252 also advanced these arguments.
1. The Equal Protection Clause Cannot Trump Section 2 of the
Fourteenth Amendment
The prevailing opinion in the Second Circuit’s Baker opinion
opposed the use of the VRA in felon disenfranchisement statute
challenges, in part, because of the potency of the constitutional
authorization of felon disenfranchisement in Section 2 of the
Fourteenth Amendment.253 Richardson v. Ramirez,254 the opinion
asserted, properly advanced the idea that the drafters of the
Fourteenth Amendment could not have intended to authorize both
felon disenfranchisement and simultaneously allow for its prohibition
by the Equal Protection Clause within the same Amendment.255

251. The plaintiffs in Farrakhan v. Washington were disenfranchised felons who
sought to strike down Washington’s felon disenfranchisement statutory scheme.
Farrakhan v. Washington, 338 F.3d 1009, 1011 (9th Cir. 2003). Article VI, Section 3
of the Washington State Constitution provides that “[a]ll persons convicted of
infamous crime . . . are excluded from the elective franchise.” Wash. Const. art. VI, §
3; see Wash. Rev. Code Ann. § 29.01.080 (West 2004) (recodifed as Wash. Rev. Code
Ann. § 29A.04.079 (West 2005) (defining infamous crime)). The district court opinion
made a factual determination that the state’s felon disenfranchisement scheme
disproportionately affected the voting rights of African-Americans, Native
Americans, and Hispanics. Farrakhan v. Locke, 987 F. Supp. 1304, 1311-13 (E.D.
Wash. 1997), aff’d in part, rev’d in part, remanded in part sub nom. Farrakhan, 338
F.3d at 1009.
252. Johnson v. Governor of Florida (originally Johnson v. Bush) was brought
against the Florida Clemency Board by a class of ex-felons in Florida who had
completed all terms of their incarceration, probation, and parole, challenging the
Florida constitutional provision that denies them the right to vote. Johnson v.
Governor of Fla., 353 F.3d 1287, 1293 (11th Cir. 2003), reh’g en banc granted, opinion
vacated by 377 F.3d 1163 (11th Cir. 2004). Florida is one of the few states that
permanently disenfranchises felons unless they receive clemency. See Fla. Const. art.
VI, § 4.
253. Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996). The opinion opposing the
application of section 2 of the VRA in Baker originated many of the arguments
embraced in Muntaqim, as well as the dissent in Johnson and the dissent in the
Farrakhan court’s decision not to rehear the case en banc.
254. 418 U.S. 24 (1974).
255. Baker, 85 F.3d at 928-29.

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In emphasizing this argument, the prevailing opinion in Baker first
noted that twenty-nine of the thirty-six states that ratified the
Fourteenth Amendment had existing provisions in their constitutions
that allowed for prohibiting felon voting at the time the Fourteenth
Amendment was ratified.256 The opinion argued that this fact could
only indicate that the limitations on states imposed by the Civil War
Amendments were not meant to apply to the state practice of felon
The
opinion
distinguished
felon
disenfranchisement.257
disenfranchisement from other voting restrictions enacted with racial
animus for this reason. The House record accompanying the 1965
version of the VRA stated, the opinion noted, “apparently no
Southern State required proof of literacy, understanding of
constitutional provisions or of the obligations of citizenship, or good
moral character, as prerequisites to voting. However, . . . these tests
and devices were soon to appear in most of the States with large
Negro populations.”258 Unlike felon disenfranchisement, these other
racially discriminatory voting restrictions did not exist prior to the
ratification of the Civil War Amendments and are therefore more
clearly the type of state laws intended to be covered by the
protections of the Fourteenth and Fifteenth Amendments.
The prevailing Baker opinion admitted that the Fourteenth and
Fifteenth Amendments, along with the VRA, infringe in a significant
manner upon state power when racial discrimination motivating a
law’s enactment is “apparent,” but argued that felon
disenfranchisement statutes are distinguished because they have a
“long history and have been accorded explicit constitutional
recognition.”259 The opinion argued that “an explicit constitutional
balance has been struck by the mandate in § 2 of the Fourteenth
Amendment.”260 States, the opinion also emphasized, have the
“primary responsibility”261 for regulating federal, state, and local
elections, as well as “for defining and enforcing”262 criminal law, and
this must be respected when states implement felon
disenfranchisement schemes.
The Second Circuit’s opinion in Muntaqim also denied that the
VRA should apply in a challenge to New York’s felon
disenfranchisement statute, in part, because of the explicit
constitutional authorization of felon disenfranchisement in Section 2
of the Fourteenth Amendment.263 Additionally, the opinion argued,
256. Id. at 928.
257. Id.
258. Id. at 928-29 (citing H.R. Rep. No. 439, at 11-12 (June 1, 1965), reprinted in
1965 U.S.C.C.A.N. 2437, 2443).
259. Id. at 931.
260. Id.
261. Id.
262. Id. (internal quotations omitted).
263. Muntaqim v. Coombe, 366 F.3d 102, 122 (2d Cir.), cert. denied, 125 S. Ct. 480

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“Congress did not wholly abandon its focus on purposeful
discrimination” with the 1982 amendment to the VRA.264 While
noting that the Fourteenth Amendment does not permit state felon
disenfranchisement laws to intentionally disenfranchise AfricanAmericans, the Muntaqim opinion nonetheless determined that it
would be “anomalous” for those that ratified the Fourteenth
Amendment to specifically permit felon disenfranchisement without
demanding a showing of discriminatory intent before allowing such
laws to be struck down.265
The Muntaqim opinion also gave credence to the “longstanding
practice” of felon disenfranchisement as a method of punishment for
committing a crime.266 The number of states with such statutes on the
books before the Fourteenth and Fifteenth Amendments were
ratified, the opinion emphasized, indicates that the statutes were not
enacted in response to the Fourteenth and Fifteenth Amendments,
but rather to punish criminals.267 The opinion made clear, however,
that it was not calling the constitutional validity of the VRA’s “results
Rather, because the practice of felon
test” into question.268
disenfranchisement existed before the Civil War, and because the
practice is sanctioned in the text of the Fourteenth Amendment itself,
the VRA is not intended to apply to these particular types of state
laws.269 Application of the VRA to other laws restricting individual
voting rights, however, was permissible in the eyes of the Muntaqim
opinion.270
The dissenting opinion in the decision to deny a rehearing en banc
in the Ninth Circuit’s Farrakhan opinion articulated perhaps the most
ominous warning regarding application of the VRA in felon
disenfranchisement statute challenges. “This is a dark day for the
Voting Rights Act,” the dissenting opinion began.271 “In adopting a
constitutionally questionable interpretation of the Act, the panel lays
the groundwork for the dismantling of the most important piece of
civil rights legislation since Reconstruction.”272 The majority panel
opinion, the dissent argued, should have respected the language of
Section 2 of the Fourteenth Amendment and permitted the entire
court to reconsider the case en banc.273 The dissent further claimed
(2004) (mem.), reh’g en banc granted, No. 01-7260, 2004 WL 2998551 (2d Cir. Dec. 29,
2004).
264. Id. at 117.
265. Id. at 122.
266. Id. at 123.
267. Id.
268. Id. at 121 (citations omitted).
269. Id. at 123.
270. Id. at 129.
271. Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir. 2004) (Kozinski, J.,
dissenting).
272. Id. at 1116-17.
273. Id. at 1117.

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that because felon disenfranchisement laws are endorsed by Section 2
of the Fourteenth Amendment, they are “presumptively
constitutional.”274 Therefore, the dissenting opinion concluded, only
those felon disenfranchisement laws enacted with racial animus can be
reached by the VRA, and no others.275
The forceful dissent in the Eleventh Circuit’s Johnson opinion also
noted that the text of Section 2 of the Fourteenth Amendment
exempts felon disenfranchisement statutes from VRA review.276 The
Supreme Court in Richardson v. Ramirez, the opinion argued, had
already “unambiguously” determined that felon disenfranchisement is
not an equal protection violation without a showing of racially
discriminatory intent.277 The dissent worried specifically that allowing
the VRA to be used to strike down a state law that is not
unconstitutional “creates a constitutional problem because such an
interpretation allows a congressional statute to trump the text of the
Constitution.”278
Ultimately, the prevailing opinion in Baker, the opinion in
Muntaqim, the dissenting opinion in Johnson, and the dissenting
opinion in the decision to deny rehearing en banc in Farrakhan each
relied on the holding of the Supreme Court in Richardson v. Ramirez
that Section 2 of the Fourteenth Amendment protects the practice of
felon disenfranchisement from strict equal protection analysis. This
textual authorization is bolstered, these opinions agreed, by the
existence of felon disenfranchisement statutes prior to ratification of
the Civil War Amendments, which indicates that they could not have
been passed with racial animus, a prerequisite to permitting
application of the amended section 2 of the VRA.
2. The Balance of State and Federal Power Cannot Tip in Favor of
Congress
These same opinions also agreed that the VRA’s scope is no wider
than that of the Fourteenth and Fifteenth Amendments under which
it was passed. Despite the Act’s amendment in 1982 to implement a
“results test,” these opinions insisted that a showing of racially
discriminatory intent is still demanded. Without confining the VRA
to the breadth of the Civil War Amendments, its application could
exceed Congress’s enforcement powers and infringe on states’ rights.
The prevailing Baker opinion concluded that the application of
section 2 of the VRA to New York’s felon disenfranchisement law

274. Id. at 1121.
275. Id.
276. Johnson v. Governor of Fla., 353 F.3d 1287, 1308 (11th Cir. 2003) (Kravitch, J.,
dissenting), reh’g en banc granted, opinion vacated by 377 F.3d 1163 (11th Cir. 2004).
277. Id.
278. Id. at 1315.

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“would raise serious constitutional questions regarding the scope of
Congress’ authority to enforce the Fourteenth and Fifteenth
Amendments . . . and would alter the usual constitutional balance
between the States and the Federal Government.”279 The opinion
suggested that the “results test” itself may be an invalid exercise of
Congress’s powers:
[I]t is unclear whether, as a general rule, the “results” methodology
of § 1973 is constitutionally valid. As our discussion of the relevant
case law makes clear, the Supreme Court has never authorized an
uncircumscribed application of the “results” methodology of § 1973
in furtherance of the enforcement of the Fourteenth and Fifteenth
Amendments, and it is the uncertainty concerning the outer limits of
Congress’ enforcement powers that raises the serious constitutional
questions at issue in this case.280

Such a disruption of federalism principles is intolerable, the opinion
concluded.281
The Second Circuit’s opinion in Muntaqim relied heavily on the
prevailing opinion in Baker to guide its discussion of the scope of
congressional enforcement power under the Fourteenth and Fifteenth
Amendments.282 The Muntaqim opinion, however, went a step
further, noting “our task here is not simply to choose the opinion in
Baker that we consider most persuasive,”283 because “over the last
seven years, the Supreme Court has substantially clarified the scope of
Congress’ enforcement power under the Reconstruction
Amendments,” making it the duty of the court to reassess the issue.284
In the years since Baker, the opinion concluded, the Supreme Court
has “introduced an entirely new framework” for analyzing Congress’s
enforcement power under Section 5 of the Fourteenth Amendment.285
279. Baker v. Pataki, 85 F.3d 919, 922 (2d Cir. 1996) (internal quotations and
citation omitted).
280. Id. at 928 n.12.
281. See id. at 931.
282. Muntaqim v. Coombe, 366 F.3d 102, 119 (2d Cir.), cert. denied, 125 S. Ct. 480
(2004) (mem.), reh’g en banc granted, No. 01-7260, 2004 WL 2998551 (2d Cir. Dec. 29,
2004).
283. Id.
284. Id.
285. Id. The opinion briefly reviewed the relevant case law that had developed in
the eight years since Baker, highlighting two cases that particularly revealed that the
balance of federal/state power had been “significantly refined” since Baker. Id. at 120.
In City of Boerne v. Flores the Supreme Court determined that Congress’s
enforcement powers may be exercised only in order to respond to a pattern of
constitutional violations with a congruent and proportional remedy. City of Boerne v.
Flores, 521 U.S. 507, 520 (1997) (analyzing the RFRA); see infra Part II.A.2.b
(discussing in more depth the congruence and proportionality requirement). In
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), the
Supreme Court determined that Congress cannot exercise its enforcement powers
under the Fourteenth Amendment unless it has identified a pattern and history of
violations of judicially protected rights by the state.

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This new framework, the Muntaqim opinion argued, does not
support the use of the revised version of section 2 of the VRA in felon
disenfranchisement statute challenges.286 Rather, the opinion argued,
it is now clear that this “would infringe upon the states’ wellestablished discretion to deprive felons of the right to vote” and
impermissibly alter the balance of power between Congress and the
states.287 Additionally, because states have primary authority for
criminal law and election law (particularly state election law), the
issue of the state/federal balance of power becomes the central
inquiry.288 If a state uses the disenfranchisement of felons as an aspect
of punishment, then the application of the VRA to such a statute
would upset state/federal power relating to jurisdiction over criminal
law.289
The dissenting opinion in the decision to deny a rehearing en banc
in the Ninth Circuit’s Farrakhan case also determined that application
of the VRA to Washington’s felon disenfranchisement law exceeded
congressional authority.290 The opinion concluded that such an
abrogation of state authority also unnecessarily called the Act’s
constitutionality directly into question.291 Relying on the prevailing
opinion in Baker, the opinion concluded that there is only a small
group of felon disenfranchisement laws, “those enacted with an
invidious, racially discriminatory purpose,” that are permissibly struck
down by congressional action under the Fourteenth and Fifteenth
Amendments.292 Because Washington’s felon disenfranchisement
laws did not demonstrate the requisite history of racial discrimination
underlying their enactment for the express purpose of undermining
the Civil War Amendments, they are not under the VRA’s purview.293
The dissent also argued that the majority panel failed to address the
fact that the VRA was “never intended” to apply to felon
disenfranchisement statutes.294 Therefore, the dissent concluded, the
286. Muntaqim, 366 F.3d at 104. Recognizing that the “results test” of the VRA
requires a plaintiff to prove only that he was subject to intentional discrimination at
sentencing and not that the felon disenfranchisement statute was enacted with an
intentionally discriminatory purpose does little, the Muntaqim opinion argued, to
address whether the results test itself adheres to the correct balance of state and
federal power. Id.
287. Id.
288. Id. at 122.
289. Id.
290. Farrakhan v. Washington, 359 F.3d 1116, 1121 (9th Cir. 2004) (Kozinski, J.,
dissenting).
291. Id.
292. Id.
293. Id. at 1122. This argument was bolstered by the fact that the felon
disenfranchisement law was enacted before the Civil War Amendments were ratified.
Id.
294. Id. at 1120. The legislative record for the Act’s passage and amendment in
1982 both support the conclusion that the Act was not intended to reach this type of
case, the dissent reasoned. See id. at 1120-21. This dissent also recognized that in 1993

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panel’s decision to deny rehearing in the case will have “far-reaching”
consequences and will result in an array of voting regulations being
declared invalid which are beyond the permissible reach of
congressional power.295 “The permutations,” the dissenting opinion
All state decisions regarding voting
argued, “are endless.”296
practices, the opinion predicted, will be “vulnerable, no matter how
unrelated to race” if the VRA is applied in felon disenfranchisement
statute challenges.297
a. The Clear Statement Rule Applies and Congressional Intent Must Be
Examined
In light of concerns about whether the amended version of section 2
of the VRA as applied to felon disenfranchisement statutes is within
the scope of Congress’s enforcement powers under the Civil War
Amendments, the prevailing opinion in Baker stressed the need to
invoke the clear statement rule.298 Summoning first the rule set forth
in NLRB v. Catholic Bishop of Chicago, that the “‘affirmative
intention of the Congress [be] clearly expressed’” before a court
should uphold a federal intrusion into an area of traditional state
control, the opinion argued that VRA challenges to felon
disenfranchisement statutes require application of this rule.299 The
opinion also argued that the rule specifically “requires a clear
statement by Congress in support of the statutory interpretation
posing the constitutional question, a statement manifestly lacking in
this case.”300 The opinion relied heavily on the fact that it is not
“unmistakably clear that, in amending § 1973 in 1982 to incorporate
the ‘results’ test, Congress intended that the test be applicable to felon
disenfranchisement statutes.”301
Congress enacted the National Voter Registration Act, which included felony
convictions as one justification for denying an individual’s voter registration. Id. at
1121 (citing National Voter Registration Act, Pub. L. No. 103-31, 107 Stat. 77 (1993)
(codified at 42 U.S.C. 1973gg (2000)). That same legislation, the opinion argued,
instructed federal prosecutors to aid states in the practice of disenfranchising felons,
making it “crystal clear that felon disenfranchisement wasn’t one of the practices
about which Congress was concerned.” Id.
295. Id. at 1125.
296. Id. at 1126. According to this dissenting opinion, only requiring statistics
showing a racially disparate impact to demonstrate a section 2 of the VRA violation
will result in a variety of voting laws being struck down on the basis of socioeconomic
status, computer ownership, and internet access. Id. If a plaintiff could show that
having Election Day on a Tuesday somehow resulted in fewer minorities voting, then
the states might be required to move Election Day, the opinion argued. Id.
297. Id.
298. Baker v. Pataki, 85 F.3d 919, 922 (2d Cir. 1996).
299. Id. at 930 (quoting NLRB. v. Catholic Bishop, 440 U.S. 490, 500 (1979)); see
supra note 219 (discussing the two formulations of the clear statement rule).
300. Baker, 85 F.3d at 930.
301. Id. at 922.

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The prevailing Baker opinion also relied on the Supreme Court’s
decision in Gregory v. Ashcroft302 to support its argument that the
clear statement rule applies, although that case required the
application of the rule to age discrimination legislation enacted
pursuant to the Commerce Clause and did not address the VRA
The opinion highlighted the Gregory opinion’s
specifically.303
statement that: “‘[W]e will not attribute to Congress an intent to
intrude on state governmental functions regardless of whether
Congress acted pursuant to its Commerce Clause powers or § 5 of the
Fourteenth Amendment.’”304 Justices White and Stevens concluded in
separate opinions in Gregory that “‘[the] plain statement rule will
apply with full force to legislation enacted to enforce the Fourteenth
Amendment.’”305 Therefore, the prevailing opinion in Baker argued,
the Gregory rule applies to the VRA, since it is legislation Congress
enacted under its Fourteenth Amendment enforcement powers.306
The prevailing Baker opinion did acknowledge, however, that
Chisom v. Roemer, a case involving the VRA and decided the same
day as Gregory, did not incorporate the clear statement rule.307 The
prevailing Baker opinion explained this omission with Justice Scalia’s
statement that it was “‘curious[]’ that the Court applied the plain
statement rule in Gregory but not in Chisom,” and agreed with
Scalia’s assumption that nothing in the Chisom decision indicated that
the plain statement rule does not apply.308
The Second Circuit’s opinion in Muntaqim also adopted the
“‘super-strong clear statement rule’” advanced in Gregory.309 The
opinion concluded that the court would only reach the constitutional
question of whether Congress has the power to strike down felon
disenfranchisement statutes in situations that are beyond the power
directly granted in the Fourteenth and Fifteenth Amendments if

302. 501 U.S. 452, 466-67 (1991).
303. See Baker, 85 F.3d at 931.
304. Id. at 931-32 (quoting Gregory, 501 U.S. at 470).
305. Id. at 932 (quoting Gregory, 501 U.S. at 479 (White, J., concurring in part,
dissenting in part, and concurring in the judgment)).
306. Id. at 931-32.
307. Id. at 932.
308. Id. at 932 n.13 (quoting Chisom v. Roemer, 501 U.S. 380, 411-12 (1991)
(Scalia, J., dissenting)).
309. Muntaqim v. Coombe, 366 F.3d 102, 115 (2d Cir.) (citing William N. Eskridge,
Jr. & Philip P. Frickey, Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 82
(1994)), cert. denied, 125 S. Ct. 480 (2004) (mem.), reh’g en banc granted, No. 01-7260,
2004 WL 2998551 (2d Cir. Dec. 29, 2004). This rule, the court noted, has particular
effect in areas of law that were “‘traditionally sensitive . . . such as legislation affecting
the federal balance.’” Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 461 (1991)).
This rule is also “closely related, but not identical, to the general constitutional
avoidance canon,” which requires the court to avoid addressing rules that create
constitutional conflict unless the proposed construction is clearly contrary to the
legislative intent of Congress. Id. at 115 n.15.

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Congress made a clear statement of its intent to do so.310 “Because we
find that Congress did not make an unmistakably clear statement that
§ 1973 applies to state felon disenfranchisement statutes, we will not
apply § 1973 to § 5-106,” the Muntaqim opinion concluded.311
The omission of the clear statement rule in Chisom was similarly
unpersuasive to the Muntaqim court.312 The New York felon
disenfranchisement provision under review in Muntaqim, the opinion
noted, unlike the voting practice reviewed in Chisom, enjoys special
authorization in Section 2 of the Fourteenth Amendment, and
therefore is reviewed with a lower level of scrutiny and demands
application of the clear statement rule.313
The emphatic dissenting opinion in Johnson took the same
approach as the prevailing opinions in Baker and Muntaqim,
fundamentally disagreeing with the majority’s assertion that the VRA
can be applied in any form to felon disenfranchisement statutes.314
The dissent agreed that allowing the VRA to be applied to felon
disenfranchisement statutes violates the “long-standing rule of
statutory interpretation that federal courts should not construe a
statute to create a constitutional question unless there is a clear
statement from Congress endorsing this understanding.”315
When the scope of a congressional act presents “grave
constitutional questions,” the dissenting Johnson opinion argued, the
court must determine whether the interpretation of the questioned
congressional action is in line with congressional intent.316 Instead of
Congress sanctioning the application of the VRA to felon
disenfranchisement statutes, the opinion continued, the “legislative
history indicates just the opposite—that Congress did not intend the
Voting Rights Act to apply to felon disenfranchisement provisions.”317

310. Id. at 116.
311. Id. at 129. The opinion determined that under either the Catholic Bishop or
the Gregory formulation of the clear statement rule, the case failed, because the
legislative record revealed “ample evidence” that Congress did not intend for the
revised version of section 2 of the VRA to apply to felon disenfranchisement statutes.
Id. at 127.
312. Id. at 128-29.
313. See id. at 129.
314. Johnson v. Governor of Fla., 353 F.3d 1287, 1314 (11th Cir. 2003) (Kravitch, J.,
dissenting), reh’g en banc granted, opinion vacated by 377 F.3d 1163 (11th Cir. 2004).
315. Id. at 1315.
316. Id.
317. Id. at 1316. The dissenting opinion argued its point by referring only to the
portion of the VRA’s Senate report that addresses felon disenfranchisement statutes,
the portion discussing section 4, not section 2. Id.; see S. Rep. No. 89-162 (1965),
reprinted in 1965 U.S.C.C.A.N. 2508, 2561-62. The congressional record’s silence on
application of section 2 of the VRA to felon disenfranchisement statutes, the dissent
urged, indicates that section 2 of the Act was not intended to be applied to felon
disenfranchisement statutes. See Johnson, 353 F.3d at 1317-18 (Kravitch, J.,
dissenting).

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The dissenting opinion in Johnson also argued that the 1982
amendment did not affect the VRA’s applicability to felon
disenfranchisement statutes.318 The opinion declared that because the
congressional record for the amendment did not “plainly” indicate
intent to extend the Act’s coverage to incorporate felon
disenfranchisement statutes, it did not.319 “Although it is conceivable
that certain legislators may have wanted the Voting Rights Act to
encompass felon disenfranchisement provisions,” the opinion argued,
“we should not assume that Congress intended to produce a statute
contrary to the plain text of the Fourteenth Amendment without a
clear statement.”320 The opinion also criticized the Farrakhan court,
which permitted the VRA challenge to Washington’s felon
disenfranchisement scheme to proceed, for failing to speak directly to
the constitutionality of its conclusions and failing to address whether
there needs to be a clear statement from Congress that it intended for
section 2 of the VRA to be applied in state felon disenfranchisement
statutes before such challenges can proceed.321
b. Congruence and Proportionality of the VRA Questioned
The Muntaqim opinion also disputed that the results test of the
VRA should apply to felon disenfranchisement statutes from a
different but related angle. Section 2 of the VRA, as applied to felon
disenfranchisement statutes, is not sufficiently tailored, the opinion
argued.322 As a result of the recent developments in Supreme Court
jurisprudence, the opinion asserted, congressional legislation must
have congruence and proportionality between the injury prevented
and the means adopted in order to be constitutional.323 Congress must
also expose a pattern of unconstitutional racial discrimination in order
for legislation passed pursuant to Congress’s enforcement powers
under the Fourteenth and Fifteenth Amendments to pass muster, the
opinion argued.324
The Muntaqim opinion was careful to note that despite the recent
developments in Supreme Court jurisprudence regarding Congress’s
318. Johnson, 353 F.3d at 1317 (Kravitch, J., dissenting).
319. Id. at 1317-18.
320. Id. at 1318. The Johnson dissenting opinion also highlighted the fact that two
congressional bills that acknowledge the practice of felon disenfranchisement were
circulated that seemed to contradict the majority’s opinion, since it was “unclear why
these bills have been proposed if Congress has the clear understanding that the
Voting Rights Act currently covers these cases.” Id. at 1318 n.15.
321. Id. at 1316 n.11 (emphasizing that Farrakhan v. Washington is merely
persuasive authority, and is not binding precedent).
322. Muntaqim v. Coombe, 366 F.3d 102, 120-26 (2d Cir.), cert. denied, 125 S. Ct.
480 (2004) (mem.), reh’g en banc granted, No. 01-7260, 2004 WL 2998551 (2d Cir.
Dec. 29, 2004).
323. Id. at 120-21.
324. Id. at 120, 124.

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enforcement powers, the VRA has generally been deemed both
proportional and congruent by the Supreme Court and numerous
circuit courts, as there is a “vast and undisputed” congressional record
of racially invidious voting practices.325 Therefore, the question,
according to the Muntaqim opinion, is not the constitutionality of the
VRA, but “whether Congress would exceed its authority if § 1973
were applied to state felon disenfranchisement statutes.”326 While
section 2 of the VRA is both congruent and proportional in its
standard application, it is not so when applied to felon
disenfranchisement statutes, the opinion concluded.327
The link between the injury to be prevented by Congress—namely,
the use of various dilution schemes by certain states to avoid the
strictures of the VRA—and Congress’s supposed remedy—namely,
the prohibition of any felon disenfranchisement law enacted at any
time in any state that “results” in the abridgement of the right to
vote on account of race—is too attenuated.328

Further, the opinion argued, the congruence and proportionality
requirement demands that Congress present a specific legislative
record of intentional discrimination driving the enactment of felon
disenfranchisement laws in order for the VRA to apply to them.329
Because Congress has not done so or mentioned that such a record
exists in the legislative history of the 1982 amendment to section 2 of
the VRA, the opinion concluded, the application of the VRA to felon
disenfranchisement statutes is not congruent and proportional.330
The dissenting opinion in the decision to deny a rehearing en banc
in Farrakhan also argued that federal legislation must be congruent
and proportional to the injury sought to be prevented, and is not so
when applied to felon disenfranchisement statutes.331 The opinion
argued:
It is unlikely that Congress could have reached felon
disenfranchisement even if it wanted to, at least not without a
substantial evidentiary record and a more tailored remedy. In
interpreting the VRA to reach felon disenfranchisement in a state
without a history of race discrimination like Washington, the

325. Id. at 121.
326. Id.
327. Id. at 125.
328. Id.
329. Id. at 126.
330. Id.
331. Farrakhan v. Washington, 359 F.3d 1116, 1122 (9th Cir. 2004) (Kozinski, J.,
dissenting) (citing City of Boerne v. Flores, 521 U.S. 507, 520 (1997)). With regard to
section 5 of the VRA, the opinion argued, the Supreme Court has required
enforcement legislation to have a specific record of constitutional violations. Id. A
section 2 violation, it continued, should be supported by the same finding, and a
“theoretical, undocumented threat of unconstitutional felon disenfranchisement laws
simply doesn’t justify such a broad remedy.” Id. at 1123.

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[majority panel that elects to deny a rehearing en banc] has created a
constitutional problem that Congress itself avoided.332

Avoiding constitutional conflicts and recognizing the limits on
Congress in the legislation it can pass, the dissenting opinion argued,
is one of the roles of the court.333
B. Opinions Permitting the Application of Section 2 of the VRA in
Felon Disenfranchisement Statute Challenges
The non-prevailing opinion in Baker,334 the opinion in Farrakhan,
and the majority opinion in Johnson disagreed with the reasoning in
the opinions described above. In concluding that section 2 of the
VRA can be applied to felon disenfranchisement statutes, these
opinions stressed the importance of the mandates of equal protection
and preventing racially discriminatory voting practices under the
Fifteenth Amendment, and argued that the balance of power between
the states and Congress had previously been shifted by the Fourteenth
and Fifteenth Amendments. Therefore, these opinions argued, the
application of the VRA to felon disenfranchisement statutes does not
alter this balance further. These opinions also advanced the idea that
because racial discrimination causes the disproportionate conviction
of minorities, there is, in turn, an impermissibly racially disparate
impact on voting rights.
Finally, these opinions rejected the
contention that the clear statement rule applies to the VRA and were
therefore not compelled to address the legislative intent of the VRA,
since such an inquiry is contingent on finding that the clear statement
rule applies.
1. Section 2 of the Fourteenth Amendment Cannot Overcome the
Demands of Equal Protection
Both the non-prevailing opinion in Baker and the Eleventh Circuit’s
opinion in Johnson viewed the amended section 2 of the VRA as a
new and improved tool for tackling racially discriminatory felon
disenfranchisement laws—a tool that still seeks to weed out invidious
discrimination in felon disenfranchisement but requires only a
demonstration of discriminatory impact. The forceful non-prevailing
opinion in Baker conceded that felon disenfranchisement is
constitutionally authorized by Section 2 of the Fourteenth
332. Id. at 1124. The Supreme Court has rejected interpretations of the VRA in
other cases that threatened the Act’s constitutionality. Id.
333. Id. at 1125.
334. The term “non-prevailing opinion” refers to the second Baker opinion by
Judge Feinberg, which opposed the district court’s holding that section 2 of the VRA
cannot apply to New York’s felon disenfranchisement statute. Baker v. Pataki, 85
F.3d 919, 934 (2d Cir. 1996), aff’g by an equally divided court, Baker v. Cuomo, 842 F.
Supp. 718 (S.D.N.Y. 1993).

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Amendment pursuant to Richardson v. Ramirez, but argued that this
fact does not give states “the right to disenfranchise felons on the
basis of race.”335 The opinion argued that Hunter v. Underwood,
rather than Richardson, set forth a definitive rule regarding whether
Section 2 of the Fourteenth Amendment enjoys a special exemption
from the Equal Protection Clause.336 The Hunter court, the opinion
indicated, stated: “‘[W]e are confident that § 2 [of the Fourteenth
Amendment] was not designed to permit the purposeful racial
discrimination attending the enactment and operation of [the
Alabama felon disenfranchisement provision] which otherwise
violates § 1 of the Fourteenth Amendment. Nothing in our opinion in
Richardson v. Ramirez . . . suggests the contrary.’”337 This statement
was dispositive for the non-prevailing opinion in Baker. Purposeful
discrimination need not be proven through a showing of intent, the
opinion argued, and can adequately be demonstrated by a showing of
discriminatory results under the VRA.338
The majority opinion in Johnson took a similar approach and
emphasized that “[t]he proper question here is whether felon status
interacts with social and historical conditions to cause an inequality in
the opportunities enjoyed by black and white voters to elect their
preferred representatives.”339 The opinion also criticized the district
court for failing to examine the totality of the circumstances as
demanded by section 2 of the VRA and relying solely on the fact that
the plaintiffs were criminally convicted in granting the defendant
summary judgment.340
The Johnson opinion briefly refuted the allegations made by the
dissent that its decision creates serious constitutional problems by
permitting the VRA to subjugate Section 2 of the Fourteenth
Amendment. “[S]tates clearly do not have the right to intentionally
335. Id. at 937.
336. Id. at 936 (quoting Hunter v. Underwood, 471 U.S. 222, 233 (1985)).
337. Id. (quoting Hunter, 471 U.S. at 233).
338. Id. at 937.
339. Johnson v. Governor of Fla., 353 F.3d 1287, 1305 (11th Cir. 2003) (internal
quotations omitted), reh’g en banc granted, opinion vacated by 377 F.3d 1163 (11th
Cir. 2004). To establish a violation of section 2, the district court opinion concluded
that “there must be a nexus between the discriminatory exclusion of blacks from the
political process and the disenfranchisement of felons” that was demanded in Wesley
v. Collins, 605 F. Supp. 802, 813 (M.D. Tenn. 1985), aff’d, 791 F.2d 1255 (6th Cir.
1986). Johnson v. Bush, 214 F. Supp. 2d 1333, 1341 (S.D. Fla. 2002), aff’d in part, rev’d
in part and remanded sub nom. Johnson, 353 F.3d at 1287. Bias within the criminal
justice system is not enough to establish a vote denial claim, the district court opinion
declared, and the fact that discrimination exists within the criminal justice system, but
not the voting system, precludes it from application of the results test of section 2 of
the VRA. Id. at 1342. The plaintiffs also argued that discriminatory intent was a
substantial or motivating factor behind the enactment of the constitutional provision
in question. Id. at 1338-42. This argument contributed to both the district and circuit
courts’ decisions, but will not be discussed in depth in this Note.
340. Johnson, 353 F.3d at 1305.

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disenfranchise felons on the basis of race,” the opinion argued.341
While congressional authority may not include simply banning all
felon disenfranchisement statutes, the opinion admitted, “it may
certainly exercise the power granted to it under Section 5 of the
Fourteenth Amendment to enforce statutorily the constitutional
prohibition
against
racially
discriminatory
criminal
Permitting racially neutral felon
disenfranchisement.”342
disenfranchisement but prohibiting felon disenfranchisement with
racially discriminatory results, the opinion emphasized, is
“compatible” with the constitutional authorization of felon
disenfranchisement and congressional enforcement powers under the
Fourteenth and Fifteenth Amendments.343
Unlike the Second Circuit opinions in Baker and Muntaqim, and
the Eleventh Circuit opinion in Johnson, the Ninth Circuit opinion in
Farrakhan did not directly address the constitutional conflict between
the authorization of felon disenfranchisement in Section 2 of the
Fourteenth Amendment and the Equal Protection Clause. Rather,
the opinion simply affirmed the district court’s determination that
section 2 of the VRA can be applied in a felon disenfranchisement
statute challenge.344 The Ninth Circuit’s decision to permit the state
felon disenfranchisement statute challenge to proceed was grounded
in the argument that “evidence of discrimination within the criminal
justice system can be relevant to a Section 2 [of the VRA] analysis.”345
In reversing the district court’s decision to dismiss the claim, the
opinion concluded that the district court erred in failing to consider
how the felon disenfranchisement law “interacts with external factors
such as ‘social and historical conditions’ to result in denial of the right
to vote on account of race or color.”346

341. Id. at 1306 n.27.
342. Id.
343. Id.
344. Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir. 2003). The district
court in Farrakhan v. Locke rejected the argument that the “results test,” if applied to
felon disenfranchisement statutes, violates Section 2 of the Fourteenth Amendment:
Viewed in isolation, it is constitutionally permissible to strip an individual of
the right to vote based upon conviction for a felony. However, in spite of
this facial validity, the Supreme Court has made clear [in Hunter v.
Underwood] that the states cannot use felon disenfranchisement as a tool to
discriminate on the basis of race. . . . It necessarily follows, then, that
Congress also has the power to protect against discriminatory uses of felon
disenfranchisement statutes through the VRA.
Farrakhan v. Locke, 987 F. Supp. 1304, 1310 (E.D. Wash. 1997) (citation omitted),
aff’d in part, rev’d in part, remanded in part sub nom. Farrakhan, 338 F.3d at 1009.
345. Farrakhan, 338 F.3d at 1012.
346. Id. (quoting Thornburg v. Gingles, 478 U.S. 30, 47 (1986)).

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2. The Balance of State and Federal Power Was Previously Altered
by the Civil War Amendments
The non-prevailing opinion in Baker addressed head on concerns
that applying section 2 of the VRA to felon disenfranchisement
statutes alters the balance of power between the states and the federal
government. The opinion argued that reliance on the Supreme Court
case law advanced by the opposing opinion is misplaced, as the case
law does not demonstrate “that felon disenfranchisement statutes that
discriminate on the basis of race are beyond the reach of the Equal
Ultimately, the non-prevailing opinion
Protection Clause.”347
asserted, there is “no persuasive reason, in view of Hunter, why
Congress may not use its enforcing power under § 5 of the Fourteenth
Amendment and § 2 of the Fifteenth Amendment to bar racially
discriminatory results, as it did in the Voting Rights Act.”348
The opinion further asserted that the position advanced by the
prevailing opinion in Baker, that the amended VRA still demanded a
showing of racially discriminatory intent, simply overlooked the
purpose of the 1982 amendment. The prevailing opinion’s approach
would “drastically limit the scope of § 2 of the Voting Rights Act,
prohibiting a § 2 claim by any minority citizen in the absence of an
allegation that the particular discriminatory practice had been
intentionally imposed in the past in the particular jurisdiction.”349
Rather, the opinion argued, “Congress included past discrimination as
only one of a list of factors to be considered in determining whether
there has been a violation of § 2 under the totality of the
circumstances test.”350
That opinion also disputed the prevailing opinion’s implication that
the “results test” requires a specific legislative record demonstrating
that past racial discrimination drove the enactment of a state felon
disenfranchisement statute in order for a VRA inquiry to be
constitutionally permissible.351 The opinion noted that there is, in fact,
such a history of using felon disenfranchisement statutes to
purposefully discriminate on the basis of race, were one actually
demanded:
Although there has been no record developed in this case, due
largely to its premature dismissal sua sponte, there is evidence to
347. Baker v. Pataki, 85 F.3d 919, 936-37 (2d Cir. 1996). Richardson v. Ramirez,
the opinion asserted, did not give proper attention to Hunter v. Underwood, nor did
Green v. Board of Elections, 380 F.2d 445 (2d Cir. 1967), cert. denied, 389 U.S. 1048
(1968), a case that did not involve an analogous claim of racial discrimination or
implicate the VRA. Therefore, neither opinion was dispositive. Baker, 85 F.3d at 93637.
348. Baker, 85 F.3d at 937.
349. Id.
350. Id. at 938.
351. Id.

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suggest that felon disenfranchisement statutes often have been used
to deny the right to vote on account of race. . . . While felon
disenfranchisement may be a widespread historical practice,
disenfranchisement based on race is a historical practice that the
Voting Rights Act seeks to eradicate.352

The non-prevailing Baker opinion also rejected the prevailing
opinion’s assertion that there is sufficient ambiguity in the language of
the VRA to require a clear statement from Congress that it intended
section 2 of the VRA to be applied to felon disenfranchisement
statutes.353 Instead, the opinion argued, because the VRA did nothing
to alter the constitutional balance between states and the federal
government, previously established by the Civil War Amendments,
there is no need to explore the use of the clear statement rule.354
The non-prevailing opinion also argued that Chisom v. Roemer, and
not Gregory v. Ashcroft, must guide any discussion of the application
of the clear statement rule to section 2 of the VRA.355 Chisom, the
opinion pointed out, provided “clear Supreme Court authority that
the plain statement rule does not apply when determining coverage
under § 2 of the Voting Rights Act.”356 While the prevailing opinion
in Baker framed Chisom’s silence on the clear statement rule as a
mere oversight, the non-prevailing opinion relied instead on Scalia’s
statement that “‘the possibility of applying that rule never crossed [the
Court’s] mind,’”357 and that the “rule probably does not apply to
Congressional exercises of authority under the Fourteenth
Amendment.”358 The opinion asserted that Chisom, and not Gregory,
is more analogous to Baker, as it analyzed the same section of the
VRA and involved a similar level of intrusion on state authority.359
Gregory, the opinion argued, not only dealt with a different type of
legislation, passed under the Commerce Clause, but also demanded
application of the clear statement rule only when a statute is
ambiguous.360 Such ambiguity is not an issue in Baker, the opinion
asserted: “The Voting Rights Act does not seem to be ambiguous.
‘Any citizen’ usually means any citizen, and I submit that it does so in
the Voting Rights Act.”361

352. Id.
353. Id. at 940.
354. Id. at 938.
355. Id.
356. Id.
357. Id. at 938-39 (quoting Chisom v. Roemer, 501 U.S. 380, 412 (1991)).
358. Id. at 939.
359. Id. at 938-39.
360. Id. at 939.
361. Id. The opinion also found that the State’s argument that the VRA’s
ambiguity is evident from the legislative history of section 4 of the Act, the section
that sets forth the definition for “tests and devices,” must fail. Id.; see 42 U.S.C. §
1973b(c) (2000). The opinion instead concluded that section 4 had “different

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A third Baker opinion concurred with this non-prevailing approach,
and sought to clarify the exact point of dispute between the prevailing
and non-prevailing opinions in the case.362 This third opinion found
the dispute to be “whether Congressional power to enforce by a
‘result’ test the constitutional ban against voting discrimination based
on race may validly reach a voting discrimination among felons.”363
While
[the Judge writing for the prevailing group of five judges] requires a
clear statement of Congressional intent because the Supreme Court
in other contexts has required such a statement. . . . [the Judge
writing for the non-prevailing group of judges argues] the Supreme
Court has already decided that section 2 of the Voting Rights Act is
not subject to the plain statement rule.364

This third opinion supported the approach of the non-prevailing
opinion, pointing out that “[s]ince Gregory construed [legislation that
is not the Voting Rights Act] it is not readily apparent why . . .
Gregory is any aid to an understanding of whether the plain statement
rule applies to section 2 of the Voting Rights Act.”365 This opinion
went a step further, explicitly linking the inapplicability of the clear
statement rule in the context of section 2 of the VRA to the fact that
the Civil War Amendments had already changed the balance of
state/federal power.366
The district court in Farrakhan v. Locke also rejected the
contention that the clear statement rule applies to section 2 of the
VRA. Agreeing that the Civil War Amendments already changed the
state/federal balance of power in the area of racially discriminatory
voter requirements, the opinion determined that “Congress has the
power to enforce the Fourteenth and Fifteenth Amendments through
the VRA, ‘despite the burdens those measures placed on the
states.’”367 The Ninth Circuit opinion in Farrakhan, however, did not
address the clear statement rule at all.368 “Although states may
deprive felons of the right to vote without violating the Fourteenth
Amendment,” the Ninth Circuit opinion instead emphasized, “when
felon disenfranchisement results in denial of the right to vote or vote
purposes, scope and language” than section 2 and therefore could not be relied on to
create ambiguity in the language of section 2. Baker, 85 F.3d at 939.
362. Baker, 85 F.3d at 941 (Newman, C.J., concurring in the opinion of Feinberg,
J.).
363. Id.
364. Id. at 942 (citations omitted).
365. Id. at 942 n.2.
366. Id. at 942. The opinion agreed with the prevailing opinion’s statement that the
Commerce Clause, which was under specific consideration in Gregory, would not
receive immunity from the clear statement rule. Id. at 942-43.
367. Farrakhan v. Locke, 987 F. Supp. 1304, 1309 (E.D. Wash. 1997) (quoting City
of Boerne v. Flores, 521 U.S. 507, 518 (1997)), aff’d in part, rev’d in part, remanded in
part sub nom. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003).
368. Farrakhan, 338 F.3d at 1009.

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dilution on account of race or color, Section 2 affords disenfranchised
felons the means to seek redress.”369
Instead of searching for a specific legislative intent demanded by
clear statement rule analysis, the Ninth Circuit’s opinion argued that
the factors listed in the Senate report accompanying the 1982
Amendment, along with additional factors, should be used to evaluate
a challenged voting practice with a “practical perspective.”370 While
Congress did not list the criminal justice system’s racially
discriminatory practices as a specific factor in the report, the opinion
reasoned, this omission does not indicate that it should be excluded
from analysis under section 2.371
The Farrakhan opinion also argued that the workings of the
criminal justice system, to the extent that they contribute to the
conviction of minorities at disproportionate rates, “would clearly
hinder the ability of racial minorities to participate effectively in the
political process, as disenfranchisement is automatic . . . rendering it
simply another relevant social and historical condition to be
considered where appropriate.”372 The Farrakhan court ultimately
remanded the case to the district court to conduct the proper
evidentiary inquiry into evidence of racial bias in the state’s criminal
justice system.373
The recently vacated Eleventh Circuit opinion in Johnson, like the
non-prevailing opinion in Baker and the Ninth Circuit opinion in
Farrakhan, disagreed that the clear statement rule applies to section 2
of the VRA.374 The opinion rebutted the dissenting opinion’s
argument that the congressional record indicated that Congress
intended to exempt felon disenfranchisement statutes from VRA
coverage.375 The majority opinion in Johnson also criticized the
dissent’s examination of the legislative history of section 4 of the
VRA, declaring that such an examination was not dispositive in
discussions of the intent underlying section 2.376
It is perfectly conceivable that Congress might wish to exclude a
particular practice from section 4’s “test or device” label to avoid
attaching to it the additional requirements, yet still intend to

369. Id. at 1016.
370. Id. at 1019.
371. Id. at 1020. The court indicated that this factor could be considered under
factor (5) in the report which directs courts to consider discrimination in areas such as
“‘education, employment, and health.’” Id. (quoting S. Rep. No. 97-417, at 29 (1982),
reprinted in 1982 U.S.C.C.A.N. 177, 206).
372. Id.
373. Id.
374. Johnson v. Governor of Fla., 353 F.3d 1287 (11th Cir. 2003), reh’g en banc
granted, opinion vacated by 377 F.3d 1163 (11th Cir. 2004).
375. Id. at 1306 n.27.
376. Id.

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prohibit that practice when the evidence shows that its use results in
the denial of the right to vote on account of race.377

III. COURTS MUST ALLOW SECTION 2 OF THE VRA CHALLENGES
TO FELON DISENFRANCHISEMENT STATUTES TO PROCEED
It is clear from the opinions in Baker, Muntaqim, Farrakhan, and
Johnson that the circuits are divided by very different interpretations
of the importance of Section 2 of the Fourteenth Amendment when
viewed in light of the Equal Protection Clause.378 The circuits also
disagree about the scope of Congress’s enforcement powers under the
Civil War Amendments, the current balance of state and federal
power in the area of voter requirements, whether the clear statement
rule applies to the amended version of section 2 of the VRA, and
what the legislative history of the enactment and 1982 amendment of
the VRA reveal about its applicability to felon disenfranchisement
statutes.379 It is also clear from the numerous majority and dissenting
opinions in these cases that the circuits are also internally divided in
their reasoning. Without Supreme Court intervention, these opposing
approaches will continue to be applied in the different circuits, and
the racially disparate impact of felon disenfranchisement will continue
unchallenged in the circuits that do not permit application of the VRA
to felon disenfranchisement statutes.380 These racially disparate
impacts of felon disenfranchisement are intolerable.
When the Supreme Court denied certiorari in Farrakhan and
Muntaqim, it declined to resolve the fundamental, seemingly
irreconcilable disagreements between and within the circuits.381 When
that resolution does ultimately come, the Supreme Court must adopt
the approach of the Ninth Circuit and permit the amended version of
section 2 of the VRA to be applied to felon disenfranchisement
statutes.382 The Court must also declare the constitutionality of the
“results test” of section 2 as applied to felon disenfranchisement laws,
conclude that the application of the VRA to felon disenfranchisement
statutes does not alter the existing balance of state/federal power
(thereby negating the need to apply the clear statement rule), and
emphasize the important public policy considerations that will be met
by allowing VRA challenges to felon disenfranchisement to proceed.
By doing so, the Court will recognize that the disparate racial impacts
of felon disenfranchisement are an unacceptable infringement on the
fundamental right to vote.

377.
378.
379.
380.
381.
382.

Id.
See supra Parts II.A.1, II.B.1.
See supra Parts II.A.2, II.B.2.
See supra notes 13-14 and accompanying text.
See supra notes 13-14 and accompanying text.
See supra Part II.B.

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This part argues first that Section 2 of the Fourteenth Amendment
must not prevent section 2 of the VRA from being applied to felon
disenfranchisement statutes; second, that applying the VRA to felon
disenfranchisement statutes does nothing to alter the state/federal
balance of power because the Civil Rights Amendments previously
altered this balance; and third, that meaningful application of section
2 of the VRA to felon disenfranchisement statutes is critical to
realizing the mandates of the Fourteenth and Fifteenth Amendments.
A. Relieving Constitutional Tension
The circuit courts generally do not dispute the fact that Section 2 of
the Fourteenth Amendment permits states to disenfranchise felons.383
The traditionally untouchable position that this provision has been
afforded, however, is out of step with modern readings of the Civil
War Amendments.384 These Amendments, despite the universal
acknowledgement that they have altered the path of the country’s
history of racial discrimination, still are not given validity in the
prevailing Baker opinion and in the Muntaqim opinion.385 The Second
Circuit failed to recognize that felon disenfranchisement does not
merit any special protections.
Opinions that relied heavily on Section 2 of the Fourteenth
Amendment in denying the use of the VRA in felon
disenfranchisement statute challenges failed to examine this provision
within the specific context of racially discriminatory voting practices.
Richardson v. Ramirez, which held that Section 2 of the Fourteenth
Amendment is key to analyzing felon disenfranchisement laws under
the equal protection doctrine, did not address the applicability of that
provision in the context of Congress’s enforcement powers to prohibit
racially discriminatory voting practices, and racially discriminatory
felon disenfranchisement laws in particular.386 Because Richardson
did not address the racially disparate impacts of felon
disenfranchisement, its majority opinion should not be viewed as
dispositive. Rather, Hunter v. Underwood is the case that must guide
this discussion.387 The Hunter court recognized that Section 2 of the
Fourteenth Amendment’s mention of felon disenfranchisement is not
enough to overcome racially discriminatory felon disenfranchisement
statutes.388 That is, it recognized that racial discrimination in a felon
disenfranchisement law is an impermissible violation of the Equal
Protection Clause.

383.
384.
385.
386.
387.
388.

See supra Parts II.A.1, II.B.1.
See supra Part II.B.1.
See supra Part II.B.2.
See supra Part II.A.1; notes 129-40 and accompanying text.
See supra notes 141-50 and accompanying text.
See supra notes 141-50 and accompanying text.

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The Supreme Court, or any other federal court addressing this
issue, must reconsider the approach of Justice Marshall in his strong
dissent in Richardson v. Ramirez.389 Justice Marshall’s argument that
Section 2 of the Fourteenth Amendment should not be given a
protected place in equal protection jurisprudence and should be
subjected to the same scrutiny as other voting rights restrictions
warrants a second look.390 His approach is attractive for two reasons.
First, it does not render Fourteenth Amendment jurisprudence static,
and would allow the equal protection doctrine to grow, change, and
apply more effectively in an evolving world. Second, his approach
prevents language in Section 2 of the Fourteenth Amendment that
was arguably not formulated for the express purpose of upholding
felon disenfranchisement to have such an effect.391 Rather, Justice
Marshall recognized that Section 2 of the Fourteenth Amendment was
merely part of a political struggle between southern and northern
legislators, and the purpose of the provision was to create a
compromise between these factions.392 The focus of Section 2 of the
Fourteenth
Amendment,
therefore,
was
not
felon
disenfranchisement.393 By adhering to Justice Marshall’s approach,
the Supreme Court and other federal courts could give Section 2 of
the Fourteenth Amendment only the weight that it deserves and
properly realign the equal protection analysis courts apply to felon
disenfranchisement statutes with that of other voting restrictions.
The Supreme Court should continue on the path it forged in Hunter
v. Underwood and hold that the application of section 2 of the VRA is
not limited by Section 2 of the Fourteenth Amendment.394 Racial
discrimination in felon disenfranchisement statutes, be it intentional
or de facto, is impermissible and remedies for this wrong should not
be limited by the “other crime” provision of the Fourteenth
Amendment. To allow this provision to limit the effects of the other
sections of the Fourteenth Amendment and the Fifteenth
Amendment would be to elevate one constitutional provision over
others. This is not called for. As the Supreme Court has previously
noted, constitutional concepts of equal protection are not “confined to
historic notions of equality,” and the Constitution can be interpreted
and re-interpreted as the meaning of democracy changes and
progresses.395

389. See supra notes 133-37 and accompanying text.
390. See supra notes 133-37 and accompanying text; see also Fletcher, supra note
44, at 1906 (arguing that courts must not overlook the historical context of Section 2
of the Fourteenth Amendment).
391. See supra notes 133-37 and accompanying text.
392. See supra note 136 and accompanying text.
393. See supra note 136 and accompanying text.
394. See supra notes 141-46 and accompanying text.
395. Harper v. Va. Bd. of Elections, 383 U.S. 663, 669 (1966).

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The Second Circuit opinions in Baker and Muntaqim, arguing that
Section 2 of the Fourteenth Amendment cannot be trumped by the
Equal Protection Clause, propose an unsettling solution: that Section
2 of the Fourteenth Amendment be permitted to trump the Equal
Protection Clause instead.396 This solution to the constitutional
conflict inherent in the Fourteenth Amendment fails to consider not
only the history of the Fourteenth Amendment, but also the public
policies underlying the ratification of, and subsequent application of,
the Equal Protection Clause by the courts. Section 2 of the
Fourteenth Amendment, a provision of secondary importance in our
country’s jurisprudence, must not be elevated to a position of artificial
Instead, in this zero-sum game where two
importance.397
constitutional provisions conflict, the provisions that prevail should be
those that ensure equality, protect fundamental rights, and have held
a continuous and important position in our legal history. Therefore, it
is improper to allow Section 2 of the Fourteenth Amendment to be
elevated above the Equal Protection Clause, which possesses these
qualities.
The Supreme Court and the other federal courts must also
recognize that Section 2 of the Fourteenth Amendment was given
little attention until Justice Rehnquist picked it out of oblivion in his
Richardson opinion, one that has been the target of scholarly
backlash.398 One cannot help but question why this section of the
amendment was not interpreted to grant the power to sustain felon
disenfranchisement laws nationwide until the Richardson opinion.399
The courts should also consider the argument that the Fifteenth
Amendment effectively repealed Section 2 of the Fourteenth
Amendment.400 While neither of these inquiries gained significant
traction in the Baker, Farrakhan, Johnson, and Muntaqim decisions,
they may prove useful to plaintiffs in future cases.
B. Unraveling the Balance of Power
Scholarly criticism of felon disenfranchisement to date has focused
primarily on the effects of felon disenfranchisement and the
sociopolitical factors that indicate that the practice must end.401 Few
have addressed the federalism conflicts that emerged in the Baker,
Farrakhan, Johnson, and Muntaqim opinions examined in Part II.402 It
is necessary to begin addressing these issues head on.
396. See supra Part II.A.1.
397. See supra Part II.B.1.
398. See supra note 203 and accompanying text; see also Tribe, supra note 202, at
1094; Shapiro, supra note 202, at 302, 304.
399. See supra note 203 and accompanying text.
400. See Chin, supra note 25, at 316 (advancing this argument).
401. See supra notes 48-73 and accompanying text.
402. See supra Parts II.A.2, II.B.2.

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In leaving both the Farrakhan and Muntaqim decisions intact, the
Supreme Court left two competing readings of the balance of state
and federal power standing.403 The federal district and circuit courts,
until provided with a definitive Supreme Court resolution to the issue,
must universally recognize that the Civil War Amendments
significantly and permanently shifted the balance of power between
the states and the federal government.404 The Supreme Court must
also adhere to this rationale, as it is supported by its previous
jurisprudence.405
Moreover, the federal courts must acknowledge that the
constitutional grant of power to states to establish voter qualifications
Rather, the Fourteenth and Fifteenth
is not boundless.406
Amendments have severely limited the ability of states to enact voter
qualifications that impermissibly infringe on the fundamental right to
vote.407 Since the late 1800s, Congress has protected the fundamental
right to vote, even though doing so has often limited state power.408
The VRA, legislation that has repeatedly been declared congruent
and proportional, must therefore be permitted to apply to the states in
full force in order to prevent impermissible infringements on the right
to vote.409 The time has come to subject felon disenfranchisement
laws to the same scrutiny as other state laws that limit the
fundamental right to vote and recognize that doing so falls within the
balance of state and federal power that has existed since the
Fourteenth and Fifteenth Amendments were ratified.
The plain language of the VRA is unambiguous.410 Section 2 of the
VRA clearly applies to “any citizen.”411 No qualification can be found
that indicates that it does not apply to any citizen convicted of a crime.
Because the language of section 2 of the VRA is clear and
unambiguous, there is simply no need to apply the clear statement
rule or examine congressional intent behind the VRA. The most
recent formulations of the clear statement rule of statutory

403. See supra Parts II.A.2, II.B.2.
404. But see Hayden v. Pataki, No. 00 Civ. 8586, 2004 WL 1335921, at *5 (S.D.N.Y.
June 14, 2004) (following Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.), cert. denied,
125 S. Ct. 480 (2004) (mem.), reh’g en banc granted, No. 01-7260, 2004 WL 2998551
(2d Cir. Dec. 29, 2004)).
405. See supra notes 216-17, 233 and accompanying text; cf. Nev. Dep’t of Human
Res. v. Hibbs, 538 U.S. 721 (2003) (holding that Congress acted within its
enforcement powers under the Fourteenth Amendment in abrogating Eleventh
Amendment state immunity for purposes of the Family Medical Leave Act).
406. See supra notes 26-28 and accompanying text.
407. See supra Parts I.C.1, II.B.2.
408. See supra Part I.C.
409. See supra Parts I.C.2., II.A.2.b; note 239 and accompanying text.
410. See supra notes 360-61 and accompanying text.
411. See supra notes 360-61 and accompanying text.

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construction indicate that it only applies when the statute under
review is ambiguous.412
Ultimately, the conflict regarding the application of the clear
statement rule boils down to the conflict between the Supreme
Court’s decisions in Gregory v. Ashcroft and Chisom v. Roemer.413
The Court must adhere to its own decision in Chisom, as it remains
the only case to date that provided an opportunity for the clear
statement rule to be applied to section 2 of the VRA.414 Chisom
cannot be dismissed as an anomaly in failing to apply the clear
statement rule.415 Chisom undoubtedly stands for the proposition that
the clear statement rule does not apply to all legislation passed
pursuant to the Fourteenth and Fifteenth Amendments, despite the
Court’s conclusions in Gregory.416 Accordingly, Gregory, despite the
Second Circuit’s contention to the contrary, is not controlling
precedent in determining whether the clear statement rule applies to
the VRA.417 The Supreme Court must clarify that Chisom, and not
Gregory, guides the application of the clear statement rule to section 2
of the VRA to resolve the existing confusion.
Even if it were assumed arguendo that the plain language of the
VRA is ambiguous and the clear statement rule therefore applies, an
examination of the legislative history of the Act would not reveal that
Congress would exceed its enforcement powers if the VRA was
applied to felon disenfranchisement statutes. Instead, an examination
of the Senate report for the 1982 amendment reveals silence from
Congress on whether felon disenfranchisement statutes were intended
to be exempted from section 2 of the Act.418 This silence cannot be
interpreted to indicate that the VRA was not intended to apply to
felon disenfranchisement statutes. Instead, this silence only signals
that Congress did not state its position on the application of section 2
of the VRA to felon disenfranchisement statutes. In order for
legislation to be adequately flexible, Congress must not exhaustively
list every potential application of every law. Such an approach would
make the law rigid and nonresponsive.
The VRA is also congruent and proportional legislation.419 The
Supreme Court has held this to be the case on numerous occasions.420
Those opinions arguing that the Act, if applied to felon
disenfranchisement statutes, is not congruent and proportional lack

412.
413.
414.
415.
416.
417.
418.
419.
420.

See supra notes 219, 229-31 and accompanying text.
See supra Part II.A.2; notes 222-33 and accompanying text.
See supra notes 222-25, 355-61 and accompanying text.
See supra notes 307-08, 312-13 and accompanying text.
See supra notes 219-25 and accompanying text.
See supra Part II.A.2.a.
But see supra notes 318-20 and accompanying text.
See supra Parts II.A.2, II.B.2.
See supra note 325 and accompanying text.

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supporting case law.421 These opinions attempted to rely instead on
the lack of a discrete congressional record on racial discrimination
driving the enactment of felon disenfranchisement laws.422 Nationally,
there is a substantial record of the country’s history of racial
discrimination driving the enactment of felon disenfranchisement
statutes.423 The fact that this record is not compiled into a single
congressional record does not indicate that it is not available for
analysis. The Supreme Court has already declared that the VRA has
a fully developed and adequate congressional record to be generally
congruent and proportional legislation under the Fourteenth and
Fifteenth Amendments.424 This is sufficient, as a demand for a specific
congressional record for felon disenfranchisement finds no significant
support in the case law.
The amendment of the VRA in 1982 is also congruent with the
power shift between the states and federal government that occurred
with ratification of the Civil War Amendments.425 The Fourteenth
and Fifteenth Amendments, with their accompanying demand for a
showing of discriminatory intent to successfully challenge a voting
The
restriction, did not provide enough federal protection.426
difficulty of proving that racial discrimination motivated the
enactment of legislation such as felon disenfranchisement laws is
precisely the reason that the VRA was amended in 1982 to adopt a
results test.427 This amendment in no way altered the congruence and
proportionality of the VRA, and the Supreme Court must definitively
rule that section 2 of the Act still meets this test.428 To rule any other
way would be to afford undeserved protection to the invidious racial
discrimination that originally spurred the enactment and amendment
of felon disenfranchisement laws following the Civil War simply
because racially discriminatory intent is not usually provable.429
By ruling that the application of the amended section 2 of the VRA
to felon disenfranchisement laws does not exceed Congress’s
enforcement powers under the Civil War Amendments, the Supreme
Court would bolster the protections against racially discriminatory
voting practices. The current impact of felon disenfranchisement
statutes on racial minorities cannot be ignored, and indicates that the
mandates of the Fourteenth and Fifteenth Amendments have yet to
be met. Cases such as Baker, Farrakhan, Johnson, and Muntaqim
421. See supra notes 322-33 and accompanying text.
422. See supra notes 329-30 and accompanying text.
423. See supra notes 96-100 and accompanying text.
424. See supra notes 238-39 and accompanying text.
425. See supra Part II.B.2; see also Chin, supra note 25, at 308-09 (noting that voter
qualifications have been greatly federalized).
426. See supra notes 116-21 and accompanying text.
427. See supra notes 116-21 and accompanying text.
428. See supra Part I.C.
429. See supra notes 96-100, 116-21 and accompanying text.

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provide an opportunity to better adhere to those mandates.430
Therefore, VRA challenges to felon disenfranchisement statutes must
be permitted to proceed.
C. Maintaining the Potency and Effectiveness of the VRA
Allowing a totality of the circumstances analysis under section 2 of
the VRA to proceed in the felon disenfranchisement context will
allow for comprehensive, meaningful review.431 This analysis will
bring to the surface racial discrimination in the criminal justice system.
It will also permit for examination of all the factors that result in
discriminatory voting practices without meeting the difficult—if not
impossible—showing of discriminatory intent.432
The work of the Fourteenth and Fifteenth Amendments is far from
over. Even if some felon disenfranchisement laws were not enacted
with discriminatory intent, the administration of the criminal justice
system—with higher investigation, prosecution, and incarceration
rates for African-Americans—creates an obvious discriminatory
outcome.433 The “well-documented empirical findings” of the racially
discriminatory impacts of the criminal justice system cannot be
disregarded.434 Many studies have revealed that the disproportionate
number of African-Americans in the criminal justice system cannot be
adequately explained by mere propensity for criminal conduct.435
The effects of felon disenfranchisement on minority populations
cannot be taken lightly. Almost 150 years after the ratification of the
Fourteenth and Fifteenth Amendments, African-American voting
strength continues to be diluted to a staggering extent by felon
disenfranchisement.436
Moreover, felon disenfranchisement has
significantly impacted our electoral system in numerous ways,
determined the outcome of elections,437 and continues to prevent exFelon
felons from reintegrating back into society.438
disenfranchisement has, in truth, prevented the fundamental right to
vote from being fully realized by the African-American community.
Congress abandoned the racially discriminatory intent test for the
VRA in 1982 because such a standard is nearly impossible to meet.439
Courts have the duty to ensure that Congress’s decision to employ a
results test is realized in enforcing this legislation. By employing an
430.
431.
432.
433.
434.
435.
436.
437.
438.
439.

See supra Part II.
See supra Part II.B.1.
See supra notes 116-21 and accompanying text.
See supra notes 59-71 and accompanying text.
See Keyssar, supra note 64, at 307.
See Ewald, supra note 18, at 1125.
See supra notes 59-71 and accompanying text.
See supra note 52 and accompanying text.
See supra note 56 and accompanying text.
See supra notes 116-21 and accompanying text.

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intricate, proper totality of the circumstances analysis under the
VRA—an analysis that extensively examines the multifaceted racially
discriminatory impact of felon disenfranchisement, and does not
merely search for discriminatory intent—courts have the opportunity
to meet the mandates of the Fourteenth and Fifteenth Amendments
in a meaningful way.
CONCLUSION
“Today, our political Constitution looks frail and incomplete in the
face of modern universal suffrage principles visible all over the
world.”440 In order to overcome the current harm caused by felon
disenfranchisement, the United States Supreme Court and other
federal courts must take drastic steps to affirm the fundamental right
to vote. Felon disenfranchisement offends our most basic notions of
the democratic ideal of voting. That offense deepens when considered
in conjunction with the disparate racial impact of the practice. The
VRA finally offers a potent tool for overcoming these statutes. Those
fighting to end felon disenfranchisement must press for Supreme
Court review of cases such as Baker v. Pataki, Muntaqim v. Coombe,
Johnson v. Governor of Florida, and Farrakhan v. Washington, and
continue litigating the issue.
The most invidious types of discrimination in the realm of voting
must be weeded out with tools that go beyond the traditional scope of
the Fourteenth and Fifteenth Amendments.
The Civil War
Amendments alone were unable to halt subtle racially discriminatory
legislation. Instead, Congress and the courts must tackle the most
latent forms of racism in our voting system with tools that are more
probing.
Application of section 2 of the VRA to felon
disenfranchisement statutes presents that opportunity.

440. Jamin Raskin, From Slave Republic to Constitutional Democracy: The
Continuing Struggle for the Right to Vote, Poverty & Race (Poverty & Race Res.
Action Council, Washington, D.C.), Nov./Dec. 2004, at 18 (“Our felon
disenfranchisement policies are backward compared to those of other advanced
democracies.”).