Judge Sotomayor in Good Company on Restoring Voting Rights

June 2, 2009

CORRECTION:  Governor Carcieri did not sign the Rhode Island
Restoration of Voting Rights Act (H.B. 7938) into law.  The law went
into effect on July 7, 2006 without the Governor’s signature.

Much has been made this past week about a brief dissenting opinion by Judge Sonia Sotomayor in the 2006 Second Circuit decision in Hayden v. Pataki, a case that challenged New York's felony disenfranchisement law.  Although most of the rhetoric has sought to make the issue of restoring voting rights to people who have been in prison seem like an extreme notion, that is simply not the case.  In fact, there is a growing national consensus that criminal disenfranchisement laws are a relic of the past that only weaken our democracy and serve no legitimate law enforcement purpose.

Among other things, plaintiffs in Hayden argued that New York's policy of denying the right to vote to people who have been to prison disproportionately deprived African- American and Latino citizens of the right to vote in violation of Section 2 of the Voting Rights Act (VRA).  Section 2 provides:

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 of the United States to vote on account of race and color . . . .

Judge Sotomayor's dissent, though brief (242 words, to be exact), makes a powerful point: a simple reading of the text of the Voting Rights Act makes clear that states may not impose voting qualifications that deny the right to vote on account of race.  She was not alone in her position: the Second Circuit's en banc decision was split 8 to 5.  In addition to writing her own dissent, Judge Sotomayor joined the principal dissent by Judge Barrington Parker.  The Ninth Circuit Court of Appeals also agrees and has allowed a challenge to Washington State's felony disenfranchisement law to proceed under the VRA.

New York's felony disenfranchisement law, like similar laws throughout the country, runs contrary to the broad intent of the Voting Rights Act.  Nationwide 13% of Black men are disenfranchised due to a criminal conviction - a rate that is seven times that of the rest of the population.  Given current rates of incarceration, approximately one in three of the next generation of Black men will be disenfranchised at some point during their lifetime.  More than 80% of those currently denied the right to vote under New York's law are Black and Latino. 

No one can deny the long history in our country of states finding creative ways to deny blacks the right to vote.  Criminal disenfranchisement laws are part of this ugly history - many of them were put in place during the Jim Crow era, right alongside poll taxes and literacy tests, to keep blacks from voting. 

A careful reading of New York's constitutional history reveals that at the very time that the 14th and 15th Amendments forced New York to remove its nefarious property requirements for Black voters, it changed its law from allowing to requiring the disenfranchisement of those convicted of "infamous crimes."

There is a growing recognition that these laws are not only rooted in a shameful history, but also severely impede successful reentry and reintegration as people return to their home communities.  In the last decade, 19 states have either restored voting rights to people in the criminal justice system or eased the restoration process.  Many of these reforms were signed into law by Republican governors, including George W. Bush in Texas, Bobby Jindal in Louisiana, Donald Carcieri in Rhode Island and Charlie Crist in Florida. 

Increasingly leaders in law enforcement are speaking out against criminal disenfranchisement, recognizing that they serve no legitimate law enforcement purpose.  To the contrary, bringing people into the political process makes them stakeholders and helps steer former offenders away from future crimes.  In February, former Seattle Police Chief (now President Obama's Drug Czar) wrote, "[w]e want those who leave prison to become productive and law-abiding citizens. Voting puts them on that path."  In November, Miami Police Chief John F. Timoney, President of the Police Education Research Forum, wrote, "once you've cleared the four walls of the jail, your right to vote should be restored." 

Many national law enforcement organizations also publicly support restoring voting rights, including the American Correctional Association, the American Probation and Parole Association, the Association of Paroling Authorities International, and the National Black Police Association.

There is a growing national consensus that laws that deny the right to vote to people who have been to prison are a relic of the past and have no place in today's democracy.  Congress passed the Voting Rights Act to put an end to discriminatory voting requirements.  Poll taxes and literacy tests have been challenged and eliminated under the law.  Judge Sotomayor simply recognized that this remnant of Jim Crow should also have its day in court.