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Voting Behind Bars—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on July 29, 2010.

Voting Behind Bars
By Linda Greenhouse ’78 MSL

Another public conversation about race may be the last thing the Obama administration wants, but thanks to the Supreme Court, one is very likely on the way.

It has been nearly three months since the court “invited” — that is to say, ordered — Solicitor General Elena Kagan to “express the views of the United States” on whether laws that take away the right to vote from people in prison or on parole can be challenged under the Voting Rights Act as racially discriminatory.

The order came in a case from Massachusetts, Simmons v. Galvin, an appeal by prison inmates challenging a 10-year-old state constitutional amendment that stripped them of the right to vote while incarcerated. They seek Supreme Court review of a ruling, issued a year ago by the federal appeals court in Boston, that Congress never intended the Voting Rights Act to apply in prison. The federal government was not involved in the case. Now the administration — presumably under the direction of whomever President Obama names to succeed Ms. Kagan as solicitor general — has to come up with a position.

Given the implications of the case, the Supreme Court’s order has received surprisingly little attention. Forty-eight states, all except Maine and Vermont, deny convicted felons the right to vote, a modern version of the old concept of “civil death” for those convicted of serious crimes. In some states, as in Massachusetts, the ban lasts for the duration of the prison sentence. More often, it extends for years longer, through the parole period, as in New York, where in 2006 the federal appeals court rejected a challenge over the dissent of four judges, including Sonia Sotomayor.

In every state, the impact on the black community is disproportionate, hardly surprising given that one in nine black men aged 20 to 34 is in prison. Even so, the numbers are startling, with disturbing implications for civic life in a democracy. According to an analysis by the Sentencing Project, a research and advocacy organization in Washington, felony convictions have deprived 20 percent of African-Americans in Virginia of the right to vote, compared with a 6.8 percent disenfranchisement rate for Virginia residents as a whole. In Texas, a similar ratio applies: 9.3 percent for blacks compared with 3.3 percent for Texans as a whole. In New York, 80 percent of those who have lost the right to vote are black or Hispanic. Nationally, an estimated one in seven black men has lost the right to vote.

So clearly, the issue of felon disenfranchisement turns the spotlight on some uncomfortable facts about who goes to prison in the United States, a country with the highest incarceration rate in the world. More than two million people, nearly half of them black, are behind bars, including many whose felony convictions are the result of relatively minor drug offenses.

(The House of Representatives took a step this week toward addressing one aspect of the problem by passing the Fair Sentencing Act of 2010. The bill, which President Obama is expected to sign, eliminates the five-year mandatory minimum sentence for the simple possession of crack cocaine and moves toward equalizing the amounts of cocaine in crack and powder form that provoke the same sentences; the previous ratio of 1 to 100 — five grams of crack counting the same as 500 grams of powder — will now be 1 to 18. But the bill does not make any of its provisions retroactive.)

Some scholars of race and criminal justice have warned that the mass incarceration of African-Americans is “The New Jim Crow,” the title of a new book by Michelle Alexander, a professor at Ohio State University’s Moritz College of Law. “We have allowed ourselves to be willfully blind to the emergence of a new caste system,” Professor Alexander writes, “a system of social excommunication that has denied millions of African Americans basic human dignity.”

This is where the Voting Rights Act claim enters the picture. Section 2 of the law bars any “voting qualification” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” (The operative word here is “results”; Congress made clear in a 1982 amendment that Voting Rights Act does not require proof of intentional discrimination.) The civil rights organizations that have filed suits around the country argue that the racially disparate impact of the disenfranchisement laws fits clearly within the Section 2 definition of a Voting Rights Act violation as a matter of the plain meaning of the statute’s text, regardless of what a judge might deduce about Congressional intent or lack thereof.

This was Sonia Sotomayor’s point in her dissenting opinion in the New York federal district court case four years ago. The issue was not complicated, she wrote: “It is plain to anyone reading the Voting Rights Act that it applies to all ‘voting qualifications.’ ” And it was “equally plain” that the New York law “disqualifies a group of people from voting.” Consequently, she continued:

“These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.”

Judge Sotomayor concluded her one-page opinion with a paragraph that foreshadowed remarks she would make three years later, at her Supreme Court confirmation hearing. “The duty of a judge is to follow the law, not to question its plain terms,” she said, adding that “if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of Section 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.”

Her opinion did not go unobserved at the time of her nomination to the Supreme Court. “Sonia Sotomayor wants to give jailbirds the right to vote,” the conservative Washington Times wrote in an editorial in May 2009. The newspaper said that her “remarkably dismissive” opinion should “make senators extremely wary of confirming her.”

It is impossible to know from the outside whether the Supreme Court’s “invitation” to the solicitor general was the result of Justice Sotomayor’s internal advocacy, but clearly the issue has the court’s attention. It takes the votes of four justices to “call for the views of the solicitor general” (“CVSG” in Supreme Court jargon). And it takes four votes for the court to accept a case for decision.

The court’s preliminary expression of interest is no guarantee that the justices will eventually decide to hear the Massachusetts case. In late September, the federal appeals court in San Francisco will rehear a case challenging Washington State’s felon disenfranchisement law. A panel of the United States Court of Appeals for the Ninth Circuit, splitting 2-1, ruled in January that the law violated the Voting Rights Act in light of “compelling” evidence of racial discrimination in the state’s criminal justice system. (African-Americans make up 3.4 percent of Washington’s population but 23 percent of its prison inmates.) But the full appeals court then vacated the panel’s opinion and ordered the case reheard by an expanded panel of 11 judges. The Washington case, now called Farrakhan v. Gregoire, has been traveling up and down the federal court system since the mid-1990’s and has accumulated a huge record. The justices may prefer to wait to see what the Ninth Circuit does with it.

Whatever the justices eventually decide to do, the Obama administration is on the hook right now, obliged to respond to the May 3 CVSG. There is no formal deadline, but the court’s general expectation is that the solicitor general will take no more than a few months to convey the government’s views when asked. The right-wing critique of Justice Sotomayor’s 2006 opinion, as well as the continued popularity of the disenfranchisement laws — in blue-state Massachusetts, the voting ban was added to the state Constitution by referendum a decade ago when voters approved it by a margin of nearly two to one — demonstrates how politically potent the issue is.

But while the justices have handed the administration a burden, they have also provided an opportunity, as the court’s agenda-setting process occasionally does by prompting other government institutions to confront issues that might more easily go unaddressed. It is an opportunity for public education, for engagement with a painful issue, for leadership.