BAKER v. PATAKI

MAHONEY, Circuit Judge, with whom MINER, WALKER, McLAUGHLIN, and JACOBS, Circuit Judges, join:

This case presents the question whether the "results" test of Section(s) 2 of the Voting Rights Act, 42 U.S.C. §(s) 1973, may properly be applied to New York's felon disenfranchisement statute, N.Y. Elec. Law Section(s) 5-106(2)-(5), particularly in view of the felon disenfranchisement provision of Section(s) 2 of the Fourteenth Amendment. We conclude that such an application would raise serious constitutional questions regarding the scope of Congress' authority to enforce the Fourteenth and Fifteenth Amendments, see NLRB v. Catholic Bishop, 440 U.S. 490, 500-01 (1979), and would "'alter the "usual constitutional balance between the States and the Federal Government,"'" Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985))). Because it is not unmistakably clear that, in amending Section(s) 1973 in 1982 to incorporate the "results" test, Congress intended that the test be applicable to felon disenfranchisement statutes, we conclude that Section(s) 1973 does not apply to Section(s) 5-106(2)-(5). Accordingly, plaintiffs-appellants have failed to state a claim under the Voting Rights Act. Background On this appeal of a motion to dismiss for failure to state a claim, we accept the factual allegations in plaintiffs-appellants' amended complaints as true. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 377 (2d Cir. 1995). In addition, we assume familiarity with the factual explications in Baker I, 842 F. Supp. at 720, and Baker II, 58 F.3d at 816-18.

Section 1973 provides that:
(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, or in contravention of the guarantees set forth in section 1973b(f)(2) [regarding membership in a language minority group], as provided in subsection (b) of this section.
(b) 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. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
Id. (initial emphasis added).

Section 5-106(2)-(5) provides that:
2. 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. The governor, however, may attach as a condition to any such pardon a provision that any such person shall not have the right of suffrage until it shall have been separately restored to him.
3. No person who has been convicted in a federal court, of a felony, or a crime or offense which would constitute a felony under 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 president of the United States, or his maximum sentence of imprisonment has expired, or he has been discharged from parole.
4. No person who has been convicted in another state for a crime or offense which would constitute a felony under the laws of this state shall have the right to register for or vote at any election in this state unless he shall have been pardoned or restored to the rights of citizenship by the governor or other appropriate authority of such other state, or his maximum sentence has expired, or he has been discharged from parole.
5. The provisions of subdivisions two, three and four of this section shall not apply if the person so convicted is not sentenced to either death or imprisonment, or if the execution of a sentence of imprisonment is suspended.

Section 2 of the Fourteenth Amendment provides that:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. 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.
Id. (emphasis added).

Plaintiffs-appellants Milton Goodman, Anthony Canady, Tyrone Sanchez, and Richard Jackson are black and Hispanic individuals convicted of felonies under the laws of New York State who are currently serving sentences of imprisonment at the Green Haven Correctional Facility in Stormville, New York ("Green Haven"). Pursuant to New York Election Law Section(s) 5-106(2), plaintiffs-appellants are not permitted to vote in federal, state, or local elections while incarcerated (or thereafter while on parole). See supra note 2.

On September 30, 1993, plaintiffs-appellants and five other black and Hispanic felons incarcerated at Green Haven filed pro se complaints, pursuant to 42 U.S.C. §(s) 1983, which alleged that Section(s) 5-106 deprived them of their voting rights under the Fourteenth and Fifteenth Amendments and under Section(s) 1973. Their complaints sought declaratory and injunctive relief — primarily that the district court direct then-defendants Mario Cuomo and Thomas A. Coughlin to "ensure and enable plaintiff[s] and those similarly situated to vote in the November, 1993 New York City elections, and all future elections" — and nominal damages. Baker II, 58 F.3d at 817.

Pursuant to Rule 43(c)(1) of the Federal Rules of Appellate Procedure and Rule 25(d)(1) of the Federal Rules of Civil Procedure, George E. Pataki, Governor of the State of New York, and Philip Coombe, Acting Commissioner of the New York State Department of Correctional Services, were substituted as defendants-appellees in this action upon succeeding Mario Cuomo and Thomas A. Coughlin in their respective offices.

The district court issued a memorandum order which stated that the complaints "raise[d] profound issues" that had, however, "already been examined by the judiciary with uniform negative outcomes," and that any "different approach" would more appropriately be undertaken at the appellate level. Baker I, 842 F. Supp. at 720. The court accordingly consolidated the cases, id., declined to appoint counsel or require the defendants to answer the complaints at that juncture, id. at 723, undertook to "consider the variety of options which might be available were the existing rule to be re-examined," id. at 720, surveyed the applicable law, id. at 720-23, and directed that "[p]laintiffs may within 45 (forty-five) days . . . respond to the considerations outlined" in the court's memorandum, id. at 723. The court added that "[u]nless persuasive reasons not to do so are submitted, the complaints will then be dismissed for failure to state claims on which relief may be granted." Id.

The ensuing submissions included amended complaints that were filed by a number of the plaintiffs. Their relevant factual allegations were as follows:

Goodman, Sanchez, and Jackson have filed amended complaints, which are substantially identical, but Canady has not. See Baker II, 58 F.3d at 817-18. Defendants-appellees contend that they were never served with Jackson's complaint, and have neither waived service of process nor defended the action as to him. See id. at 818. In any event, the amended complaints of Goodman and Sanchez are indisputably before us on this appeal.

10) Upon information and belief, Blacks and Latinos combined comprise approximately 22 percent of New York State's population.

11) Upon information and belief, Blacks and Latinos comprise 82 percent of New York State's prison population.

12) Upon information and belief, approximately 75 percent of New York State's prison population consists of persons from [fourteen state] assembly districts . . ., which are locate[d] in New York City.

13) In 1988, New York State's Chief Judge . . . commissioned a committee titled The New York State Judicial Commission On Minorities . . . to study the presence and [e]ffects of racism in the state's courts.

14) In April 1991, the [Commission] reported [in a "Report on Minorities"] that there was evidence of race-based disparity in the State Courts' conviction rate and sentence type. . . .

. . . .

21) Prior to the September 1993, New York City Primary, plaintiff informed defendant Cuomo that N.Y. Election law 5-106(5) violated the equal protection clause of the Federal and State Constitutions, and requested that Cuomo take action to ensure plaintiff's right to vote in the upcoming Citywide Primary and Election.

22) In response to plaintiff['s] request, defendant Cuomo referred plaintiff's request to defendant Coughlin for disposition.

23) . . . Coughlin issued memoranda indicating that the law denying plaintiff the right to vote was constitutional and will be enforced as always . . . .

The amended complaints further alleged that Section(s) 5-106 deprived them of the right to vote in violation of the Fourteenth and Fifteenth Amendments and Section(s) 1973, and sought corrective declaratory and injunctive relief, as well as compensatory and punitive damages. Unpersuaded, on February 18, 1994, the district court issued a brief order sua sponte dismissing "[t]he complaints and proposed amended complaints . . . for the reasons set forth in [Baker I]." On appeal, a panel of this Court reversed and remanded for further proceedings. See Baker II, 58 F.3d at 816. The panel determined that plaintiffs-appellants' Fourteenth and Fifteenth Amendment claims were deficient for failing to allege intentional discrimination, but remanded these claims with leave for plaintiffs to amend their amended complaints. Id. at 822. The panel also ruled that the district court's dismissal of the Section(s) 1973 claim, which pled both vote denial and vote dilution theories, 58 F.3d at 823-24, was inappropriate, and remanded this claim as well. As to the vote denial theory, the panel opined that because the district court had neither received any evidence nor entertained an answer from defendants-appellees, "it could not determine whether the totality of the circumstances would reveal a Voting Rights Act violation" under the "results" standard of Section(s) 1973. 58 F.3d at 823. The panel noted that plaintiffs-appellants did "not appear to have standing" to pursue a vote dilution claim on behalf of themselves, but speculated that they might be appropriate class representatives for black or Hispanic voters from one of the fourteen New York City assembly districts disproportionately affected by felon disenfranchisement. 58 F.3d at 824.

Discriminatory vote denial occurs, as the term denotes, when the franchise is denied on account of race. Discriminatory vote dilution occurs when a voting practice diminishes "the force of minority votes that were duly cast and counted." Holder v. Hall, 114 S. Ct. 2581, 2593 (1994) (Thomas, J., concurring in the judgment).

Article 2, Section(s) 4 of the New York State Constitution specifies that: "For the purpose of voting, no person shall be deemed to have gained or lost a residence . . . while confined in any public prison." Thus, plaintiffs-appellants, if enfranchised, would presumably cast their ballots in one of these districts.

Defendants-appellees petitioned for rehearing and suggested rehearing in banc, contending, inter alia, that permitting plaintiffs-appellants to state a Section(s) 1973 claim would violate Section(s) 2 of the Fourteenth Amendment by requiring New York to enfranchise convicted felons. The panel rejected this argument, stating that:

Although Section(s) 2 of the Fourteenth Amendment permits states to disenfranchise felons without proportionately diminishing the state's representation in Congress, it does not permit the states to pick and choose among felons in a way that violates whatever statutory protections of the right to vote Congress has enacted pursuant to its broad powers.

Baker III, 58 F.3d at 824.

On October 10, 1995, this Court voted to hear this case in banc, "limited to the issue of the applicability of the Voting Rights Act." Baker IV, 67 F.3d at 40.

Discussion [25] A. The Merits.

The enactment of the Voting Rights Act in 1965 "reflect[ed] Congress' firm intention to rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966). There are essentially two classes of remedies established by the Act. Several provisions apply only to those jurisdictions that fall within a coverage formula set forth in Section(s) 4(b) of the Act, 42 U.S.C. §(s) 1973b(b). For a jurisdiction to be "covered," two conditions must be met. First, the Attorney General of the United States must make a determination that the jurisdiction in question has employed at least one of four specifically enumerated tests or devices with respect to voter qualification on November 1, 1964, November 1, 1968, or November 1, 1972 (the "coverage date"). Second, the Director of the Census must make a determination that fewer than fifty percent of the jurisdiction's voting age population (1) was registered to vote on the coverage date, or (2) voted in the presidential election that occurred in the November that includes the coverage date. See Section(s) 1973b(b).

Section 4(c) of the Act defines "test or device" as follows:
The phrase "test or device" shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.
42 U.S.C. §(s) 1973b(c). Initially, Section(s) 1973b(a) barred the use of these devices by covered jurisdictions. The ban has since been made applicable throughout the nation. See 42 U.S.C. §(s) 1973aa, as added by the Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, Section(s) 6, 84 Stat. 315 (1970), and amended by the Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, Section(s) 102, 89 Stat. 400 (1975).

These designations are not reviewable in any court and are effective upon publication in the Federal Register, see Section(s) 1973b(b), but a covered jurisdiction may apply to the United States District Court for the District of Columbia for declaratory relief from the coverage regime pursuant to Section(s) 1973b(a). See City of Rome v. United States, 446 U.S. 156, 167 (1980); Arizona v. Reno, 887 F. Supp. 318, 321 (D.D.C. 1995) (three-judge court), appeal dismissed, 116 S. Ct. 1037 (1996). Currently, coverage determinations are in effect with respect to nine states, plus certain political subdivisions of seven others. See 28 C.F.R. pt. 51, App.

The most salient stricture currently applied exclusively to covered jurisdictions is imposed by Section(s) 5 of the Act, which specifies that a covered jurisdiction may not "enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on" its coverage date without first receiving preclearance from either the Attorney General or the United States District Court for the District of Columbia. 42 U.S.C. §(s) 1973c. In an action in the district court, preclearance will be granted only if the covered jurisdiction can prove that the proposed practice "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) [regarding membership in a language minority group]." Section(s) 1973c.

Although the Act does not set standards for Attorney General preclearance, government regulations establish that the Attorney General acts as a surrogate for the district court and applies the same "purpose or effect" test. See 28 C.F.R. Section(s) 51.52. The Act also authorizes the Attorney General, either (1) upon the written complaint of twenty or more resident citizens that they have been denied the right to vote under color of law on account of race or color, or (2) upon finding it necessary to enforce the guarantees of the Fourteenth or Fifteenth Amendment, to require the appointment of federal examiners "to prepare and maintain lists of persons eligible to vote in Federal, State, and local elections" in a covered jurisdiction. Voting Rights Act Section(s) 6, 42 U.S.C. Section(s) 1973d.

The Act contains a number of provisions, including Section(s) 1973, that apply to all jurisdictions, whether or not covered. As originally enacted, Section(s) 1973 barred the imposition or application of voting qualifications or procedures to "deny or abridge the right of any citizen of the United States to vote on account of race or color." This provision was construed in City of Mobile v. Bolden, 446 U.S. 55 (1980), as "hav[ing] an effect no different from that of the Fifteenth Amendment itself," id. at 61 (plurality opinion), which in turn was construed to prohibit "action by a State that is racially neutral on its face . . . only if motivated by a discriminatory purpose," id. at 62. In 1982, 1973 was amended to its present form by the Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, Section(s) 3, 96 Stat. 131, 134, "largely [in] response to [the Supreme] Court's plurality opinion in [Bolden]." Thornburg v. Gingles, 478 U.S. 30, 35 (1986). Thus, Section(s) 1973(a) now prohibits any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color," supra note 1 (emphasis added), without regard to discriminatory intent.

In Thornburg, which involved a redistricting of the North Carolina state legislature, see 478 U.S. at 34-35, the Supreme Court elaborated upon the showing required in that vote dilution case to prove a violation of amended Section(s) 1973. The Court addressed the "flexible, fact-intensive test for Section(s) [1973] violations" envisioned by the 1982 amendment, 478 U.S. at 46, stressing factors set forth in the pertinent Senate report, S. Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.C.C.A.N. 177, 206-07. The Court deemed these factors, while "neither comprehensive nor exclusive," id. at 45, to constitute guideposts for the application of Section(s) 1973. The Court stated that:

The Senate Report specifies factors which typically may be relevant to a Section(s) [1973] claim: the history of voting-related discrimination in the [jurisdiction]; the extent to which voting in the elections of the [jurisdiction] is racially polarized; the extent to which the [jurisdiction] has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction. The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the [juris-diction's] use of the contested practice or structure is tenuous may have probative value.

478 U.S. at 44-45 (citations omitted).

Thornburg also discussed several discrete limits upon the scope of amended Section(s) 1973. "First, electoral devices, such as at-large elections, may not be considered per se violative of Section(s) [1973]." Id. at 46. The plaintiff bears the burden of proving unequal access to the electoral process under the totality of the circumstances. Id. Second, a showing that a jurisdiction uses "an allegedly dilutive electoral mechanism," coupled with a demonstration that a minority group is not proportionately represented, is insufficient, without more, to establish a violation of Section(s) 1973. Id. Finally, "the results test does not assume the existence of racial bloc voting; plaintiffs must prove it." Id.

Congress enacted the "results" test of amended Section(s) 1973 pursuant to its authority under the enforcement provisions of the Fourteenth and Fifteenth Amendments. See S. Rep. No. 417 at 40, reprinted in 1982 U.S.C.C.A.N. 218. It is settled, however, that the Fourteenth and Fifteenth Amendments may be violated only by intentional discrimination. See Baker II, 58 F.3d at 822 (citing Hunter v. Underwood, 471 U.S. 222, 227-28 (1985) (Fourteenth Amendment); Bolden, 446 U.S. at 62 (Fifteenth Amendment); and Butts v. City of New York, 779 F.2d 141, 143-45 n.1 (2d Cir. 1985) (Fourteenth and Fifteenth Amendments), cert. denied, 478 U.S. 1021 (1986)); see also Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (Fourteenth Amendment); Orange Lake Assocs., Inc. v. Kirkpatrick, 21 F.3d 1214, 1226 (2d Cir. 1994) (Fourteenth Amendment); Soberal-Perez v. Heckler, 717 F.2d 36, 41-42 (2d Cir. 1983) (Fourteenth Amendment), cert. denied, 466 U.S. 929 (1984). Accordingly, the "results" test of amended Section(s) 1973 reaches conduct which is not directly violative of the Fourteenth or Fifteenth Amendments. The question thus presented is whether the application of amended Section(s) 1973 to Section(s) 5-106(2)-(5) is nonetheless constitutionally authorized.

Section 5 of the Fourteenth Amendment states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Section 2 of the Fifteenth Amendment provides: "The Congress shall have power to enforce this article by appropriate legislation."

Thornburg did not directly address the constitutionality of amended Section(s) 1973. Cf. Chisom v. Roemer, 501 U.S. 380, 418 (1991) (Kennedy, J., dissenting) ("Nothing in [Chisom] addresses the question whether [1973], as interpreted in [Thornburg], is consistent with the requirements of the United States Constitution."). In a series of cases involving the Voting Rights Act, however, the Supreme Court has held that Congress may constitutionally prohibit practices that are not, considered in isolation, constitutional violations, but which perpetuate the effects of past purposeful discrimination.

In South Carolina v. Katzenbach, the Court rejected a facial challenge to the constitutionality of the coverage formula of Section(s) 1973b, the remedies provided by the Act for jurisdictions declared within the coverage formula, and the provisions for appointment of federal examiners in covered jurisdictions. See 383 U.S. at 329-37. In doing so, the Court stressed the "reliable evidence of actual voting discrimination in a great majority of the States and political subdivisions affected by the new remedies of the Act." Id. at 329. The Court pointed out that in the majority of the states falling within the coverage formula, the prohibited tests and devices, see supra note 8, had "been instituted with the purpose of disenfranchising Negroes, ha[d] been framed in such a way as to facilitate this aim, and ha[d] been administered in a discriminatory fashion for many years." Id. at 333-34.

Katzenbach v. Morgan, 384 U.S. 641 (1966), determined that Section(s) 4(e) of the Act, 42 U.S.C. §(s) 1973b(e), passed constitutional muster. This provision specified that no person who had successfully completed the sixth primary grade in a public or accredited private school in "any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English" could be denied the vote on grounds of illiteracy. Section(s) 1973b(e). Although phrased in general terms, the statute was concededly enacted "for the explicit purpose of dealing with the disenfranchisement of large segments of the Puerto Rican population in New York." 384 U.S. at 645 n.3. In upholding the legislation as a valid implementation of the Equal Protection Clause of the Fourteenth Amendment, the Court noted that "Congress might well have questioned" the legitimacy of New York's English literacy requirement "in light of the many exemptions provided, and some evidence suggesting that prejudice played a prominent role in the enactment of the requirement." Id. at 654 (footnote omitted).

The Supreme Court returned to the Voting Rights Act in Oregon v. Mitchell, 400 U.S. 112 (1970). At issue in that case were 1970 amendments to the Act that imposed a temporary nationwide ban on the 1973b(c) tests and devices, see supra note 8, abolished state durational residency requirements in presidential elections and provided uniform national rules for absentee voting in presidential elections, and required the states to extend the franchise to otherwise qualified eighteen-year-olds. See 400 U.S. at 117, 134 (opinion of Black, J.). The Court, without a majority opinion, upheld the ban of tests and devices and the voting-age provision as it applied to federal elections, as well as the provisions relating specifically to presidential elections, but invalidated the voting-age provision insofar as it applied to state and local elections. See id. at 117-19 (opinion of Black, J). With respect to the literacy test ban, Justice Black, whose opinion announced the judgment of the Court, reasoned that "Congress had before it a long history of the discriminatory use of literacy tests to disenfranchise voters on account of their race." Id. at 132 (opinion of Black, J.). With respect to the invalidated voting-age provision, on the other hand, Justice Black distinguished this provision from those upheld in South Carolina and Morgan by noting, inter alia, that "Congress made no legislative findings that the 21-year-old vote requirement was used by the States to disenfranchise voters on account of race." Id. at 130 (opinion of Black, J.).

In City of Rome, the City of Rome, Georgia sought preclearance, pursuant to Section(s) 1973c, for certain changes in its electoral system. As noted earlier, that provision allows a covered jurisdiction to enact a voting practice if the jurisdiction can establish that the practice "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Section(s) 1973c (emphasis added). The City of Rome contended that Section(s) 1973c, "to the extent that it prohibits voting changes that have only a discriminatory effect, is unconstitutional." City of Rome, 446 U.S. at 173. Relying on South Carolina and Oregon, the Court responded that: "Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact." 446 U.S. at 177 (footnote omitted) (citing South Carolina, 383 U.S. at 335, and Oregon, 400 U.S. at 216 (opinion of Harlan, J., concurring in part and dissenting in part)).

The proposed application of Section(s) 1973 to Section(s) 5-106(2)-(5) can find no support in any of these cases. First, although South Carolina and City of Rome upheld the "results" test of Section(s) 1973c, that provision applies only to jurisdictions that fall within the coverage formula of 1973b(b), a formula that is at the heart of "a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant." South Carolina, 383 U.S. at 315. By contrast, Section(s) 1973 applies nationwide, without distinction between (i) those jurisdictions in which Executive Branch findings create a statutory presumption that all state-enacted voting practices require enhanced scrutiny, and (ii) those jurisdictions where no such findings have been made. Second, although Morgan and Oregon upheld nationwide bans, those bans addressed specific disfavored practices that perpetuated historical discrimination of an unconstitutional kind. Conversely, as we will now demonstrate, felon disenfranchisement is a very widespread historical practice that has been accorded explicit constitutional recognition in 2 of the Fourteenth Amendment. See supra note 3.

Thus, it is unclear whether, as a general rule, the "results" methodology of Section(s) 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 Section(s) 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.

As of November 1993, "all but three states deprive[d] incarcerated offenders of the vote; thirty-five states disenfranchise[d] nonincarcerated offenders, including those on probation and parole; and fourteen states disenfranchise[d] ex-offenders for life." Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement under the Voting Rights Act: A New Strategy, 103 Yale L.J. 537, 538-39 (1993) (footnotes omitted). The practice of disenfranchising felons is hardly, however, of recent vintage. At the time of the adoption of the Fourteenth Amendment, "29 [of 36] States had provisions in their constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes." Richardson v. Ramirez, 418 U.S. 24, 48 (1974); see also id. at 48 n. 14 (collecting constitutional provisions). The prevalence of this practice prior to the passage of the Civil War Amendments indicates that felon disenfranchisement was not an attempt to evade the requirements of the Civil War Amendments or to perpetuate racial discrimination forbidden by those amendments. Cf. H.R. Rep. No. 439, 89th Cong., 1st Sess. 11-12, reprinted in 1965 U.S.C.C.A.N. 2437, 2443 ("Prior to 1890, 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.").

Moreover, the legitimacy of felon disenfranchisement is affirmed in the text of the Fourteenth Amendment itself. See supra note 3. The history surrounding the adoption of Section(s) 2 of the Fourteenth Amendment is treated in considerable detail in Richardson. See 418 U.S. at 43-52. That case involved a nonracial equal protection challenge by three ex-felons, whose terms of imprisonment and parole had expired, to provisions of the California Constitution and implementing statutes that permanently disenfranchised persons convicted of an "infamous crime." Id. at 26-27. The Supreme Court of California upheld this challenge, id. at 34-35, and the Supreme Court reversed that ruling, id. at 56. In doing so, the Court concluded "that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in Section(s) 1 of that Amendment that [(i.e., felon disenfranchisement)] which was expressly exempted from the lesser sanction of reduced representation imposed by Section(s) 2 of the Amendment." 418 U.S. at 43; see also id. at 55 (repeating this formulation).

The Court also addressed the felon disenfranchisement provision of Section(s) 2 in Hunter v. Underwood, 471 U.S. 222 (1985), and invalidated a provision of the Alabama Constitution that disenfranchised persons convicted of "any crime . . . involving moral turpitude," id. at 223, on the basis that the provision, which applied primarily to misdemeanors, id. at 226-27, had been "enacted with the intent of disenfranchising blacks," id. at 229. The Court made it clear that this ruling was in harmony with its prior decision in Richardson. See 471 U.S. at 233.

In light of this history, it is unsurprising that when Congress enacted the Voting Rights Act in 1965, both Judiciary Committees affirmatively stated that felon disenfranchisement laws were not affected by Section(s) 1973b(c)'s ban on historically discriminatory "test[s] or device[s]," including the prohibition on tests for "good moral character." See supra note 8; S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, at 24, reprinted in 1965 U.S.C.C.A.N. 2508, 2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, Tydings, Dirksen, Hruska, Fong, Scott, and Javits) ("This definition [of the impermissible 'good moral character' test] would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony . . . . It applies where lack of good moral character is defined in terms of conviction of lesser crimes."); H.R. Rep. No. 439, 89th Cong., 1st Sess. 25-26, reprinted in 1965 U.S.C.C.A.N. 2437, 2457 (Section(s) 1973b(c) "does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony"). Thus, not only has Congress failed ever to make a legislative finding that felon disenfranchisement is a pretext or proxy for racial discrimination; it has effectively determined that it is not. Cf. Oregon, 400 U.S. at 130 (opinion of Black, J.) ("Congress made no legislative findings that the 21-year-old vote requirement was used by the States to disenfranchise voters on account of race.").

This Court has previously recognized, moreover, that felon disenfranchisement laws are generally enacted for compelling, nondiscriminatory reasons. In Green v. Board of Elections, 380 F.2d 445 (2d Cir. 1967), cert. denied, 389 U.S. 1048 (1968), we declined to convene a three-judge court to address nonracial constitutional challenges to New York's felon disenfranchisement statute because of the insubstantiality of the claims. 380 F.2d at 452. In doing so, Judge Henry Friendly forcefully, indeed eloquently, said:

The early exclusion of felons from the franchise by many states could well have rested on Locke's concept, so influential at the time, that by entering into society every man "authorizes the society, or which is all one, the legislature thereof, to make laws for him as the public good of the society shall require, to the execution whereof his own assistance (as to his own decrees) is due." A man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact. On a less theoretical plane, it can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases. This is especially so when account is taken of the heavy incidence of recidivism and the prevalence of organized crime. A contention that the equal protection clause requires New York to allow convicted mafiosi to vote for district attorneys or judges would not only be without merit but as obviously so as anything can be.

Id. at 451-52 (footnote and citation omitted); see also Wesley v. Collins, 791 F.2d 1255, 1261-62 (6th Cir. 1986) (relying upon Green to hold, affirming pretrial dismissal, that Tennessee felon disenfranchisement statute did not violate Section(s) 1973).

We note that in addition to the valid and neutral rationales justifying the enforcement of felon disenfranchisement statutes, these statutes generally do not present the risk of discretionary and discriminatory application that characterizes the tests and devices prohibited by Section(s) 1973b(c). See 111 Cong. Rec. S8366 (1965) (statement of Sen. Tydings) ("Let me emphasize that [Section(s) 1973b(c)] does not include a requirement that an applicant for voting or registration for voting be free of conviction of a felony or mental disability. These grounds for disqualification are objective, easily applied, and do not lend themselves to fraudulent manipulation."); cf. Oregon, 400 U.S. at 216 (Harlan, J., concurring in part and dissenting in part) (noting that "literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious," and concluding that the "danger of violation of Section(s) 1 of the Fifteenth Amendment was sufficient to authorize the exercise of congressional power under Section(s) 2.").

Against this background, we believe that any attempt by Congress to subject felon disenfranchisement provisions to the "results" methodology of Section(s) 1973 would pose a serious constitutional question concerning the scope of Congress' power to enforce the Fourteenth and Fifteenth Amendments. In these circumstances, Catholic Bishop requires a clear statement by Congress in support of the statutory interpretation posing the constitutional question, a statement manifestly lacking in this case.

Catholic Bishop involved "the National Labor Relations Board's exercise of jurisdiction over lay faculty members at two groups of Catholic high schools." 440 U.S. at 491. Because this exercise would necessarily have required a decision on "serious First Amendment questions," id. at 504, the Court determined that before upholding it, "`there must be present the affirmative intention of the Congress clearly expressed'" in favor of that statutory interpretation. Id. at 500 (quoting McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963) (quoting Benz v. Compania Naveria Hidalgo, S.A., 353 U.S. 138, 147 (1957))); see also Miller v. Johnson, 115 S. Ct. 2475, 2493-94 (1995) ("There is no indication Congress intended such a far-reaching application of Section(s) 5 [of the Voting Rights Act], so we reject the Justice Department's interpretation of the statute and avoid the constitutional problems that interpretation raises." (citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing Catholic Bishop, 440 U.S. at 499-501))); DeMarco v. Holy Cross High School, 4 F.3d 166, 169 (2d Cir. 1993) (adopting and applying Catholic Bishop "affirmative intention" standard).

Gregory v. Ashcroft also counsels against the application of Section(s) 1973 to New York's felon disenfranchisement statute absent a clear statement by Congress. There, Missouri state court judges sought to invoke the federal Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §(s) 621-634, to invalidate a provision of the Missouri Constitution that compelled judges (other than municipal judges) to retire at age seventy. 501 U.S. at 455. The Court declined the invitation, noting the ambiguity involved in the attempted application of the relevant statutory terms to the state judges, 501 U.S. at 466-67, and stating that:

"[I]f Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.' Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 (1984). . . . 'In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.' United States v. Bass, 404 U.S. 336, 349 (1971)."

Gregory, 501 U.S. at 460-61 (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (initial alteration in Gregory)).

In the present case, the application of Section(s) 1973 to state felon disenfranchisement statutes would at least as clearly undermine the constitutional balance between the federal and state governments. The states have the primary responsibility for regulating the times, places, and manner of conducting federal elections, U.S. Const. art. 1, Section(s) 4, cl. 1, and even more obviously for regulating elections to state office. Although the Civil War Amendments and the Voting Rights Act significantly intrude upon this state authority when discriminatory practices are apparent, those provisions have been enacted against a background of felon disenfranchisement statutes that have a long history and have been accorded explicit constitutional recognition. Thus, an explicit constitutional balance has been struck by the mandate in Section(s) 2 of the Fourteenth Amendment that the adverse consequence of reduced congressional representation shall not follow from the enactment and enforcement of state felon disenfranchisement statutes.

Further, "[u]nder our federal system, the "`States possess primary authority for defining and enforcing the criminal law.'" United States v. Lopez, 115 S. Ct. 1624, 1631 n.3 (1995) (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1720 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982))). To the extent that the disenfranchisement of felons is designed to punish persons who violate the laws of the states, the application of Section(s) 2 to felon disenfranchisement statutes would upset "'the sensitive relation between federal and state criminal jurisdiction.'" United States v. Enmons, 410 U.S. 396, 411-12 (1973) (quoting United States v. Bass, 404 U.S. 336, 349 (1971)).

A few words must be said in response to Chief Judge Newman's and Judge Feinberg's contentions that the plain statement rule of Gregory is inapplicable in the context of congressional legislation passed to enforce the Fourteenth and Fifteenth Amendments generally, and in the context of the Voting Rights Act specifically. Chief Judge Newman asserts that in applying the plain statement rule in Gregory to "age discrimination legislation enacted under the Commerce Clause," the Supreme Court "distinguished legislation enacted under Congress's power to enforce the Civil War Amendments." On the contrary, the Supreme Court in Gregory expressly rejected any such distinction, stating 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 Section(s) 5 of the Fourteenth Amendment." 501 U.S. at 470 (emphasis added). Thus, as Justices White and Stevens recognized in their separate opinion, under Gregory, "[the] plain statement rule will apply with full force to legislation enacted to enforce the Fourteenth Amendment." Id. at 479 (White, J., concurring in part, dissenting in part, and concurring in the judgment) (emphasis added).

Relying upon Chisom, Judge Feinberg states that "we have clear Supreme Court authority that the plain statement rule does not apply when determining coverage under Section(s) 2 of the Voting Rights Act." Upon closer examination, this "clear . . . authority" turns out to be the Supreme Court's failure, without so much as a reference to the plain statement rule, to apply the rule in Chisom, a case involving the interpretation of the Voting Rights Act. See 501 U.S. at 390-404. In light of the unequivocal language in Gregory that the plain statement rule does apply in the context of legislation passed pursuant to the enforcement clauses of the Civil War Amendments, we decline to interpret this omission — made without any attempt to distinguish Gregory — as an instruction to the lower courts to refrain from applying Gregory in the context of the Voting Rights Act.

Contrary to Judge Feinberg's assertion, furthermore, the Chisom dissenters did not "agree that the plain statement rule had no application to the statutory issue of coverage under Section(s) 2." Rather, Justice Scalia thought it "curious" that the Court applied the plain statement rule in Gregory but not in Chisom, 501 U.S. at 411 (Scalia, J., dissenting), speculated as to the possible reasons for this disparity, id. at 411-12, impugned the majority's motives, id. at 412, and concluded that nothing in the statute supported an interpretation contrary to the statute's plain meaning, id., thus rendering any invocation of the plain statement rule superfluous.

Plaintiffs-appellants argue in effect that Catholic Bishop and Gregory are satisfied in this case, contending that the phrase "any citizen" in Section(s) 1973, see supra note 1, unambiguously encompasses felons. The term "employer" in Catholic Bishop was equally broad and was buttressed by a statutory definition that expressly enumerated a number of exempt employers (the United States, any wholly owned government corporation, and six other types of employers) without, however, recognizing an exception for religious schools. The Court nonetheless determined that the high schools were not "employer[s]" within the meaning of Section(s) 2(2) of the National Labor Relations Act, as amended, 29 U.S.C. §(s) 152(2), because the Court's "examination of the statute and its legislative history indicates that Congress simply gave no consideration to church-operated schools." See 440 U.S. at 504.

Similarly, in this case, neither the statutory language nor the legislative history of Section(s) 1973 suggests Congress' affirmative intention to apply Section(s) 1973 to felon disenfranchisement statutes. In fact, the only consideration of felon disenfranchisement statutes in the entire history of the Voting Rights Act that has been called to our attention is Congress' explicitly announced intention to exclude such statutes from the Section(s) 1973b(c) tabulation of prohibited tests and devices. As discussed above, that consideration was clearly hospitable to such statutes, and thus provides an even more obvious case of an absence of affirmative intent than the benign neglect encountered in Catholic Bishop, and an equally obvious absence of the clear affirmative statement of intention required by Gregory.

Finally, we address plaintiffs-appellants' contention at oral argument that Section(s) 5-106(2)-(5) is more vulnerable to a challenge premised on the "results" methodology of Section(s) 1973 because it effects a partial, rather than a total, felon disenfranchisement. The rationale of the argument is that unlike a total ban, a partial ban allows the possibility that states will "pick and choose among felons in a way that violates [Section(s) 1973]." Baker III, 58 F.3d at 824.

Any test for imposition of the Section(s) 1973 "results" methodology that turns on a distinction between partial and total felon disenfranchisement would find no support in, and is indeed countermanded by, the text of Section(s) 2 of the Fourteenth Amendment and Richardson, the only case in which the Supreme Court has comprehensively addressed that provision. Section 2 of the Fourteenth Amendment absolves from the penalty of reduced congressional representation state statutes that deny or abridge voting rights "for participation in rebellion, or other crime." See supra note 3. First, there is no explicit reference in this language to felonies, although the contemporary history concerning existing state constitutions and the approval of germane provisions of the constitutions of formerly rebellious states readmitted to the Union after the Civil War supports a construction of the term "other crime" as equating to common law felonies. See Richardson, 418 U.S. at 48-52. Second, and far more importantly, the use of the terms "den[y] . . . or in any way abridge" in Section(s) 2 of the Fourteenth Amendment, see supra note 3, precludes any contention that this provision was intended to afford greater protection to state laws that permanently and totally disenfranchise felons than to state laws that impose a more selective ban.

Additionally, it is more than a little counterintuitive to impute to Congress, in amending Section(s) 1973 in 1982, an intention to provide a safe harbor from that statute only for the most drastic of felon disenfranchisements. It is noteworthy in this regard that the claim made in Richardson was that the permanent disenfranchisement (even after completion of incarceration and parole) effected by California law was so draconian as to violate the Equal Protection Clause of the Fourteenth Amendment. The Court indicated sympathy for this view as a policy matter, but suggested that it be addressed to "the people of the State of California." 418 U.S. at 55. The case was mooted on remand because those people had in the interim adopted a constitutional amendment that "provide[d] for the temporary 'disqualification' of electors [only] while they [were] imprisoned or on parole for the conviction of a felony." Ramirez v. Brown, 12 Cal.3d 912, 914, 528 P.2d 378, 379 (1974). Under the interpretation of Section(s) 1973 proferred at oral argument, ironically, the earlier California standard would presumably have provided a safe harbor from Section(s) 1973, but the subsequent amelioration would have been subject to statutory attack.

Further, Richardson framed the issue presented for consideration on that appeal as "the precise question of whether a State may constitutionally exclude some or all convicted felons from the franchise," 418 U.S. at 53 (emphasis added), and answered that question in the affirmative. There was a suggestion at the in banc oral argument that Richardson nonetheless established a distinction between partial and total felon disenfranchisements because Richardson remanded for the California courts to consider "respondents' alternative contention that there was such a total lack of uniformity in county election officials' enforcement of the challenged state laws as to work a separate denial of equal protection." Id. at 56. It is not novel doctrine that a facially neutral law may be unconstitutionally enforced. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (collecting cases); see also Miller, 115 S. Ct. at 2487 (citing Yick Wo). This possibility, which obviously exists with respect to any statute, hardly establishes that in amending Section(s) 1973 in 1982, Congress intended to apply the Act generally to felon disenfranchisement statutes, excepting only statutes that permanently disenfranchised all felons.

B. Rehearing in Banc.

Judge Feinberg argues that rehearing in banc is inappropriate in this case because the standards of Rule 35(a) of the Federal Rules of Appellate Procedure have not been satisfied. Rule 35(a) specifies that rehearing in banc "is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance." As to the first category, it is clear that Baker II and Baker III may be reconciled with this court's ruling in Green, although Green calls for considerably more deference to New York's felon disenfranchisement laws than is evident in either Baker II or Baker III. In any event, the adherents of this opinion do not contend that rehearing in banc is needed "to secure or maintain uniformity of [this Court's] decisions." We disagree with Judge Feinberg's claim, however, that this appeal does not present "a question of exceptional importance" because of the "premature" state of the case at which the appeal comes to us.

As has been made clear, the inquiry fostered by Section(s) 1973 and its legislative history is directed primarily to the electoral practices of the several states and their political subdivisions. See Thornburg, 478 U.S. at 44-45. The panel opinions in this case, by contrast, would authorize a highly intrusive process of pretrial discovery into the existence, vel non, of racial bias throughout the entire criminal justice system of New York State, with little or no statutory guidance to channel or provide standards for the inquest. We have no doubt that if the panel decisions had remained undisturbed, similar inquiries would soon have been underway in Connecticut, as well as in other jurisdictions throughout the nation. In our view, the distinct unlikelihood that Congress foresaw or intended to authorize anything like this process when it amended Section(s) 1973 in 1982, coupled with the severe ensuing impact upon the "'"constitutional balance between the States and the Federal Government,"'" Gregory, 501 U.S. at 460 (quoting Will 491 U.S. at 65 (quoting Atascadero, 473 U.S. at 242)), results in the presentation of "a question of exceptional importance" within the meaning of Rule 35(a), fully justifying the determination by a majority of the judges of this Court in active service to call for rehearing in banc.

We agree with Judge Feinberg that because of the even division on the merits, the in banc rehearing may have eventuated as "an exercise in futility in clarifying the law." Obviously, however, because such outcomes cannot be predicted in advance, a preclusion of in banc rehearings because of the possibility of unclarifying results would effectively eliminate the practice.