In a 6-5 decision written by Judge Jose Cabranes, the Second Circuit Court of Appeals dismissed the claim that New York’s law prohibiting incarcerated felons and felons on parole from voting violates the Voting Rights Act of 1965. The Second Circuit reasoned that “Congress did not intend the Voting Rights Act to cover such provisions; and Congress made no clear statement indicating an intent to…apply the Voting Rights Act to these provisions” in state election law. Furthermore, the Second Circuit reaffirmed the Supreme Court’s holding that the language of section 2 of the Fourteenth Amendment makes state laws denying or abridging a felon’s access to the voting process presumptively constitutional.
In her dissent, Judge Sonia Sotomayor dismissed the majority’s detailed analysis of the Voting Rights Act’s textual meaning and extensive legislative history, arguing that Section 2 of the Voting Rights Act is “unambiguous” and “subject’s felony disenfranchisement and all other voting qualifications to its coverage.”
Judge Sotomayor’s dissenting opinion is activist because it contorts the text, or more appropriately, ignores the text of the Fourteenth Amendment of the U.S. Constitution. Section 2 of the Fourteenth Amendment acknowledges the authority of states to deny or abridge the voting rights of those who partake “in rebellion, or other crime” [emphasis added]. The Supreme Court, after the passage of the Voting Rights Act, affirmed this view of Section 2 in an Equal Protection challenge to felony disenfranchisement in Richardson v. Ramirez (1974). Judge Sotomayor’s dissent fails to even address this text.
The dissent also abuses precedent by failing to properly apply the “clear statement rule” of Gregory v. Ashcroft, which requires Congress to make its intent unmistakably clear when enacting statutes that would alter the usual constitutional balance between the Federal Government and the States. Congress did not make clear its intent that the Voting Rights Act should preempt state felony disenfranchisement statutes, but rather made clear the opposite: statements made in the House and Senate Judiciary Committee Reports make clear that the Voting Rights Act exclude felon disenfranchisement laws from coverage.
Accordingly, while Sotomayor speaks in textualist terms, the dissent is an example of activism masquerading as restraint.