Thomas Johnson v. Governor of the State of FL

KRAVITCH, Circuit Judge: Johnson,

James E. I. Debevoise Plimp- & Intrоduction ton, LLP, Allen, Jessie Deborah Goldberg, This case involves a Fourteenth Amend- Brennan Justice, Center for New York ment Equal Protection Clause challenge City, for Plaintiffs-Appellants. and a Section 2 Voting Rights (“VRA”) Act challenge to Florida’s felon disenfranchise- Charles J. Cooper, David H. Thompson, ment law provides which person that “[n]o Derek Shaffer, L. Cotton, Thomas B. convicted of a felony ... shall qualified Hume, Hamish Cooper Kirk, & PLLC, to vote or hold office until restoration of Washington, DC, Jeffrey Ehrlich, Paul civil rights or removal of disability.”1 Fla. Miami, FL, Buschel, Robert C. Buschel, Const, VI, (1968). § art. The plaintiffs Carter, Yates, Schwartzreich & Michael filed this class action on behalf of all Flori- Cirullo, Jr., David Goren, Cherof, Doody & da citizens who have been convicted of a Ezrol, P.A., Fort Lauderdale, FL, RayH. felony and have completed all terms of Allen, III, Hillsborough Atty., Tampa, FL, their incarceration, probation, and parole for Defendants-Appellees. but who are barred from voting under the * Judge Circuit Marcus recused and did not A felon who completed has his sentence participate in this case. Senior Judge Circuit may apply clemency for to have civil his Kravitch elected to participate in this deci- rights (2003). § restored. Fla. Stat. The sion, pursuant 46(c). 28 U.S.C. plaintiffs allege also voting Florida's rights restoration scheme violates constitu- 1. The full text provision states: tional prohibitions and statutory against poll person No convicted felony, of a adjudi- taxes. Access to the franchise cannot be cated this or other state to be made depend men- on an individual's financial tally incompetent, qualified shall be to vote resources. Harper v. Va. State Bd. of or hold office until Elections, restoration rights of civil 663, 668, disability. removal of 16 L.Ed.2d 169 Under Florida's Const, VI, Fla. § (1968). art. Rules however, of Executive Clemency, Claim Equal Protection III. The The law.2 felon disenfranchisement state’s of Florida’s are members defendants that Florida’s felon argue plaintiffs Clemency Board.3 Equal violates the law Clause, a state prohibits Protection History and Procedural

II. its any person within “deny[ing] to Review Standard of equal protection jurisdiction Const, summary judg- XIV, § motions amend. After cross laws.” U.S. summary granted racial animus moti- ment, court contend that the district on all defendants Florida’s adoption in favor of judgment vated in 1868 this court re- panel of A divided claims. operative to- legally Equal animus remains on both and remanded versed Florida notwithstanding the fact that day, claims. Johnson and VRA Protection in the Floridа, and reenacted F.3d altered State Governor (11th 1968. Cir.2003), vacated opinion panel the This court vacated 1163. permanently to A state’s decision en banc. John- rehearing a granted and not, in convicted felons does disenfranchise now consid- son, 1163-64. We F.3d at itself, Protection viola an Equal constitute erred court the district whether er Ramirez, 24, 418 U.S. Richardson tion. in favor of judgment summary granting 2655, 41 L.Ed.2d 551 53-55, 94 S.Ct. un- claims plaintiffs’ on the defendants this (1974). made The Court Clause Equal Protection der Richardson, rejected a where clear 2 of and Section Amendment Fourteenth chal clause equal protection non-racial Rights Act. Voting disenfranchise felon lenge to California’s 56, law. 418 U.S. at grant court’s a district review We so, relied on Section novo, the Court “viewing doing In de summary judgment Amendment, holding Fourteenth infer reasonable drawing all record to disen permits states expressly that it favorable light most ences The Court felons.4 convicted franchise v. Triad party.” Patton non-moving that: 1294, 1296 persuaded Corp., 277 F.3d Ins. Guar. [Tjhose

Cir.2002). appro adopted Summary judgment framed who could not genuine issue as Amendment “there is no Fourteenth when priate §in 1 of outright moving prohibit intended to fact and any material to was ex- that which Amendment as a matter judgment a entitled to party sanc- the lesser 56(c). exempted from pressly law.” Fed.R.Civ.P. up of the Clemency is made Board 3. The granted felons who be to right vote can still Cab- members Governor of Florida and require- pay restitution. cannot afford power to Clemency has the Board inet. The support hearing is insufficient ment of felons, rights convicted the civil restore does Florida plaintiffs’ claim. Because Exec. See Fla. R. including vote. of the fran- deny to the restoration access Florida's Clemency. also named The suit ability pay, we affirm the on chise based partic- Their supervisors county of elections. summary judgment in grant of district court's pending determina- ipation has been abated these claims. on of the defendants favor liability. tion of so, nothing whether con- doing say about we pay- clemency application on ditioning 2 states: text of Section 4. The full poll tax. invalid ing would be an restitution apportioned Representatives shall according to their among several States plain- percent of the 2.Approximately seventy numbers, counting the whole respective white. tiffs’ class is State, excluding each persons number of tion of representation reduced imposed ized the General Assembly to crimi- enact by § 2 of the Amendment. nal disenfranchisement 1845, laws and in Florida’s Id. at General course, Assembly such a Of enacted law.6 Equal Florida’s Protection prohibits Clause Constitu- using tions also facially neutral contained law to inten- disenfran- tionally provisions. chisement discriminate the basis of race. Davis, Washington v. 239- There is no doubt Florida’s decision (1976). 48 L.Ed.2d 597 adopt a criminal disenfranchisement law This includes criminal disenfranchise- in these early Constitutions was based on ment law enacted with the intent to de- a non-racial time, rationale. At that prive one racial group of its right to partic- right to vote was not extended to African- ipate political process. Hunter v. Americans, and, therefore, they could not Underwood, 105 S.Ct. have been targets of any disenfran- 85 L.Ed.2d 222 In light of law. plaintiffs, however, precedent, well-established ques- point to 1868 as the critical date on which tion here is whether the plaintiffs have they allege Florida’s disenfranchisement alleged that, true, facts if would be suffi- law became motivated racial discrimina- cient to establish intentional discrimination tion. in Florida’s current disenfranchisement plaintiffs’ Because the Equal Protection

law. claim hinges on the 1868 criminal disen- 1. Background Historical provision, franchisement we must examine Florida’s policy of criminal disenfran- historical context in which provi- chisement has a long history, tracing back sion was adopted. After War, the Civil well before the Civil War.5 Florida’s earli- the Reconstruction Act required Florida to Constitution, est adopted author- ratify the Fourteenth Amendment and Indians not taxed. But when the right to Richardson, franchisement law. See vote any at election for the choice of Today, 2655. forty-eight states electors for President and Vice President of have some form of criminal disenfranchise- States, Representatives United in Con- provision. Although Florida’s dis- felon gress, the Executive and Judicial officers of may enfranchisement law among be the most State, or the Legislature members of the restrictive, hardly Florida stands alone in its thereof, any is denied to of the male inhab- long-standing use of these laws. State, itants being such twenty-one years age, States, and citizens of the United 6. The 1838 provided Constitution that "[t]he any way abridged, except partic- for general assembly power shall have to exclude ipation rebellion, crime, or other from right suffrage, persons all representation basis of therein shall be re- bribery, convicted of perjury, or other infa- duced proportion whiсh the number of Const, VI, mous crime.” (1838). Fla. § art such male citizens shall bear to the whole number male twenty-one years citizens The stated: Const, age in such XIV, State. U.S. amend. enacted, Be it every person That who further § 2. shall become a for candidate Indeed, offices, foregoing possess throughout shall history, the same criminal disen- qualification provisions prescribed voter, franchisement for have existed as a punitive before device. he eligible shall be See Harvard Law to that Review office. Association, Person, person One And no No Vote: The who shall Laws hereafter con- be Disenfranchisement, Felon victed bribery, perjury, Harv. L. Rev. or other infamous crime, 1939-42 When the shall Fourteenth entitled to the of suf- ratified, Amendment was twenty-nine frage. of thir- ty-six states had some form of criminal disen- 1845 Fla. Laws. Ch. art granting a constitution produced gation condition as a its Constitution change all suffrage to men of races. In accor- Union.7 readmittance a, plan, mandated federally with dance racial discrimina- not doubt that We do military districts into divided South pro- other may have motivated certain of Gener- command under the Florida with Constitution such Florida’s 1868 visions in both supervision, his Pope. Under al John scheme that legislative apportionment aas delegates and white African-Americans densely representation diminished 1868 constitution- to Florida’s elected were The existence of black counties. populated al convention. provi- some behind racial discrimination does sions of Florida’s Constitution convention, struggle for During however, racial not, animus establish that Radical Re- between erupted control the criminal disenfranchisement motivated Republicans. and the Moderate publicans long- Florida’s given particularly provision, to ex- “wished Republicans Radical The of criminal disenfran- standing tradition politics” from state native whites clude Indeed, own his- plaintiffs’ chisement. “opposed were Republicans Moderate prior conceded expert torical compromise willing Radicals and case, who had studied no historian instant a series After native whites.” with had ever con- Florida’s 1868 Constitution unfolded, Republicans Radical events disen- templated that had draft- each Republicans and Moderate with enacted provision was franchisement and both constitutions competing ed discriminatory intent. convention. the lawful claimed to be groups supervised contemporaneous no government offer Federal con- constitutional a choice between from the 1868 Faced with evidence process. racial discrimi- constitutions, demonstrating Con- United States the vention two of the drafted the enactment nation motivated the gress endorsed Constitution provision. To It was subse- 1868 disenfranchisement Republicans. the Moderate rely al- theory, plaintiffs the Florida. their advance by the voters ratified quently re- Constitutions, a few isolated exclusively9 on the most Florida’s earlier Like Constitutional made 1868 dis- marks10 a criminal contained Constitution after Although these comments Thus, Convention. provision.8 enfranchisement ra- and indefensible an unfortunate reflect racially mixed dele- supervision, federal Florida’s used in crimes” Richardson, "infamous briefly explained the term the Court In was provision un- 1838 disenfranchisement gained states southern process of how the all felo- to include law at common following Civil derstood to the Union readmission "felony” in the use word The nies. The S.Ct. 2655. War. 418 U.S. merely lan- reflected congres- 1868 Constitution many the new observed Court Act in Reconstruction guage was used con- constitutions sionally approved state suffrage grant to required the states provisions. felon disenfranchisement tained citizens, twenty-one years and older all male Id. may as he “except such for disenfranchised felony at rebellion or delegates at participation Notably, five African-American for ch. Act of Mar. law." explicitly voted for the common convention original). (emphasis provision. 14 Stat. 428. disenfranchisement criminal discrimination, fact example, plaintiffs cite 10. For of racial 9. As further evidence Republican leaders Moderate that one argue that plaintiffs kept Florida that he had stated expanded the provision disenfranchisement rec becoming "niggerized.” review A by reaching all felonies. category of crimes post-convention com- that this However, suggests ord below plaintiffs conceded cial nineteenth-century animus Florida again, Florida chose maintain a criminal politics, there is no evidence that these law, disenfranchisement explicit- decision post-convention comments ly referenced the left to its discretion the text of the provision. disenfranchisement In- Fourteenth Amendment. plaintiffs do deed, the record strongly not allege that indicates that racial discrimination moti- these comments vated the adoption referenced other provi- Florida’s 1968 felon sions Constitution, thе 1868 disenfranchisement law. such as the legislative apportionment system.11 In ad- The backdrop for the enactment of Flor- dition, point to the fact that ida’s felon disenfranchisement provi- Florida rejected the Radical Republican sion is as follows. the Florida Constitution which did not contain a disen- Legislature appointed a thirty-seven mem- provision franchisement in favor of the ber Constitutional Revision Commission Republican Moderate Constitution which (“CRC”) engage in “a study careful contained provision. such a Although this the constitution ... for the purpose of true, way in no establishes that racial eliminating obsolete, conflicting and unnec- discrimination motivated the disenfran- essary provisions as well framing an chisement provision. There is no evidence orderly and properly arranged constitu- to suggest that Florida’s decision to adopt tion, upon based economic and social Republican Moderate Constitution changes.” had Laws, 1965 Fla. ch. 65-561. To anything do with the engage disenfranchise- in this process, the delegated CRC provision.12 Furthermore, responsibilities Florida to various committees. did act alone in choosing Suffrage its Constitu- and Elections Committee tion—the United States charged express- with, alia, inter examining ly approved Florida’s Florida’s felon Constitution in provi- readmitting the sion. the Union. The plaintiffs contend revisions

2. 1968 Constitutional Revision made in 1968 to Florida’s felon disenfran- One years hundred after the adoption of chisement law were not substantive in na- Constitution, Florida comprehen- ture.13 disagree. We Florida’s 1968 felon sively revised its Constitution. Once is markedly ment and by others plaintiffs cited the were was chosen was because signed it was by a likely made in legislative reference to ap- the majority clear delegates of the at the conven- portionment formula provision and a that cir- tion. cumvented by local elections requiring the governor appoint to county officials. The 13.To support argument, this plaintiffs the plaintiffs' expert own conceded that felon dis- incomplete offer statements hodge from a enfranchisement relatively was a minor issue podge legislative of materials that were not during the 1868 Convention. before the district court at summary judg ment. Even if we judicial were to take notice 11. The only possibly comment referencing the records, of all of these these materials would felon provision disenfranchisement was made help plaintiffs. the The also in 1881. But it is not clear whether this argue that the district court erred in exclud comment specifically referred to the adoption ing Richard expert Scher’s report on the 1968 the of provision disenfranchisement in 1868. constitutional revision. "We Moreover, review evidentia question we reliability of a sin- ry rulings discretion, for abuse of gle United comment made years thirteen after Smith, States Convention. Cir. 2000), and conclude that the district court did fact, 12. In the record indicates that the rea- not abuse its admissible, discretion. Even if son the Republican Moderate Constitution report Scher's would help plaintiffs. adju- felony, or of a convicted person No The 1868 version. Florida’s from different mental- to any state be 1885) this or dicated (as amended Constitution to vote qualified be shall ly incompetent, dis- for criminal provisions two contained of civil until office restoration or hold enfranchisement. disability. of removal rights or 4 provided: Section Const, (1968). VI, § 4 art. Fla. non guardianship, person No disenfran- provisions the 1868 insane, be mentis, quali- Whereas shall or compos misde- of certain any election, convicted persons nor shall chised any at to vote fied larceny,14 under petty of by a felony court such meanors convicted person persons those any only elec- provision, to vote new qualified be record disenfran- could be rights. felonies civil to restored convicted unless nar- Therefore, provision chised. Const, (1885). Section VI, 4 art. Fla. could be who persons class rowed provided: some re-enfranchised and disenfranchised to, power shall Legislature The were disenfran- previously who persons to necessary laws shall, enact and chised.15 suffrage, ... exclude bribery, pro- perjury, submitting its before Additionally, convicted persons all crime Elec- CRC, Suffrage infamous and other larceny, or to posal mo- considered several Const, Committee (1885). tions After the VI, § 5 art. Fla. felon newly proposed alter tions addressed revision, only provision one Notably, provision.16 disenfranchisement disenfranchisement: felon striking “judicially determined Court, by motion According the Florida mind, judicial or under unsound enumerated offenses persons convicted disability” mental pro- guardianship because the 1868 5 of Section adjudi- "persons “pet- therefor vision, to substitute such as and including a misdemeanor disenfranchised, incompetent.” motion mentally ex. This State cated larceny” were ty Pettigrew Buckman, passed. Mr. 18 Fla. and was seconded Jordan rel. by4 add- Section amend to further moved "in previоus ing his amendment: had their they who have not and what call other plaintiffs focus 15. The This provi- restored.” judicially felony competency "automatic passed. unaffected also it remained seconded was amendment assert sion” discussion, plain- Presumably, the Petti- Mr. revision. After considerable 4 of the referring Section 4 be deleted Section grew are moved that tiffs mis- Legislature argument plaintiffs’ "The following provision. inserted: of the 1868 leading. disqualifications Section establish may law pro- convic- incompetency disenfranchisement” also an "automatic voting for mental legislature required the was second- vision felony.” motion tion of deleting laws. following disenfranchisement enact offered Goodrich ed. Mr. engage legislature did Pettigrew’s in Section mo- motion Mr. substitute call "auto- plaintiffs of what a revision in "The insert: 4 and Section tion: Delete Therefore, disenfranchisement.” persons matic may by exclude law Legislature provision” disenfranchisement "automatic incom- of mental voting because in (which encompassed both sections penal jail petence or commitment 1968. in revised provision) was discussion, Good- Mr. After institution.” of a second. lack failed for motion rich's state: minutes committee 16. The mo- Pettigrew’s on Mr. was taken The vote Good- Mr. tion, adoption. but it failed VI, Section Article moved that Mr. Earle "felony” line in word moved rich Suffrage by the Committee adopted be The changed to "crime.” 4 be of Section was seconded. motion and Elections. of a second. lack failed motion Mr. Earle's to amend Pettigrew moved Mr. the committee considered rejected but Equal Analysis Protection amendment which would have ended blan- A facially-neutral law violates the Equal ket disenfranchisement of felons and in- Protection if Clause adopted with the in stead would vested legislature tent to discriminate against a racial power group.17 with the to impose Davis, Washington disen- 426 U.S. at 239, 96 S.Ct. 2040. In Hunter v. franchisement. The Under committee also con- wood, Court examined head- rejected sidered and an amendment to lim- on an equal protection challenge to a crim it felon disenfranchisement to those still in inal disenfranchisement provision. prison. Had the only committee en- been U.S. at There, gaged revisions, stylistic plaintiffs as the ‍‌‌​‌​‌​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​​​‌​‌​‌​​‌‌‌‌​‌​‌‌‌​‌‍Court determined Alabama’s criminal urge case, was the it would not have con- provision disenfranchisement violated the sidered or debated these alternatives. Equal Protection Clause adopted in 1901 to minimize the political The committee’s final proposal then was power of its African-American population. sent to the CRC. The CRC met to review Id. at 105 S.Ct. 1916.18 After the changes to the Constitution and sub- enactment, the Alabama legislature mitted a draft to the legislature. The neither altered provision nor reenacted legislature approved the proposed new it in a political atmosphere free of racial Constitution containing the disenfranchise- Rather, bias. all of the amendments to provision; it then was affirmed provision were the result judicial the voters of Thus, Florida. Florida’s action. 233, 105 Id. at S.Ct. 1916. Constitution, including the felon dis- The Hunter Court articulated a provision, enfranchisement was adopted af- two-step test to analyze whether a criminal ter four stages of review. provision disenfranchisement violates the adopted Committee Section 4 of Article VI felony 1968 due to a Although conviction. with no further amendments. proportionately more African-American vot- Minutes Suffrage and Elections affected, Com- ers were the percentage eligible mittee of the Florida Constitution Revision African-American voters voting age Commission, 2-3, 1966, Feb. public at 6-7. dropped only from 12.57% 1967 to 12.32% in 1968. The focus on the 17. Proof of intentional discrimination re- present racially disparate impact of the felon quired Equal under the Protection Clause. provision, disenfranchisement but One factor relevant inquiry intent disparate amount of impact present was not whether being the law challenged has an im- in 1968 provision when the was enacted. Al- pact that bears heavily more on one race than though disturbing, present racially dispa- another. Village Arlington Heights v. rate impact of the felon disenfranchisement Metro. Corp., 252, 266, Dev. Hous. law guide does not analysis. our (1977). Here, 50 L.Ed.2d 450 Flor- ida's felon provision disenfranchisement did bar, 18. Unlike Hunter, the case at there not create significant disparate impact was extensive evidence that racial animus along racial lines in 1968. Accepting the motivated the 1901 provi- plaintiffs’ true, estimates for 1968 as the felon sion. Alabama did not contest this fact. In- deed, voting denied at oral argument Alabama's counsel rights to far more whites than African-Ameri- conceded that "I would very blind and cans and decreased percentage of Afri- try naive up [to] to come and stand before this can-American voters state-wide less than Court say and that race was not a factor in quаrter one of one percent. plaintiffs’ The 182; the enactment of Section that race did 44,562 best estimates show that white voters play part peo- decisions of those 16,150 black voters were ple disenfranchised who were at the constitutional convention the today despite operative legally 227-28, remains Id. at Clause. Equal Protection earli- suggested As in 1968. re-enactment directed Court The 1916. S.Ct. have plaintiffs the er, whether question we follows: racial dis- that demonstrated adequately law that state neutral with a Presented the of adoption the motivated crimination along effects disproportionate produces introduced plaintiffs The provision. was Appeals of lines, the Court racial showing that evidence contemporaneous Ar- no of approach the applying correct adop- the motivated discrimination racial whether to determine Heights lington Nevertheless, provision. of the 1868 Protection Equal the law violates the this of posture procedural Amendment: the Fourteenth of Clause view need to of mindful the case, uncon- we are be held will not action “[0]fficial to favorable most light the it results the evidence solely because stitutional assume, with- Thus, we will impact the plaintiffs. racially disproportionate motivated or animus discriminatory intent that deciding, racial racially out of Proof a violation 1868 disenfran- to show Florida’s required adoption is the purpose not, Once does assumption Clause.” That Equal Protection law. the chisement to have the is shown conclude that however, to lead us discrimination racial fac- “motivating” step of Hunter. first satisfy a “substantial” the been plaintiffs law, the with here enactment concerned behind tor we are Importantly, defenders the law’s the provision, shifts the 1968 validity burden the have would the law that concede plaintiffs demonstrate the provision factor. this without enacted not enacted been was provision the 1968 that intent.19 omitted). discriminatory (citation with Id. analysis, we open left

Thus, the Hunter Hunter, Court In discrimination racial here: whether examine we confront question first precise motivating factor a substantial legislative re-enact- subsequent was whether deny decision a law state’s the taint eliminate can that is evidence there If to felons. vote discrimi- with enacted originally was that fac- motivating was a discrimination Hunter, racial at U.S. intent.20 natory can whether ask tor, we then Fordice, 157 1916. Cotton been have would prоvision that show (5th Cir.1988), Fifth Circuit F.3d racially dis- in the absence enacted open was left issue this recognized criminatory motive. neutral facially held that Hunter case Underwood in that Applying provision Hunter legis- through origin” “odious overcame its Equal plaintiffs’ essence The at 391. amendments. lative moti animus racial claim is Protection the disen- out that pointed Fifth Circuit Florida’s disenfran adoption vated origi- at issue provision franchisement animus in 1868 and law revi- concluded Supreme Court Id. at do that.” and I won’t courts, which by state sion S.Ct. blatantly discrimi- the more “some severed law, purge the did not portions of natory” plaintiffs’ allegation in the no 19. There Hunter, 471 intent. legislative its provision of provision was the 1968 complaint Su- 1916. The based to discriminate the intent adopted with however, that in- Court, hold did not preme Indeed, stipulated that race. policy changes to the tervening legislative legislators in 1968 evidence no there re- legally insufficient been would conse- with or considered concerned were intent; discriminatory an earlier move along racial lines. policy quences of in nally enacted 1890 with discriminatory if Even the plaintiffs were somehow able intent, but by was amended legislature the satisfy the Hunter, first step their in 1950 to remove burglary Equal as a disenfran- Protection claim would still fail. chising crime, and was in Under step Hunter, amended second we ex- add murder rape amine whether Florida would disenfranchising have chosen crimes, two crimes disenfranchise which felons in were 1968 if historically legisla- tors did not have a they excluded discriminatory because were not considered motive. Hunter, this was a more complicated “black” crimes. Id. The empha- court analysis it required a sized the counter-fac- process deliberative through tual scenario: given that Alabama provision only had twice been amend- legislatively addressed the disenfranchise- First, ed: both houses of the legislature once, issue what legislators would pass had to by amendment a two- have done if they did not have a discrimi- vote; thirds then the Mississippi Secretary natory motive? 471 at of State publish had to the full text of the Here, S.Ct. 1916. we have the luxury of provision at least two weeks before the not having to delve into complex counter- popular election; finally, majority of the factual scenario because Florida simplified voters had approve the full text of the analysis by returning to the issue in provision. Thus, Id. the Fifth Circuit 1968. Florida’s 1968 permits Constitution “[bjecause held that Mississippi’s proce- us to determine whether the state would dure resulted both in 1950 and in 1968 in a have chosen to disenfranchise if felons reenactment provision], [the each impermissible motive was absent. The re- superseded amendment previous provi- sults plain: are there is allegation no sion and removed the discriminatory taint racial discrimination in 1968 and the legis- associated original with the version.” Id. lators decided to include a felon disenfran- provision situation here is similar to that revised consti- tution after by Cotton v. Fordice. consideration both Like Mississippi’s pro- CRC vision, the Suffrage and Florida’s Elections Commit- provi- tee. This decision sion was was then amended through by affirmed deliberative both houses of the process legislature by 1968. The provision nar- voters Florida. rowed the class disenfranchised individ- uals to those convicted of felonies. Thus, More- Florida’s felon disenfranchisement over, provision first was provision considered violation of Equal the Suffrage and Elections Committee. Protection Clause under the standard the The Committee sent its final proposal Court adopted in Hunter. Florida’s re- the CRC. The CRC reviewed changes enactment of the felon disenfranchisement provision Constitution and sent a draft to the 1968 Constitution conclu- legislature, sively which approved the new demonstrates that Con- the state would stitution. enact Finally, provision the voters even approved without imper- new Thus, missible Constitution. motive and as in did enact the Cotton v. provision Fordice, without an impermissible Florida’s 1968 re-enactment elimi- motive. The state has met its nated taint burden as a matter allegedly discrim- law by substantively inatory provision, reenacting the law particularly in light race-neutral reasons. the passage of time and that, the fact the time of the enactment, no one had urge that the defendants ever alleged that the bear should a greater burden. They con- motivated racial animus. tend that Florida must affirmatively prove actions were Mississippi’s found not a sub- was Court discrimination that racial Equal Protection with the consistent motivating behind not factor stantial made no effort Specifi- Mississippi 1968. because law in Clause discriminatory must effects of Florida de argue that remove plaintiffs cally, that ra- acknowledged it jure segregation. demonstrate provi- the 1868 tainted cial discrimination not case and Fordice are present The reenacted knowingly it sion, yet and First, pub has valid analogous. Florida for non-dis- provision disenfranchising for fel policy reason lic not We do criminatory reasons 1968. ons, did not have Mississippi where fel- Florida’s proof.21 this level require poli justification for its education sound is consti- provision on disenfranchisement Thomas, concurring in his Justice cies. substantively al- it was tutional Fordice, stated specifically opinion in the absence in 1968 and reenacted tered only applicable when heightened review Cotton racial bias. evidence justification public policy is no sound there Cir.1998). Fordice, 157 F.3d 388 law, stating: challenged “A for the extensively on United rely plaintiffs The the standard not does survive policy Fordice, 717, 112 S.Ct. States during today began announce if we (1992) support 120 L.Ed.2d era, adverse im jure produces de prior Fordice, however, dealt argument. their sound edu persists and without pacts, system of Mississippi’s challenge to with a Fordice, 505 U.S. justification.” cational extreme an and involved higher education Mississippi, 2727. Unlike S.Ct. at Mis- state discrimination. case of recent educational a valid did have removing the actively resisted sissippi had maintaining segregated for justification system of segregated education schools, legitimate reason for Florida has a limited edu- 1960s, fund failed to even courts Several denying the vote felons. by sued was reform cational excluding recognized propriety private States the United See Richard from the franchise. felons Equal with the failing comply for 2655; son, U.S. 722-25, 112 Id. at Clause.22 Protection Elections, v. Board Green was in Fordice The issue (2d Cir.1967); v. Brater Beacham 450-52 edu- facially-neutral the state’s whether (S.D.Fla.), 182, 184 aff'd, man, F.Supp. only after the state adopted system, cation 24 L.Ed.2d 11 its schools integrate required was Equal order, was valid under court Second, Florida current maintained if the system Clause Protection after the years one hundred passed jure that de disparate racially impact occurred, discrimination alleged intentional had created. segregation presumption that case, to reverse sug- would be expert ever had to this no 21. Prior constitutional, plunge are State’s laws pro- gested that 1868 disenfranchisement far-reaching expeditions into federal courts discrimination. was motivated racial vision past in order to regarding the sins of an insur- plaintiffs’ standard establishes today. question the laws point defendants burden. As the mountable out, plaintiffs' accept the were to if the court Fordice, was one of what standard, allegation question then the more dubious requires after a State predecessor provi- remedy the Constitution past in a discrimination violating the sion, already liable for a state been found has difficult it becomes the more By segregation. jure con- unlikely via de Constitution would be extinguish it because it liability, trast, question is one here the would be present day legislators remedy. The result past discriminatibn. aware of Mississippi’s whereas provision was passed cation system, established in a time deof shortly after the end of jure de segrega- jure segregation, through a facially-neutral tion in education. say, Needless to provision. Conversely, when Florida legislators Florida passed who the 1868 adopted its felon provi- Constitution and the 1968 1968, Constitution sion in the racial effects of provi- were not the same people. Fordice, In sion were 1968, minor.23 In legis- Florida however, legislators who refused to lators and voters were not attempting to desegregate the Mississippi schools with- extend the effects of jure de discrimination out a court 1960s, order most likely with a facially-neutral provision because overlapped significantly with the legisla- there was little adverse impact to extend tors passed who the facially neutral edu- by passing the felon disenfranchisement system cation in the 1970s. Given the provision.24 Florida’s provision simply did proximity in time between Mississippi’s in- not maintain pattern of discrimination tentional discrimination and the facially the way Mississippi’s provision did. Con- provision neutral education, the Court sequently, the heightened review in Ford- had a healthy skepticism that the facially ice is not appropriate here.

neutral provision was indeed neutral. Finally, we note that this circuit has Certainly, the Mississippi legislators who been reluctant to extend the education line voted for the facially neutral provision un- cases other areas. As this court derstood history of racial segregation stated in Burton v. City Glade, Belle in education likely and the effect of their school desegregation jurisprudence new system. education But this skepti- unique and difficult apply in other con cism here, does not apply because it texts. 1175, (11th Cir.1999); reasonable to assign any impermissible see also Johnson v. DeSoto County Bd. Of held motives the 1868 Florida legisla- Comm’rs, 204 1335, (11th F.3d 1344 n. 18 tors to the legislators who voted for Cir.2000). Moreover, as earlier, discussed the present felon pro- specific there is precedent from this court vision. and the Supreme Court dealing with crimi

Third, Florida’s 1968 felon disenfran- nal disenfranchisement. See Hunter v. did not continue Underwood, 222, 471 U.S. S.Ct. disparatе adverse impact of earlier de jure (1985); 85 L.Ed.2d 222 Richardson v. Ra measures, which makes the present mirez, case 418 U.S. entirely different than the situation (1974); L.Ed.2d 551 Beacham v. Brater Fordice. At the time the Mississippi man, legis- F.Supp. (1969), aff'd lature adopted its system, education (1969) 24 L.Ed.2d 11 system higher education was almost (finding by a three panel judge that Flori completely racially segregated. da’s decision to disenfranchise felons was 112 S.Ct. 2727. Fordice, not a violation equal pro therefore, Court was con- tection or process due rights). Because cerned that Mississippi was attempting to these cases establish clear standards by perpetuate its racially segregated edu- which to judge action, we are bound According plaintiffs' estimates, In contrast to school desegregation where voting age 3.13% the racially disparate African-Americans impact was at height its were disenfranchised felony due to a in the 1950s convic- and 1960s and has decreased since, compared tion as the felon 1.24% non African- disenfranchisement rale had very racially Americans. little disparate impact 1960s and only developed such an effect many years later. holding that there laws but franchisement into other go and need not by precedent violation); also Farrakhan no see law. analogous possibly areas of Cir.2004) F.3d Washington, 359 reasons, affirm the we above For (Kozinski, J., dissenting denial of re- summary judg- grant court’s district banc) 2 of (arguing that Section hearing en claim. on this to felon disenfran- apply does not the VRA laws). chisement Rights Act Claim Voting TV. The that Florida’s argue also The Act Rights Scope Voting 1. of.the law Sec violates felon disenfranchisement Voting enacted Act. As Voting Rights 2 of tion to its enforcement Rights pursuant Act im matter, raises an this claim threshold Fif the Fourteenth powers under statutory interpreta of question portant pur for the remedial teenth Amendments 2 of the Section tion, namely, whether discriminatory eliminating racially of pose Florida’s fel applies to Rights Act Voting v. Kat South Carolina voting practices. The Cir provision. disenfranchisement on 308, 803, 15 zenbach, 301, 86 S.Ct. U.S. 383 Compare this issue. split on are cuits (1966); States v. Mar L.Ed.2d United 769 102, 124 Coombe, F.3d 366 v. Muntaqim Commission, 1546, County engo Cir.2004) 2 did (2d (holding that Section Cir.1984). (11th Recognizing the 1555 disenfranchise New York’s felon reach — denied racial ways that states subtle often U.S. -, denied, statute), cert. 1982, vote, in Con right minorities (2004), and 480, 356 160 L.Ed.2d 125 S.Ct. Voting 2 of the Section gress amended (2004) F.3d 95 granted, 396 reh’g en banc plaintiff could estab Act so that a Rights F.3d Washington, 338 v. Farrakhan with proving discrimina a violation without lish (9th Cir.2003) 1009, (holding 1014-15 Roemer, 501 tory intent.25 See Chisom Washington’s felon applied 2 Section — 2354, 383-84, 115 380, denied, U.S. law), cert. (1991). Thus, it is well-set L.Ed.2d 348 477, L.Ed.2d 365 U.S. -, 160 challenge voting can plaintiff tled that Collins, F.2d (2004); 791 Wesley v. Id. a “results” test.26 Cir.1986) under qualifications (6th (assuming that Sec 1259-61 Rights Act of Voting 2 of the felon disen- Section applies to 2 of VRA ... protected class] Voting ipation [members Congress amended Specifically, 25. opportunity less response to Su- in that its members Rights in 1982 in Act City par holding Mobile of the electorate preme Court's members than other Bolden, 64 S.Ct. U.S. process and to elect political ticipate (1980), required proof of which L.Ed.2d 42 U.S.C. their representatives of choice.” viola- to establish a discrimination intentional 1973(b). inquiry, making courts § Section 2. tion under objective fac list of a non-exclusive consider . factors”) (the a Sen detailed tors "Senate discriminatory practices and types of Two 26. accompanying amend the 1982 Report ate 2: those section are covered procedures 28-29, S.Rep. at No. ments. denial” and those in "vote that result 206; Thornburg v. Gin U.S.C.C.A.N. plaintiffs' claim in "vote dilution.” result 30, 36, S.Ct. gles, denial occurs Vote one of vote denial. here is conclude we Because L.Ed.2d "standard, practice, employs a when a state Rights does Voting Act 2 of the that Section procedure” that results denial or felon disenfranchisement Florida's not reach 42 U.S.C. race. to vote account to consider the no need provision, there is Glade, 1973(a); City Belle § Burton v. alleged discrimination plaintiffs' evidence 1999). pre Cir. To F.3d 1197-98 system whic justice in Florida’s vail, prove that "under plaintiff must h totality of the circumstances, might relevant be political ... totality inquiry. partic- circumstances equally open to processes are not amended, U.S.C. provides in bidden even though the absence of proof of part27: relevant discriminatory protects intent them (a) voting No constitutional qualification challenge.”) prerequi- (emphasis or add- ed); to voting standard, Muntaqim, site or practice, F.3d at 116. or Felon procedure shall imposed laws are applied unlike other by any qualifications. voting or political State These subdivision in a laws are deeply manner rooted in this results in a Nation’s history28 denial are a abridgement punitive of the right of device stemming citizen from crimi- nal law. United See Richardson, States vote on 418 U.S. at account 48- 52, 94 of race or color ... Today, all except states two have some (b) form of criminal A (a) disenfran- violation of subsection of this provision. sеction if, is established based on the totality of circumstances, it important, is shown Most Florida’s discretion to ... that members protected deny [of racial vote to convicted felons is fixed have minorities] less opportunity § than the text of of the Fourteenth other members of the Amendment, electorate to par- which states: ticipate political in the process and to right [W]hen the to vote ... is denied to representatives elect of their choice. any of the male inhabitants in any or § U.S.C. way abridged, 1973. Despite except its broad lan- participation guage, rebellion, in Section crime, does not prohibit or other all vot- of basis ing representation restrictions that may have a therein shall be racially reduced disproportionate in the proportion effect. Chisom, which the number of U.S. such male S.Ct. 2354 citizens (“Congress shall bear § amended whole 2 of the number of Voting male Rights twenty- Act citizens years one age make clear of in that practices certain such State. pro- Const, cedures that result in the denial or U.S. XIV, § amend. 2 (emphasis abridgement of right to vote are for- added).29 As the explained Court in Rich- text, 27.The full as amended in protected states: class been elected to office in the political State or is one subdivision (a) voting No qualification prerequisite or circumstance may which be considered. standard, to voting or practice, proce- or Provided, nothing in this section estab- dure imposed shall applied by any right lishes a to have protect- members of a State or political subdivision ain manner ed class elected in equal numbers to their which results in a denial abridgement participation population. in the citizen the United States U.S.C. 1973. to vote color, on account of race or or in guarantees contravention of the set forth in 28. When the Fourteenth Amendment was rat- 1973b(f)(2) title, section this provided ified, twenty-nine out thirty-six states had (b) in subsection of this section. some form of criminal disenfranchisement (b) A (a) violation of subsection of this sec- provision. Richardson, 418 U.S. at if, tion is established based on totality S.Ct. 2655. prevalence The of these laws circumstances, it is political shown that the before granted African-Americans were processes leading to nomination or election right to vote indicates that states have histori- in the political State or subdivision are not cally maintained these laws for race-neutral equally open to participation by members reasons. of a class protected of citizens by subsection (a) of this section in that its members have plaintiffs argue the Fourteenth opportunity less than other members of the Amendment's endorsement of felon disenfran- electorate to participate political pro- chisement laws should not control analy- our cess and representatives to elect of their sis because the Fifteenth Amendment does not choice. The extent to which members aof and, contain language view, similar in their has its roots Chief principle cardinal from the felons ardson, exclusion “the section for the Court opinion sanction affirmative Justice Marshall’s has vote an Amendment, a sanc- Betsy, the Fourteenth Charming 2 of Murray v. The case of present not which was Cranch) 64, 118, (2 2 L.Ed. 208 U.S. the franchise other restrictions applied (1804), long been and has for so cases].” other [in invalidated were beyond debate by this Court Thus, inter- 418 U.S. at only reflects approach ... This Act Rights Voting 2 of the Section preting is- that constitutional concern prudential to disenfran- deny discretion Florida confronted, needlessly but not be sues constitutional serious raises felons chise like this Congress, recognizes also interpretation such problems an oath Court, swears is bound to override statute congressional allows courts Constitution. uphold the Constitution. the text of lightly assume therefore will statutory rule long-standing It is a infringe constitu- intended Congress should that federal courts interpretation usurp pow- liberties or tionally protected a constitu- to create a statute not construe it. constitutionally forbidden er is a clear there unless question tional endorsing statement Court understanding.30 As (1988). Thus, ana- when we 645 L.Ed.2d Florida Corp. v. in DeBartolo stated Gulf Act, Rights we Voting the scope of lyze the Trades Council: Coast interpre- one whether first address should con- acceptable an otherwise [W]here grave ques- constitutional presents tation serious raise of a statute would struction interpretation would another tions whereas will the Court problems, constitutional whether latter not, examine and then prob- to avoid such statute construe the contrary to Con- clearly is interpretation plainly is such construction lems unless Id. gressional intent. This Congress. the intent of contrary white), and is administered plaintiffs' class is repealed § 2 of Amendment the Fifteenth criminal sen of a felon's component as one plaintiffs cite to Amendment. Fourteenth 116; Nip at Muntaqim, F.3d 366 tence. See suppоrt this bold assertion case no law 1494, (11th Smith, Cir. 1515 F.3d per v. 39 plain argument. The merit in this we find no actionable, deprivation of a 1994) ("to a be we must is clear Constitution text of the equal participation group’s right to minority follow it. be on account political process must decision, classification, practice de statutory in or turning canon 30. Before color, on account not pends of ambi on some level race terpretation, we must find cause.") (emphasis racially Dep’t neutral some other the statute. guity in the words of Moreover, among 125, 134, added). deep division Rucker, 535 U.S. HUD issue demon judicial minds on this (2002); Harry v. Mar eminent 152 L.Ed.2d 2 is Cir.2002) (en unclear. the text of Section chant, strates that F.3d ("Unfor 116-118 Muntaqim, 366 F.3d at does See banc). Although Section VRA exceedingly to discern difficult tunately, it 'is require proof of intentional discrimina "). Finally, in means.' challenged [Section 2] what the enactment tion behind by the advanced terpretation of the statute to re Congress's voting qualification, decision currently incar suggest that dissenters would color" account race phrase “on tain scope may within also fall cerated felons to whether Section unclear as makes it Sec one concedes Unless of the statute. ‍‌‌​‌​‌​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​​​‌​‌​‌​​‌‌‌‌​‌​‌‌‌​‌‍felon disenfranchise to Florida’s apply would currently incarcer reaches 2 of the VRA by tion endorsed provision, which is by felons, advanced interpretation Amendment, ated applies to felons Fourteenth additional provides reason (it the dissenters particu regard or color is to race without unclear. why the statute seventy percent of the larly telling that over tionality Here, plaintiffs’ interpretation injury prevent between the to be question adopted constitutional ed or remedied and the means creates a serious Flores, Act Voting Rights City to con that end.” Boerne v. interpreting of the Fourteenth 138 L.Ed.2d flict with the text U.S. (1997). Congress undoubtedly and Fif The Fourteenth has the Amendment.31 authority prohibit many to the United States constitutional teenth Amendments grant Congress power explicitly prohibited to measures that are not Constitution Amendment, those amendments’ substantive the Fourteenth but this enforce provisions “by appropriate legislation.” power arguably enforcement does not ex XIV, 5; XV, § 2. prohibiting constitutionally protect U.S. Const. amend. tend to Congress may pro practices. say enforce the substantive ed This is not to that a by regulating provision visions of these Amendments state’s felon disenfranchisement directly challenged. conduct that does not violate those can never be As the Court’s clear, Amendments. South Carolina v. Kat decision in Hunter made can states zenbach, 301, 86 S.Ct. 15 not use provisions 383 U.S. (1966). intentionally As the Court has discriminate L.Ed.2d the basis of may explained, “Congress enact so-called race. 471 S.Ct. 1916. Thus, fa prophylactic legislation proscribes remedy have a if the conduct, in cially Equal constitutional order to state’s violates the Protec matter, prevent and deter unconstitutional con It Clause. Id. is a different however, Dep’t duct.” Nevada Human Re when a federal statute is read to Hibbs, 721, 727-28, delegated power. sources 123 limit state’s 1972, 155L.Ed.2d Moreover, as the Second Circuit detailed Nonetheless, Congress’s power in this in Muntaqim, there are additional reasons regard To why plaintiffs’ interpretation absolute. valid Congress’s power, Voting Rights exercise of enforcement Act question calls into Con- congruence propor- gress’s “there must be a and power. enforcement F.3d at 366 this, saying way inequality political pro- 31. we in no doubt Con- cause racial Smith, cess); 1494, gress's authority Nipper to enact the VRA nor do we v. 39 F.3d 1515 that, rule, (11th Cir.1994) ("The question general as a the results existence of some form constitutionally 2 test of Section sound. of racial discrimination remains the corner- Comm’n, ”). Marengo County See United States v. stone of Section 2 claims ... We are con- 1546, (11th Cir.1984) only allegedly 1556-63 cerned with how the state dis- (holding against similarly that Section 2's results test is consti- persons criminates situated face). only Although tutional on its issue here is have who committed felonies. Congress our concern over whether would record includes some evidence of a statistical authority apply exceed its we felony if were to Sec- difference in the rate of convictions lines, along tion 2 to Florida’s felon disparities disenfranchisement racial these do not assuming arguendo law. myriad Even that Section 2 demonstrate racial bias. There are a applies provision, of the VRA to Florida's may explain of factors other than race that strongly suggests disparity. review of the record example, that the For an individual's status, plaintiffs' record, 2 prior Section claim would still fail. socioeconomic offense, evidence, gravity strength would have to demonstrate that of of nature specific society legal and representation, age relevant racial biases in of of offender Moreover, might explain interact with the felon disparity. disenfranchisemеnt rule, resulting plaintiffs’ expert in denial of the franchise "on own found that whites Thornburg disproportionately high account race or color.” v. conviction rates for of 478 U.S. Cf. 30, 47, 2752, Gingles, categories 92 four of the nine of crimes he ana- (1986) Furthermore, (stating Voting lyzed. significant L.Ed.2d 25 that the there is no Rights requires practices Act that disparity by electoral racial in the sentences received interact with guideline social historical conditions to convicts with similar scores.

1231 discriminatory use of litera history of long proper enact to For 118-26. on ac voters cy tests disenfranchise abe there must legislation, enforcement “Congress race” but made their count of violations.32 constitutional record year the 21 old findings that legislative no Ala University Trustees Board used States requirement 368, Garrett, 531 U.S. 121 v. bama on race.” voters account disenfranchise (2001); Kimel 866 L.Ed.2d S.Ct. Mitchell, 130, 132, 400 U.S. Regents, Bd. U.S. Florida v. (2000). In 145 L.Ed.2d Mitchell, S.Ct. when the case Con- As was Mitchell, 112, 118, Oregon v. subsequent its gress enacted VRA (1970), supersed 27 L.Ed.2d amendments, complete S.Ct. ab- there was XXVI, the Court amend. Const. ed U.S. findings that felon congressional sence the Vot amendments the 1970 used to dis- reviewed laws were disenfranchisement tempo Act, imposed a minority voters.33 With- ing Rights against criminate violations, lowered tests and literacy of constitutional rary ban out a record voting age. Voting Rights minimum applying 21 to 18 Section from literacy test felon There, affirmed to Florida’s Court Act its whether us address Congress exceeded would force law but held ban powers its enforcement voting age Congress exceeded lowering the authority and Fifteenth Fourteenth The Court in state elections. 21 to 18 it a Amendments.34 had before “Congress concluded laws of felon disenfranchisement existence Congress must explained, Court has As history fact and the throughout Nation’s (1) transgressing "identify conduct on their many laws had such States provisions” of the amendments substantive enacted, no we VRAwas find when the (2) books legislative to reme scheme "tailor its argument. merit in this Florida conduct.” preventing dying or such Expense Bd. Postsecondary Educ. Prepaid Congress com plaintiffs concede that 34. The 627, 639, Bank, College Savs. violations of constitutional piled no record In addi 144 L.Ed.2d pro respect to felon disenfranchisement with showing findings to the absence however, contend, Con They visions. to dis laws are used felon power is broader when gress’s enforcement ap criminate, questionable also whether it is against a sus prohibit discrimination acts disenfran all felon 2 to reach plying Section рrotect a fundamental pect class or congruent and abe laws would Lane, voting. See Tennessee such prob purported response to the proportionate 1991-92, 1978, 509, 158 S.Ct. U.S. 124 applies 2 na Section these laws. lem with access); Hibbs, (2004) (court 538 820 L.Ed.2d is no termi and there to all states tionwide (sex). 735-36, Al 123 1972 at S.Ct. U.S. are minorities racial Given that nation date. true, still Court though the this the population, felon overrepresented the viola record of constitutional requires some most theory cast into doubt plaintiffs’ would Congress adequate had tions to ensure country. laws in this felon disenfranchisement legisla prophylactic basis for constitutional 533, Boerne, U.S. at 117 S.Ct. 1972; 735, Hibbs, 123 S.Ct. 538 U.S. at tion. legislation although enforcement (noting that Lane, plaintiffs also at dates, geographic have "termination need not restrictions, Un in Hunter v. to the Court's decision cite ... limi egregious predicates of constitu record derwood evidence Congress' ensure kind to of this tend tations regard to felon disen with tional violations legitimate to ends proportionate are means key problem provisions. A franchisement Clause). under” the Enforcement Court not the did argument is that with this years the after until three decide Hunter unreason- that it is plaintiffs suggest 33. The Rights Voting Act. amendments of violations require specific record to able Thus, have relied Congress could not identify every Congress could amended Section it enacted the Hunter when it enacted voting when discrimination form of Moreover, evi- Rights Voting Act. widespread 2 of the Rights the Voting Act. Given the reasons, For these we believe that Voting Rights Act to reach felon disen- plaintiffs’ franchisement interpretation provisions.36 of the VRA raises grave constitutional concerns.35 For 2. Congressional Statements in 1965 plaintiffs’ interpretation correct, to be we Congress passed first the Act in 1965 to must look for a clear statement from Con- prevent states from discriminating against gress that it such intended a constitution- in voting. minorities The act was intended ally-questionable DeBartolo, result. to reach voting practices, tests and other 108 S.Ct. 1392. Instead of a such as designed districts by states clear statement from Congress indicating minority voting. minimize See Burton v. that the plaintiffs’ interpretation correct, City Glade, Belle legislative history just indicates (11th Cir.1999). The Senate and House opposite Congress never intended —that reports strongly suggest, however, purposefully of a dence discriminatory power crimi- between the States and the Federal nal disenfranchisement law in Alabama could is at Government issue this case. If defin- justify congressional regulation ing qualifications Flori- important govern- law, da's which was enacted for race-neutral ment officials lies at representa- the heart of reasons. government, tive surely defining then who decides qualifications what those will be is 35. We also application equally important. note that Although pow- VRA States’ to Florida’s regard er in provi- felon must be exercised in accor- could sion raise dance federalism with concerns in Fourteenth and Fifteenth Amendments, significantly the constitutionally alters 2 of the man- Fourteenth amend- power dated balance between explicit establishes an States constitutional and the Federal balance Gregory Government. See between the States v. and the Federal Ashcroft, 457-61, 501 U.S. Government giving authority States prevalent L.Ed.2d 410 continue the practice Whenever of disenfran- Congress upon chising intrudes "a felons. decision of the If wishes to alter [State], most area, power fundamental sort for a balance of ‘it is in this its inten- upon incumbent tion must unmistakably federal courts be cer- clear. Congress' tain finding intent before federal law overrides’ this balance.” Gregory Only the Ninth Circuit has found a felon Ashcroft, 501 U.S. at 111 S.Ct. 2395 provision to be a statuto- (quoting Scanlon, Hosp. Atascadero State ry violation. Washington, Fanakhan v. 234, 243, (9th Cir.2003). There, F.3d 1009 plain- (1985)). L.Ed.2d Congress's intent brought must tiffs Voting Rights challenge Act be "unmistakably language clear in the the State Washington's felon disenfran- statute.” Id. at 111 S.Ct. 2395. provision, claiming that racism in Gregory, judges Missouri state court chal- justice system interacted with the lenged of the Missouri Constitu- suffrage state's deny laws equal voting op- required tion that judges certain portunities retire at to minorities. Id. at 1020. The age being of seventy as in violation of the Ninth grant Circuit reversed the summary Age Employment in Discrimination judgment, Act of but did not specifically address the 1967, amended, as §§ 29 U.S.C. 621-634 constitutionality interpretation. of Logi- its (ADEA). concluding After that "the authority cally, that court must have found that the people of the States to determine the statute challenged covered the provision and qualifications of govern- their most important Congress that had the authority constitutional ment officials ... lies at repre- the heart of regulate felon provi- disenfranchisement government,” sentative the Court found that Nevertheless, sions to holding. reach its judges were not covered the ADEA Ninth provide Circuit did not any reasoning Congress did not make their inclu- finding, for its decision, that thus court's unmistakably 467, sion clear. Id. at only persuasive which is authority in our cir- S.Ct. 2395. As Gregory, cuit, the balance of compel should not analysis. our Furthermore, predecessor this court’s 2 of Section not intend did Congress did not cover the 1965 Act decided felon disenfran- to cover Act Voting Rights vot- felons from decision exclude state’s in- reports These provisions.37 Ward, the former v. In States ing. United moral literacy good or for that tests dicate Voting Rights held that the Fifth Circuit scrutinized, felon but character should imposing from Louisiana prohibited Act not. should provisions disenfranchisement qualification or other any literacy test 2508, 89-162, 1965 U.S.C.C.A.N. Rep. S. act that the but found registration, voter legislators only where place 2562. to felon disenfranchisement not extend did disenfranchisement felon addressed Cir.1965).38 (5th 329, 332 VRA, rules. 352 F.2d 4 of the to Section regard with enjoining an order There, issued the court leg- Report reflects that where Senate tests, the voting applying state from re- voting exempt islators intended felony exempted convictions explicitly but cov- the statute’s on felons strictions ordered order. court from the stating: erage, the state cease covered or device type of test The third voter any applicant for requiring char- good moral any requirement of Parish, pre- in Madison as registration result would This definition acter. take or registration, such condition to re- frequent proscription of or literacy, knowledge, pass any test political subdi- of States quirement comply with understanding or to or voting for applicant visions that in Section device defined test or as other convic- voting be free of for registration 4(c) Act of Voting Rights disability. felony or mental tion of a 438-439, i.e., Stat. Public Law also Likewise, Report the House Id. “good (including the any requirement Act was Voting Rights that the states in Arti- specified requirement character” disenfranchisement felon designed to reach 1(c) of the VIII, Louisiana cle Section provisions: Section Title Constitution a re- proscribe does not This subsection Code, except to extent Louisiana any political or of a State quirement disqualifi- permit provisions these applicant that an of a State subdivision felony). conviction cation for voting be for registration for voting added). (emphasis at 332 Id. mental felony free of conviction in 1982 Statements Congressional 3. disability. recently amended most Congress 89-439, 1965 U.S.C.C.A.N. H.R.Rep. No. response inAct Voting Rights indicate reports These 2457. City Court’s decision to in- intended house neither Bolden, 446 U.S. the Mobile within felon disenfranchisement clude (1980), attempt in an only refer- are the scope. These statute’s finding Section clarify the standard made to felon ences statute, Con- revising the violations. 1965 act. reports Prichard, F.2d City In Bonner legislative is no recognize that We there banc), Cir.1981) (en 2 of the referencing history directly Section deci- binding precedent all adopted felon court VRA mentions Nonetheless, Congress's we find down handed provisions. Circuit the former Fifth sions of to provisions in these reference treatment prior 1981. to October on persuasive to be of the VRA other sections this matter. gress depart intended to from the intent- chisement in legislative history sur- based standard of the rounding Court’s the 1982 amendments. Equal jurisprudence Protection and estab Thus, we believe that applying Section 2 lish an effects-based standard. Rep. S. of the Voting Rights Act to felon disen- 97-417, 15-17, 1982 U.S.C.C.A.N. provisions franchisement grave raises con- 192-94 After amendment, the 1982 stitutional concerns.40 Chiefly, plain- practice state Equal could survive Protec tiffs’ interpretation calls for reading tion Clause but fail scrutiny Section Vot the statute which prohibit would practice ing Rights scrutiny. Act the Fourteenth Amendment permits plain

Neither the text nor legislative Florida to maintain. As a matter of statu- history of the 1982 tory construction, amendment declares should we avoid such an Congress’s intent to extend interpretation. the Voting The case for rejecting Rights Act to felon plaintiffs’ disenfranchisement reading of the statute particu- provisions. The Report, larly Senate strong here, which de- Congress where has ex- many tails discriminatory pressed techniques its used intent to exclude felon disen- jurisdictions, certain made no provisions mention franchisement from Voting of felon provisions.39 Rights disenfranchisement Act scrutiny. Accordingly, we af- Although it is conceivable that certain firm leg- the district grant court’s of summary may islators judgment wanted the to the Voting defendants Voting Rights encompass Act to Rights felon disenfran- Act claim. provisions, we should not as- V. Wisdom Policy

sume Congress produce intended to statute contrary plain text of the Several amici argue that, curiae as a Fourteenth Amendment without a clear policy matter, felons should be enfran- statement. As the Second Circuit noted in chised, particularly those who have served Muntaqim, “considering prevalence their sentences and presumably paid their felon [provisions] society. debt to if we Even to agree were every region of the country since amici, the with the this policy is a decision thаt Founding, it seems unfathomable that the United States Constitution expressly Congress would silently amend Voting gives governments, to the state not the Rights Act in a way that would affect federal courts. Const. XIV, Amend. them.” 366 F.3d at 123-24. § There is 2. Florida has legislatively reexamined simply no discussion of felon disenfran- this since 1868 and affirmed its legislative The one-sided history is but- gests Congress did not sweep intend tressed subsequent Congressional acts. felon disenfranchisement laws within the 1982, Congress Since has scope enacted laws mak- of the VRA. ing it easier for states to disenfranchise felons. instance, For Congress enacted the In addition to concerns, the constitutional Registration National Voter (NVRA), Act prudential Pub. there are concerns as well. If we L. No. (1993), 107 Stat. 77 were accept plaintiffs’ interpretation of purge authorizes states statute, felons from voter might states ability lose their rolls. 42 1973gg-6(a)(3)(B). U.S.C. currently prison exclude felons from the Act also prosecutors instructs federal give Farrakhan, franchise. F.3d 1125— written notice to (Kozinski, J., election officials dissent from denial of rehear- persons convicted of felonies. 42 ing banc) U.S.C. en (discussing slippery slope § 1973gg-6(g)(3). Act, In this same problems of applying Voting Rights Act to sought practices eliminate certain felon provisions including dampen minority participation implications lists, elector- voting, voter Internet process. al Although dispositive, sug- weekday elections).

1235 that, to demonstrate separately I write to vote. right deny felons decision that the are correct if the dissenters even the wisdom question cannot courts Federal unambig 2 of the of VRA language section choice. policy this of felon disenfranchisement uously covers judgment appro summary VI. Conclusion provisions, case because in this priate reasons, AFFIRM we foregoing For that whatever to show not been able summary judg- grant of district court’s rights re voting of or abridgement denial of the defendants. in favor ment felon disenfranchise from Florida’s sulted AFFIRMED. of account occurred “on not Remand is therefore race or color.” TJOFLAT, Judge, specially Circuit required. PRYOR, which, Circuit concurring, 2 now section of the VRA It is true that joins. Judge, showing a of something less than requires Act Rights Voting 2 of the Section or by a to discriminate State intent actual re that (VRA) practices election “outlaws believe, I not do political subdivision. Nipper in racial discrimination.” sult only, as both however, requires it (11th Cir. Smith, 1509-10 F.3d 39 racially dis- showing of imply, dissenters C.J., banc) 1994) (en Tjoflat, (opinion of sec- A brief discussion effects. parate J.). Anderson, Specifically, joined by point. this demonstrates history tion 2’s prerequi or qualification any “voting bars City Court decided standard, practice, voting or site Bolden, S.Ct. Mobile in a denial ... results procedure (1980). to its Prior 1490, 64 L.Ed.2d any citizen abridgement case, of circuits a number holding account vote the United States the circum- “totality of applied a had 1973(a). § Fo U.S.C. or color.” 42 race cases in vote-dilution analysis stances” in” lan “which results cusing only on the Protection Equal brought that we argue dissenters both guage, Amendment. of the Fourteenth Clause to the district case should remand Circuit, predecessor our old Fifth The whether to determine for a trial court for this court, the framework established provis McKeithen, felon-disenfranchisement Florida’s in Zimmer v. analysis kind disparate impact. Cir.1973). racially produces That frame- ion1 F.2d inap majority argues that remand vote-dilution judge required courts work theory facts ac- the dissenters’ by measuring relevant propriate because cases factors, com- can now question cording to a number a constitutional creates factors.3 to as Zimmer monly construing the statute referred be avoided this diseus- purposes of Importantly provisions.2 felon-disenfranchisement cover Nevertheless, where the unconstitutional. provides "[n]o The Florida constitution that "its mem- qual- demonstrate felony petitioner shall can person convicted of other opportunity did office until restoration than to vote or hold had bers less ified Const, VI, art. rights.” participate Fla. civil district to residents legislators of elect processes and to political by the question is created 2. The constitutional choice,” U.S. Regester, 412 White v. their savings clause re- Fourteenth Amendment's [2332,] [755,] S.Ct. Const, provisions. See U.S. garding such Chavis, (1973)], Whitcomb v. [314 L.Ed.2d XIV, § 2. amend. 1858[, [124,] (1971)], such district- original L.Ed.2d canvassed 3. Those factors are constitutionally infirm. ing are schemes opinion: pano- Supreme Court has identified at-large and multi- It is axiomatic factors, may of which number ply of per se districting schemes are member sion, required those factors a showing of sought relief under the Bolden VRA. re- something than by less intent a State actor jected too, this approach, holding that “it is discriminate, but something more than a apparent that the §of language [of the disparate impact mere to make out a claim VRA] no more than elaborates upon that of vote dilution. of the Fifteenth Amendment, and the sparse legislative §of history makes

Bolden involved a challenge to an at- clear that it was intended to have an effect large arrangement election in a multimem- no different from that of the Fifteenth Mobile, ber district in Alabama. In that Amendment 60-61,100 itself.” Id. at S.Ct. case, Supreme Court held that Zim (footnote omitted). at 1496 The Court not- mer, “coming Washington Davis, before ed explicitly that this by meant extension 48 L.Ed.2d 597 section as then written did not cover ..., quite evidently upon decided disparate-impact cases: “Our decisions ... misunderstanding that it is not necessary have made clear that action a State that to show a discriminatory purpose in order is racially neutral on its face violates the prove a violation of Equal Protec Fifteenth Amendment if only motivated tion proof Clause—that of a discriminatory a discriminatory purpose.” Id. at Bolden, effect is sufficient.” 446 U.S. at S.Ct. at 1497. 71, 100 1501-02.4 The Court viewed this conclusion as inescapable in Apparently alarmed by these holdings, light Davis, and it concluded that to Congress set out VRA, to amend the ulti- make out a vote-dilution claim a “plaintiff mately doing so in 1982. See generally must prove that the disputed plan was S.Rep. (1982), No. 97-417 reprinted in ‘conceived operated purposeful [a] 177; U.S.C.C.A.N. see Voting also ” devic[e] to further ... discrimination.’ Rights Amendments, Act L. Pub. No. 97- Id. at 100 S.Ct. at 1499 (quoting Whit 96 Stat. 131 The effect of this Chavis, comb v. amendment was to recast the then-existing 1858, 1872, (1971)) (altera 29 L.Ed.2d 363 version 2(a) of section 2 as section tions and original). omission VRA and to add a subsection, new subsec- (b).

In addition to seeking relief under a vote-dilution theory under the Equal Pro- The wording 2(a) of the new section Clause, tection the plaintiffs had also not identical the old section 2. The new contribute the existence of running dilution. particular geographical sub- Clearly, enough it is not prove a mere districts. The fact of dilution is established disparity between the number of minority upon proof of the existence aggregate of ‍‌‌​‌​‌​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​​​‌​‌​‌​​‌‌‌‌​‌​‌‌‌​‌‍an residents and the minority repre- number of of these factors. Court’s re- sentatives .... a minority [W]here can pronouncement cent Regester in White v. demonstrate lack of process access to the demonstrates, however, that all these fac- slating candidates, unresponsiveness proved tors need not be in order to obtain legislators particularized to their inter- relief. ests, a tenuous state policy underlying Zimmer, (footnotes 485 F.2d at 1304-05 preference for at-large multi-member or omitted). internal cross-references districting, or that past existence of general discrimination in precludes No one spoke ef- for the Court in Bolden. Al- participation fective though system, the election six Justices concurred in the Court’s a strong proof case is judgment, made. Such is en- Justice only Stewart wrote for him- hanced by self, a showing of the existence Chief Burger, Justice and Justices Powell districts, large majority requirements, vote and Rehnquist. purposes For brevity, I do antisingle voting provisions shot pause to make this every observation at

lack of at-large candidates reference Justice opinion. Stewart’s members other first, than portunity 2(a) modifications: made two section political the in participate to electorate Compare in change phrasing. made one it of representatives and to elect (“No process (preamendment) § 1973 42 U.S.C. choice.”) with, Regester, e.g., White their or imposed be ... shall qualification voting 2332, 2339, subdivi- political or any State by applied (“The (1973) burden plaintiffs’ L.Ed.2d 314 of the abridge deny or to sion findings support to evidence produce tois on to vote States the United of citizen nom leading to processes political the that (emphasis add- or race color.” of account open equally were not ination and election 1973(a) (postamend- § ed)), 42 U.S.C. with question— in group the by participation to ... shall ment) (“No voting qualification opportunity had less its members that any State or by applied or imposed be to the district in residents other than did manner in a subdivision political to processes political participate abridgment denial in a results of choice.”). The of their legislators elect States to the United any citizen of right of evinces specifically Report Committee (empha- race or color.” of vote account contrary that Bolden view of 2(a) phrase added)). Second, added a sis operation understanding of the to its or denial abridgement that make clear to strong implication suggesting section in sub- provided “as recognized could thought section Congress had that at least 1973(a). § (b).” 42 U.S.C. section to Bol successfully prior operating 2 was modification second effect intended (1982), 97-417, at 15 See, Rep. e.g., S. den. IAs less so. obvious; first that of the in U.S.C.C.A.N. reprinted Con- reflects first modification explain, the 2 of (“The Section proposed amendment require- an intent to remove desire gress’s re designed Act is Voting Rights a desire to reflect ment, does not it but vot governed that legal standard store the disparate-impact awith mere it replacе Su prior cases ing discrimination requirement. Bolden.”). in decision preme Court’s of the language from both It is clear have, intent, as we that with Consistent (b) Com- extensive new subsection dissent, in her suggests Barkett Judge accompanied that Report mittee context. denial in the vote section applied to re- Congress intended that amendment Glade, F.3d Belle City See Burton pre- to be perceived what store Cir.1999). Dismissing 1175, 1197-98 the sub- Specifically, quo. status Bolden cursory manner in a claim the vote-denial (b) reflects vote-dilution language however, pause section case, we did in that Supreme Court pre-Bolden of a rhetoric from requirements the minimum establish 1973(b) (“A 42 U.S.C. Compare cases. claim section facie vote-denial prima if, on the prece- based dubious ... is established thus of case is violation circumstances, that support it is shown value, in especially totality of dential impact nomina- mere leading disparate that processes proposition political In a claim. open such equally to establish are sufficient election on the vote- holding our fact, anything, class of if by members participation con for a (a) Burton stands in claim of this denial subsection protected by citizens short, in nothing trary conclusion.5 less op- have that its members section to sustain itself sufficient gation was not in of Burton the facts assume from 5. We can claim, concluded as court alleged the chal- vote-denial had genuine pro- raise fact failed to case have "Appellants had lenged policy disadvantage were they impact to the fact as to whether disparate duced a of material issue implication, that alle- By minority voters. ante, us to return this case to requires Burton intent state actors. See at 1229 simply Instead, the district court because Florida’s n. 30. I argued else where, felon-disenfranchisement law disadvan- suggest these words a causation tages proportion minorities out to their is, requirement, showing that racial makeup general population community bias the relevant caused the State. alleged abridgment.7 vote denial or Zim mer set out some of the circumstantial

Thus, pre-Bolden application of sec- might factors that be referred to in at legislative history along tion with tempting to show such causation in the surrounding the amendment and our own context, vote-dilution some of which are of section 2 in postamendment application transferrable to the vote-denial context. I point context all the vote-denial am voting rights mindful that protect are that something inexorable conclusion more against ed “sophisticated as as simple well showing disparate than a mere effect is discrimination,” minded modes of Lane v. facie prima essential to vote-denial case.6 Wilson, 268, 275, requirement The reservoir of that and the (1939), 83 L.Ed. 1281 key to the minimum that we understanding content should be alert to unconventional of such a case lie in the words “on account factors (a), indicating of’ in bias-caused subsection those words alone vote denials. But I preceding, any constrain the do not believe there seemingly broad are factors of causation, “applied in a manner which results in” whether to prec be found our language. dreams, Those words do not or in suggest, as edent our wildest that can intimates, majority that may anything establish on the basis of the facts designed lingering requirement have some presented in this case other than that the right case, rights denied on plaintiff vote account of race.” prove had to invidious Burton, 178 F.3d at 1198. discrimination. This could be done in one of ways two .... [T]heinvidious discrimination requirement, as well as the two methods of support proposition 6. Additional for this can it, proving part remained of section 2 by implication [after proviso be found in the final amendment].”). "Provided, Essentially, (b): section 2 re- nothing subsection That in this acknowledgment by Congress flects an right section establishes a to have members of facially voting even a neutral protected scheme can equal class elected in numbers operate oppression as a circuit for the proportion population.” their minority by powerful 1973(b). private parties voters U.S.C. regardless legislative intent. It maintains a however, requirement, oppression that such 1515-24; Nipper, See 39 F.3d at id. at 1524 color,” be “on account of race or and thus C.J., Anderson, (opinion Tjoflat, joined by produce abridgment intent to a denial or ("[A] J.) plaintiff prove must invidious dis- right present of the to vote on that basis be crimination in order to establish a violation of somewhere community. in the relevant Voting Rights section 2 of Specifical- Act. (1) ly, plaintiff may prove either: discrimi- recently gave Court similar natory part intent on the meaning [state actors] analogous phrase "on the (2) that, objective totality factors under the basis of” when it that Title IX held authorizes circumstances, show the implied private exclusion of an right of action based aon minority group meaningful access to whistle-blowing. claim оf retaliation for — political process Educ., due to the interaction of Birmingham Jackson v. Bd. -, community 1497, 1500, racial bias in with the chal- 161 L.Ed.2d 361 " scheme.”); lenged voting (2005) Liberty (defining Solomon v. "retaliation” to be 'on the County, (11th Cir.1990) basis of sex’ because it an re intentional (en banc) C.J., (Tjoflat, specially concurring, sponse complaint: to the nature of the Edmondson, Cox, Hill, joined by Fay, JJ.) allegation (emphasis of sex discrimination” ("Prior Bolden, added)). voting in order to win a event, if even a case. to have vote of the denial cause majority of their entirely are correct consists in Florida dissenters felons conviction, their race. statutory-interpreta- misanalyzed has majority has arrived question, advanced evidence

Nearly all of the case. I judgment in this thus correct dispropor- only demonstrates a basic concur. but, argued, I tionality, as have more something 2 principle

section judg- summary to survive be shown must WILSON, concurring in Judge, Circuit their brief that argue in Plaintiffs ment. dissenting part. part more exten- significantly proof “was their holding majority’s I concur with the dispropor- simply ‘evidence than sive ” are entitled to sum- the defendants chiefly they rely but impact,’ tionate plain- respect to the mary judgment with similarly situated outcomes for “different claim. Whatever Equal Protection tiffs’ stages of the at various offenders may prompt- discriminatory motives their thrust of The main justice process.” to enact 1868 dis- Florida the ed in the crimi- that “racial argument is bias plaintiffs the provision, enfranchisement Florida’s system” interacts with justice nal that intentional dis- no evidence presented to the disad- disenfranchisement that, the 1968 Constitu- motivated It is true crimination minority voters. vantage of claim with As a support this Revision Committee. matter if could tional plaintiffs sort evidence, the they might law, by demonstrate re-en- its burden the met of racial bias connection between of provi- causal acting the felon necessary to make out effect disparate and motive, as impermissible without an sion evidence claim. But a vote-denial Underwood, by 471 suggested Hunter support not simply does plaintiffs advance 1920, 85 if were to reverse even we this proposition, (1985). 222 For the reasons stat- L.Ed.2d excluding various order court’s district affirming majority, I concur by the ed fact, leaving In testifying. experts from of this claim. court’s district resolution dispa- evidence and raw the excluded aside however, to dissent separately, I write data, does not plaintiffs’ brief impact rate racially majority’s conclusion showing of single a to advance appear discriminatory felon ostensibly is race contemporary bias that § 2 cognizable not are provisions well-evi- comparatively producing (“VRA”). The ma- Voting Rights Act disparate-impact.8 denced case for constitutional overstates the jority Thus, I do believe possible it is har- Because avoidance. to survive sum- a case sufficient have made the Con- with the text the VRA monize the task of I would avoid mary judgment. stitution, stray from the we should ques- determining whether a constitutional City Rome of the text statute. plain section by application of tion is created States, 446 U.S. v. United provisions en- to felon-disenfranchisement 64 L.Ed.2d plaintiffs do not S.Ct. simply rule that tirely and checks Furthermore, Those in- with racial motives. notwithstanding require- fused by a juries, right to a trial grand clude plaintiffs’ evidence favor- we view compo- (and by jury whose specifically a jury posture of this light procedural ably in manipulated on the basis case, light has not been significant sition their burden is race), judge supervising impartial our built into filters and checks numerous trial, collateral state-court re- appellate and independently criminal-justice system are review, view, clemency. improperly in- federal habeas weeding cases capable of out Voting Rights right denies its male citizens to vote I. Act SCOPE it abridges right partic- unless “for prohibits “voting the VRA Section rebellion, ipation in or other crime.” U.S. imposed applied by qualification[s] Const, XIV, § majority amend. 2. The that “results a denial or any State” generis— characterizes this clause as sui right to vote “on ac- abridgement” deeply history rooted our nation’s or color.” count of race U.S.C. 1973(a). comprehensive § As a and ex- fixed the text of the Constitution. pansive remedy racially discriminatory However, that Section does not constitute vote, § denials of the reaches grant power an affirmative of state to dis- variety practices wide of electoral Rather, enfranchise criminals. as a Re- standard for evaluating schemes.1 The Amendment, construction this Section was totality § on the claim is “based punish intended to states that were slow to 1973(b). circumstances.” U.S.C. As grant the franchise reducing rep- their matter, purely voting qualifica- textual in Congress. holding resentation felony tion based on status that interacts states have Unfettered discretion to disen- pro- with social and historical conditions to criminals, franchise majority relies effect, racially discriminatory duce а such upon a clause that an exception to this justice system, as race bias in the criminal punishment. scope falls within the of the VRA. See majority, Unlike the I do not see a need 30, 45-47, Thornburg Gingles, to construe the statute in this manner. 2752, 2763-64, L.Ed.2d 25 The canon of ap- construction “avoidance” (1986) (describing interactive standard that plies if there ambiguous statutory is lan- “past present reality”). accounts for Assoc., guage. Prop. See Southlake Ltd. v. majority The fears that interpreting the Morrow, (11th City 1114, 112 F.3d 1119 of VRA in this manner “raises serious consti- Cir.1997). Where, here, there no tutional problems.” Consequently, ambiguity, the “avoidance” doctrine should majority construes the statute to avoid this employed not be pretext as a for rewriting “conflict,” reading preclude the VRA to statutory clear language. Harris v. Gar- challenges to criminal disenfranchisement ner, (11th Cir.2000) 216 F.3d 984-85 provisions. (citation omitted). result, To majority places reach its Furthermore, § I do not think great 2 2 of § stock in of the Fourteenth Amendment, rep- which Fourteenth reduces state’s Amendment amounts to a resentation in right will, when the state to disenfranchise citizens at See, e.g., Republican Party of Va., Johns, plans); Morse v. Dillard v. Town North 717 517 U.S. 134 L.Ed.2d (M.D.Ala.1989) (selective F.Supp. 1471 with- (1996) (exclusion 347 protected groups holding candidacy requirement informa- convention); nominating from a White v. Re forms); Siegelman, tion and Harris v. 695 gester, 412 U.S. 37 (M.D.Ala.1988) (refusal F.Supp. ap- 517 (1973) (multi-member districts); L.Ed.2d 314 point minority registration and election offi- Hawaii, (9th Arakaki v. 314 F.3d 1091 Cir. cials); Irby Fitz-Hugh, F.Supp. v. 693 424 2002) (restriction candidate); on race of (E.D.Va.1988) (shift appoin- from elective to County, McMillan v. Escambia 748 F.2d 1037 Dean, system); tive F.Supp. Brown v. 555 (11th 1984) (majority requirement Cir. vote (D.C.R.I.1982) (location polling place); Ar- at-large primary); election United States v. Tucker, royo (E.D.Pa.1974) F.Supp. Comm’n, Marengo County 731 F.2d (English-only system, election where residents (11th Cir.1984) elections); (at-large De read, write, speak, born in Puerto Rico do not Wetherell, Grandy v. F.Supp. comprehend English). (N.D.Fla.1992) (single-member districting be- no conflict § 1973. I see U.S.C. right It is consequences. heedless and the VRA the Constitution tween not does therefore by implication, only reason I see no therefore regard, and to limit power Congress’s with conflict does not exemption that interpolate Four- disenfranchisement. criminal exist. not define does Amendment teenth discre- state’s quarrel with the I do not disen- “right” to a state’s limits outer matter of as a felons to disenfranchise that a criminals, it is certain but franchise ma- Rather, with the I take issue policy. abso- is not to disenfranchise right state’s that discretion. jority’s characterization intentionally disen- not may lute. States the discretion “denying] Florida Far Hunt- of race. felons on account franchise felons,” majority as the to disenfranchise at 1922. er, 233, 105 S.Ct. “to disenfranchise fears, are free states not may a state Likewise, I believe man- racially neutral in a felons convicted re- in a manner criminals disenfranchise is, that is neither in a manner ner —that discriminatory denial racially sulting in racially produces nor racially motivated This is because to vote. Johnson effects.” disproportionate may Bush, conduct n. reaches VRA Cir.2003). Voting dis- is that My view prove purposeful always possible disenfran- criminal prohibits Act Rights dis- recognizes that The VRA crimination. accomplish deni- provisions that race probative effects are criminatory race.” account of “on right to vote al and practices. schemes electoral bias 1973(a). U.S.C. Amend- Fourteenth sum, § 2 of the that the I am not convinced Importantly, at- Congress’s with not conflict ment does their case. proven disenfranchise- prohibit tempts in- raises an evidence statistical plaintiffs’ That racially neutral. of felon impact disparate ference power Congress’s not limit does clause inter- from the results results the that voting qualification race bias scheme with prohibit a of that action lingering the system and justice the electoral access to equal of criminal in a denial trial on In a exclusion.2 of racial effects race or color. the basis of on process See Burns solely effect. based tion claims that argues in his concurrence Judge Tjoflat 1286, 73, 88, Richardson, S.Ct. 86 U.S. 384 v. effect disproportionate showing plaintiff’s of a (1966), (stating 1294, that 376 16 L.Ed.2d prima out a to suffice make does not facie is "invidious claim vote dilution standard for clear It is far from § 2 VRA claim. case of a 433, 439, Dorsey, effect”); 379 U.S. v. Fortson reinstates § 2 VRAclaim language of ("It (1965) 501, 498, 401 L.Ed.2d 13 Congress S.Ct. 85 cases. pr e-Bolden of the the law otherwise, that, a designedly or might of the well be § 2 that some specified in could have constituency apportionment strongly probative of in- multi-member were White factors particu scheme, of "something than the circumstances tent, more proof of and claim, case, or cancel minimize operate § 2 non of lar would qua the sine effect” was political voting strength racial direct or of proof was out regardless of whether (emphasis voting population.” U.S. Regester, 412 elements See White v. indirect. (1973). added)). Given 314 37 L.Ed.2d 93 S.Ct. however, interpreta- Tjoflat's Judge it is language, express the event Congress’s (that “some- proof of § 2 meant one was the amended tion is correct plausible that required), I do not think equal access to thing more” minorities ensure racial See, City inexorably to the conclu- vote, e.g., leads interpretation regardless of intent. of 103-41, showing dispropor- Bolden, 100 of plaintiff's U.S. sion that 446 Mobile v. summary (1980) satisfy 47 L.Ed.2d does not effect tionate S.Ct. contrary, one of J., (Marshall, dissenting). On the judgment burden. must, can, and permissible inferences Indeed, state of that the clear it is far from showing here is plaintiffs’ be drawn from dilu- recognize vote did pre-Bolden law merits, given Despite strength Congress’s the defendants would be of re present power, rebuttal evi- medial enforcement it is not every opportunity with methodology Congress’s remedy of out limits. must question dence to re spond to present analysis or to their own states’ actual violations of a analysis protected right. I See Kimel v. Fla. explaining disparity. dissent because Bd. 62, 89, Regents, I that the district court’s resolution 528 U.S. believe S.Ct. of 631, 649, (2000); premature and that the L.Ed.2d 522 Fla. the merits Prepaid Postsecondary Educ. present Expense were entitled to their Bank, 627, 640, Bd. v. Coll. Sav. case at trial. U.S. 2199, 2207, 119 S.Ct. 144 L.Ed.2d 575 Scope CongRess’s II. Powee (1999). Therefore, Congress must identi fy “history pattern that, unconstitu majority suggests also were a tional ... discrimination” that it seeks to challenging § 2 claim VRA disen- address, creating legislative record to cognizable, provisions franchisement Con- support its pow exercise of enforcement gress might have exceeded its enforcement er. Bd. Trustees the Univ. Ala. powers of the Fourteenth and Fifteenth Garrett, 356, 368, v. 531 U.S. 121 S.Ct. respectfully disagree I Amendments. with (2001). 955, 148 L.Ed.2d 866 Further this conclusion. more, legislation valid must exhibit Congress’s authority enforcement is at “congruence proportionality between expansive protecting against its most when injury prevented to be or remedied suspect discrimination based on classifica- adopted the means to that end.” protecting tions or when fundamental Flores, City Boerne 521 U.S. Thus, rights. carry objec- out the basic 2157, 2164, 138 L.Ed.2d tives of the Fourteenth and Fifteenth (1997).3 Amendments, may Congress “pro- enact phylactic legislation proscribing practices pursuant enacted the VRA effect, discriminatory that are if the enforcement clauses of the Fourteenth Lane, intent.” Tennessee and Fifteenth response Amendments in 1978, 1986, rampant 158 L.Ed.2d 820 violations of the to vote. (2004) (upholding Comm’rs, Title II of the Americans United States v. Bd. 110, 126-27, with Act as a 965, 976-77, Disabilities valid exercisе of Congress’s Fourteenth Amendment en- L.Ed.2d scope Rome, power); City forcement see also VRA and those amendments are not coter- 446 U.S. 100 S.Ct. statute, L.Ed.2d minous: As a remedial the VRA (upholding preclearance § beyond VRA’s re- prohibited reaches what by quirement ‍‌‌​‌​‌​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​​​‌​‌​‌​​‌‌‌‌​‌​‌‌‌​‌‍jurisdictions for covered seek- Fourteenth and Fifteenth Amendments. See, ing changes electoral aas exercise of e.g., valid United States v. Marengo County Congress’s Comm’n, (11th Cir.1984). Fifteenth Amendment enforce- 731 F.2d 1546 ment power). only The VRA not safeguards a fundamen- disproportionate that proportionality” effect was caused applies and test to the Fif- Thus, race. I believe that the teenth Amendment. I assume here that it summary judgment carried their burden congruent would. Because the VRA is a producing disproportionate evidence of a ef- proportional remedy, and therefore well with- fect. Congress's power in enforcement under the Amendment, inquiry Fourteenth into the noting 3. It bears that the Court has scope required. Fifteenth Amendment's is not yet "congruence to determine whether the 94-295, at 13 S.Rep. No. 49.9%. See against protects voting, but also right, tal (1975), 1975 U.S.C.C.A.N. reprinted in race, suspect a on based discrimination problematic was Perhaps more (noting Lane, at 1992 class. See in that discrimi revelation innovation as rights, such fundamental because that landscape voting nation marked courts, heightened receive access 89-162, (1965); at No. rights. S.Rep. See record legislative of the scrutiny, review (“[E]ven 89-439, after at 10 S.Rep. No. violations of constitutional pattern for a ways seek new defeat resisters apparent Res. Human searching); Dep’t Nev. less discriminating. Barring one 735-36, means of Hibbs, v. 538 U.S. (ex- change (2003) has caused no contrivance too often 1972, 1981-82, 155 L.Ed.2d methods.”) result, (citing in United classifications, only suspect for plaining Mississippi, sex, subject heightened are States such as (1965), 808, 13 and Unit L.Ed.2d 717 Congress to show scrutiny, it is “easier Penton, F.Supp. ed States viola- of state constitutional pattern (M.D.Ala.1962)). Congress specifi found tions”). considered properly The Act is impossible predict the cally that it was statute, with the broadest passed remedial that would be used to variety of means the Four- power allowed exercise vote. infringe right on the Amendments. and Fifteenth teenth VRA, Congress passed the response, In reading to a broad is entitled VRA First, levels. Con- operates two extensive which has chronicled areas of some gress recognized to vote. violations history of particularly bad VRA, country had Con enаcting the when first Section 5 discrimination. voting Fif violations of the gress documented regions these designated thus Amendment, including “grandfather VRA teenth requiring them jurisdictions,” regis “covered previously permitted clauses” voting or election (all white) any changes in clear register without tered voters Attorney General test, laws with either restricting the literacy laws taking a in the District of Columbia to federal court political primaries participation them effect. U.S.C. hurdles, putting into ger racial before only, procedural whites Attorney approval § 1973c. challenges, and the improper rymandering, conditioned on a the court was General or H.R.Rep. discriminatory use tests. would not dis- (1965) showing changes that the 89-439, (citing Supreme at 8 No. in effect. Addi- purpose decisions). criminate particu Congress was Court Congress understood that tionally, because tests use of concerned about states’ larly not con- voting rights were violations of minori against racial discriminated jurisdictions, included to covered tests, fined constitutional including literacy ties, intrusive on remedy less a nationwide tests, concerning tests interpretation 97-417, S.Rep. No. states’ functions. See H.R.Rep. citizenship. obligations (1982), reprinted at 41-42 No. 177, 219-20. U.S.C.C.A.N. in concert to worked

All of these devices legis- that the VRA’s moment It is of no turnout rate depress registration specific ex- contain record does not For lative Americans. voting-age African among on felon discrimination based amples only 6.7% example, prior VRA require progeny its Boeme and in status. age population voting African-American pattern show legislative record that the to vote. registered Mississippi was violations, not that of state constitutional African Alabama, rate of registration particu- in a abridged at issue be that of whites lagged behind Americans Lane, way. lar 1988-90; at S.Ct. tiffs alleged that, have facts true, if would Garrett, at 368-69, at S.Ct. be sufficient to establish intentional dis- 964-65; Kimel, 528 U.S. at 120 S.Ct. at crimination Florida’s current disenfran- 648-49; Boerne, 521 U.S. at law.” Majority Op. at 1218 at 2169. If this standard, were the (emphasis states in original). The framing would always have one free bite at question in this way dictates an answer apple, which is not what Congress that, in my view, intend fails to correctly analyze ed passed when it the VRA to equal protection deal with the claim here the con- voting discrimination text of a “comprehensively summary judgment motion. finally.” S.Rep. No. at re majority The and the district court sim- printed in 1982 at U.S.C.C.A.N. ply find that because there is no evidence Congress has found that racial discrimi intentional discriminаtion in the 1968 re- nation voting has a long history enactment in our of the relevant constitutional country. remedy that Congress provision, chose the defendants are entitled to to respond pattern summary judgment. discrimi But given the nature nation is prohibit voting plaintiffs’ discrimination claim and the evidence in whatever form it they takes. See Gingles, present, the court cannot look at the 10, 106 478 U.S. at 45 n. S.Ct. at 2764 n. 10 re-enactment in a vacuum. The (“Section 2 prohibits all plaintiffs forms of voting contend that the original consti- ”). discrimination .... remedy This tutional con of 1868 (taking the evi- gruent and proportional to the goal of dence in light most favorable to the enforcing the fundamental right vote. this stage) passed for When voting interacts with proof racially of racial discriminatory purposes.1 If that bias justice, so, Congress is well then Fordice, United States v. power within its to prohibit 717, 739, resultant 120 L.Ed.2d discrimination. (1992), and Knight Alabama, F.3d Cir.1994) teach us BARKETT, Circuit Judge, dissenting: that to repudiate the tainted provi- earlier I dissent I sion, believe summary the government must show only judgment was improperly granted on both lack intentional racial discrimination in plaintiffs’ claims under the Equal Protec- the 1968 re-enactment, but also that the tion Clause of the Constitution and Section re-enactment was motivated indepen- 2 of the Voting Rights Act. dent, legitimate goals that “broke the chain” linking it to the original discrimina-

I. Equal Protection Claim tory motive. This would not require the The majority frames question pre- state to explicitly address the law’s odious sented in this case as “whether the plain- origins, but simply articulate the non-racial 1. The district court ''[p]laintiffs found that law, the majority goes great lengths presented to this Court an abundance of question the sufficiency plaintiffs' evi- expert testimony about the historical back dence and to offer explanations alternative ground of Florida's felon disenfranchisement each historical suggests fact that a discrimi- scheme as historical evidence that the policy natory motive. I believe that in doing so the was enacted ... particular with the discrimi majority erroneously views the facts and natory purpose keeping blacks from vot draws all inferences, reasonable not in favor ing.” 214 F.Supp.2d (S.D.Fla. 1338-39 of the non-moving party, but rather in favor 2002). ultimately While assuming, for the of the state. See Miami, City Haves v. sake of summary judgment, that racial ani (11th Cir.1995). F.3d mus motivated Florida’s 1868 disenfranchise- attempt to The court’s re-enactment. its re-enact- that drove justification policy existence on the based Fordice distinguish ment. thus pоlicy public valid potentially of a demonstrated has not state the Where the motivation of very question the begs the re-enact- basis for race-neutral any Though re-enactment. the 1968 behind in chain the ment, no “break” can be there similarly might policies public valid Fordice, See, e.g., intent. invidious of at is- policies the educational underpinned 2727; Knight, 739, 112 S.Ct. re- Fordice, nonetheless the Court sue “[ojnce that, it is (holding at 1550 F.3d those that the state demonstrate quired was policy particular that determined edu- race-neutral a sound policies had discriminatory rea- for adopted originally justification. cational original sons, is ‘traceable’ [and] recog- not majority does the Although its has or is ‘rooted’ policy, tainted applicable framework Fordice the nize the policy” original that ‘antecedents’ that suggests context, it nonetheless to show with the proof of lies burden that a conclusion supports here the record discrimina- past dismantled it has that by race- was driven chain”). 1968 re-enactment Though the the causal tion to “break “deli- was because considerations never neutral we have that majority cautions 1224. There Op. at Majority of outside berative.” rule Fordice followed however, in the record indication, is no context,2 no I believe there educational had subcommittee to a apply Fordice deliberations not to basis principled re-en- for non-discriminatory reasons impor- any greater if equal matter law, nor partici- the disenfranchisement acting fundamental tance —the Revision Reyn- the Constitutional process. indication democratic pate Cf. legislature or the as a whole Sims, Committee v. olds (“the (1964) 1968 subcom- right of it. While even discussed 12 L.Ed.2d pro- pre- .... matter the committee’s trace minutes a fundamental mittee suffrage is the disenfran- political changes to basic civil and its of other cedure servative text, limited their provision’s rights”). at all as whether light no sheds nature regarding to its concerns In addition by legitimate motivated the committee of the edu- outside of Fordice application reasons, or whether non-discriminatory holds context, majority cational pro- the felon disenfranchisement they saw inapplica- in Fordice rule announced constitutions previous legacy aas vision public valid are there here ble re- not need to did justification whose felons, disenfranchising reasons policy v. Richardson in substance. visited Cf. underpinned no such reasons while 2655, 41 24, 44, 94 S.Ct. Ramirez, 418 U.S. in Fordice. considered policies educational (“[T]he of that (1974) Journal L.Ed.2d recognized reasons the valid Though only what shows proceedings Committee’s deci- Florida’s driven may have court various how made were motions its felon to retain sion on the voted the Committee members to demonstrate fails scheme, record the nature indicate motions; it does fact motivated reasons those employers public setting, preventing City to Burton majority cites While the obligations constitutional escaping their (11th Glade, Cir. Belle policies enacting race-neutral simply point to 1999) "[a]ppellants can (finding that prior discrimina- effects institutionalize outside applied Fordice ever has court that no Seibels, Branch, Ensley NAACP tion. has setting”), this circuit the education Cir.1994). F.3d employ- applies in the that Fordice suggested any in content the discussion “deliberately” explicit and without evi- Committee. While the Journal thus en- dence of an illicit motivation. ables us trace the evolution of the draft To conclude that re-passage the 1968 Committee, in language it throws only Florida’s felon provi- light indirect purpose the intention or in sion is and of itself sufficient to “elimi- 2”). such, § of those who drafted As while taint,” nate the racial majority relies adjective “deliberative” describes the on the Fifth Circuit’s in decision Cotton v.

procedural decision, aspects of the Fordice, (5th Cir.1998). need 157 F.3d 388 any not include component Cotton, substantive at in panel majority, like the fails to all. analyze presented the claim in terms of the government’s burden to show that a juncture at record this does not legitimate neutral reason underlaid its re- permit a legislature’s conclusion enactment of a by law tainted racial ani- textual removed prior modifications ra- However, mus. if I even were to accept cial taint in any meaningful way. Where Cotton, the Fifth Circuit’s rule the case provision explicitly disenfranchising all distinguishable on its facts. The statute felons unchanged substance, remained Cotton, Mississippi’s felon disenfran- and without evidence that the 1968 re- law, originally crafted to enactment had an independent, legitimate intentionally deny the vote to those con- motivation, majority’s conclusion that crimes,” victed of so-called “black while process the 1968 cleansed the taint of ra- preserving the franchise for those felons cial animus as a matter of law is unfound- convicted of thought crimes to be commit- stage ed at this proceedings. by tеd whites. holds that legis- Cotton Fordice, at S.Ct. 2727 successfully lature removed the original (Thomas, J., concurring) (observing that “taint” of discriminatory scheme by “discriminatory intent persist does tend to removing “black crimes” from the disen- time”); through Kirksey v. Supervi- Bd. of list, franchising and successively adding sors, Cir.1977) (en murder and rape historically ex- —“crimes banc) (“[Njothing [Washington v. Davis cluded they were not consid- or Arlington Heights] that, suggests Cotton, ered ‘black’ crimes.” 157 F.3d at purposeful where and intentional discrimi- Thus, the legislative pro- amendment exists, nation already it can be constitu- cess in proceeded Cotton as the converse tionally perpetuated into the future process: enactment the amendment action.”). neutral Indeed, official under removed aspects those of the law shown to rule, majority’s legislatures could con- be rooted in racial animus. The same tinue to utilize statutes that original- were cannot be said for Florida’s felon disen- ly animus, motivated racial and that franchisement law. Its 1968 re-enactment produce continue to discriminatory effects, only resulted in non-substantive textual long they so re-promulgate the changes statute,3 statutes leaving unchanged provision, 3. The 1868 qualified as amended in to vote or hold office until restora- provided person that "No guardian- rights tion of civil disability.” removal of ship, non compos Const, mentis or insane shall be VI, (1968). § Fla. art. The 1968 election, qualified any to vote at any nor shall changes also eliminated person felony by convicted of a court of rec- empowered legislature to disenfranchise qualified any ord be vote election unless those convicted certain misdemeanors. Const, VI, rights.” restored to civil Fla. art. Const, VI, (1885). Fla. art. While the § 4 Following the 1968 re-enactment revision, majority emphasizes this plain- read, process the person text "No convicted tiffs’ evidence of hinge racial intent does not felony, of a adjudicated in this or other on or relate provision. to the eliminated Un- state to be mentally incompetent, shall be

1247 on to vote account States United of the zen evi- plaintiffs’ that feature essential the 1978(a) 42 U.S.C. ....” color race or dis- Florida’s of animus: racial to links dence 338 Washington, (2005); Farrakhan v. all of felons. enfranchisement Cir.2003), (9th cert. denied 1009, 1016 F.3d the ma- found court the district As — Farrakhan, U.S. v. Locke nom. sub racial showing of assumes, plaintiffs’ jority 365 477, 160 L.Ed.2d -, 125 S.Ct. rais- enactment original 1868 the in animus 919, Pataki, 935- F.3d 85 (2004); Baker v. fact as of material issue genuine aes J., writing for Cir.1996) (2d (Feinberg, 36 a discrimina- with adopted was it whether court)5; Wesley Col v. divided equally an is insuffi- record the Where tory purpose. Cir.1986) (6th 1255, lins, 1259 re- F.2d the 1968 791 that either to conclude cient dis a felon analysis, by legitimate (considering, without motivated was enactment would under Sec brought claim the 1868 or that enfranchisement concerns mo- also, Thornburg racial v. VRA); without even see enacted 2 been of have tion improp- 10, tivations, summary judgment 30, 106 S.Ct. 45 n. 478 Gingles, U.S. (“Section 2 erly granted. (1986) [of 2752, 25 L.Ed.2d 92 voting of all forms prohibits VRA] Act Claim Voting Bights II. The ”). .... discrimination is wheth us question before simple statutory interpreta- step The first Rights Voting 2 of Section or not er plain apply courts requires plaintiffs’ (“VRA”) applicable is Act unless language statutory of the meaning right denied they been claim v. Nat’l Bank ambiguous. Conn. states, this is majority theAs vote. 253, 249, Germain, U.S. 503 I Although do dilution claim.4 a vote (1992); United 1146, 391 L.Ed.2d 117 ultimately suc can plaintiffs know whether 1329, Fisher, 1337-38 F.3d 289 v. States felon Florida’s ceed, contention their ambi- Cir.2002). find Only we (11th when effectively denies law apply do we text in the statute’s guity they are black vote their such statutory interpretation, of canons lan plain by the encompassed clearly avoidance of constitutional canon VRA, prohibits guage of & Hous. Dep’t majority utilizes. pre any “qualification enforcement 134, 125, Rucker, 535 U.S. v. Dev. Urban in a deni -“results voting” that requisite 258 L.Ed.2d 152 any citi right of abridgement al Cir.1999) types of ("[T]wo (11th distinct Cotton, 1196 claim arose whose like are procedures discriminatory practices commit- of those from the that result 2: those Section under crimes”, covered plaintiffs’ claim ting "black certain 'vote that-result and those 'vote denial’ disenfran- Florida’s relates bias of racial ”). dilution.’ all felons. chisement Second Baker, panel of the en banc interpreting law case much While 2 of Section whether considered Circuit the dilution VRA 2 of the focuses Section disenfran York's felon to New applied VRA v. e.g., Holder strength, voting see minority divided panel Because law. 129 Hall, S.Ct. deny opinion court the lower equally, 5 to Gingles, (1994); Thornburg v. L.Ed.2d While affirmed. coverage was ing VRA L.Ed.2d Muntaqim heavily on majority relies Smith, (1986); Nipper v. Cir.2004), (2d. we Coombe, F.3d 102 banc), recognized Cir.1994) (en we have granted en has Circuit Second note that test, as determined results the statute’s yet to issue has Muntaqim and circumstances, review banc applies its totality of the Coombe, 396 Muntaqim v. See its decision. vote. denials absolute terms to Cir.2004). (2d Glade, F.3d 95 F.3d City Belle Burton language Section of the VRA is to permit the purposeful racial discrimina- unambiguous, and compels a conclusion tion [in Alabama’s criminal disenfranchise- that it applies tо felon disenfranchisement ment law] which otherwise violates provisions. Such is unques- 1 of [Section] the Fourteenth Amendment. tionably a “voting qualification or prereq- Nothing ... in Richardson v. Ramirez uisite to voting”6 that is “applied by [the] suggests the contrary.”). Nor does Sec- state.” 1973(a) 42 § U.S.C. 2 preclude tion Congress from legislatively Whether or not felon disenfranchisement addressing criminal disenfranchisement results in vote denial “on account of race laws that have the effect of disenfranchis- or color” under the totality of the circum- ing felons because their race pursuant to stances remains the question ultimate its civil rights powers. enforcement Bak- the trier of fact. er, 85 F.3d at J., 936-37 (Feinberg, writing for an equally court) divided plain (citing Given the City meaning of the lan- Rome v. States, United guage 156, 177, 446 Section we are U.S. thus squarely 100 S.Ct. (1980) (ex- 64 faced L.Ed.2d with the 119 issue of whether appli- its plaining that Congress cation can felon use its enforce- disenfranchisement powers prohibit schemes conduct that constitutional. I does find no con- not itself violate the stitutional infirmity Civil in War applying Amend- Section 2 ments, so long as prohibitions felon on statutes, disenfranchisement racial find in unpersuasive discrimination voting are majority’s appropriate)). argument VRA does not impermissibly conflicts with undermine state’s Section “delegated power” of the Fourteenth felons, Amendment and disenfranchise rais- es as questions the majority suggests. about Congress’ rights Applying civil plain VRA’s enforcement powers. text would not automatically draw into question state disenfranchise- First, there is no conflict between the ment statutes in general. Rather, it would Constitution and the VRA. The majority’s only constrain states from enacting felon finding of a conflict between the VRA and regimes disenfranchisement in result Section 2 of the Fourteenth Amendment the “denial ... of the right to vote on stems from its failure to distinguish be- account race or color.” 42 U.S.C. tween felon gen- laws 1973(a) (2005) added). (emphasis There erally and those that in result racial dis- is thus no conflict between the limited crimination. Section of the Fourteenth parameters the VRA’s Section merely Amendment permits states to dis- places on state disenfranchisement laws enfranchise felons without suffering a re- and the apportionment provisions duction in found congressional representation. Section of the Fourteenth Amendment. Nothing Section 2 of the Fourteenth Amendment grants states Second, unfettered dis- the majority purports to exclude cretion to felons, disenfranchise much felоn less from coverage permits felon disenfranchisement on the under the VRA because of its concern over basis of race. v. Underwood, Hunter 471 the lack of a congressional record chroni- 222, 233, U.S. 85 L.Ed.2d cling constitutional violations stemming (1985) (“[Section] 2 was not designed from state felon disenfranchisement laws. 6. See Lassiter v. Northampton County Bd. [1890]) 33 L.Ed. 637 are obvious examples Elections, 45, 51, indicating factors which a may State take into (1959) (“Residence L.Ed.2d 1072 Require- consideration in determining qualification ments, age, previous (Davis criminal record voters.”) (emphasis added). Beason, 333, 345-47, says statutes post-VRA discrimina- evidence factual While intended Congress of whether nothing enacting considered Congress discriminatory disen racially insulate racial- evidence include did Section un attack schemes disenfranchisement, franchisement felon ly motivated Furthermore, where the VRA. der requirement no there histo legislative relies majority every potential as to findings factual make standard devices” “test or ry of passed statute rights aof civil application lo VRA in Section found to enforce powers to its pursuant applica intent legislative cate Amendments.7 Fifteenth Fourteenth disenfran felon to2 Section tion of Congress so where particularly This is overlooks chisement, approach its identify ev- to begun have even not could “contains the VRA that fact qualifi- voting discriminatory ery potential each provisions different VRA, number to the subject be that would cation the read objective different awith with “increasing sophistication given therefore, that each assume cannot, er mi- racial denying were the states which to reach designed is Farrakhan, sections vote.” to norities necessarily or objective is the same 89- No. 1014; S.Rep. see also at F.3d 338 United same manner.”8 be read (“[E]ven apparent after (1965) 439, at 10 Indep. Sch. Consol. v. Uvalde States ways and means new defeat, seek resisters Cir.1980); (5th 547, 550 Dist., F.2d 625 contrivance Barring one discriminating. (Fein Baker, at 939 85 F.3d result, see also in change no caused has often too equally divided J., writing for berg, methods.”). only in 2 and court) (“[Bjecause [Sections] con- majority discerns Insofar lan scope purposes, have different felon disen- exclude intent gressional history of [Sec legislative guage, coverage from franchisement applicable necessarily 4(c) not tion] subsequent in the VRA 2 of Section 2.”). of [Section] interpretation make that enactments congressional authority to disen of stаtes’ Irrespective disenfranchisement, felon for provisions with frequency felons,9 or franchise be- distinction overlooks’ again historically exercised states laws felon disenfranchisement tween has Court Supreme authority, that subset narrow generally use felon cannot states clear made discrimi- racial result laws such dis intentionally Congress fact simple nation. Hunter, , race. the basis criminate disenfran- for felon provisions made simply infirmity. Ward same from the tempo- fers impose required 7. Nor felony convic- disqualification (whose The majority’s on focus the absence of the statutory language unambiguously ap congressional as to findings felon disen- plies to a particular state function. Pa. franchisement, and disregard its of the Dep’t v. Yeskey, 206, 209, 524 U.S. of Corr. text, statutory Congress’s eviscerates in- 1952, 141 (1998). 118 S.Ct. L.Ed.2d 215 tent to give Section 2 the possi- “broadest Yeskey, petitioners that un contended scope.” ble Allen v. State Bd. Elec- der Gregory, prisons were not sub tions, 544, 566-67, 393 U.S. 89 S.Ct. ject to the Americans with Disabilities Act L.Ed.2d More importantly, on based the lack of “plain statement” majority’s approach renders statutes indicating congressional intent to alter the passed pursuant to Congress’ civil rights constitutional balance regulating state powers enforcement little more than stale prisons. 208-09, Id. at 118 S.Ct. 1952. documents, applicable only to those forms The Court Gregory’s plain limited state patterns of discrimination evident at rule, holding inapplicable because the time of passage explicitly consid- prison fell squarely within statutory ered by Congress, irrespective of the language providing coverage “public plain breadth statutory text. 209-10, entities.” Id. at 118 S.Ct. 1952.

Nor does the “plain Similarly, Congress statement” rule of need not have included Gregory Ashcroft, “plain statement” on the applica VRA’s S.Ct. tion to (1991), L.Ed.2d 410 which disenfranchisement stat the majority’s utes, counsels as those statutes fall ap- squarely avoidance within proach, prevent plaintiffs from VRA’s prohibition textual proceeding any on under “qualification the VRA. The canon of or prerequisite construc- voting ... tion at in Gregory issue which holds that results where denial or abridgement of intends to alter the con- “usual citizen of the United stitutional balance between the States to vote on states and account of race or color.” federal government,” 1973(a) (2005). it must make its in- U.S.C. The only “am tent to do so unmistakably biguity” clear in majority finds in the VRA is 460-61, statute. (in- Id. at its “conflict” with the Fourteenth Amend omitted). ternal citation marks As Judge apportionment ment’s clause. only Not Feinberg concluded in persuasive his does Section 2’s prohibition racially dis opinion, however, the Fourteenth Fif- criminatory felon teenth Amendments altered the constitu- schemes fail to conflict with the Four- of race” account “on above, were denied votes Amendment, discussed teenth YRA. violation dis- easily conflict perceived such a but ambiguity the case from tinguishable text, animated a statute’s

within Gregory, Gregory. v. United 2395; Salinas also see 469, 139 52, 60, States, 522 U.S. (“The statement (1997) plain L.Ed.2d ... Gregory articulated requirement departure not warrant does unambig- The text ‍‌‌​‌​‌​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​​​‌​‌​‌​​‌‌‌‌​‌​‌‌‌​‌‍terms. statute’s uous.”). Plaintiff-Appellee, SCOTT, Jacqueline “am- use majority would While by the dictated the result avoid biguity” Ca TAYLOR, his Official plain- F. dispose meaning and Mark plain

VRA’s Governor Lieutenant pacity as for determina- claim, remand I would tiffs’ Watson, Official in his Georgia, Stan whether, under fact trier of De Chairperson of the Capacity as circumstances10, plaintiffs’ totality of discriminato- demonstrate ment that to exam- court failed Although the district relevant somewhere totality ry intent "from evidence plaintiffs’ ine no- appears requirement a governs community”, Section such that standard of the evidence the sen- argues of iterations pre-Bolden concurrence claims, Judge Tjoflat’s where 2 'plaintiffs Con- unnecessary as with the inconsistent is and a remand ate factors that deni- that whatever from eliminating show intent unable objective been gressional resulted voting rights abridgment of Gingles, U.S. 478 Thornburg or al 2. See Section pro- (1986) felon 2752, Florida's 35, 92 L.Ed.2d S.Ct. col- of race 'on account substantially vision occurred- Bolden], Congress ("[Following " appealing First, are or.' a violation clear that make § 2 to revised summary judg- grant of district court's discriminatory showing by proved could they at this show ment, necessary that it not relevant as the to establish alone and effect on account denied were votes stage their that test,’ by applied the 'results legal standard Rather, only show they need race. U.S. Regester, v.White Court in That, fact remain. material genuine issues by (1973), and 37 L.Ed.2d explained I As certainly done. they have Bolden.")', Chisom before courts federal other wrong- court district opinion, as panel S.Ct. Roemer, the "senate several evidence on ly excluded ("Under (1991) the amended L.Ed.2d on evidence factors”, point plaintiffs can required longer statute, is no proof of intent voting, prejudice in racially polarized plaintiffs can Now violation. prove dis- socio-еconomic system, justice that a demonstrating § 2 prevail under discrimina- history official and parities, resulted has practice .challenged election n. Johnson, and at 1305-06 F.3d tion. vote right to abridgment of the im- disparate the denial beyond goes evidence 25. This only Congress not light most or race. color based considered when pact, paragraph test in a conclusion the results permits plaintiffs, incorporated favorable 2,§ but entire with social formerly "interacts constituted felon status inequality in subsection to cause paragraph designated conditions historical also (b) and white black make enjoyed opportunities (a) subsection new added representa- preferred test elect their the results application voters that an clear Gingles, 478 U.S. totality tives.” inquiry into 'the requires an Judge Moreover, extent ”). circumstances.' "totality Tjoflat’s construction require- imposes inquiry circumstances” absence notes geographic restrictions ral or or device” a "test qualify as so trou- majority finds would 2 the Section subject to jurisdictions its civil pursuant in those passed prohibited bling) on statutes See, e.g., Nothing Ward Ore- authority. 4(c) VRA. rights enforcement Section VRA, Mitchell, 91 S.Ct. U.S. 2 of the to Section gon v. relates construes (1970) na- (upholding a disenfran- coverage L.Ed.2d of felon its less much literacy without tests on use ban tionwide laws. limit, and geographical date any expiration fact-finding dis- on the congressional without course, recognize non-discrimina- I 9.Of every literacy tests criminatory use of statutes, stand- tory felon state). violation. alone, equal protection no raise ing Ramirez, at 418 U.S. 54— States United majority's citation 8. The 1965) suf- Ward, Cir. 352 F.2d 233, 105 at 1916. In U.S. view of tional balance between the two sover- Hunter, there can no reason why eigns Con the Voting Rights Act, which —not gress cannot act to prevent such discrimi merely guarantees enforces the of those nation, using rights its civil enforcement Baker, amendments. 85 F.3d at 938 powers to reach felon disenfranchisement J., (Feinberg, writing for an equally divid- racially laws with results, discriminatory court) Rome, ed (citing City at Baker, as it did Section 2. See 179, 100 S.Ct. (holding that the Civil J., (Feinberg, writing for an equally War Amendments specifically “were de- court); Sedima, divided see also S.P.R.L. signed expansion as an power federal Co., 479, 499, Imrex and an intrusion on sovereignty”)); (1985) (“[T]he 87 L.Ed.2d 346 fact (Newman, see also id. at J., concur- that [a has applied statute] been in situa ring). tions expressly anticipated by Con Moreover, Court has ex gress does not demonstrate ambiguity. It plicitly held that Gregory “plain state breadth.”). demonstrates wholly ment” canon is inapplicable where

Case Details

Case Name: Thomas Johnson v. Governor of the State of FL

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 19, 2003

Citation: 405 F.3d 1214

Docket Number: 02-14469

Court Abbreviation: 11th Cir.