*2 Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, WILSON, PRYOR, and KRAVITCH, Circuit Judges. [*]
KRAVITCH, Circuit Judge:
I. Introduction
*3 This case involves a Fourteenth Amendment Equal Protection Clause challenge and a Section 2 Voting Rights Act (“VRA”) challenge to Florida’s felon disenfranchisement law which provides that “[n]o person convicted of a felony...shall be qualified to vote or hold office until restoration of civil rights or removal of disability.” Fla. Const. art. VI, § 4 (1968). The plaintiffs filed this [1]
class action on behalf of all Florida citizens who have been convicted of a felony and have completed all terms of their incarceration, probation, and parole but who are barred from voting under the state’s felon disenfranchisement law. The [2] defendants are members of Florida’s Clemency Board. [3]
II. Procedural History and Standard of Review
After cross motions for summary judgment, the district court granted
summary judgment in favor of the defendants on all claims. A divided panel of
*4
this court reversed and remanded on both the Equal Protection and VRA claims.
Johnson v. Governor of State of Florida,
We review a district court’s grant of summary judgment de novo, “viewing
the record and drawing all reasonable inferences in the light most favorable to the
non-moving party.” Patton v. Triad Guar. Ins. Corp.,
III. The Equal Protection Claim
The plaintiffs argue that Florida’s felon disenfranchisement law violates the Equal Protection Clause, which prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The plaintiffs contend that racial animus motivated the adoption of Florida’s criminal disenfranchisement provision in 1868 and this animus remains legally *5 operative today, notwithstanding the fact that Florida altered and reenacted the provision in 1968.
A state’s decision to permanently disenfranchise convicted felons does not,
in itself, constitute an Equal Protection violation. Richardson v. Ramirez, 418 U.S.
24, 53-55 (1974). The Supreme Court made this clear in Richardson, where it
rejected a non-racial equal protection clause challenge to California’s felon
disenfranchisement law.
Id. at 43. Of course, the Equal Protection Clause prohibits a state from using a
*6
facially neutral law to
intentionally
discriminate on the basis of race. Washington
v. Davis,
Florida’s policy of criminal disenfranchisement has a long history, tracing back well before the Civil War. Florida’s earliest Constitution, adopted in 1838, [5]
authorized the General Assembly to enact criminal disenfranchisement laws and in 1845, Florida’s General Assembly enacted such a law. Florida’s 1861 and 1865 [6]
*7 Constitutions also contained criminal disenfranchisement provisions.
There is no doubt that Florida’s decision to adopt a criminal disenfranchisement law in these early Constitutions was based on a non-racial rationale. At that time, the right to vote was not extended to African-Americans, and, therefore, they could not have been the targets of any disenfranchisement law. The plaintiffs, however, point to 1868 as the critical date on which they allege Florida’s disenfranchisement law became motivated by racial discrimination.
Because the plaintiffs’ Equal Protection claim hinges on the 1868 criminal disenfranchisement provision, we must examine the historical context in which that provision was adopted. After the Civil War, the Reconstruction Act required Florida to ratify the Fourteenth Amendment and change its Constitution as a condition for readmittance to the Union. In accordance with a federally mandated plan, the South was divided into military districts with Florida under the command of General John Pope. Under his supervision, both African-Americans and white
voter, before he shall be eligible to that office. And no person who shall hereafter be convicted of bribery, perjury, or other infamous crime, shall be entitled to the right of suffrage.
1845 Fla. Laws. Ch. 38, art. 2 § 3.
In Richardson, the Court briefly explained the process of how the southern states gained
readmission to the Union following the Civil War.
*8 delegates were elected to Florida’s 1868 constitutional convention.
During the convention, a struggle for control erupted between the Radical Republicans and the Moderate Republicans. The Radical Republicans “wished to exclude native whites from state politics” and the Moderate Republicans were “opposed to the Radicals and willing to compromise with native whites.” After a series of events unfolded, the Radical Republicans and Moderate Republicans each had drafted competing constitutions and both groups claimed to be the lawful convention. The Federal government supervised the process. Faced with a choice between the two constitutions, the United States Congress endorsed the Constitution drafted by the Moderate Republicans. It was subsequently ratified by the voters of Florida. Like Florida’s earlier Constitutions, the 1868 Constitution contained a criminal disenfranchisement provision. Thus, under federal supervision, a racially mixed delegation produced a constitution granting suffrage to men of all races.
We do not doubt that racial discrimination may have motivated certain other provisions in Florida’s 1868 Constitution such as a legislative apportionment scheme that diminished representation from densely populated black counties. The existence of racial discrimination behind some provisions of Florida’s 1868 *9 Constitution does not, however, establish that racial animus motivated the criminal disenfranchisement provision, particularly given Florida’s long-standing tradition of criminal disenfranchisement. Indeed, the plaintiffs’ own historical expert conceded that prior to the instant case, no historian who had studied Florida’s 1868 Constitution had ever contemplated that the 1868 criminal disenfranchisement provision was enacted with discriminatory intent.
The plaintiffs offer no contemporaneous evidence from the 1868 constitutional convention demonstrating that racial discrimination motivated the enactment of the 1868 disenfranchisement provision. To advance their theory, the after plaintiffs rely almost exclusively on a few isolated remarks made the 1868 [9] [10] Constitutional Convention. Although these comments reflect an unfortunate and indefensible racial animus in nineteenth-century Florida politics, there is no *10 evidence that these post-convention comments referenced the 1868 disenfranchisement provision. Indeed, the record strongly indicates that these comments referenced other provisions in the 1868 Constitution, such as the legislative apportionment system. [11] In addition, the plaintiffs point to the fact that Florida rejected the Radical Republican Constitution which did not contain a disenfranchisement provision in favor of the Moderate Republican Constitution which contained such a provision. Although this is true, it in no way establishes that racial discrimination motivated the disenfranchisement provision. There is no evidence to suggest that Florida’s decision to adopt the Moderate Republican Constitution had anything to do with the disenfranchisement provision. [12] Furthermore, Florida did not act alone in choosing its Constitution--the United States Congress expressly approved Florida’s 1868 Constitution in readmitting the state to the Union.
2. 1968 Constitutional Revision
One hundred years after the adoption of the 1868 Constitution, Florida comprehensively revised its Constitution. Once again, Florida chose to maintain a *11 criminal disenfranchisement law, a decision explicitly left to its discretion by the text of the Fourteenth Amendment. The plaintiffs do not allege that racial discrimination motivated the adoption of Florida’s 1968 felon disenfranchisement law.
The backdrop for the enactment of Florida’s 1968 felon disenfranchisement provision is as follows. In 1965, the Florida Legislature appointed a thirty-seven member Constitutional Revision Commission (“CRC”) to engage in “a careful study of the constitution...for the purpose of eliminating obsolete, conflicting and unnecessary provisions as well as for framing an orderly and properly arranged constitution, based upon economic and social changes . ” 1965 Fla. Laws, ch. 65- 651. To engage in this process, the CRC delegated responsibilities to various committees. The Suffrage and Elections Committee was charged with, inter alia , examining Florida’s felon disenfranchisement provision.
The plaintiffs contend that any revisions made in 1968 to Florida’s felon disenfranchisement law were not substantive in nature. We disagree.
Florida’s 1968 felon disenfranchisement provision is markedly different from *12 Florida’s 1868 version. The 1868 Constitution (as amended in 1885) contained two provisions for criminal disenfranchisement.
Section 4 provided:
No person under guardianship, non compos mentis , or insane, shall be qualified to vote at any election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless restored to civil rights.
Fla. Const. art. VI, § 4 (1885). Section 5 provided:
The Legislature shall have the power to, and shall, enact the necessary laws to exclude...from the right of suffrage, all persons convicted of bribery, perjury, larceny, or other infamous crime...
Fla. Const. art. VI, § 5 (1885). After the 1968 revision, only one provision addressed felon disenfranchisement:
No person convicted of a felony, or adjudicated in this or any state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.
Fla. Const. art. VI, § 4 (1968).
Whereas the 1868 provisions disenfranchised persons convicted of certain misdemeanors such as petty larceny, under the new 1968 provision, only those persons convicted of felonies could be disenfranchised. Therefore, the 1968 *13 provision narrowed the class of persons who could be disenfranchised and re- enfranchised some persons who previously were disenfranchised. [15]
Additionally, before submitting its proposal to the CRC, the Suffrage and Elections Committee considered several motions to alter the newly proposed felon disenfranchisement provision. [16] Notably, the committee considered but rejected an *14 amendment which would have ended blanket disenfranchisement of felons and instead would have vested the legislature with the power to impose criminal disenfranchisement. The committee also considered and rejected an amendment to limit felon disenfranchisement to those still in prison. Had the committee only been engaged in stylistic revisions, as the plaintiffs urge was the case, it would not have considered or debated these alternatives.
The committee’s final proposal then was sent to the CRC. The CRC met to review the changes to the Constitution and submitted a draft to the legislature. The legislature approved the proposed new Constitution containing the disenfranchisement provision; it then was affirmed by the voters of Florida. Thus, Florida’s 1968 Constitution, including the felon disenfranchisement provision, was adopted after four stages of review.
3. Equal Protection Analysis
A facially-neutral law violates the Equal Protection Clause if adopted with
the intent to discriminate against a racial group.
Washington v. Davis, 426 U.S.
*15
at 239. In Hunter v. Underwood, the Supreme Court examined head-on an equal
protection challenge to a criminal disenfranchisement provision.
Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment: “[O]fficial proportionately more African-American voters were affected, the percentage of eligible African- American voters in the voting age public dropped only from 12.57% in 1967 to 12.32% in 1968. The plaintiffs focus on the present racially disparate impact of the felon disenfranchisement provision, but this amount of disparate impact was not present in 1968 when the provision was enacted. Although disturbing, the present racially disparate impact of the felon disenfranchisement law does not guide our analysis. Unlike the case at bar, in Hunter, there was extensive evidence that racial animus
motivated the 1901 disenfranchisement provision. Alabama did not contest this fact. Indeed, at oral argument Alabama’s counsel conceded that “I would be very blind and naive [to] try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won’t do that.” Id. at 230.
*16 action will not be held unconstitutional solely because it results in a racially disproportionate impact...Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Once racial discrimination is shown to have been a “substantial” or “motivating” factor behind enactment of the law, the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor.
Id. (citation omitted).
Thus, under the Hunter analysis, we first examine whether racial discrimination was a substantial or motivating factor in the state’s decision to deny the right to vote to felons. If there is evidence that racial discrimination was a motivating factor, we then ask whether the state can show that the provision would have been enacted in the absence of any racially discriminatory motive.
a. Applying Hunter v. Underwood
The essence of the plaintiffs’ Equal Protection claim is that racial animus motivated the adoption of Florida’s disenfranchisement law in 1868 and this animus remains legally operative today despite the re-enactment in 1968. As suggested earlier, we question whether the plaintiffs have adequately demonstrated that racial discrimination motivated the adoption of the 1868 provision. The plaintiffs introduced no contemporaneous evidence showing that racial discrimination motivated the adoption of the 1868 provision. Nevertheless, because of the procedural posture of this case, we are mindful of the need to view the evidence in the light most favorable to the plaintiffs. Thus, we will assume, *17 without deciding, that racial animus motivated the adoption of Florida’s 1868 disenfranchisement law. That assumption does not, however, lead us to conclude that the plaintiffs satisfy the first step of Hunter. Importantly, we are concerned here with the validity of the 1968 provision , not the 1868 provision and the plaintiffs concede that the 1968 provision was not enacted with discriminatory intent. [19]
In Hunter, the Supreme Court left open the precise question we confront
here: whether a subsequent legislative re-enactment can eliminate the taint from a
law that was originally enacted with discriminatory intent.
[20]
Hunter,
Even if the plaintiffs were somehow able to satisfy the first step of Hunter, their Equal Protection claim would still fail. Under the second step of Hunter, we examine whether Florida would have chosen to disenfranchise felons in 1968 if legislators did not have a discriminatory motive. In Hunter, this was a more complicated analysis because it required a counter-factual scenario: given that Alabama only legislatively addressed the disenfranchisement issue once, what would legislators have done if they did not have a discriminatory motive? 471 U.S. at 228-29. Here, we have the luxury of not having to delve into a complex counter-factual scenario because Florida simplified the analysis by returning to the issue in 1968. Florida’s 1968 Constitution permits us to determine whether the state would have chosen to disenfranchise felons if the impermissible motive was absent. The results are plain: there is no allegation of racial discrimination in 1968 and the legislators decided to include a felon disenfranchisement provision in the revised constitution after consideration by both the CRC and the Suffrage and *20 Elections Committee. This decision was then affirmed by both houses of the legislature and by the voters of Florida.
Thus, Florida’s felon disenfranchisement provision is not a violation of the Equal Protection Clause under the standard the Court adopted in Hunter. Florida’s re-enactment of the felon disenfranchisement provision in the 1968 Constitution conclusively demonstrates that the state would enact this provision even without an impermissible motive and did enact the provision without an impermissible motive. The state has met its burden as a matter of law by substantively reenacting the law for race-neutral reasons.
The plaintiffs urge that the defendants should bear a greater burden. They
contend that Florida must affirmatively prove that racial discrimination was not a
substantial or motivating factor behind the disenfranchisement law in 1968.
Specifically, the plaintiffs argue that Florida must demonstrate that it
acknowledged that racial discrimination tainted the 1868 provision, and yet it
knowingly reenacted the disenfranchisement provision for non-discriminatory
reasons in 1968. We do not require this level of proof.
Florida’s felon
*21
disenfranchisement provision is constitutional because it was substantively altered
and reenacted in 1968 in the absence of any evidence of racial bias. Cotton v.
Fordice,
The plaintiffs rely extensively on United States v. Fordice,
The present case and Fordice are not analogous. First, Florida has a valid expeditions regarding the sins of the past in order to question the laws of today. In Fordice, the question was one of what remedy the Constitution requires after a State
has already been found liable for violating the Constitution via de jure segregation. By contrast, here the question is one of liability, not remedy.
public policy reason for disenfranchising felons, where Mississippi did not have a
sound justification for its education policies. Justice Thomas, in his concurring
opinion in Fordice, specifically stated that heightened review is only applicable
when there is no sound public policy justification for the state law, stating: “A
challenged policy does not survive under the standard we announce today if it
began during the prior
de jure
era, produces adverse impacts, and persists without
sound educational justification.” Fordice,
Second, the current Florida provision was passed one hundred years after the allegedly intentional discrimination occurred, whereas Mississsippi’s provision was passed shortly after the end of de jure segregation in education. Needless to say, the Florida legislators who passed the 1868 Constitution and the 1968 Constitution were not the same people. In Fordice, however, the legislators who refused to desegregate the Mississippi schools without a court order in the 1960s, *23 most likely overlapped significantly with the legislators who passed the facially neutral education system in the 1970s. Given the proximity in time between Mississipi’s intentional discrimination and the facially neutral provision in education, the Court had a healthy skepticism that the facially neutral provision was indeed neutral. Certainly, the Mississipi legislators who voted for the facially neutral provision understood the history of racial segregation in education and the likely effect of their new education system. But this skepticism does not apply here, because it is not reasonable to assign any impermissible motives held by the 1868 Florida legislators to the 1968 legislators who voted for the present felon disenfranchisement provision.
*24
Third, Florida’s 1968 felon disenfranchisement provision did not continue
the adverse disparate impact of earlier
de jure
measures, which makes the present
case entirely different than the situation in Fordice. At the time the Mississippi
legislature adopted its education system, the system of higher education was almost
completely racially segregated.
Finally, we note that this circuit has been reluctant to extend the education
line of cases to other areas. As this court stated in Burton v. City of Belle Glade,
school desegregation jurisprudence is unique and difficult to apply in other
contexts.
For the above reasons, we affirm the district court’s grant of summary judgment on this claim.
IV. The Voting Rights Act Claim
The plaintiffs also argue that Florida’s felon disenfranchisement law violates
Section 2 of the Voting Rights Act. As a threshold matter, this claim raises an
important question of statutory interpretation, namely, whether Section 2 of the
Voting Rights Act applies to Florida’s felon disenfranchisement provision. The
Circuits are split on this issue. Compare Muntaqim v. Coombe,
1. The Scope of the Voting Rights Act
Congress enacted the Voting Rights Act pursuant to its enforcement powers
under the Fourteenth and Fifteenth Amendments for the remedial purpose of
eliminating racially discriminatory voting practices. South Carolina v.
Katzenbach,
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color ...
(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that...members [of protected racial minorities] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
42 U.S.C. § 1973. Despite its broad language, Section 2 does not prohibit all
voting restrictions that may have a racially disproportionate effect. See Chisom,
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered. Provided , that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their participation in the population.
42 U.S.C. § 1973.
that
certain
practices and procedures that result in the denial or abridgement of the
right to vote are forbidden even though the absence of proof of discriminatory
intent protects them from constitutional challenge.”) (emphasis added); Muntaqim,
Most important, Florida’s discretion to deny the vote to convicted felons is fixed by the text of § 2 of the Fourteenth Amendment, which states:
[W]hen the right to vote...is denied to any of the male inhabitants...or
in any way abridged,
except for participation in rebellion, or other
crime
, the basis of representation therein shall be reduced in the
proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.
U.S. Const. amend. XIV, § 2 (emphasis added).
[29]
As the Court explained in
*29
Richardson, “the exclusion of felons from the vote has an affirmative sanction in
section 2 of the Fourteenth Amendment, a sanction which was not present in the
case of the other restrictions on the franchise which were invalidated [in other
cases].”
It is a long-standing rule of statutory interpretation that federal courts should not construe a statute to create a constitutional question unless there is a clear statement from Congress endorsing this understanding. As the Supreme Court stated in DeBartolo Corp. v. Florida Gulf Coast Trades Council:
[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. This cardinal principle has its roots in Chief Justice Marshall’s opinion for the Court in Murray v. The Charming Betsy,6 U.S. (2 Cranch) 64 , 118,2 L.Ed. 208 (1804), and has for so long been applied by this Court that it is beyond debate...This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.
Here, the plaintiffs’ interpretation creates a serious constitutional question
by interpreting the Voting Rights Act to conflict with the text of the Fourteenth
Amendment.
The Fourteenth and Fifteenth Amendments to the United States
*31
Constitution grant Congress the power to enforce those amendments’ substantive
provisions “by appropriate legislation.” U.S. Const. amend. XIV, § 5; XV, § 2.
Congress may enforce the substantive provisions of these Amendments by
regulating conduct that does not directly violate those Amendments. See South
Carolina v. Katzenbach,
Nonetheless, Congress’s power in this regard is not absolute. To be a valid
exercise of Congress’s enforcement power, “there must be a congruence and
proportionality between the injury to be prevented or remedied and the means
adopted to that end.” City of Boerne v. Flores,
Moreover, as the Second Circuit detailed in Muntaqim, there are additional
reasons why the plaintiffs’ interpretation of the Voting Rights Act calls into
question Congress’s enforcement power.
*33
356, 368 (2001); Kimel v. Florida Bd. of Regents,
As was the case in Mitchell, when Congress enacted the VRA and its subsequent amendments, there was a complete absence of congressional findings that felon disenfranchisement laws were used to discriminate against minority voters. Without a record of constitutional violations, applying Section 2 of the Voting Rights Act to Florida’s felon disenfranchisement law would force us to Clause). The plaintiffs suggest that it is unreasonable to require a specific record of violations
because Congress could not identify every form of voting discrimination when it enacted the Voting Rights Act. Given the widespread existence of felon disenfranchisement laws throughout this Nation’s history and the fact that many States had such laws on their books when the VRA was enacted, we find no merit in this argument.
address whether Congress exceeded its enforcement powers under the Fourteenth and Fifteenth Amendments. [34]
For these reasons, we believe that the plaintiffs’ interpretation of the VRA
raises grave constitutional concerns.
[35]
For the plaintiffs’ interpretation to be
*35
correct, we must look for a clear statement from Congress that it intended such a
constitutionally-questionable result. DeBartolo,
statement from Congress indicating that the plaintiffs’ interpretation is correct, the legislative history indicates just the opposite–that Congress never intended the Voting Rights Act to reach felon disenfranchisement provisions.
2. Congressional Statements in 1965
Congress first passed the Act in 1965 to prevent states from discriminating
against minorities in voting. The act was intended to reach voting tests and other
practices, such as districts designed by states to minimize minority voting. See
Burton v. City of Belle Glade,
violation. Farakhan v. Washington,
2 of the Voting Rights Act to cover felon disenfranchisement provisions. These reports indicate that tests for literacy or good moral character should be scrutinized, but felon disenfranchisement provisions should not. S. Rep. 89-162, 1965 U.S.C.C.A.N. 2508, 2562. The only place where legislators addressed felon disenfranchisement was with regard to Section 4 of the VRA, where the Senate Report reflects that legislators intended to exempt the voting restrictions on felons from the statute’s coverage, stating:
The third type of test or device covered is any requirement of good moral character. This definition would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.
Id. Likewise, the House Report also states that the Voting Rights Act was not designed to reach felon disenfranchisement provisions:
This subsection does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony or mental disability.
H.R. Rep. No. 89-439, 1965 U.S.C.C.A.N. 2437, 2457. These reports indicate that neither house of Congress intended to include felon disenfranchisement within the *37 statute’s scope. These are the only references to felon disenfranchisement made in reports to the 1965 act.
Furthermore, this court’s predecessor decided that the 1965 Act did not
cover a state’s decision to exclude felons from voting. In United States v. Ward,
the former Fifth Circuit held that the Voting Rights Act prohibited Louisiana from
imposing any literacy test or other qualification on voter registration, but found
that the act did not extend to felon disenfranchisement rules.
...requiring any applicant for voter registration in Madison Parish, as a precondition to such registration, to take or pass any test of literacy, knowledge, or understanding or to comply with any other test or device as defined in Section 4(c) of the Voting Rights Act of 1965, Public Law 89-110, 79 Stat. 438-439, i.e., any requirement (including the “good character” requirement specified in Article VIII, Section 1(c) of the Louisiana Constitution and Title 18, Section 32, of the Louisiana Code, except to the extent that these provisions permit disqualification for conviction of a felony).
Id. at 332 (emphasis added).
3. Congressional Statements in 1982
Congress most recently amended the Voting Rights Act in 1982 in response
to the Supreme Court’s decision in City of Mobile v. Bolden,
Neither the plain text nor the legislative history of the 1982 amendment
declares Congress’s intent to extend the Voting Rights Act to felon
disenfranchisement provisions. The Senate Report, which details many
discriminatory techniques used by certain jurisdictions, made no mention of felon
disenfranchisement provisions.
Although it is conceivable that certain legislators
may have wanted the Voting Rights Act to encompass felon disenfranchisement
provisions, we should not assume that Congress intended to produce a statute
*39
contrary to the plain text of the Fourteenth Amendment without a clear statement.
As the Second Circuit noted in Muntaqim, “considering the prevalence of felon
disenfranchisement [provisions] in every region of the country since the Founding,
it seems unfathomable that Congress would silently amend the Voting Rights Act
in a way that would affect them.”
Thus, we believe that applying Section 2 of the Voting Rights Act to felon disenfranchisement provisions raises grave constitutional concerns. Chiefly, the plaintiffs’ interpretation calls for a reading of the statute which would prohibit a practice that the Fourteenth Amendment permits Florida to maintain. As a matter of statutory construction, we should avoid such an interpretation. The case for rejecting the plaintiffs’ reading of the statute is particularly strong here, where Congress has expressed its intent to exclude felon disenfranchisement provisions from Voting Rights Act scrutiny. Accordingly, we affirm the district court’s grant of summary judgment to the defendants on the Voting Rights Act claim.
V. Wisdom of the Policy
Several amici curiae argue that, as a policy matter, felons should be enfranchised, particularly those who have served their sentences and presumably paid their debt to society. Even if we were to agree with the amici, this is a policy decision that the United States Constitution expressly gives to the state governments, not the federal courts. U.S. Const. Amend. XIV, § 2. Florida has legislatively reexamined this provision since 1868 and affirmed its decision to deny felons the right to vote. Federal courts cannot question the wisdom of this policy choice.
VI. Conclusion
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of the defendants.
AFFIRMED.
TJOFLAT, Circuit Judge, specially concurring, in which, PRYOR, Circuit Judge, joins:
Section 2 of the Voting Rights Act (VRA) “outlaws election practices that
result in racial discrimination.” Nipper v. Smith,
The majority argues that remand is inappropriate because the dissenters’ theory creates a constitutional question that can be avoided by construing the statute not to cover felon-disenfranchisement provisions. I write separately to demonstrate that, [2]
even if the dissenters are correct that the language of section 2 of the VRA unambiguously covers felon disenfranchisement provisions, summary judgment was appropriate in this case because the plaintiffs have not been able to show that *42 whatever denial or abridgement of voting rights resulted from Florida’s felon disenfranchisement provision occurred “on account of race or color.” Remand is therefore not required.
It is true that section 2 of the VRA now requires something less than a
showing of actual intent to discriminate by a State or political subdivision. I do not
believe, however, that it requires only, as both dissenters imply, a showing of
racially disparate effects. A brief discussion of section 2’s history demonstrates
this point. In 1980, the Supreme Court decided City of Mobile v. Bolden, 446 U.S.
55,
Bolden involved a challenge to an at-large election arrangement in a
multimember district in Mobile, Alabama. In that case, the Supreme Court held
that Zimmer, “coming before Washington v. Davis,
149-150,91 S.Ct. 1858 [, 1872,29 L. Ed. 2d 363 (1971)], such districting schemes are constitutionally infirm.
The Supreme Court has identified a panoply of factors, any number of which may contribute to the existence of dilution. Clearly, it is not enough to prove a mere disparity between the number of minority residents and the number of minority representatives. . . . [W]here a minority can demonstrate a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, antisingle shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts. The fact of dilution is established upon proof of the existence of an aggregate of these factors. The Supreme Court’s recent pronouncement in White v. Regester demonstrates, however, that all these factors need not be proved in order to obtain relief.
Zimmer,
*44
71,
Whitcomb v. Chavis,
In addition to seeking relief under a vote-dilution theory under the Equal
Protection Clause, the plaintiffs had also sought relief under the VRA. Bolden
rejected this approach, too, holding that “it is apparent that the language of § 2 [of
the VRA] no more than elaborates upon that of the Fifteenth Amendment, and the
sparse legislative history of § 2 makes clear that it was intended to have an effect
no different from that of the Fifteenth Amendment itself.” Id. at 60-61, 100 S. Ct.
at 1496 (footnote omitted). The Court noted explicitly that this meant by extension
that section 2 as then written did not cover disparate-impact cases: “Our decisions .
. . have made clear that action by a State that is racially neutral on its face violates
the Fifteenth Amendment only if motivated by a discriminatory purpose.” Id. at
62,
Apparently alarmed by these holdings, Congress set out to amend the VRA, ultimately doing so in 1982. See generally S. Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177; see also Voting Rights Act Amendments, Pub. L. No. 97- 205, 96 Stat. 131 (1982). The effect of this amendment was to recast the then- existing verison of section 2 as section 2(a) of the VRA and to add a new subsection, subsection (b).
The wording of the new section 2(a) is not identical to the old section 2. The new section 2(a) made two modifications: first, it made one change in phrasing. Compare 42 U.S.C. § 1973 (preamendment) (“No voting qualification . . . shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” (emphasis added)), with 42 U.S.C. § 1973(a) (postamendment) (“No voting qualification . . . shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” (emphasis added)). Second, 2(a) added a phrase to make clear that abridgement or denial could be recognized “as provided in subsection (b).” 42 U.S.C. § 1973(a). The intended effect of the second modification is obvious; that of the first less so. As I explain, the first modification reflects Congress’s desire to remove an intent requirement, but it does not reflect a desire to replace it with a mere disparate-impact requirement.
It is clear from both the language of the new subsection (b) and the extensive Committee Report that accompanied the amendment that Congress intended to restore what it perceived to be the pre-Bolden status quo. Specifically, the
subsection (b) language reflects vote-dilution rhetoric from pre-Bolden Supreme
Court cases. Compare 42 U.S.C. § 1973(b) (“A violation . . . is established if,
based on the totality of circumstances, it is shown that the political processes
leading to nomination or election . . . are not equally open to participation by
members of a class of citizens protected by subsection (a) of this section in that its
members have less opportunity than other members of the electorate to participate
in the political process and to elect representatives of their choice.”) with, e.g.,
White v. Regester,
Consistent with that intent, we have, as Judge Barkett suggests in her
dissent, applied section 2 in the vote denial context. See Burton v. City of Belle
Glade,
In short, nothing in Burton requires us to return this case to the district court simply because Florida’s felon-disenfranchisement law disadvantages minorities out of proportion to their makeup of the general population of the State.
Thus, the pre-Bolden application of section 2, along with the legislative history surrounding the amendment and our own postamendment application of *48 section 2 in the vote-denial context all point to the inexorable conclusion that something more than a mere showing of disparate effect is essential to a prima facie vote-denial case. The reservoir of that requirement and the key to [6]
understanding the minimum content of such a case lie in the words “on account of” in subsection (a), for those words alone constrain the preceding, seemingly broad “applied in a manner which results in” language. Those words do not suggest, as the majority intimates, that Congress may have designed some lingering requirement of intent by state actors. See ante, at 29 n.30. Instead, as I have
argued elsewhere, these words suggest a causation requirement, that is, a showing that racial bias in the relevant community caused the alleged vote denial or abridgment. Zimmer set out some of the circumstantial factors that might be [7]
*49
referred to in attempting to show such causation in the vote-dilution context, some
of which are transferrable to the vote-denial context. I am mindful that voting
rights are protected against “sophisticated as well as simple-minded modes of
discrimination,” Lane v. Wilson,
Nearly all of the evidence advanced by the plaintiffs demonstrates only disproportionality, but, as I have argued, it is a basic section 2 principle that something more must be shown to survive summary judgment. Plaintiffs argue in their brief that their proof “was significantly more extensive than simply ‘evidence of disproportionate impact,’” but they rely chiefly on “different outcomes for of race or color,” and thus that an intent to produce a denial or abridgment of the right to vote on that basis must be present somewhere in the relevant community.
The Supreme Court recently gave similar meaning to the analogous phrase “on the basis of” when it held that Title IX authorizes an implied private right of action based on a claim of retaliation for whistle-blowing. See Jackson v. Birmingham Bd. of Educ., ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___, No. 02-1672, slip op. at 4-5 (Mar. 29, 2005) (defining “retaliation” to be “‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination” (emphasis added)).
similarly situated offenders at various stages of the criminal justice process.” The main thrust of their argument is that “racial bias in the criminal justice system” interacts with Florida’s disenfranchisement provision to the disadvantage of minority voters. It is true that, if plaintiffs could support this claim with evidence, they might demonstrate the sort of causal connection between racial bias and disparate effect necessary to make out a vote-denial claim. But the evidence plaintiffs advance simply does not support this proposition, even if we were to reverse the district court’s order excluding various experts from testifying. In fact, leaving aside the excluded evidence and raw disparate impact data, plaintiffs’ brief does not appear to advance a single showing of contemporary race bias that ostensibly is producing the comparatively well-evidenced disparate-impact data.
Thus, I do not believe that plaintiffs have made a case sufficient to survive summary judgment. I would avoid the task of determining whether a constitutional question is created by application of section 2 to felon-disenfranchisement provisions entirely and simply rule that plaintiffs do not have a case. In any event, even if the dissenters are correct that the majority has misanalyzed the statutory- *51 interpretation question, the majority has arrived at the correct judgment in this case. I thus concur.
WILSON, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority’s holding that the defendants are entitled to
summary judgment with respect to the plaintiffs’ Equal Protection claim. Whatever
discriminatory motives may have prompted Florida to enact the 1868 criminal
disenfranchisement provision, the plaintiffs presented no evidence that intentional
discrimination motivated the 1968 Constitutional Revision Committee. As a
matter of law, the state met its burden by re-enacting the felon disenfranchisement
provision without an impermissible motive, as suggested by
Hunter v. Underwood
,
I write separately, however, to dissent from the majority’s conclusion that
racially discriminatory felon disenfranchisement provisions are not cognizable
under § 2 of the Voting Rights Act (“VRA”). The majority overstates the case for
constitutional avoidance. Because it is possible to harmonize the text of the VRA
with the Constitution, we should not stray from the plain text of the statute.
See
City of Rome v. United States
,
I. S COPE OF THE V OTING R IGHTS A CT
Section 2 of the VRA prohibits “voting qualification[s] . . . imposed or
applied by any State” that “results in a denial or abridgement” of the right to vote
“on account of race or color.” 42 U.S.C. § 1973(a). As a comprehensive and
*53
expansive remedy for racially discriminatory denials of the right to vote, § 2
reaches a wide variety of electoral practices and schemes. The standard for
evaluating a § 2 claim is “based on the totality of the circumstances.” 42 U.S.C. §
1973(b). As a purely textual matter, a voting qualification based on felony status
that interacts with social and historical conditions to produce a racially
discriminatory effect, such as race bias in the criminal justice system, falls within
the scope of the VRA.
See Thornburg v. Gingles
,
The majority fears that interpreting the VRA in this manner “raises serious constitutional problems.” Consequently, the majority construes the statute to avoid this “conflict,” reading the VRA to preclude challenges to criminal disenfranchisement provisions.
To reach its result, the majority places great stock in § 2 of the Fourteenth Amendment, which reduces a state’s representation in Congress when the state denies its male citizens the right to vote unless it abridges the right “for participation in rebellion, or other crime.” U.S. Const. amend. XIV, § 2. The majority characterizes this clause as sui generis –deeply rooted in our nation’s history and fixed by the text of the Constitution. However, that Section does not constitute an affirmative grant of state power to disenfranchise criminals. Rather, as a Reconstruction Amendment, this Section was intended to punish states that were slow to grant the franchise by reducing their representation in Congress. In holding that states have unfettered discretion to disenfranchise criminals, the majority relies upon a clause that is an exception to this punishment.
Unlike the majority, I do not see a need to construe the statute in this
manner. The “avoidance” canon of construction applies if there is ambiguous
statutory language.
See Southlake Prop. Assoc., Ltd. v. City of Morrow
, 112 F.3d
1114, 1119 (11th Cir. 1997). Where, as here, there is no ambiguity, the
“avoidance” doctrine should not be employed as a pretext for rewriting clear
statutory language.
Harris v. Garner
,
Furthermore, I do not think that § 2 of the Fourteenth Amendment amounts
to a right to disenfranchise citizens at will, heedless of the consequences. It is a
*55
right only by implication, and therefore does not conflict with Congress’s power to
limit criminal disenfranchisement. The Fourteenth Amendment does not define the
outer limits of a state’s “right” to disenfranchise criminals, but it is certain that a
state’s right to disenfranchise is not absolute. States may not
intentionally
disenfranchise felons on account of race.
Hunter
,
In sum, § 2 of the Fourteenth Amendment does not conflict with Congress’s attempts to prohibit criminal disenfranchisement that is not racially neutral. That clause does not limit Congress’s power to prohibit a voting qualification that results in a denial of equal access to the electoral process on the basis of race or color. See 42 U.S.C. § 1973. I see no conflict between the Constitution and the VRA in this regard, and therefore I see no reason to interpolate an exemption that does not exist.
I do not quarrel with the state’s discretion to disenfranchise felons as a
matter of policy. Rather, I take issue with the majority’s characterization of that
discretion. Far from “deny[ing] Florida the discretion to disenfranchise felons,” as
*56
the majority fears, states are free “to disenfranchise convicted felons in a racially
neutral manner–that is, in a manner that is neither racially motivated nor produces
racially disproportionate effects.”
Johnson v. Bush
,
Importantly, I am not convinced that the plaintiffs have proven their case. The plaintiffs’ statistical evidence raises an inference that the disparate impact of felon disenfranchisement results from the interaction of that scheme with race bias in the criminal justice system and the lingering effects of racial exclusion. In a *57 trial on the merits, the defendants would be given every opportunity to present rebuttal evidence to question the methodology of this analysis or to present their own analysis explaining the disparity. I dissent because I believe that the district court’s resolution of the merits was premature and that the plaintiffs were entitled to present their case at trial.
II. S COPE OF C ONGRESS ’ S P OWER
The majority also suggests that, were a § 2 VRA claim challenging criminal disenfranchisement provisions cognizable, Congress might have exceeded its enforcement powers of the Fourteenth and Fifteenth Amendments. I respectfully disagree with this conclusion.
Congress’s enforcement authority is at its most expansive when protecting
against discrimination based on suspect classifications or when protecting
fundamental rights. Thus, to carry out the basic objectives of the Fourteenth and
Fifteenth Amendments, Congress may enact “prophylactic legislation proscribing
practices that are discriminatory in effect, if not in intent.”
Tennessee v. Lane
, 541
U.S. 509, __,
(upholding VRA’s § 5 preclearance requirement for covered jurisdictions seeking electoral changes as a valid exercise of Congress’s Fifteenth Amendment enforcement power).
Despite the strength of Congress’s remedial enforcement power, it is not
without limits. Congress’s remedy must respond to states’ actual violations of a
protected right.
See Kimel v. Fla. Bd. of Regents
,
Congress enacted the VRA pursuant to the enforcement clauses of the
Fourteenth and Fifteenth Amendments in response to rampant violations of the
*59
right to vote.
United States v. Bd. of Comm’rs
,
The VRA is entitled to a broad reading because Congress has chronicled extensive state violations of the right to vote. In 1965, when first enacting the VRA, Congress documented violations of the Fifteenth Amendment, including “grandfather clauses” that permitted previously registered voters (all white) to register without taking a literacy test, laws restricting the participation in political *60 primaries to whites only, procedural hurdles, racial gerrymandering, improper challenges, and the discriminatory use of tests. See H.R. Rep. No. 89-439, at 8 (1965) (citing Supreme Court decisions). Congress was particularly concerned about states’ use of tests that discriminated against racial minorities, including literacy tests, constitutional interpretation tests, and tests concerning the obligations of citizenship. H.R. Rep. No. 89-439, at 12.
All of these devices worked in concert to depress the registration and turnout
rate among voting-age African Americans. For example, prior to the VRA only
6.7 % of the African-American voting age population in Mississippi was registered
to vote. In Alabama, the registration rate of African Americans lagged behind that
of whites by 49.9 %.
See
S. Rep. No. 94-295, at 13 (1975),
reprinted in
1975
U.S.C.C.A.N. 774, 779. Perhaps more problematic was the revelation that
innovation in discrimination marked the landscape of voting rights.
See
S. Rep.
No. 89-162, at 5 (1965); S. Rep. No. 89-439, at 10 (“[E]ven after apparent defeat
resisters seek new ways and means of discriminating. Barring one contrivance too
often has caused no change in result, only in methods.”) (citing
United States v.
Mississippi
,
In response, Congress passed the VRA, which operates on two levels. First, *61 Congress recognized that some areas of the country had a particularly bad history of voting discrimination. Section 5 of the VRA thus designated these regions as “covered jurisdictions, ” requiring them to clear any changes in voting or election laws with either the Attorney General or a federal court in the District of Columbia before putting them into effect. 42 U.S.C. § 1973c. The approval of the Attorney General or the court was conditioned on a showing that the changes would not discriminate in purpose or in effect. Additionally, because Congress understood that violations of voting rights were not confined to covered jurisdictions, it included § 2, a nationwide remedy less intrusive on states’ functions. See S. Rep. No. 97-417, at 41-42 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 219-20.
It is of no moment that the VRA’s legislative record does not contain
specific examples of discrimination based on felon status.
Boerne
and its progeny
require that the legislative record show a pattern of state constitutional violations,
not that the right at issue be abridged in a particular way.
See Lane
,
Congress has found that racial discrimination in voting has a long history in
our country. The remedy that Congress chose to respond to the pattern of state
discrimination is to prohibit voting discrimination in whatever form it takes.
See
Gingles
,
BARKETT, Circuit Judge, dissenting:
I dissent because I believe summary judgment was improperly granted on both plaintiffs’ claims under the Equal Protection Clause of the Constitution and Section 2 of the Voting Rights Act.
I. The Equal Protection Claim
The majority frames the question presented in this case as “whether the plaintiffs have alleged facts that, if true, would be sufficient to establish intentional discrimination in Florida’s current disenfranchisement law.” Majority Op. at 6 (emphasis in original). The framing of the question in this way dictates an answer that, in my view, fails to correctly analyze the equal protection claim here in the context of a summary judgment motion.
The majority and the district court simply find that because there is no
evidence of intentional discrimination in the 1968 re-enactment of the relevant
constitutional provision, the defendants are entitled to summary judgment. But
given the nature of the plaintiffs’ claim and the evidence they present, the court
cannot look at the 1968 re-enactment in a vacuum. The plaintiffs contend that the
original constitutional provision of 1868 (taking the evidence in the light most
favorable to the plaintiffs at this stage) was passed for racially discriminatory
*64
purposes. If that is so, then United States v. Fordice,
and Knight v. Alabama,
Where the state has not demonstrated any race-neutral basis for the re-
enactment, there can be no “break” in the chain of invidious intent. See, e.g.,
Fordice,
In addition to its concerns regarding the application of Fordice outside of the educational context, the majority holds that the rule announced in Fordice is inapplicable here because there are valid public policy reasons for disenfranchising felons, while no such reasons underpinned the educational policies considered in Fordice. Though the valid reasons recognized by the court may have driven Florida’s decision to retain its felon disenfranchisement scheme, the record fails to demonstrate that those reasons in fact motivated the 1968 re-enactment. The court’s attempt to distinguish Fordice based on the existence of a potentially valid public policy thus begs the very question of the motivation behind the 1968 re- *66 enactment. Though valid public policies might have similarly underpinned the educational policies at issue in Fordice, the Court nonetheless required the state to demonstrate that those policies had a sound race-neutral educational justification.
Although the majority does not recognize the Fordice framework as
applicable in this context, it nonetheless suggests that the record here supports a
conclusion that the 1968 re-enactment was driven by race-neutral considerations
because it was “deliberative.” Majority Op. at 18-19. There is no indication,
however, in the record of deliberations that the subcommittee had any non-
discriminatory reasons for re-enacting the disenfranchisement law, nor any
indication that the Constitutional Revision Committee as a whole or the legislature
even discussed it. While the 1968 subcommittee minutes trace the committee’s
procedure and its changes to the disenfranchisement provision’s text, their limited
nature sheds no light at all as to whether the committee was motivated by
legitimate non-discriminatory reasons, or whether they saw the felon
disenfranchisement provision as a legacy of previous constitutions whose
justification did not need to be revisited in substance. Cf. Richardson v. Ramirez,
The record at this juncture does not permit a conclusion that the legislature’s
textual modifications removed the prior racial taint in any meaningful way. Where
the provision explicitly disenfranchising all felons remained unchanged in
substance, and without evidence that the 1968 re-enactment had an independent,
legitimate motivation, the majority’s conclusion that the 1968 process cleansed the
taint of racial aminus as a matter of law is unfounded at this stage of the
proceedings. See Fordice,
To conclude that the 1968 re-passage of Florida’s felon disenfranchisement
provision is in and of itself sufficient to “eliminate the racial taint,” the majority
relies on the Fifth Circuit’s decision in Cotton v. Fordice,
As the district court found and the majority assumes, plaintiffs’ showing of racial animus in the original 1868 enactment raises a genuine issue of material fact as to whether it was adopted with a discriminatory purpose. Where the record is insufficient to conclude that either the 1968 re-enactment was motivated by legitimate concerns or that the 1868 provision would have been enacted even without racial motivations, summary judgment was improperly granted.
II. The Voting Rights Act Claim
The simple question before us is whether or not Section 2 of the Voting
Rights Act (“VRA”) is applicable to plaintiffs’ claim that they have been denied
*70
the right to vote. As the majority states, this is not a vote dilution claim.
[4]
Although I do not know whether plaintiffs can ultimately succeed, their contention
that Florida’s felon disenfranchisement law effectively denies their right to vote
because they are black is clearly encompassed by the plain language of the VRA,
which prohibits state enforcement of any “qualification or prerequisite to voting”
that “results in a denial or abridgement of the right of any citizen of the United
States to vote on account of race or color . . . .” 42 U.S.C. § 1973(a) (2005);
Farrakhan v. Washington,
Collins,
The first step in statutory interpretation requires that courts apply the plain
meaning of the statutory language unless it is ambiguous. Conn. Nat’l Bank v.
Germain,
Given the plain meaning of the language of Section 2, we are thus squarely faced with the issue of whether its application to felon disenfranchisement schemes is constitutional. I find no constitutional infirmity in applying Section 2 to felon *72 disenfranchisement statutes, and find unpersuasive the majority’s argument that it impermissibly conflicts with Section 2 of the Fourteenth Amendment and raises questions about Congress’ civil rights enforcement powers.
First, there is no conflict between the Constitution and the VRA. The
majority’s finding of a conflict between the VRA and Section 2 of the Fourteenth
Amendment stems from its failure to distinguish between felon disenfranchisement
laws generally and those that result in racial discrimination. Section 2 of the
Fourteenth Amendment merely permits states to disenfranchise felons without
suffering a reduction in congressional representation. Nothing in Section 2 of the
Fourteenth Amendment grants states unfettered discretion to disenfranchise felons,
much less permits felon disenfranchisement on the basis of race. Hunter v.
Richardson,
Second, the majority purports to exclude felon disenfranchisement from
coverage under the VRA because of its concern over the lack of a congressional
record chronicling constitutional violations stemming from state felon
disenfranchisement laws. While the factual evidence of discrimination that
Congress considered in enacting Section 2 did not include evidence of racially
motivated felon disenfranchisement, there is no requirement that Congress make
factual findings as to every potential application of a civil rights statute passed
pursuant to its powers to enforce the Fourteenth and Fifteenth Amendments. This
*74
is particularly so where Congress could not even have begun to identify every
potential discriminatory voting qualification that would be subject to the VRA,
given the “increasing sophistication with which the states were denying racial
minorities the right to vote.” Farrakhan,
Insofar as the majority discerns congressional intent to exclude felon
disenfranchisement from coverage under Section 2 of the VRA in subsequent
congressional enactments that make provisions for felon disenfranchisement, it
again overlooks the distinction between felon disenfranchisement laws generally
and the narrow subset of such laws that result in racial discrimination. The simple
fact that Congress made provisions for felon disenfranchisement in post-VRA
statutes says nothing of whether Congress intended to insulate racially
discriminatory disenfranchisement schemes from attack under the VRA.
Furthermore, where the majority relies on the legislative history of the “test or
devices” standard found in Section 4 of the VRA to locate legislative intent as to
enforcement authority. See, e.g., Oregon v. Mitchell,
(5th Cir. 1980); see also Baker,
Irrespective of states’ authority to disenfranchise felons, or the frequency
[9]
with which states have historically exercised that authority, the Supreme Court has
made clear that states cannot use felon disenfranchisement to intentionally
discriminate on the basis of race. Hunter,
The majority’s focus on the absence of congressional findings as to felon
disenfranchisement, and its disregard of the statutory text, eviscerates Congress’s
intent to give Section 2 the “broadest possible scope.” Allen v. State Bd. of
Elections,
Nor does the “plain statement” rule of Gregory v. Ashcroft,
Moreover, the Supreme Court has explicitly held that the Gregory “plain
statement” canon is wholly inapplicable where the statutory language
unambiguously applies to a particular state function. Pa. Dep’t of Corr. v. Yeskey,
While the majority would use this “ambiguity” to avoid the result dictated
by the VRA’s plain meaning and dispose of plaintiffs’ claim, I would remand for
determination by the trier of fact whether, under the totality of the circumstances ,
*79
plaintiffs’ votes were denied “on account of race” in violation of the VRA.
intent “from somewhere in the relevant community”, such a requirement appears nowhere in the
pre-Bolden iterations of the senate factors and is inconsistent with the Congressional objective of
eliminating intent from Section 2. See Thornburg v. Gingles,
Notes
[*] Circuit Judge Marcus recused and did not participate in this case. Circuit Judge Kravitch elected to participate in this decision, pursuant to 28 U.S.C. § 46(c).
[1] The full text of the provision states:
No person convicted of a felony, or adjudicated in this or any other state to be mentally
incompetent, shall be qualified to vote or hold office until restoration of civil rights or
removal of disability.
Fla. Const. art. VI, § 4 (1968).
A felon who has completed his sentence may apply for clemency to have his civil rights
restored. Fla. Stat. § 940 (2003). The plaintiffs also allege that Florida’s voting rights
restoration scheme violates constitutional and statutory prohibitions against poll taxes. Access to
the franchise cannot be made to depend on an individual’s financial resources. See Harper v.
Va. State Bd. of Elections,
[2] Approximately seventy percent of the plaintiffs class is white.
[3] The Clemency Board is made up of the Governor of Florida and members of the Cabinet. The Clemency Board has the power to restore the civil rights of convicted felons, including the right to vote. See Fla. R. Exec. Clemency. The suit also named Florida’s county supervisors of elections. Their participation has been abated pending determination of liability.
[4] The full text of Section 2 states: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. U.S. Const. amend. XIV, § 2.
[5] Indeed, throughout history, criminal disenfranchisement provisions have existed as a
punitive device. See Harvard Law Review Association, One Person, No Vote: The Laws of
Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1939-42 (2002). When the Fourteenth
Amendment was ratified, twenty-nine of thirty-six states had some form of criminal
disenfranchisement law. See Richardson,
[6] The 1838 Constitution provided that “[t]he general assembly shall have power to exclude from...the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime.” Fla. Const. art VI, § 4 (1838). The 1845 provision stated: Be it further enacted , That every person who shall become a candidate for any of the foregoing offices, shall possess the same qualification as that prescribed for a
[8] Notably, five African-American delegates at the convention explicitly voted for the 1868 criminal disenfranchisement provision.
[9] As further evidence of racial discrimination, the plaintiffs argue that the 1868 criminal disenfranchisement provision expanded the category of crimes by reaching all felonies. However, the plaintiffs conceded below that the term “infamous crimes” used in Florida’s 1838 disenfranchisement provision was understood at common law to include all felonies. The use of the word “felony” in the 1868 Constitution merely reflected the language that was used in the Reconstruction Act which required the states to grant suffrage to all male citizens, twenty-one years and older “ except such as may be disenfranchised for participation in the rebellion or for felony at common law. ” Act of Mar. 2, 1867, ch. 163, 14 Stat. 428. § 5 (emphasis in original).
[10] For example, the plaintiffs cite to the fact that one of the Moderate Republican leaders stated in 1872 that he had kept Florida from becoming “niggerized.” A review of the record suggests that this post-convention comment and others cited by the plaintiffs were likely made in reference to the legislative apportionment formula and a provision that circumvented local elections by requiring the governor to appoint county officials. The plaintiffs’ own expert conceded that felon disenfranchisement was a relatively minor issue during the 1868 Convention.
[11] The only comment possibly referencing the felon disenfranchisement provision was made in 1881. But it is not clear whether this comment specifically referred to the adoption of the disenfranchisement provision in 1868. Moreover, we question the reliability of a single comment made thirteen years after the Convention.
[12] In fact, the record indicates that the reason the Moderate Republican Constitution was chosen was because it was signed by a clear majority of the delegates at the convention.
[13] To support this argument, the plaintiffs offer incomplete statements from a hodgepodge
of legislative materials that were not before the district court at summary judgment. Even if we
were to take judicial notice of all of these records, these materials would not help the plaintiffs.
The plaintiffs also argue that the district court erred in excluding Richard Scher’s expert report
on the 1968 constitutional revision. We review evidentiary rulings for abuse of discretion
,
United States v. Smith,
[14] According to the Florida Supreme Court, persons convicted of offenses enumerated in
Section 5 of the 1868 disenfranchisement provision, including a misdemeanor such as “petty
larceny” were disenfranchised. State ex. Rel. Jordan v. Buckman,
[15] The plaintiffs focus on what they call the “automatic felony disenfranchisement provision” and assert that it remained unaffected by the 1968 revision. Presumably, the plaintiffs are referring to Section 4 of the 1868 provision. The plaintiffs’ argument is misleading. Section 5 of the 1868 provision was also an “automatic disenfranchisement” provision because it required the legislature to enact disenfranchisement laws. In deleting Section 5 in 1968, the legislature did engage in a revision of what the plaintiffs call “automatic disenfranchisement.” Therefore, the “automatic disenfranchisement provision” (which encompassed both sections 4 and 5 in the 1868 provision) was revised in 1968.
[16] The committee minutes state: Mr. Earle moved that Article VI, Section 4 be adopted by the Committee on Suffrage and Elections. The motion was seconded. Mr. Pettigrew moved to amend Mr. Earle’s motion by striking “judicially determined to be of unsound mind, or under judicial guardianship because of mental disability” and to substitute therefor “persons adjudicated mentally incompetent.” This motion was seconded and passed. Mr. Pettigrew moved to further amend Section 4 by adding to his previous amendment: “in this or any other state and who have not had their competency judicially restored.” This amendment was seconded and also passed. After considerable discussion, Mr. Pettigrew moved that Section 4 be deleted and the following inserted: “The Legislature may by law establish disqualifications for voting for mental incompetency or conviction of a felony.” The motion was seconded. Mr. Goodrich offered the following substitute motion to Mr. Pettigrew’s motion: Delete Section 4 and insert: ‘The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution.’ After discussion, Mr. Goodrich’s motion failed for lack of a second. The vote was taken on Mr. Pettigrew’s motion, but it failed of adoption. Mr. Goodrich moved that the word “felony” in line 2 of Section 4 be changed to “crime.” The motion failed for lack of a second. The Committee adopted Section 4 of Article VI with no further amendments. Minutes of the Suffrage and Elections Committee of the Florida Constitution Revision Commission, Feb. 2-3, 1966, at 6-7.
[17] Proof of intentional discrimination is required under the Equal Protection Clause. One
factor relevant to the intent inquiry is whether the law being challenged has an impact that bears
more heavily on one race than another. See Village of Arlington Heights v. Metro. Hous. Dev.
Corp.,
[19] There is no allegation in the plaintiffs’ complaint that the 1968 provision was adopted with the intent to discriminate based on race. Indeed, the plaintiffs stipulated that there is no evidence that legislators in 1968 were concerned with or considered the consequences of the policy along racial lines.
[20] The Supreme Court concluded that revision to the provision by
state courts
, which
severed “some of the more blatantly discriminatory” portions of the law, did not purge the
provision of its
legislative
intent. Hunter,
[21] Prior to this case, no expert had ever suggested that the 1868 disenfranchisement provision was motivated by racial discrimination. The plaintiffs’ standard establishes an insurmountable burden. As the defendants point out, if the court were to accept the plaintiffs’ standard, then the more dubious an allegation of past discrimination in a predecessor provision, the more difficult it becomes for a state to extinguish it because it would be unlikely that the present day legislators would be aware of the past discrimination. The result would be to reverse the presumption that a State’s laws are constitutional, and plunge federal courts into far-reaching
[23] According to the plaintiffs’ estimates, in 1968, 3.13% of voting age African-Americans were disenfranchised due to a felony conviction as compared to 1.24% of non African- Americans.
[24] In contrast to school desegregation where the racially disparate impact was at its height in the 1950s and 1960s and has decreased since, the felon disenfranchisement rule had very little racially disparate impact in the 1960s and only developed such an effect many years later.
[25] Specifically, Congress amended the Voting Rights Act in 1982 in response to the
Supreme Court’s holding in City of Mobile v. Bolden,
[26] Two types of discriminatory practices and procedures are covered by section 2: those
that result in “vote denial” and those that result in “vote dilution.” The plaintiffs’claim here is
one of vote denial. Vote denial occurs when a state employs a “standard, practice, or procedure”
that results in the denial of the right to vote on account of race. 42 U.S.C. § 1973(a); Burton v.
City of Belle Glade,
[28] When the Fourteenth Amendment was ratified, twenty-nine out of thirty-six states had
some form of criminal disenfranchisement provision. Richardson,
[29] The plaintiffs argue that the Fourteenth Amendment’s endorsement of felon disenfranchisement laws should not control our analysis because the Fifteenth Amendment does not contain similar language and, in their view, the Fifteenth Amendment repealed § 2 of the Fourteenth Amendment. The plaintiffs cite to no case law to support this bold assertion and we find no merit in this argument. The plain text of the Constitution is clear and we must follow it.
[30] Before turning to a canon of statutory interpretation, we must find some level of
ambiguity in the words of the statute. Dep’t of HUD v. Rucker,
[31] In saying this, we in no way doubt Congress’s authority to enact the VRA nor do we
question that, as a general rule, the results test of Section 2 is constitutionally sound. See United
States v. Marengo County Comm’n,
[32] As the Court has explained, Congress must (1) “identify conduct transgressing...the
substantive provisions” of the amendments and (2) “tailor its legislative scheme to remedying or
preventing such conduct.” Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savs.
Bank,
[34] The plaintiffs concede that Congress compiled no record of constitutional violations
with respect to felon disenfranchisement provisions. They contend, however, that Congress’s
enforcement power is broader when it acts to prohibit discrimination against a suspect class or to
protect a fundamental right such as voting. See Tennessee v. Lane,
[35] We also note that application of the VRA to Florida’s felon disenfranchisement
provision could raise federalism concerns in that it significantly alters the constitutionally
mandated balance of power between the States and the Federal Government. See Gregory v.
Ashcroft,
[37] We recognize that there is no legislative history directly referencing Section 2 of the VRA that mentions felon disenfranchisement provisions. Nonetheless, we find Congress’s treatment of these provisions in reference to other sections of the VRA to be persuasive on this matter.
[38] In Bonner v. City of Prichard,
[39] The one-sided legislative history is buttressed by subsequent Congressional acts. Since 1982, Congress has enacted laws making it easier for states to disenfranchise felons. For instance, in 1993, Congress enacted the National Voter Registration Act (NVRA), Pub. L. No. 103-31, 107 Stat. 77 (1993), which authorizes states to purge felons from voter rolls. 42 U.S.C. § 1973gg-6(a)(3)(B). The Act also instructs federal prosecutors to give written notice to state election officials of persons convicted of felonies. 42 U.S.C. § 1973gg-6(g)(3). In this same Act, Congress sought to eliminate certain practices that dampen minority participation in the electoral process. Although not dispositive, this suggests that Congress did not intend to sweep felon disenfranchisement laws within the scope of the VRA.
[40] In addition to the constitutional concerns, there are prudential concerns as well. If we
were to accept the plaintiffs’ interpretation of the statute, states might lose their ability to
exclude felons currently in prison from the franchise. See Farrakhan,
[1] The Florida constitution provides that “[n]o person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights.” Fla. Const. art. VI, § 4 (1968).
[2] The constitutional question is created by the Fourteenth Amendment’s savings clause regarding such provisions. See U.S. Const. amend. XIV, § 2.
[3] Those factors are canvassed in the original opinion: It is axiomatic that at-large and multi-member districting schemes are not per se unconstitutional. Nevertheless, where the petitioner can demonstrate that “its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice,” White v. Regester, 412 U.S. [755,] 766, 93 S.Ct. [2332,] 2339, 37 L.Ed.2d [314 (1973)], Whitcomb v. Chavis, 403 U.S. [124,]
[4] No one spoke for the Court in Bolden. Although six Justices concurred in the Court’s judgment, Justice Stewart wrote only for himself, Chief Justice Burger, and Justices Powell and Rehnquist. For purposes of brevity, I do not pause to make this observation at every reference I make to Justice Stewart’s opinion.
[5] We can assume from the facts of Burton that the plaintiffs had alleged that the challenged policy in that case had in fact produced a disparate impact to the disadvantage of minority voters. By implication, that allegation was not in itself sufficient to sustain a vote- denial claim, as the court concluded that “Appellants have failed to raise a genuine issue of material fact as to whether they were denied the right to vote on account of race.” Burton, 178 F.3d at 1198.
[6] Additional support for this proposition can be found by implication in the final proviso of subsection (b): “Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 42 U.S.C. § 1973(b).
[7] See Nipper,
[8] Furthermore, notwithstanding the requirement that we view plaintiffs’ evidence favorably in light of the procedural posture of this case, their burden is significant in light of the numerous filters and checks built into our criminal-justice system that are independently capable of weeding out cases improperly infused with racial motives. Those checks include grand juries, the right to a trial by a jury (and specifically by a jury whose composition has not been manipulated on the basis of race), an impartial judge supervising the trial, appellate and collateral state-court review, federal habeas review, and clemency.
[1]
See, e.g., Morse v. Republican Party of Va.
,
[2] Judge Tjoflat argues in his concurrence that a plaintiff’s showing of disproportionate
effect does not suffice to make out a
prima facie
case of a § 2 VRA claim. It is far from clear
that the language of § 2 VRA claim reinstates the law of the pre-
Bolden
cases. Congress could
have specified in § 2 that some of the
White
factors were strongly probative of intent, and that
proof of “something more than effect” was the
sine qua non
of a § 2 claim, regardless of whether
the proof was direct or indirect.
See White v. Regester
,
[3] It bears noting that the Supreme Court has yet to determine whether the “congruence and proportionality” test applies to the Fifteenth Amendment. I assume here that it would. Because the VRA is a congruent and proportional remedy, and therefore well within Congress’s enforcement power under the Fourteenth Amendment, an inquiry into the Fifteenth Amendment’s scope is not required.
[1] The district court found that the “[p]laintiffs have presented to this Court an abundance
of expert testimony about the historical background of Florida’s felon disenfranchisement
scheme as historical evidence that the policy was enacted . . . with the particular discriminatory
purpose of keeping blacks from voting.”
[2] While the majority cites to Burton v. City of Belle Glade,
[3] The 1868 provision, as amended in 1885, provided that “No person under guardianship, non compos mentis or insane shall be qualified to vote at any election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless restored to civil rights.” Fla. Const. art. VI, § 4 (1885). Following the 1968 re-enactment process the text read, “No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.” Fla. Const. art. VI, § 4 (1968). The 1968 changes also eliminated a provision which empowered the legislature to disenfranchise those convicted of certain misdemeanors. Fla. Const. art. VI, § 5 (1885). While the majority emphasizes this revision, the plaintiffs’ evidence of racial intent does not hinge on or relate to the eliminated provision. Unlike the plaintiffs in Cotton, whose claim arose from the disenfranchisement of those committing certain “black crimes”, plaintiffs’ claim of racial bias relates to Florida’s disenfranchisement of all felons.
[4] While much of the case law interpreting Section 2 of the VRA focuses on the dilution of
minority voting strength, see e.g., Holder v. Hall,
[5] In Baker, an en banc panel of the Second Circuit considered whether Section 2 of the
VRA applied to New York’s felon disenfranchisement law. Because the panel divided equally, 5
to 5, the lower court opinion denying VRA coverage was affirmed. While the majority relies
heavily on Muntaqim v. Coombe,
[6] See Lassiter v. Northampton County Bd. of Elections,
[7] Nor is Congress required to impose temporal or geographic restrictions (whose absence from Section 2 the majority finds so troubling) on statutes passed pursuant to its civil rights
[8] The majority’s citation to United States v. Ward,
[9] Of course, I recognize that non-discriminatory felon disenfranchisement statutes,
standing alone, raise no equal protection violation. See Ramirez,
[10] Although the district court failed to examine the plaintiffs’ evidence under the totality
of the evidence standard that governs Section 2 claims, Judge Tjoflat’s concurrence argues that a
remand is unnecessary as “plaintiffs have been unable to show that whatever denial or
abridgment of voting rights resulted from Florida’s felon disenfranchisement provision occurred
‘on account of race or color.’” First, because plaintiffs are appealing the district court’s grant of
summary judgment, it is not necessary that they show at this stage that their votes were denied
on account of race. Rather, they need only show that genuine issues of material fact remain.
That, they have certainly done. As I explained in the panel opinion, as the district court wrongly
excluded evidence on several of the “senate factors”, plaintiffs can point to evidence on racially
polarized voting, prejudice in the criminal justice system, socio-economic disparities, and a
history of official discrimination. Johnson,