Thomas Johnson v. Governor of the State of FLThomas Johnson v. Governor of the State of FL
I. Introduction
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
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
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., 277 F.3d 1294, 1296 (11th Cir. 2002). Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.”
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.”
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. 418 U.S. at 56. In doing so, the Court relied on Section 2 of the Fourteenth Amendment, holding that it expressly permits states to disenfranchise convicted felons.4 The Court was persuaded that:
[T]hose who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment.
Id. at 43. Of course, the Equal Protection Clause prohibits a state from using a
1. Historical Background
Florida‘s policy of criminal disenfranchisement has a long history, tracing back well before the Civil War.5 Florida‘s earliest Constitution, adopted in 1838, authorized the General Assembly to enact criminal disenfranchisement laws and in 1845, Florida‘s General Assembly enacted such a law.6 Florida‘s 1861 and 1865
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.7 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
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.8 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
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 plaintiffs rely almost exclusively9 on a few isolated remarks10 made after the 1868 Constitutional Convention. Although these comments reflect an unfortunate and indefensible racial animus in nineteenth-century Florida politics, there is no
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
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.13 We disagree. Florida‘s 1968 felon disenfranchisement provision is markedly different from
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.
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...
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.
Whereas the 1868 provisions disenfranchised persons convicted of certain misdemeanors such as petty larceny,14 under the new 1968 provision, only those persons convicted of felonies could be disenfranchised. Therefore, the 1968
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
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.17 Washington v. Davis, 426 U.S. at 239. In Hunter v. Underwood, the Supreme Court examined head-on an equal protection challenge to a criminal disenfranchisement provision. 471 U.S. at 223. There, the Court determined that Alabama‘s criminal disenfranchisement provision violated the Equal Protection Clause because it was adopted in 1901 to minimize the political power of its African-American population. Id. at 228-230.18 After the 1901 enactment, the Alabama legislature neither altered the provision nor reenacted it in a political atmosphere free of racial bias. Rather, all of the amendments to the provision were the result of judicial action. Id. at 233.
The Hunter Court articulated a two-step test to analyze whether a criminal disenfranchisement provision violates the Equal Protection Clause. Id. at 227-28. The Court directed as follows:
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
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,
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, 471 U.S. at 233. In Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1988), the Fifth Circuit recognized that this issue was left open by Hunter and held that the facially neutral disenfranchisement provision in that case overcame its “odious origin” through legislative amendments. 157 F.3d at 391. The Fifth Circuit pointed out that the disenfranchisement provision at issue was originally enacted in 1890 with
The situation here is similar to that in Cotton v. Fordice. Like Mississippi‘s provision, Florida‘s disenfranchisement provision was amended through a deliberative process in 1968. The 1968 provision narrowed the class of disenfranchised individuals to those convicted of felonies. Moreover, the provision first was considered by the Suffrage and Elections Committee. The Committee sent its final proposal to the CRC. The CRC reviewed the changes to the Constitution and sent a draft to the legislature, which approved the new
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
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.21 Florida‘s felon
The plaintiffs rely extensively on United States v. Fordice, 505 U.S. 717 (1992) to support their argument. Fordice, however, dealt with a challenge to Mississippi’s system of higher education and involved an extreme case of recent state discrimination. Mississippi had actively resisted removing the segregated system of education in the 1960s, failed to fund even limited educational reform in 1969, and was sued by the United States and private plaintiffs in 1975 for failing to comply with the Equal Protection Clause. Id. at 722-25. The issue in Fordice22 was whether the state’s facially-neutral education system, adopted only after the state was required to integrate its schools by court order, was valid under the Equal Protection Clause if the system maintained the racially disparate impact that de jure segregation had created. The Supreme Court found that Mississippi’s actions were not consistent with the Equal Protection Clause because Mississippi made no effort to remove the discriminatory effects of de jure segregation.
The present case and Fordice are not analogous. First, Florida has a valid
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,
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. 505 U.S. at 722-23. In Fordice, therefore, the Supreme Court was concerned that Mississippi was attempting to perpetuate its racially segregated education system, established in a time of de jure segregation, through a facially-neutral provision. Conversely, when Florida adopted its felon disenfranchisement provision in 1968, the racial effects of the provision were
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. 178 F.3d 1175, 1190 (11th Cir. 1999); see also Johnson v. DeSoto County Bd. Of Comm’rs, 204 F.3d 1335, 1344 n.18 (11th Cir. 2000). Moreover, as discussed earlier, there is specific precedent from this court and the Supreme Court dealing with criminal disenfranchisement. See Hunter v. Underwood, 471 U.S. 222 (1985); Richardson v. Ramirez, 418 U.S. 24 (1974); Beacham v. Braterman, 300 F.Supp. 182, 183 (1969), aff‘d 396 U.S. 12 (1969) (finding by a three judge panel that Florida’s decision to disenfranchise felons was not a
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, 366 F.3d 102, 124 (2d Cir. 2004) (holding that Section 2 did not reach New York’s felon disenfranchisement statute), cert. denied, 125 S.Ct. 480 (2004), and reh‘g en banc granted, 2004 WL 2998551 (2004) with Farrakhan v. Washington, 338 F.3d 1009, 1014-15 (9th Cir. 2003) (holding that Section 2 applied to Washington’s felon disenfranchisement law), cert. denied, 125 S.Ct. 477 (2004); Wesley v. Collins, 791 F.2d 1255, 1259-61 (6th Cir. 1986) (assuming that Section 2 of the VRA applies to felon disenfranchisement laws but holding that there was no violation); see also Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en banc) (arguing that Section 2 of the VRA
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, 383 U.S. 301, 308 (1966); United States v. Marengo County Commission, 731 F.2d 1546, 1555 (11th Cir. 1984). Recognizing the subtle ways that states often denied racial minorities the right to vote, in 1982, Congress amended Section 2 of the Voting Rights Act so that a plaintiff could establish a violation without proving discriminatory intent.25 See Chisom v. Roemer, 501 U.S. 380, 383-84 (1991). Thus, it is well-settled that a plaintiff can challenge voting qualifications under a “results” test.26 Id. Section 2 of the Voting Rights Act of
(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.
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.
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.30 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.
485 U.S. 568, 575 (1988). Thus, when we analyze the scope of the Voting Rights Act, we should first address whether one interpretation presents grave constitutional questions whereas another interpretation would not, and then examine whether the latter interpretation is clearly contrary to Congressional intent. Id.
Here, the plaintiffs’ interpretation creates a serious constitutional question by interpreting the Voting Rights Act to conflict with the text of the Fourteenth Amendment.31 The Fourteenth and Fifteenth Amendments to the United States
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, 521 U.S. 507, 520 (1997).
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. 366 F.3d at 118-126. For Congress to enact proper enforcement legislation, there must be a record of constitutional violations.32 See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 368 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 89 (2000). In Oregon v. Mitchell, 400 U.S. 112, 118 (1970), superseded by
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.33 Without a record of constitutional violations, applying Section 2 of the Voting Rights Act to Florida’s felon disenfranchisement law would force us to
For these reasons, we believe that the plaintiffs’ interpretation of the VRA raises grave constitutional concerns.35 For the plaintiffs’ interpretation to be
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, 178 F.3d 1175, 1196 (11th Cir. 1999). The Senate and House reports strongly suggest, however, that Congress did not intend Section
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
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. 352 F.2d 329, 332 (5th Cir. 1965).38 There, the court issued an order enjoining the state from applying the voting tests, but explicitly exempted felony convictions from the order. The court ordered that the state cease
...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
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.39 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
Thus, we believe that applying Section 2 of the Voting Rights Act to felon disenfranchisement provisions raises grave constitutional concerns.40 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.
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.
VI. Conclusion
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of the defendants.
AFFIRMED.
Section 2 of the Voting Rights Act (VRA) “outlaws election practices that result in racial discrimination.” Nipper v. Smith, 39 F.3d 1494, 1509-10 (11th Cir. 1994) (en banc) (opinion of Tjoflat, C.J., joined by Anderson, J.). Specifically, it bars any “voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
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, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980). Prior to its holding in that case, a number of circuits had applied a “totality of the circumstances” analysis in vote-dilution cases brought under the Equal Protection Clause of the Fourteenth Amendment. The old Fifth Circuit, our predecessor court, established the framework for this kind of analysis in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973). That framework required courts to judge vote-dilution cases by measuring the relevant facts according to a number of factors, now commonly referred to as Zimmer factors.3 Importantly for purposes of this discussion, those
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, 426 U.S. 229 . . . , was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause—that proof of a discriminatory effect is sufficient.” Bolden, 446 U.S. at 71, 100 S. Ct. at 1501-02.4 The Court viewed this conclusion as inescapable in light of Davis, and it concluded that to make out a vote-dilution claim a “plaintiff must prove that the disputed plan was ‘conceived or operated as [a] purposeful devic[e] to further . . . discrimination.‘” Id. at 66, 100 S. Ct. at 1499 (quoting Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S. Ct. 1858, 1872, 29 L. Ed. 2d 363 (1971)) (alterations and omission original).
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, 100 S. Ct. at 1497.
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
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, 178 F.3d 1175, 1197-98 (11th Cir. 1999). Dismissing the vote-denial claim in a cursory manner in that case, however, we did not pause to establish the minimum requirements of a prima facie vote-denial claim under section 2, and the case is thus of dubious precedential value, least of all to support a proposition that mere disparate impact is sufficient to establish such a claim. In fact, if anything, our holding on the vote-denial claim in Burton stands for a contrary conclusion.5 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
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
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-
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, 471 U.S. 222, 228, 105 S. Ct. 1916, 1920 (1985). For the reasons stated by the majority, I concur in affirming the district court‘s resolution of this claim.
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, 446 U.S. 156, 172, 100 S. Ct. 1548, 1559 (1980).
I. SCOPE OF THE VOTING RIGHTS ACT
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.”
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.
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, 216 F.3d 970, 984-85 (11th Cir. 2000) (citation omitted).
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
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
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
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.2 In a
II. SCOPE OF CONGRESS‘S POWER
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, __, 124 S. Ct. 1978, 1986 (2004) (upholding Title II of the Americans with Disabilities Act as a valid exercise of Congress‘s Fourteenth Amendment enforcement power); see also City of Rome, 446 U.S. 156, 100 S. Ct. 1548
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, 528 U.S. 62, 89, 120 S. Ct. 631, 649 (2000); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 640, 199 S. Ct. 2199, 2207 (1999). Therefore, Congress must identify the “history and pattern of unconstitutional . . . discrimination” that it seeks to address, creating a legislative record to support its exercise of enforcement power. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 121 S. Ct. 955 (2001). Furthermore, valid § 5 legislation must exhibit “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” City of Boerne v. Flores, 521 U.S. 507, 520, 117 S. Ct. 2157, 2164 (1997).3
Congress enacted the VRA pursuant to the enforcement clauses of the Fourteenth and Fifteenth Amendments in response to rampant violations of the
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
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, 380 U.S. 128 (1965), and United States v. Penton, 212 F. Supp. 193 (M.D. Ala.) (1962)). Congress found specifically that it was impossible to predict the variety of means that would be used to infringe on the right to vote.
In response, Congress passed the VRA, which operates on two levels. First,
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, 541 U.S. at __, 124 S. Ct. at 1988-90; Garrett, 531 U.S. at 368-69, 121 S. Ct. at 964-65; Kimel, 528 U.S. at 89, 120 S. Ct. at 648-49; Boerne, 521 U.S. at 530, 117 S. Ct. at 2169. If this were the standard, states would always have one free bite at the apple, which is not what Congress intended when it passed the VRA to deal with voting discrimination “comprehensively and finally.” S. Rep. No. 97-417, at 5, reprinted in 1982 U.S.C.C.A.N. at 182.
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
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, 505 U.S. at 739; Knight, 14 F.3d at 1550 (holding that, “[o]nce it is determined that a particular policy was originally adopted for discriminatory reasons, [and] . . . is ‘traceable’ to the original tainted policy, or is ‘rooted’ or has its ‘antecedents’ in that original policy” the burden of proof lies with the state to
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-
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, 418 U.S. 24, 44 (1974) (“[T]he Journal of that Committee‘s proceedings shows only what motions were made and how the various members of the Committee voted on the motions; it does not indicate the nature or content of any of the discussion in the Committee. While the Journal thus enables us to trace the
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, 505 U.S. at 747 (Thomas, J., concurring) (observing that “discriminatory intent does tend to persist through time“); Kirkey v. Bd. of Supervisors, 554 F.2d 139, 148 (5th Cir. 1977) (en banc) (“[N]othing in [Washington v. Davis or Arlington Heights] suggests that, where purposeful and intentional discrimination already exists, it can be constitutionally perpetuated into the future by neutral official action.“). Indeed, under the majority‘s rule, legislatures could continue to utilize statutes that were originally motivated by racial animus, and that continue to produce discriminatory effects, so long as they re-promulgate the statutes “deliberately” and without explicit evidence of an illicit motivation.
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
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, 503 U.S. 249, 253 (1992); United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir. 2002). Only when we find ambiguity in the statute‘s text do we apply canons of statutory interpretation, such as the canon of constitutional avoidance that the majority utilizes. Dep‘t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 134 (2002). The language of Section 2 of the VRA is unambiguous, and compels a conclusion that it applies to felon disenfranchisement provisions. Such a provision is unquestionably a “voting qualification or prerequsite to voting”6 that is “applied by [the] state.”
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
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, 471 U.S. 222, 233 (1985) (“[Section] 2 was not designed to permit the purposeful racial discrimination [in Alabama‘s criminal disenfranchisement law] . . . which otherwise violates [Section] 1 of the Fourteenth Amendment. Nothing in . . . Richardson v. Ramirez suggests the contrary.“). Nor does Section 2 preclude Congress from legislatively addressing criminal disenfranchisement laws that have the effect of disenfranchising felons because of their race pursuant to its civil rights enforcement powers. Baker, 85 F.3d at 936-37 (Feinberg, J., writing for an equally divided court) (citing City of Rome v. United States, 446 U.S. 156, 177 (1980) (explaining that Congress can use its enforcement powers to prohibit conduct that
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.7 This
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
Irrespective of states’ authority to disenfranchise felons,9 or the frequency 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, 471 U.S. at 233. In view of Hunter, there can be no reason why Congress cannot act to prevent such discrimination, using its civil rights enforcement powers to reach felon disenfranchisement laws
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, 393 U.S. 544, 566-67 (1969). More importantly, the majority‘s approach renders statutes passed pursuant to Congress’ civil rights enforcement powers little more than stale documents, applicable only to those forms and patterns of discrimination evident at the time of passage and explicitly considered by Congress, irrespective of the breadth of the plain statutory text.
Nor does the “plain statement” rule of Gregory v. Ashcroft, 501 U.S. 452 (1991), which counsels the majority‘s avoidance approach, prevent plaintiffs from proceeding under the VRA. The canon of construction at issue in Gregory holds that where Congress intends to alter the “usual constitutional balance between the states and federal government,” it must make its intent to do so unmistakably clear in the statute. Id. at 460-61 (internal citation marks omitted). As Judge Feinberg concluded in his persuasive opinion, however, the Fourteenth and Fifteenth
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, 524 U.S. 206, 209 (1998). In Yeskey, the petitioners contended that under Gregory, state prisons were not subject to the Americans with Disabilities Act based on the lack of a “plain statement” indicating congressional intent to alter the constitutional balance by regulating state prisons. Id. at 208-09. The Court limited Gregory‘s plain statement rule, holding it inapplicable because the prison fell squarely within statutory language providing for coverage of “public entities.” Id. at 209-10. Similarly, Congress need not have included a “plain statement” on the VRA‘s application to criminal disenfranchisement statutes, as those statutes fall squarely within the VRA‘s textual prohibition on any “qualification or prerequisite to voting . . . 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.”
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,10
Notes
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.
A felon who has completed his sentence may apply for clemency to have his civil rights restored.
Indeed, it is far from clear that the state of pre-Bolden law did not recognize vote dilution claims based solely on effect. See Burns v. Richardson, 384 U.S. 73, 88, 86 S. Ct. 1286, 1294 (1966), (stating that the standard for vote dilution claim is “invidious effect“); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S. Ct. 498, 501 (1965) (“It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” (emphasis added)).
In the event that Judge Tjoflat‘s interpretation is the correct one (that proof of “something more” is required), I do not think that interpretation leads inexorably to the conclusion that a plaintiff‘s showing of disproportionate effect does not satisfy the summary judgment burden. On the contrary, one of the permissible inferences that can, and must, be drawn from the plaintiffs’ showing here is that the disproportionate effect was caused by race. Thus, I believe that the plaintiffs have carried their summary judgment burden by producing evidence of a disproportionate effect.
While the majority cites to Burton v. City of Belle Glade, 178 F.3d 1175, 1190 (11th Cir. 1999) (finding that “[a]ppellants can point to no court that has ever applied Fordice outside of the education setting“), this circuit has suggested that Fordice applies in the employment setting, preventing public employers from escaping their constitutional obligations simply by enacting race-neutral policies that institutionalize the effects of prior discrimination. See Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1575 (11th Cir. 1994).Zimmer, 485 F.2d at 1304-05 (footnotes and internal crossreferences omitted). 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. 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.”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,] 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.
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.
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 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.
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.”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)).
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 enforcement authority. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 118 (1970) (upholding a nationwide ban on use of literacy tests without any expiration date or geographical limit, and without congressional fact-finding on the discriminatory use of literacy tests in every 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.
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.
The full text, as amended in 1982, states:
(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.