449 F.3d 305 (2nd Cir. 2006), 04-3886, Hayden v. Pataki

Docket Nº:04-3886-pr.
Citation:449 F.3d 305
Party Name:Joseph HAYDEN, on behalf of himself and all individuals similarly situated; Lumumba Akinwole-Bandelle, Wilson Andino, Gina Arias, Wanda Best-Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Keran Holmes, III, Chaujuantheyia Lochard, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Lillian M. Rivera,
Case Date:May 04, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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449 F.3d 305 (2nd Cir. 2006)

Joseph HAYDEN, on behalf of himself and all individuals similarly situated; Lumumba Akinwole-Bandelle, Wilson Andino, Gina Arias, Wanda Best-Deveaux, Carlos Bristol, Augustine Carmona, David Galarza, Kimalee Garner, Mark Graham, Keran Holmes, III, Chaujuantheyia Lochard, Steven Mangual, Jamel Massey, Stephen Ramon, Nilda Rivera, Lillian M. Rivera, Mario Romero, Jessica Sanclemente, Paul Satterfield and Barbara Scott, on behalf of themselves and all individuals similarly situated, Plaintiffs-Appellants,

v.

George PATAKI, Governor of the State of New York; Carol Berman, Chairperson, New York Board of Elections; Glenn S. Goord, Commissioner of New York State Department of Correctional Services, Defendants-Appellees.

No. 04-3886-pr.

United States Court of Appeals, Second Circuit.

May 4, 2006

Argued: June 22, 2005

Order Clarifying Opinion June 1, 2006.

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[Copyrighted Material Omitted]

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Janai S. Nelson (Theodore M. Shaw, Norman J. Chachkin, Ryan P. Haygood, Alaina C. Beverly, NAACP Legal Defense & Educational Fund, Inc., Juan Cartagena, Risa Kaufman, Community Service Society of New York, Joan P. Gibbs, Esmeralda Simmons, Center for Law and Social Justice at Medgar Evers College, of counsel), NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Hayden Plaintiffs-Appellants.

Michelle M. Aronowitz, Deputy Solicitor General (Caitlin J. Halligan, Solicitor General, Julie Sheridan, Gregory Klass, Benjamin Gutman, Richard Dearing, Assistant Solicitors General, of counsel, Eliot Spitzer, Attorney General of the State of New York, on the brief), New York, NY, for Defendants-Appellees.

Jessie Allen (Deborah Goldberg, Brennan Center for Justice at New York University School of Law, Julius L. Chambers, Anita Earls, University of North Carolina School of Law Center for Civil Rights, of counsel), Brennan Center for Justice at New York University School of Law, New York, NY, for amici curiae Brennan Center for Justice and the University of North Carolina School of Law Center for Civil Rights in support of Plaintiffs-Appellants.

David B. Salmons (Sheldon T. Bradshaw, Principal Deputy Assistant Attorney General, and Cynthia M. McKnight, David K. Flynn, and David White, Attorneys, of counsel, R. Alexander Acosta, Assistant Attorney General, on the brief), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for amicus curiae United States of America in support of Defendants-Appellees.

Peter T. Barbur, Cravath, Swaine & Moore, LLP, New York, NY, for amicus curiae Association of the Bar of the City of New York in support of Plaintiffs-Appellants.

Robert Bloom (Matthew Strugar, of counsel), Center for Constitutional Rights, New York, NY, for amici curiae Center for Constitutional Rights, National Alliance of Formerly Incarcerated Persons, Osborne Association, Coalition for Parole Restoration, Voice of the Ex-Offender, Eleventh Episcopal District Lay Organization, Ordinary People Society, Center for Law and Justice, and Malcolm X Center in support of Plaintiffs-Appellants.

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Michael L. Foreman (Jon M. Greenbaum, Marcia F. Johnson-Blanco, Jonah H. Goldman, Lawyers' Committee for Civil Rights Under Law, Elliot M. Mincberg, Alma C. Henderson, People for the American Way Foundation, Angela Ciccolo, Interim General Counsel, Victor L. Goode, Assistant General Counsel, National Association for the Advancement of Colored People, Grasford W. Smith, Jr., National Black Law Student Association Northeast Region, of counsel), Lawyers' Committee for Civil Rights Under Law, Washington, DC, for amici curiae Lawyers' Committee for Civil Rights Under Law, People for the American Way Foundation, National Association for the Advancement of Colored People, and National Black Law Students Association Northeast Region, in support of Plaintiffs-Appellants.

Lawrence S. Lustberg, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., New York, NY, for amici curiae Zachary W. Carter, Veronica Coleman-Davis, Scott Lassar, Leonard Marks, Paul Schechtman, National Black Police Association, National Latino Officers Association of America, and 100 Blacks in Law Enforcement Who Care in support of Plaintiffs-Appellants.

Johanna Schmitt (Jonathan D. Hacker, Derek R.B. Douglas, Charles E. Borden, Scott M. Hammack, Danielle M. Estrada, of counsel), O'Melveny & Myers LLP, New York, NY, for amici curiae Center for Community Alternatives, National Association of Criminal Defense Lawyers, New York Association for Criminal Defense Lawyers, and the Sentencing Project in support of Plaintiffs-Appellants.

Steven R. Shapiro (Arthur N. Eisenberg, New York Civil Liberties Union Foundation, Laughlin McDonald, ACLU Voting Rights Project, of counsel), American Civil Liberties Union Foundation, New York, NY, for amici curiae American Civil Liberties Union and New York Civil Liberties Union in support of Plaintiffs-Appellants.

Derek S. Tarson, Debevoise & Plimpton LLP, New York, NY, for amici curiae certain criminologists in support of Plaintiffs-Appellants.

Brenda Wright (Lisa J. Danetz, of counsel), National Voting Rights Institute, Boston, MA, for amicus curiae National Voting Rights Institute and Prison Policy Initiative in support of Plaintiffs-Appellants.

George T. Conway III (Kenneth K. Lee, Wachtell, Lipton, Rosen & Katz, Kent S. Scheidegger, Criminal Justice Legal Foundation, Roger Clegg, Center for Equal Opportunity, of counsel), Wachtell, Lipton, Rosen & Katz, New York, NY, for amici curiae Diane Piagentini, Mary Piagentini, Deborah Piagentini, The Criminal Justice Legal Foundation, and the Center for Equal Opportunity in support of Defendants-Appellees.

Charles J. Cooper (Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, Litigation, R. Ted Cruz, Solicitor General, Matthew F. Stowe, Deputy Solicitor General, State of Texas, David H. Thompson, Cooper & Kirk, PLLC, of counsel), Cooper & Kirk, PLLC, Washington, DC, for amici curiae States of Texas, Alabama, Arkansas, Colorado, Delaware, Idaho, Michigan, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Utah, Virginia, and Washington in support of Defendants-Appellees.

Mitchell S. Garber (Gregory M. Longworth, of counsel), Worth, Longworth & London, LLP, New York, NY, for amicus curiae Patrolmen's Benevolent Association of the City of New York in support of Defendants-Appellees.

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Before: WALKER, Chief Judge, JACOBS, CALABRESI, CABRANES, STRAUB, POOLER, SACK, SOTOMAYOR, KATZMANN, PARKER, RAGGI, WESLEY, and HALL, Circuit Judges. 1

JOSÉ A. CABRANES, Circuit Judge.

We have granted en banc review in order to decide whether plaintiffs can state a claim for violation of Section 2 of the Voting Rights Act ("VRA" or the "Act"), 42 U.S.C. § 1973, based on allegations that a New York State statute that disenfranchises currently incarcerated felons and parolees, N.Y. Election Law § 5-106, results in unlawful vote denial and vote dilution. Muntaqim v. Coombe, 396 F.3d 95 (2d Cir.2004). We consider two cases that were consolidated for the purpose of oral argument: Muntaqim v. Coombe, which was dismissed by the United States District Court for the Northern District of New York (Norman A. Mordue, Judge) on a motion for summary judgment, a decision which was then affirmed by a three-judge panel of this Court, Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.2004); and Hayden v. Pataki, which raises substantially identical claims, was dismissed on the pleadings by the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge), Hayden v. Pataki, No. 00 Civ. 8586(LMM), 2004 WL 1335921 (S.D.N.Y. June 14, 2004), and was consolidated with the Muntaqim en banc without having been considered by a three-judge panel. 2 Simultaneously with the filing of this opinion, the en banc court has (1) entered an order de-consolidating the Muntaqim and Hayden

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cases, and (2) filed a separate opinion vacating the District Court's opinion in Muntaqim on the ground that the plaintiff in that case lacked standing to bring a claim.

We recognize that this case poses a complex and difficult question that, absent Congressional clarification, will only be definitively resolved by the Supreme Court. Indeed, this is the second time we have considered this question as an en banc court. See Baker v. Pataki, 85 F.3d 919 (2d Cir.1996) (affirming District Court judgment after evenly dividing on the merits); see also Muntaqim, 366 F.3d at 104 (recognizing that "this is a difficult question that can ultimately be resolved only by a determination of the United States Supreme Court"). Nevertheless, the question is now before us, and we hold that the Voting Rights Act does not encompass these felon disenfranchisement provisions, and, consequently, affirm the judgment of the District Court. Our holding is based on our conclusion that Congress did not intend or understand the Voting Rights Act to encompass such felon disenfranchisement statutes, that application of the Voting Rights Act to felon disenfranchisement statutes such as these would alter the constitutional balance between the States and the Federal Government, and that Congress at the very least did not clearly indicate that it intended the Voting Rights Act to alter the federal balance in this way.

I.

Before turning to the substantive questions raised by this case, we summarize the path this case has taken since Muntaqim's complaint was first filed in 1994. We assume familiarity with the panel decision in Muntaqim and will limit our discussion of that opinion to facts necessary to explain our resolution of the present case. We also set forth here the...

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