575 F.3d 24 (1st Cir. 2009), 08-1569, Simmons v. Galvin

Docket Nº:08-1569.
Citation:575 F.3d 24
Opinion Judge:LYNCH, Chief Judge.
Party Name:Paul SIMMONS; Pedro Valentin; Dennis Beldotti, Plaintiffs, Appellees/Cross-Appellants, v. William Francis GALVIN, in his capacity as Secretary of the Commonwealth of Massachusetts, Defendant, Appellant/Cross-Appellee.
Attorney:Kenneth W. Salinger, Assistant Attorney General, and Peter Sacks, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief for appellant/cross-appellee. Christopher P. Silva with whom Thomas H. Wintner, Gail E. Cornwall, and Edwards Angell Palmer & Dod...
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.
Case Date:July 31, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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575 F.3d 24 (1st Cir. 2009)

Paul SIMMONS; Pedro Valentin; Dennis Beldotti, Plaintiffs, Appellees/Cross-Appellants,


William Francis GALVIN, in his capacity as Secretary of the Commonwealth of Massachusetts, Defendant, Appellant/Cross-Appellee.

No. 08-1569.

United States Court of Appeals, First Circuit.

July 31, 2009

Heard Feb. 2, 2009.

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[Copyrighted Material Omitted]

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Kenneth W. Salinger, Assistant Attorney General, and Peter Sacks, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief for appellant/cross-appellee.

Christopher P. Silva with whom Thomas H. Wintner, Gail E. Cornwall, and Edwards Angell Palmer & Dodge, LLP were on brief for appellee/cross-appellant.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

LYNCH, Chief Judge.

By nearly a two-to-one margin in the year 2000, Massachusetts voters passed Article 120, which amended the state constitution to disqualify currently incarcerated felons from voting in certain elections. Shortly thereafter, the state legislature extended this disqualification by statute, Chapter 150, to prevent inmates from voting in all Massachusetts elections.

In 2001, several incarcerated felons in state custody, challenged these provisions (collectively " Article 120" ) by suing the Secretary of the Commonwealth in federal court. This appeal concerns two of their claims: (1) that the Commonwealth's disenfranchisement provisions violated the Voting Rights Act (" VRA" ) § 2, 42 U.S.C. § 1973, because the percentage of imprisoned felons who are Hispanic or African-American is higher than the percentages of those groups in the population of the state; and (2) that the provisions violated the Ex Post Facto Clause, U.S. Const. art. I, § 10, as to those inmates who were not disqualified from voting before the these provisions took effect. As to their claim under the VRA, the plaintiffs make no allegation of any intentional discrimination or of any history by Massachusetts of intentional discrimination against minority voters. All they have claimed is that past practices in the Massachusetts criminal justice system produced inmate populations which, in combination with the disqualification of inmates imprisoned for felonies, have resulted in disproportionate disqualification of minorities from voting. Theirs is a claim of disparate impact.

After allowing initial discovery, the district court in 2007 denied the Commonwealth's motion for entry of judgment on the pleadings on plaintiffs' VRA claim but granted the Commonwealth's motion for summary judgment on the Ex Post Facto Clause argument.

We think it clear from the language, history, and context of the VRA that Congress never intended § 2 to prohibit the states from disenfranchising currently incarcerated felons. We do not say that direct vote denial claims of other types may not be brought under § 2, only that no VRA claim is stated against a state law which disenfranchises incarcerated felons. We reverse and order the dismissal of the VRA § 2 claim. We affirm the grant of summary judgment on the Ex Post Facto claim.


A. Enactment of the Massachusetts Incarcerated Felon Disenfranchisement Provisions

Before Article 120 was enacted, prisoners were able to vote by absentee ballot. In 1997, there was an unsuccessful proposal for legislation to disenfranchise currently

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incarcerated persons for certain felonies: murder, rape, other sex-related offenses, and controlled substances offenses. Massachusetts prisoners responded by forming a political action committee (" PAC" ), aimed at influencing criminal justice issues, including sentencing, prison reform, and " Draconian laws on punishment." PACs, inter alia, raise money for and endorse candidates.

State elected officials reacted swiftly. On August 12, 1997, then-Acting Governor Cellucci proposed a constitutional amendment that would disenfranchise all incarcerated individuals (not just felons), saying:

Criminals behind bars have no business deciding who should govern the law-abiding citizens of the Commonwealth. This proposed amendment will ensure that criminals pay their debt to society before they regain their right to participate in the political process.

The legislature did not act on this proposal. Rather, the legislature approved a different proposed amendment that would disenfranchise only those currently incarcerated for felonies. Lawmakers received the legal opinions of House and Senate Counsel that such an alternative amendment would be constitutional under the U.S. Constitution.

Article 120, the proposed amendment to Article 3 of the Amendments to the state constitution, was presented to the voters along with an Information for Voters Guide. That Guide constitutes relevant legislative history. The Guide included 150-word arguments written by proponents and opponents of each ballot question. The statement from the proponents stated, " A yes vote prevents criminals serving time for a felony conviction from voting in Massachusetts's elections while in jail." The proponents argued:

When someone in Massachusetts is sentenced to jail for committing a felony, we deprive them of their liberty and right to exercise control over their own lives, yet current law allows these same criminals to continue to exercise control over our lives by voting from prison. This amendment will change the law that gives jailed criminals the right to vote.

Massachusetts is one of only three states in our nation where felons serving time may vote while in jail. Voting yes on this important question will make the Commonwealth the 48th state to prohibit the practice of allowing convicted criminals to vote from jail. This change discriminates against no one except jailed criminals.

The Guide also contained the opponents' argument:

The Constitution of Massachusetts is clear on this point: Citizens retain their right to vote even while incarcerated. The founders of Massachusetts intended this right, and our Supreme Judicial Court affirmed in in 1977. In the history of the Commonwealth, we have never amended our Constitution in order to narrow fundamental rights. There is no reason to do so now.

No one has alleged that prisoner voting has harmed our democracy or social fabric. Very few prisoners vote, and no one claims that prisoner voting has negatively influenced any election. Stripping incarcerated felons of their right to vote serves no public safety function. It will not deter crime, repair the harm done by crime, nor help to rehabilitate prisoners.

The voters approved the amendment with 60.3% voting " yes" to 33.9% voting " no," and 5.8% of voters not casting a vote on the question. The amendment took effect on December 6, 2000. Article 3 now reads:

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Every citizen of eighteen years of age and upwards, excepting persons who are incarcerated in a correctional facility due to a felony conviction, and excepting persons under guardianship and persons temporarily or permanently disqualified by law because of corrupt practices in respect to elections who shall have resided within the town or district in which he may claim a right to vote, six calendar months next preceding any election of governor, lieutenant governor, senators or representatives, shall have a right to vote in such election of governor, lieutenant governor, senators and representatives; and no other person shall be entitled to vote in such election.

Mass. Const. amend. art. 3 (emphasis added).

The Massachusetts legislature then enacted Chapter 150 of the Acts of 2001, which effectuated Article 120 by broadening the ban on felon voting to cover all Massachusetts elections and by changing the statutory requirements for obtaining absentee ballots. Chapter 150 took effect November 27, 2001. Unlike many other states, Massachusetts does not disqualify convicted felons from voting once they are released from prison.

B. Procedural History of the Litigation

Plaintiffs Paul Simmons, an African-American, Pedro Valentin, a Hispanic-American, and Dennis J. Beldotti, a Caucasian-American, are Massachusetts residents currently in the custody of the Massachusetts Department of Correction for felonies they committed on or before December 5, 2000. Plaintiffs were eligible to be Massachusetts voters before that date, but the record does not reveal whether they were registered to vote.

Plaintiffs' pro se complaint was amended twice by court-appointed counsel. Their final amended complaint alleged that Article 120 violates § 2 of the VRA because it has a " disproportionately adverse effect on the voting rights of African-Americans and Hispanic Americans compared to its effect on the voting rights of other citizens." This effect " is caused by, among other things, the facts that African-Americans and Hispanic-Americans are over-represented in the population of Massachusetts incarcerated felons, and that there exists considerable racial and ethnic bias, both direct and subtle, in the Massachusetts court system." 1 Article 120, plaintiffs contended, " interact[s] with social and historical conditions to cause an inequality in the opportunities enjoyed by minority and non-minority voters to elect their preferred representatives."

In describing plaintiffs' complaint, which alleges a " vote denial" claim, we distinguish vote denial cases from vote dilution 2 claims under § 2 of the VRA. The Supreme

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Court first articulated the distinction in explaining that " [t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot." Shaw v. Reno, 509 U.S. 630, 640, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (quoting Allen v. State Bd. of...

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