El-Amin v. McDonnell
| Decision Date | 22 March 2013 |
| Docket Number | Case No. 3:12-cv-00538-JAG |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | SA'AD EL-AMIN, Plaintiff, v. ROBERT F. McDONNELL, JANET VESTAL KELLY, CHARLIE JUDD, KIMBERLY BOWERS, and DON PALMER, Defendants. |
THIS MATTER is before the Court on the defendants' motion to dismiss. The plaintiff has sued the three individual members of the Virginia State Board of Elections in their official capacity, Governor Robert F. McDonnell, and Janet V. Kelly, Secretary of the Commonwealth.1 The plaintiff brings four separate claims, alleging:2 (1) disqualifying felons from voting, as Article II, Section 1 of the Virginia Constitution does, violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates against black citizens while favoring those who commit crimes but avoid prosecution as felons; (2) Virginia's voter reinstatement process forfelons, which gives the Governor of Virginia unfettered authority to decide which applications to approve or deny, violates substantive and procedural due process; (3) this reinstatement process is capricious and arbitrary and thus violates the Fourteenth Amendment; and (4) the disenfranchisement of felons constitutes cruel and unusual punishment in violation of the Eighth Amendment. The plaintiff asks the Court to issue a declaratory judgment confirming his legal allegations, to enjoin the defendants from denying the plaintiff's right to register to vote, and to award attorneys' fees, expenses, and costs.
The Court denies the defendants' motion to dismiss in part and grants the motion in part. The first claim cannot be dismissed because the intent of the Commonwealth of Virginia ("the Commonwealth") in depriving felons of their voting rights—the critical consideration in the plaintiff's equal protection claim—is an issue that the Court cannot resolve at this stage of the litigation. The Court must, however, dismiss the remaining counts. Counts II and III fail because the plaintiff, who admittedly chose not to seek reinstatement, lacks standing to bring a due process challenge to the Commonwealth's felon reinstatement procedure. Finally, felon disenfranchisement does not violate the Eighth Amendment, so Count IV also merits dismissal. In sum, the only claim to proceed will be Count I, dealing with whether Article II, Section I of the Virginia Constitution violates the Equal Protection Clause.3
The plaintiff, Sa'ad El-Amin, is a resident of Richmond, Virginia and a convicted felon. Prior to his conviction, El-Amin served as a Richmond City Council member, representing the Sixth District. In July 2003, El-Amin pleaded guilty to conspiracy to attempt to evade or defeat tax pursuant to 18 U.S.C. § 371. A federal court sentenced El-Amin to thirty-seven months ofimprisonment and three years of supervised release in October 2003. El-Amin was released from prison in May 2006 and completed his supervised release on August 8, 2009.
Article II, Section I of the Virginia Constitution states, "No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority." Va. CONST. art. II, § 1. In keeping with standard practice, following El-Amin's conviction, a Richmond election official struck his name from the Virginia qualified voter list, rendering him ineligible to vote for the remainder of his life—unless he pursues reinstatement. Virginia's criteria for restoration specify that non-violent felons must be free from any prison sentence, supervised release, parole, misdemeanor convictions, and pending criminal charges for a minimum of two years before seeking reinstatement. El-Amin has incurred no new criminal charges since the two-year period following his supervised release expired in August 2011. Accordingly, he became eligible to seek restoration of his voting rights at that time. El-Amin recognizes that he meets the criteria necessary to file a restoration petition but admits that he has not done so. He steadfastly refuses to seek reinstatement based on his view that disenfranchisement, in the first instance, violates the U.S. Constitution.
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of a claim and "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). When considering a motion to dismiss, the Court must accept all the complainant's factual allegations as true and resolve factual differences in that party's favor. See De Sole v. United States, 947 F.2d 1169, 1171 (4th Cir. 1991). Nevertheless, the Court need not accept the complainant's legal conclusions or any other unreasonable or unwarranted arguments as true. Giarratano v.Johnson, 521 F.3d 298, 302 (4th Cir. 2008); E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). In addition, the complainant must offer more than '"labels and conclusions' or 'a formulaic recitation of the elements of a cause of action'" to overcome a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail. v. Twombly, 550 U.S. 544, 555 (2007)); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255-56 (4th Cir. 2009).
In his first claim, El-Amin argues that the Commonwealth adopted Article II, Section 1 of its Constitution in order to suppress the black vote. The central inquiry in evaluating this claim is whether Virginia enacted its felony disenfranchisement provision with the intent to discriminate against black citizens, as El-Amin alleges, or whether it was it adopted for a legitimate reason, as the defendants argue. Johnson v. Governor of State of Florida, 405 F.3d 1214, 1218 (11th Cir. 2005) (en banc) ( ) (emphasis in original) (citing Hunter v. Underwood, 471 U.S. 222,233 (1985); Washington v. Davis, 426 U.S. 229, 239-40 (1976)).
Intent is a legal concept, which, in this case, depends entirely on the facts and circumstances surrounding Virginia's adoption of its constitutional provision. See, e.g., Johnson, 405 F.3d at 1218 (); see also Hunter, 471 U.S. at 228-31 (). Though federal courts have previously rejected challenges to Article II, Section 1, this Court is aware of no previous case in which a court has looked specifically at the historical events that El-Amin offers to support his claim.4 This means that the Court must actually permit El-Amin an opportunity to produce evidence and evaluate the evidence that he produces, which it cannot do at the motion to dismiss stage. See Buckner v. Schaefer, 991 F.2d 787, 1993 WL 128020, at *2 (4th Cir. Apr. 23, 1993) (). Accordingly, the Court denies the motion to dismiss as to Count I.
The defendants incorrectly argue that El-Amin's claim is precluded by Supreme Court and Fourth Circuit precedent. In Richardson v. Ramirez, the Supreme Court ruled that "the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment." 418 U.S. 24, 54 (1974). And as both the Richardson Court and other lower courts have repeated, "[T]hose who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment [i.e., the Equal Protection Clause] that which was expressly exempted [i.e., criminal disenfranchisement] from the lesser sanction of reduced representation imposed by § 2 of the Amendment." Id. at 43. But these conclusions only address whether felon disenfranchisement is constitutional in the abstract. The Supreme Court's decision in Hunter v. Underwood demonstrates that a specific state provision, such asAlabama's 1901 felon disenfranchisement provision, may still be held unconstitutional because racial discrimination was a "was a substantial or motivating factor" in its adoption. Hunter, 471 U.S. at 225; see also Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 and n.21 (1977). In other words, a facially neutral law whose true purpose (and whose effect) is discrimination violates the Equal Protection Clause5 every bit as much as a facially discriminatory law. See Washington, 426 U.S. at 241 (). For this reason, the Fourth Circuit's admonition that Richardson "closed the door on the equal protection argument in a challenge to state statutory voting disqualifications for convictions of crime" does not tell the whole story. Allison v. Ellisor, 664 F.2d 391, 395 (4th Cir. 1980) (en banc). Even in that case, in fact, the Fourth Circuit assessed whether a South Carolina statute, though "facially valid," was "racially tainted." Id. at 399. And only in 2005 did the Eleventh Circuit consider an equal protection challenge to Florida's felon disenfranchisement law. See generally Johnson v. Governor of State of Florida, 405...
To continue reading
Request your trial