Muntaqim v. Coombe, 01-7260.

• Court: U.S. Court of Appeals — Second Circuit
• Citation: Muntaqim v. Coombe, 396 F.3d 95 (2nd Cir. 2004)
• Decision Date: 29 December 2004
• Docket Number: No. 01-7260.,01-7260.
• Parties: Jalil Abdul MUNTAQIM, a/k/a Anthony Bottom, Plaintiff-Appellant, v. Phillip COOMBE; Anthony Annucci; Louis F. Mann, Defendant-Appellee.

396 F.3d 95

Jalil Abdul MUNTAQIM, a/k/a Anthony Bottom, Plaintiff-Appellant, v. Phillip COOMBE; Anthony Annucci; Louis F. Mann, Defendant-Appellee.

No. 01-7260.

United States Court of Appeals, Second Circuit.

December 29, 2004.

Jonathan William Rauchway, Denver, CO, for Plaintiff-Appellant.

Julie Mathy Sheridan, Richard J. Freshour, Office of the Attorney General Division of Appeals & Opns., for Defendants-Appellees.

AMENDED ORDER

A poll of the judges in regular active service having been requested and conducted, and a majority of the active judges of the court having voted to rehear the appeal in this case in banc, IT IS HEREBY ORDERED that the appeal be reheard in banc. See Fed. R.App. P. 35(a). The in banc panel will consist of the active judges of the court and Senior Judges Meskill and Cardamone, both of whom were on the original panel. See 28 U.S.C. § 46(c). We invite amicus curiae briefs from interested parties.

The question presented is whether, on the pleadings, a claim that a New York State statute, Section 5-106 of the New York Election Law, that disenfranchises currently imprisoned felons and parolees results in unlawful vote dilution, can state a claim for violation of Section 2 of the Voting Rights Act.

The parties are requested to address, inter alia, the following issues in their briefs:

(1) Whether Section 2 of the Voting Rights Act can constitutionally be applied to a state statute like Section 5-106, that disenfranchises persons currently incarcerated as felons and parolees, in light of the Supreme Court's recent jurisprudence regarding Section 5 of the Fourteenth Amendment;

(2) Whether the Supreme Court's "clear statement rule," articulated in Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), requires Congress to have clearly stated that the Voting Rights Act was intended to infringe upon the states' discretion to deprive persons currently incarcerated as felons and parolees of the right to vote, and whether Congress did in fact make that intent clear;

(3) (a) If the judgment of the district court were modified or vacated and the cause remanded for further presentation of questions of fact (either on a motion for summary judgment or a trial before a factfinder), what kinds of data demonstrating racial bias in conviction and sentencing, statistical and otherwise should the factfinder rely upon in assessing the claim? (b) What type and quantum of statistical evidence would plaintiff have to...