Simmons v. Galvin, C.A. No. 01-11040-MLW.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation652 F.Supp.2d 83
Docket NumberC.A. No. 01-11040-MLW.
PartiesPaul SIMMONS, et al., Plaintiffs, v. William F. GALVIN, Defendant.
Decision Date30 August 2007
652 F.Supp.2d 83
Paul SIMMONS, et al., Plaintiffs,
William F. GALVIN, Defendant.
C.A. No. 01-11040-MLW.
United States District Court, D. Massachusetts.
August 30, 2007.

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Abdur Bashir Nadheerul-Islam, pro se.

Mark B. Dubnoff, Nicholas J. Rosenberg, Thomas W. Kirchofer, Steven M. Cowley, Edwards Angell Palmer & Dodge LLP, Boston, MA, for Plaintiffs.

Peter Sacks, Romeo G. Camba, Kenneth W. Salinger, Attorney General's Office, Boston, MA, for Defendant.


WOLF, District Judge.


Plaintiffs Paul Simmons, Pedro Valentin, and Dennis J. Beldotti seek relief from

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William Galvin, Secretary of The Commonwealth of Massachusetts, in his official capacity.1 The plaintiffs complain that, by the passage of Amendment CXX to the Massachusetts Constitution, Mass. Const. art. CXX, and Chapter 150 of the Acts of 2001, Mass. St. 2001, c. 150, M.G.L. c. 51, § 1, they were wrongfully denied their right to vote in federal and state elections.

Article CXX and Chapter 150 disqualify incarcerated felons from voting in all elections held in the Commonwealth. The plaintiffs, who were convicted prior to these acts, contend that this disenfranchisement violates the Ex Post Facto Clause of the United States Constitution because it imposes an additional penalty for the crimes for which they were previously convicted and sentenced. They also assert that article CXX and Chapter 150 violate the Equal Protection Clause of the Fourteenth Amendment. Finally, they allege that the disenfranchisement of imprisoned felons has a disproportionate effect on African-American and Hispanic-American voters in Massachusetts. They contend that this disparate effect is caused, in part, by a racially discriminatory court system, and operates to deny African-American and Hispanic-American voters the equal right to vote in violation of § 2 of the Voting Rights Act ("VRA"), 42 U.S.C. § 1973(b).

The defendants have moved for summary judgment on the first two claims and for judgment on the pleadings concerning the third. Hearings on the motions were held on April 13 and 18, 2007.

Defendant's motion for summary judgment is being granted. The Ex Post Facto Clause prohibits the imposition of punishments that were not prescribed at the time a crime was committed. However, article CXX and Chapter 150 were intended to be civil, non-punitive measures for the regulation of the franchise. Therefore, to succeed on their Ex Post Facto claim the plaintiffs must demonstrate by clear proof that the effect of article CXX and Chapter 150 is primarily punitive. They have failed to produce the proof necessary to transform what was manifestly intended to be a civil, regulatory measure into a criminal penalty for the purpose of Ex Post Facto Clause analysis.

In addition, it is well-established that a state may disenfranchise felons without violating the Equal Protection Clause of the Fourteenth Amendment. Only a rational basis is needed to do so. A state may rationally decide that those who have violated the laws are not fit to participate in electing those who make and enforce the law. The Supreme Court has held that disenfranchising felons who have been released from prison does not violate the Equal Protection Clause. It is even more reasonable to disenfranchise felons who are incarcerated.

The defendant's motion for judgment on the pleadings on the plaintiffs' VRA claim recognizes that, because there has been no discovery, a motion for summary judgment would be premature. Contrary to the defendant's contentions, the plaintiffs have stated a claim for which relief may be granted if the facts alleged are proven. More specifically, the VRA is constitutional as applied to felon disenfranchisement laws. Such laws may violate § 2 of the VRA. The facts alleged in the Second Amended Complaint are sufficient to give the defendant the required notice and state a plausible claim on which relief may be granted if those alleged facts are proven.

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Therefore, plaintiffs are entitled to discovery on their VRA claim.


Unless otherwise indicated, the following facts are undisputed.

Article III of the Massachusetts constitution establishes the voting requirements for enumerated state elections. Mass. Const. amend. art. III.2 This provision was amended by the December 6, 2000 enactment of article CXX, which disqualifies incarcerated felons from voting in specified elections. Mass. Const. art. CXX.3 Subsequently, the Massachusetts legislature enacted Chapter 150, which broadens felon disenfranchisement to include all elections in the Commonwealth. M.G.L. c. 51, § 1.4

By law, a constitutional amendment initiated by a legislator must be approved by two successive joint sessions of the Massachusetts legislature and then ratified by the voters of the Commonwealth. Mass. Const. art. 49, Init., pt. IV, §§ 2-5. Between 1988 and 1997, several state legislators attempted unsuccessfully to invoke this process to enact some form of felon disenfranchisement. See, e.g., H. 5468, 1988(Ma.). In 1997, Representative Francis Mariani introduced a felon disenfranchisement bill which failed in committee. However, it did not die.

Within a few months of the committee vote, The Boston Globe reported that Massachusetts prisoners were planning to form their own political action committee. See Zachary R. Dowdy, Prisoners Forming Mass. PAC, The Boston Globe, August 2, 1997, available at 1997 WLNR 2363144. Governor Paul Cellucci reacted promptly, stating: "When you sentence someone to

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prison, they lose their liberties for a reason[.] * * * Prison is suppose to mean punishment, not some opportunity to form a political group." Richard Chacon, Cellucci Plans Ban On Inmates' Voting, The Boston Globe, August 3, 1997, available at 1997 WLNR 2364658.

The Governor then proposed a constitutional amendment that would disenfranchise all incarcerated individuals, whether felons or misdemeanants. See Letter from Argeo Paul Cellucci, Governor, Massachusetts, to Massachusetts Senate and House of Representatives (August 12, 1997). In support of his amendment, the Governor stated that:

The time has come to tell would-be criminals in Massachusetts that committing crimes has serious consequences, not only in terms of prison time, but also in terms of the right to participate in deciding how society should be run.

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.


While the legislature did not vote on the Governor's proposed amendment, it incorporated its text into the bill previously rejected by committee. With one alteration—the legislature struck the misdemeanant provision—the amendment was approved by both the 1998 and 2000 joint sessions of the legislature.

The law required that the proposed constitutional amendment then be presented to the voters. Mass. Const. art. 49, Init., pt. IV, §§ 2-5. The Secretary of State distributed an Information for Voters guide, which stated in reference to article CXX:

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 th[at] law[.]

2000 Information for Voters.

This statement was written by Representative Marini, who sponsored the 1997, failed amendment. It echoed the rationale he presented at the 1998 and 2000 Constitutional Convention. See July 29, 1998 Tr. of Constitutional Convention at 28; Feb. 28, 2000 Tr. of Constitutional Convention at 7-8. One other legislator expressed a similar view. See July 29, 1998 Tr. of Constitutional Convention at 23.

During the constitutional debate, other legislators made relevant remarks. Representative Paul Frost opined that "people who've committed murder and other heinous crimes * * * don't deserve to vote." July 29, 1998 Tr. of Constitutional Convention at 18. He added, "[t]his is an issue about justice." Feb. 28, 2000 Tr. of Constitutional Convention at 17. Senator Guy Glodis argued that "philosophically, no inmates deserve the right to vote." Feb. 28, 2000 Tr. of Constitutional Convention at 17.

The voters ratified article CXX in 2000. Article CXX took effect on December 6, 2000. In 2001, the legislature enacted Chapter 150.

In their Second Amended Complaint, the plaintiffs allege: (1) that article CXX has "a disproportionately adverse effect on the voting rights of African-American and Hispanic-Americans," ¶¶ 51, 52; (2) that such disproportionate effect "is caused by, among other things, the facts that African-American and Hispanic-Americans are over-represented in the population of Massachusetts incarcerated felons," id.;

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(3) "that there exists considerable racial and ethnic bias, both direct and subtle, in the Massachusetts court system," id.; (4) that there is a causal link between the overrepresentation of minorities in the incarcerated felon population and the racial and ethnic bias in the Massachusetts court system, id.; and (5) that lawmakers were aware of the possibility of bias in the Massachusetts court system prior to the passage of article CXX because of, among other things, the publication of the 1994 Final Report of the Massachusetts Commission to Study Racial and Ethnic Bias in the Courts, id. at ¶¶ 21-22.

The parties stipulated, and the court agreed, that a class action is unnecessary in this matter because the defendant will, in the event of judgment for the plaintiffs, restore voting rights to all persons who would have benefitted by a ruling in a class action. See Jan. 29, 2003 Order.

In addition, since the issues are identical,...

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