Hayden v. Pataki

RAGGI, Circuit Judge,

concurring,

with whom Judge JACOBS joins.

I fully concur in the majority opinion’s thoughtful analysis of the Voting Rights *340 Act (“VRA”), 42 U.S.C. § 1973 , and in its conclusion that the law must be construed not to encompass felon disenfranchisement statutes, particularly New York Election Law § 5-106. I write separately only to expand on its discussion of why we require a clear statement of congressional intent to allow plaintiffs to pursue a VRA challenge to § 5-106.

Section 2 of the VRA prohibits the use of any “voting qualification or prerequisite to voting or standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973 (a). Intentional discrimination is not required to establish a violation. Rather, a factfinder considers “the totality of circumstances,” id. at § 1973(b), to determine whether “a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [voters of different races or color] to elect their preferred representatives,” Thornburg v. Cingles, 478 U.S. 30, 47 , 106 S.Ct. 2752 , 92 L.Ed.2d 25 (1986).

While acknowledging the presumptive validity of felon disenfranchisement laws, see Richardson v. Ramirez, 418 U.S. 24 , 94 S.Ct. 2655 , 41 L.Ed.2d 551 (1974) (rejecting Equal Protection challenge), plaintiffs and supporting amici submit that New York’s practice of prisoner disenfranchisement violates the VRA because there is a gross racial disparity in the state prison population. If permitted to pursue their claim, they seek to show that this disparity is a product of pervasive racism infecting every part of the New York criminal justice system, from stop and frisk determinations by police officers on the street, to charging decisions by prosecutors, to detention and sentencing rulings by state court judges. In short, plaintiffs propose to use the VRA to indict the New York criminal justice system for racism.

So employed, the VRA would not only significantly intrude on, but also seriously disrupt, the orderly administration of criminal justice in New York, obviously a matter of legitimate state interest. Plaintiffs’ suit would effectively impugn the constitutionality of countless state convictions without necessarily proving that any one prosecution or sentence was, in fact, discriminatory. Equally disturbing, the state’s criminal justice system could be adjudged discriminatory without New York being required to release, retry, or resentence a single prisoner. New York would just have to give prisoners the vote. Such a result would undoubtedly undermine public confidence in all state criminal proceedings at the same time that it bred cynicism toward federal law for responding to such a serious problem with so ill-fitting a remedy.

Of course, Congress may enact laws that remedy aspects of particular problems— whether voter discrimination or invidious bias in the administration of criminal justice — without offering complete solutions. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 , 101 S.Ct. 715 , 66 L.Ed.2d 659 (1981). But when, as this case demonstrates, a VRA challenge to § 5-106 would so seriously undermine the legitimacy of the state’s criminal justice system, it is appropriate to require a clear statement of congressional intent to have the VRA apply to felon disenfranchisement laws.

In reaching this conclusion, I am mindful that state felons are not without a federal means to challenge race discrimination in state criminal proceedings. They may petition for a writ of habeas corpus. See 28 U.S.C. § 2254 . Indeed, § 2254 stands as a clear expression of congressional intent to recalibrate the federal- *341 state balance with respect to criminal justice so as to afford every state prisoner who thinks himself the victim of racial bias in prosecution or sentencing at least one opportunity to be heard in federal court. The law recognizes habeas corpus as “the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release.” Heck v. Humphrey, 512 U.S. 477, 481 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994) (citing Preiser v. Rodriguez 411 U.S. 475, 488-90 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973)). Thus, plaintiffs are careful to emphasize that they do not seek immediate or speedier release. Nevertheless, Heck is instructive. There, the Supreme Court ruled that a prisoner cannot use 42 U.S.C. § 1983 as a vehicle to recover money damages on a claim that, at its core, attacks the validity of a conviction that has not been reversed or vacated on direct appeal or by the grant of a petition for a writ of habeas corpus. See id. at 486-87 , 114 S.Ct. 2364 . So in this case, there is similar reason to proceed cautiously and to require a clear statement of intent by Congress before allowing a class of prisoners to use the VRA to sue for the vote when their claim, at its core, attacks not simply their own unreversed, unvacated individual convictions, but countless unspecified convictions in the state of New York.

In sum, while I fully concur in the judgment of the court for the reasons discussed in the majority opinion, that conclusion is reinforced by the reasons stated in this opinion.