Opposition Brief — Muntaqim v. Coombe

Supreme Court. S

ns FILED

oe OCT ? - 2004

No. 04-175 j_ OFFICEOETHECLERK

IN THE

Supreme Court of the United States

JALIL ABDUL MUNTAQIM, a/k/a ANTHONY BOTTOM,

Petitioner,

Vv.

PHILLIP COOMBE, ANTHONY ANNUCCI,

and LOUIS F. MANN,

Respondents.

ON PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

E.iot SPITZER

Attorney General of the

State of New York

120 Broadway, 25th Floor

CaITLtn J. HALLIGAN*

Solicitor General

MICHELLE ARONOWITZ New York, NY 10271

Deputy Solicitor General (212) 416-8016

JuLIE M. SHERIDAN Attorney for Respondents

Assistant Solicitor General

* Counsel of Record

190253 cr

COUNSEL PRESS

(800) 274-2321 * (800) 359-6859

i

COUNTER STATEMENT OF

QUESTION PRESENTED

Whether Section 2 of the Voting Rights Act, 42 U.S.C.

§ 1973, is applicable to New York Election Law § 5-106,

which disenfranchises New York residents who were

convicted of a felony and are either in prison or on parole.

il

TABLE OF CONTENTS

Page

Counter Statement of Question Presented ........ i

Tebbe OF CORIO ou once sce nein sienneeseee il

Table of Cited Authorities .........20cceccereus ill

Statement of the Case ...... aveadakeege@e aun ]

Reasons for Denying the Petition ............... 2

Pemeieniee: |... ok oa uence 13

ul

TABLE OF CITED AUTHORITIES

Page

Cases:

Farrakhan v. Washington,

338 F.3d 1009 (9" Cir. 2003), petition for cert. filed,

Locke v. Farrakhan, 72 U.S.L.W. 3741

(U.S. May 24, 2004) (No. 03-1597) .......... passim

Green v. Bd. of Elections,

380 F.2d 445 (2d Cir. 1967),

cert. denied, 389 U.S. 1048 (1968) ........... 5,9

Gregory v. Ashcroft,

301 U.S. 452 (1991) 0.0.0.0... 0, 2, 3, 6, 11

Griffin v. Wisc.,

A) 10

Howard vy. Gilmore,

205 F.3d 1333 (4" Cir. 2000) ............... passim

Johnson v. Governor of Florida,

353 F.3d 1287 (11" Cir. 2003), vacated and

reh’g en banc granted, 377 F.3d 1163

gd ee eS passim

Jones v. Cunningham,

Ee 7

O’Lone v. Estate of Shabazz,

os | 10

iv

Cited Authorities

Page

Overton v. Bazzetta,

3 gk MS ere ee er ee ery 10

Richardson v. Ramirez,

See ee OEE, kh aE RR eens coe eK eke ~ ae

Turner v. Safely,

Pte Re fe, re teen ee ea 10

Wesley v. Collins,

pee Bree ok | ree passim

United States Constitution:

Fourteenth Amendment ....... eb aaah a eae nde ee 4,5

Federal Statutes:

42 U.S.C.

2. ey reer rr Seer ny Pere err 1, 2,8

fo ere ere ere eee rr rs Te . £2

Bo err re eer rer. ye 12

Ps eee ee eae 1

v

Cited Authorities

Page

Court Rules:

Fourth Circuit Local Rule

| Pr rereerrer res ee tee ere rere 6

Supreme Court of the United States

NN Bs vie ak Vu hee bbe eee eae een 11

State Constitution:

Pi. Camel. ant: Vi, 5 SO CIRGSD oc cccvcnnsewiiands 7

State Statutes:

Pin. Sek: Gh: SOD Ce) eek iw ces ace en dees i

New York Election Law § 5-106 ............... i, 1

State Rules and Regulations:

N.Y. Comp. Copes R. & REGs. tit. 9 (2004)

SEE PED csecucch ead kee acuensouee eens

eb rere erry eke ee ry ree re

£m err pee ter rr cer eens Yee

vi

Cited Authorities

Page

Pending Legislation:

Civic Participation and Rehabilitation Act of 2003,

H.R. 259, 108th Cong. (2003) .......---+5+5- 12

Constitutional Protection of the Right to Vote Act,

H.R. 2935, 108th Cong. (2003) .......-.-++-. 12

Ex-Offenders Voting Rights Act of 2003, H.R. 1433,

108th Cong. (2003) ......... ee eee eee neers 12

Miscellaneous:

American Bar Association, ABA Standards for

Criminal Justice: Collateral Sanctions and

Discretionary Disqualification of Convicted

Persons, Standard 19-2.6(a) and Report at R-12

(3d ed. August 2003) ........ +2 esse eee eee 12

Developments in the Law: The Law of Prisons:

VI. One Person, No Vote: The Laws of Felon

Disenfranchisement, 115 Harv. L. Rev. 1939, 1949

v2: | A rre rari es rrr ero 7

The Sentencing Project, Felony Disenfranchisement

Laws in the United States at 3 (September 2004),

at http://www.sentencingpro) ect.org/pdfs/1046.

MPPPPEET TE eee 7

vil

Cited Authorities

Page

The Sentencing Project, Legislative Changes on

Felony Disenfranchisement, 1996-2003, at 1 (Sept.

2003), at http://www.sentencingproject.org/pdfs/

ek eer rere rere Tre ree 12

National Commission on Federal Election Reform,

Final Report of the Commission,

Co FU, Oe Se Gree Fes NED. Ui vcawednwcsenes 12

l

STATEMENT OF THE CASE

Petitioner Jalil Abdul Muntaqim is an African-American

male in the custody of the New York State Department of

Correctional Services. He was convicted of two counts of murder

and is currently serving an indeterminate term of imprisonment

of twenty-five years to life at a New York State correctional

facility.

Petitioner commenced this action pursuant to 42 U.S.C.

§ 1983, alleging, inter alia, that New York Election Law

§ 5-106, which disenfranchises New York residents incarcerated

for a felony,' violates the Voting Rights Act (“VRA”’) because it

“results in the denial or abridgement of the right . . . to vote on

account of race.” 42 U.S.C. § 1973(a). He seeks this Court’s

review of a decision of the United States Court of Appeals

for the Second Circuit, which dismissed his claim on the

ground that the VRA does not apply to New York’s felon

disenfranchisement law.

The Second Circuit held that application of the VRA to

New York’s felon disenfranchisement law would alter the

traditional balance of power between the states and the federal

government in the realms of state criminal and election law.

Pet. App. 34a-35a. The court highlighted the “longstanding

practice in this country of disenfranchising felons as a form of

punishment,” Pet. App. 36a; see also Pet. App. 3a, 37a,

evidenced in part by the practice’s express exemption from the

sanction of reduced representation for abridgement of the right

to vote imposed by Section 2 of the Fourteenth Amendment.

Pet. App. 35a-36a. Applying the interpretive principle of

1. Consistent with the Second Circuit’s decision below,

Pet. App. 7a n.7, we use the term “incarcerated felon” to refer to a

person convicted of a felony and either in prison or on parole.

We use “ex-felon” to refer to a person convicted of a felony who has

completed his or her sentence.

2

Gregory v. Ashcroft, 501 U.S. 452 (1991), the court found no

“clear statement in the language of § 1973, or. . . its legislative

history” indicating that Congress intended to prohibit a felon

disenfranchisement law such as New York’s. Pet. App. 22a.

In the absence of a sufficiently clear statement of congressional

intent, the court read § 1973 not to cover New York’s felon

disenfranchisement law. Pet. App. 22a, 47a.

Petitioner did not seek rehearing in banc. The Second

Circuit, however, conducted a poll sua sponte as to whether to

do so, which failed. Muntagim v. Coombe, No. 01-7260, 2004

U.S. App. LEXIS 20619 (2d Cir. Oct. 1, 2004) (denial of reh’ g

in banc). In concurring and dissenting opinions, a majority of

the active judges of the court indicated an interest in rehearing

the case in banc if review by this Court is denied. Jd. at *5

(opinion of Straub, Pooler, Sack and Katzmann, Circuit J udges,

concurring); id. at *6 (opinion of Calabresi, Sotomayor, B.D.

Parker, Circuit Judges, dissenting); see also id. (opinion of

Jacobs, Circuit Judge, dissenting) (noting that “a majority now

expresses — or signals — an interest in hearing this appeal

in banc’).

REASONS FOR DENYING THE PETITION

Petitioner asks this Court to grant certiorari to resolve a

purported conflict between the Second Circuit’s decision and

decisions of the Eleventh and Ninth Circuits, see Johnson v.

Governor of Florida, 353 F.3d 1287 (11* Cir. 2003), vacated

and reh'g en banc granted, 377 F.3d 1163 (11" Cir. July 20,

2004); Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003),

petition for cert. filed, Locke v. Farrakhan, 72 U.S.L.W. 3741

(U.S. May 24, 2004) (No. 03-1597), as well as an “implicit”

conflict with decisions of the Fourth and Sixth Circuits, see

Howard v. Gilmore, 205 F.3d 1333 (4" Cir. 2000) (unpublished

table decision); Wesley v. Collins, 791 F.2d 1255 (6" Cir. 1986),

3

regarding the applicability of the Voting Rights Act to felon

disenfranchisement laws. Pet. at 10-11. Petitioner also asks the

Court to grant certiorari to revisit the principles of the plain

statement rule set forth in Gregory v. Ashcroft, 501 U.S. 452.

Pet. at 13-16.

Petitioner’s reasons are not compelling. There is no square

conflict among the circuits regarding the VRA’s applicability

to felon disenfranchisement laws. The New York statute

reviewed by the Second Circuit disenfranchises only

incarcerated felons, while the laws at issue in the other cases

relied upon by Petitioner disenfranchise both incarcerated and

ex-felons. As Judge Cabranes, the author of the Second Circuit

decision below, pointed out in his concurrence to the denial of

rehearing in banc, the disenfranchisement of incarcerated felons

“presents a significantly narrower legal and policy issue” than

that of ex-felons. Muntagim, 2004 U.S. App. LEXIS 20619,

*1. The difference is significant because applying the VRA to

laws that disenfranchise ex-felons will not alter the federal-state

balance of power over criminal matters to the same degree as

would its application to laws that disenfranchise incarcerated

felons. The state’s penological interest in more sweeping

disenfranchisement is weaker, and ex felons’ voting rights are

stronger.

As to the Second Circuit’s reliance on the plain statement

rule, that doctrine is settled, and its application by the Second

Circuit does not warrant review by the Court.

Additionally, this case presents a particularly poor vehicle

for certiorari because the Second Circuit has indicated a desire

to rehear its decision in banc if certiorari fails, see Muntagim,

2004 U.S. App. LEXIS 20619, suggesting that it may well revisit

these issues absent any intervention by this Court. The case was

correctly decided and certiorari should be denied.

4

1. There is no split of authority among the circuits

warranting review by this Court. As a preliminary matter,

the decision of the Eleventh Circuit has been vacated pending

en banc review by that court, and the decisions of the Sixth

Circuit (which is almost twenty years old) and the Fourth

Circuit (which is unpublished) did not even consider whether

the VRA applies to claims of felon disenfranchisement.

That leaves only the decision of the Ninth Circuit. There is

no true conflict between that ruling and the Second Circuit’s,

however, because the New York felon disenfranchisement

law differs in relevant respect from its counterpart in

Washington, as well as from the laws in Florida (Johnson),

Tennessee (Wesley), and Virginia (Howard).

a. In Johnson v. Governor of Florida, the Eleventh

Circuit held in a footnote that Section 2 of the VRA can be

extended to Florida’s felon disenfranchisement law. 353 F.3d

at 1306-07 n.27. In response to a strongly-worded dissent by

Judge Kravitch arguing that application of the VRA to

Florida’s felon disenfranchisement law would conflict with

Section 2 of the Fourteenth Amendment, id. at 1314-18, the

panel held that Section 2 permits states to disenfranchise

convicted felons only in a racially neutral manner, “that is,

in a manner that is neither racially motivated nor produces

racially disproportionate effects,” id. at 1306-07 n.27.

Any conflict that might have existed between the

Eleventh Circuit’s decision in Johnson and the Second

Circuit’s decision below, however, has been eliminated by

virtue of a July 20, 2004, order of the Eleventh Circuit

granting rehearing en banc and vacating the previous panel’s

opinion. Johnson, 377 F.3d 1163.

5

b. Nor is the Second Circuit’s decision inconsistent

with the Sixth Circuit’s decision in Wesley, 791 F.2d 1255,

or the Fourth Circuit’s decision in Howard, 205 F.3d 1333,

as neither the Sixth nor the Fourth Circuit actually addressed

whether the VRA applied to the felon disenfranchisement

laws at issue. Moreover, both of these courts reached the

same result as the Second Circuit: dismissal of the plaintiffs’

VRA challenges to state felon disenfranchisement laws for

failure to state a claim upon which relief can be granted.

In Wesley, the Sixth Circuit dismissed the plaintiffs’

challenge to Tennessee’s felon disenfranchisement law after

concluding that plaintiffs had not stated a claim for a violation

of Section 2 of the VRA. Wesley, 791 F.2d at 1261.

Wesley did not expressly consider whether the VRA applied

to the challenged law. Instead, the court reviewed the “totality

of the circumstances,” the standard for assessing a Section 2

violation, and concluded that dismissal was appropriate based

principally on “the state’s legitimate and compelling rationale

for enacting the statute.” /d. at 1260-61.’ Wesley also observed

that the voting bar “does not deny any citizen, ab initio, the

equal opportunity to participate in the political process and

elect candidates of their choice. Rather, only the commission

of a preascertained, proscribed act warrants the state ...

to foreclose a certain individual from the voting process.”

Id. at 1262. Because the court dismissed the claim as a matter

of law, it did not need to address the constitutional issues

raised in this case. Nor would it have, since Wesley was

2. The Sixth Circuit cited Section 2 of the Fourteenth

Amendment; this Court’s decision in Richardson v. Ramirez, 418

U.S. 24 (1974); and a rationale for felon disenfranchisement based

on Locke’s social contract theory set forth in Green v. Bd. of Elections,

380 F.2d 445, 451 (2d Cir. 1967), cert. denied, 389 U.S. 1048 (1968).

Wesley, 791 F.2d at 1261.

6

decided almost 20 years ago, before relevant developments

in this Court’s constitutional jurisprudence, including its

decision in Gregory v. Ashcroft.

The Fourth Circuit’s analysis of Virginia’s felon

disenfranchisement law in Howard, 205 F.3d 1333, an

unpublished opinion, is scant. Relying on the Sixth Circuit’s

decision in Wesley, the court simply held that the plaintiff

in that case “failed to plead any nexus between the

disenfranchisement of felons and race.” /d. As in Wesley, there

was no need for the court to address the issue of the

applicability of the VRA to the felon disenfranchisement law

because the plaintiff’s claim fell on other grounds. In any

event, the decision is unpublished and therefore has limited

precedential value. See Rule 36(c) of the Local Rules of the

Fourth Circuit.

c. The only federal appellate decision expressly

holding that the VRA provides a basis to challenge a felon

disenfranchisement law is the Ninth Circuit’s decision in

Farrakhan, 338 F.3d 1009. Even if the Second Circuit had

not indicated its willingness to consider further review of

the decision below, any split would be extremely shallow,

and intervention by this Court thus unwarranted. More

importantly, as examination of the state law at issue in each

case demonstrates, even that conflict is not a genuine one.

In Farrakhan, the court began its analysis of whether

the VRA applies to Washington’s felon disenfranchisement

law by holding, in perfunctory fashion, that plaintiff’s claim

of vote denial was “cognizable” under the VRA, stating that

“{flelon disenfranchisement is a voting qualification, and

Section 2 is clear that amy voting qualification that denies

citizens the right to vote in a discriminatory manner violates

>

t

Fy

7

the VRA.” Jd. at 1016. It attempted to accommodate this

Court’s holding in Richardson v. Ramirez by explaining that

“{a]lthough states may deprive felons of the right to vote

without violating the Fourteenth Amendment, . . . when felon

disenfranchisement results in denial of the right to vote or

vote dilution on account of race or color, Section 2 affords

disenfranchised felons the means to seek redress.” Jd.

The state felon disenfranchisement law at issue in

Farrakhan — like the state laws considered by the Fourth,

Sixth and Eleventh Circuits — deprives both incarcerated

and ex-felons of the right to vote.? New York’s felon

disenfranchisement statute, in contrast, is significantly less

restrictive in that it disenfranchises only incarcerated felons,

that is, felons in the custody and control of the state penal

system. Pet. App. 2a; see Jones v. Cunningham, 371 U.S.

236 (1963) (parolees, like prisoners, are under state custody);

N.Y. Comp. Copes R. & Recs. tit. 9, § 8003.1(a) (2004)

(same); id. § 8003.2 (listing conditions of parole release);

3. The Florida law (Johnson), like the laws in six other states

including Virginia (Howard), permanently disenfranchises ex-felons.

Fla. Const. art. VI, § 4 (1968); see The Sentencing Project, Felony

Disenfranchisement Laws in the United States at 3 (September 2004),

at http://www. sentencingproject.org/pdfs/1046.pdf. In these states,

ex-felons must obtain a pardon or other type of restoration of civil rights

from the state’s governor or from the state’s parole or pardons board in

order to vote. See, e.g., Fla. Stat. ch. 940 (2004). In seven other states,

including Washington (Farrakhan) and Tennessee ( Wes/ey), only certain

categories of ex-felons are permanently disenfranchised. See Felony

Disenfranchisement Laws in the United States at 3. By one estimate,

Washington’s law denies the franchise to almost 33,000 ex-felons.

Developments in the Law: The Law of Prisons: VI. One Person, No

Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939,

1949 (2002).

8

id. § 8003.3 (authorizing the imposition of special conditions

of release upon parolees).

This distinction matters for purposes of determining

whether the VRA applies to such laws, as the Second Circuit’s

ruling suggests. Its analysis of New York law is based, in large

part, on the use of felon disenfranchisement as a penological

tool, rather than a pure regulation of voting. The Second Circuit

began by recognizing that states “possess primary authority for

defining and enforcing the criminal law,” explaining that “[i]f

New York State uses disenfranchisement merely as a tool to

punish people who violate its laws, the application of § 1973 to

§ 5-106 would upset ‘the sensitive relation between federal and

state criminal jurisdiction.”” Pet. App. 34a-35a (internal citation

omitted); see also id. at 3a, 36a, 37a. For this reason, the court

held, New York’s felon disenfranchisement law cannot be

conflated with other facially neutral \ oting rules. Pet. App. 34a.

While the New York statute undeniably dictates who can

vote, its role as a punitive device, particularly when viewed

in light of the states’ constitutionally recognized “discretion

to deny the vote to convicted felons,” Pet. App. 35a (citing

Section 2 of the Fourteenth Amendment), led the court to

apply a plain statement analysis to determine whether the

statute is clearly a “voting qualification . . . standard, practice,

or procedure” that can deny or abridge a prisoner’s “right

-__ to vote” within the meaning of § 1973. 42 U.S.C.

§ 1973(a).* There are two uncertainties that could trigger the

4. Section 1973(a) states:

No voting qualification or prerequisite to voting or standard,

practice, or procedure shall be imposed or applied by any

State or political subdivision in a manner 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... .

9

plain statement rule here: Whether a tool such as

disenfranchisement used to punish serious law violators held

in state custody can be considered primarily a “voting

qualification” within the meaning of the VRA; and to what

extent incarcerated felons retain a “right to vote” recognized

under the VRA.° The court sought an unmistakably clear

statement from Congress that it intended the VRA to protect

the voting rights of incarcerated felons, but found none.

Pet. App. 44a-47a.

To hold that the denial of voting rights to incarcerated

felons is not a practice covered by the VRA, however,

says little about whether voting by ex-felons is so covered.

For example, in reviewing an earlier version of New York’s

felon disenfianchisement law that, like the law at issue in

Farrakhan, disenfranchised ex-felons as well as incarcerated

felons, the Second Circuit held that the provision was

regulatory, rather then penological. Green, 380 F.2d at 450

(“depriving convicted felons of the franchise is not a

punishment but rather is a ‘nonpenal exercise of the power

to regulate the franchise’”) (internal citation omitted). This

difference raises the question of whether such a law would

more likely be considered a “voting qualification” covered

by the VRA than would New York’s current law.

The in-custody distinction is also significant because

the VRA was enacted to enforce the Reconstruction

5. The Second Circuit’s holding was phrased more generally,

presumably because it had no reason to explore the difference between

incarcerated and ex-felon disenfranchisement. Judge Cabranes’

concurrence from the denial of rehearing in banc does note the

significance of this distinction, though. Muntagim, 2004 U.S. App.

Lexis 20619, *1.

10

Amendments, and this Court has long held that impingement

of the constitutional rights of incarcerated persons is subject to

a lower standard of review than the rights of others.

See, e.g., Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (“Many

of the liberties and privileges enjoyed by other citizens must be

surrendered by the prisoner. An inmate does not retain rights

inconsistent with proper incarceration.”); O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987) (“[I]ncarceration brings

about the necessary withdrawal or limitation of many

privileges and rights, ... justified by the considerations

underlying our penal system. The limitations on the exercise

of constitutional rights arise . . . from the fact of incarceration

and from valid penological objectives — including deterrence

of crime, rehabilitation of prisoners, and institutional

security.”) (internal citations omitted); Turner v. Safely, 482

U.S. 78, 89 (1987); see also Griffin v. Wisc., 483 U.S. 868,

874 (1987) (“[I]t is always true of probationers (as we have

said it to be true of parolees) that they do not enjoy “the

absolute liberty to which every citizen is entitled, but only

.. conditional liberty.”). It is therefore questionable whether

incarcerated felons in fact maintain the same constitutional

voting rights as ex-felons, and thus whether the VRA would

apply equally to both.

In sum, because the Washington law covers ex-felons

and New York’s does not, the Second Circuit’s analysis —

tethered as it is to the penological function of disenfranchising

incarcerated felons — does not implicate the same concerns at

issue in the Ninth Circuit’s decision. And for the same reason,

it is not at all evident that the Second Circuit, were it to consider

a law disenfranchising ex-felons, would reach a result different

than the Ninth Circuit. The circuit split identified by Petitioner

is thus reconcilable, and not worthy of this Court’s review.

ee

11

2. Petitioner argues that certiorari should be granted

because the Second Circuit has failed to properly apply the

plain statement rule of Gregory v. Ashcroft. Even if his

critique of the Second Circuit’s decision were correct, which

it is not, Petitioner would have established at most that the

court misapplied a well-settled rule of law. This point does

not warrant intervention by the Court. See Rule 10, Rules of

the Supreme Court of the United States.

3. As already discussed, given that a majority of the

active judges of the Second Circuit have indicated an interest

in rehearing this case in banc, this Court should deny

certiorari. In addition, in light of other ongoing judicial and

legislative activity in this area, Supreme Court review of

whether the VRA applies to felon disenfranchisement laws

would be premature at this point. But should the Court

nonetheless decide to address this issue, it would be better

served by first considering broader disenfranchisement laws

that cover ex-felons.

a. The lower courts are increasingly addressing

the question of whether the VRA applies to felon

disenfranchisement, which involves a complex intersection

of voting rights, crime and punishment, state sovereignty,

constitutional law, and political theory that would clearly

benefit from further percolation. Such input is forthcoming,

as the Eleventh Circuit sitting en banc is about to review

whether felon disenfranchisement is covered by the VRA,

and a majority of the active judges of the Second Circuit

have indicated an interest in rehearing this case in banc if

certiorari is denied. Regardless of outcome, this Court can only

benefit from further consideration among the lower courts,

especially since the panel opinions in the Ninth and Eleventh

Circuits have given the question only cursory treatment

12

(a footnote in Johnson, 353 F.3d at 1306 n.27, and two

paragraphs in Farrakhan, 338 F.3d at 1016).

b. Supreme Court review at this juncture also risks

inhibiting further political developments at a time when states

are migrating toward a moderate, consensus view to allow ex-

felon voting, consistent with the recommendations of the

National Commission on Federal Election Reform and the

American Bar Association. See National Commission on Federal

Election Reform, Final Report of the Commission, Ch. IV, at

45 (July 31, 2001); American Bar Association, ABA Standards

for Criminal Justice: Collateral Sanctions and Discretionary

Disqualification of Convicted Persons, Standard 19-2.6(a) and

Report at R-12 (3d ed. August 2003).° In keeping with this trend,

over the past several years a number of bills have been introduced

in Congress to allow ex-felon voting.’ These bills, together with

the impending expiration of provisions of the VRA, see 42

U.S.C. § 1973b(a)(8), will provide an opportunity for national

hearings and debate on the topic. Given the pace and consistent

direction of recent political developments, it would be highly

advantageous to give the states and Congress more time to

develop a political, rather than judicial, solution that will serve

the states’ penological goals while protecting their citizens’

interests in electoral participation.

6. Between 1996 and 2003, eleven states amended their felon

disenfranchisement laws. Eight adopted less restrictive laws, two added

restrictions on prisoner voting, and one added a restriction on probationer

voting. See The Sentencing Project, Legislative Changes on Felony

Disenfranchisement, 1996-2003, at 1 (Sept. 2003), at http://www.

sentencingproject.org/pdfs/legchanges-report. pdf,

7. See, e.g., Civic Participation and Rehabilitation Act of 2003,

H.R. 259, 108th Cong. (2003); Ex-Offenders Voting Rights Act of 2003,

H.R. 1433, 108th Cong. (2003), Constitutional Protection of the Right

to Vote Act, H.R. 2935, 108th Cong. (2003).

—————

13

c. Should the Court nonetheless decide immediate

judicial intervention is warranted, the orderly development of

the law would be better served were this Court to first address

the more extreme position on felon disenfranchisement taken

by Washington, Florida, and other states. One such opportunity

is currently before the Court. See Locke v. Farrakhan,

No. 03-1597 (petition for cert. filed May 24, 2004). The

Eleventh Circuit’s en banc consideration of Florida’s

felon disenfranchisement law may present another vehicle.

See Johnson, 377 F.3d 1163.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ELioT SPITZER

CaITLIN J. HALLIGAN* Attorney General of the

Solicitor General State of New York

120 Broadway, 25th Floor

New York, NY 10271

(212) 416-8016

Attorney for Respondents

MICHELLE ARONOWITZ

Deputy Solicitor General

JuLte M. SHERIDAN

Assistant Solicitor General

* Counsel of Record