# Opposition Brief — Muntaqim v. Coombe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 978

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0955%3A3. Public record. Not legal advice.