Opposition Brief — Simmons v. Galvin

FILED

Supreme Court, U.S.

MAR 25 2010

9-920 OFFICE OF THE CLERK

Sn Whe

Supreme Court of the Anited States

PAUL SIMMONS, PEDRO VALENTIN,

DENNIS BELDOTTI,

Petittoners,

Vv.

WILLIAM FRANCIS GALVIN, in his capacity as

Secretary of the Commonwealth of Massachusetts,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the First Circuit

BRIEF IN OPPOSITION

MARTHA COAKLEY, Attorney General

for the Commonwealth of Massachusetts

Kenneth W. Salinger

Counsel of Record

Peter Sacks

Assistant Attorneys Genera!

One Ashburton Place

Boston, MA 02108

ken.salinger@slate.ma.us

(617) 963-2075

Counsel for the Respondent

March 25, 2010

Becker Gallagher - Cincinnati, OH - Washington, D.C - 800 890 5001

i

Question Presented.

In November 2000, the voters of Massachusetts

amended the state Constitution to disqualify

incarcerated felons from voting in state elections

where qualifications are set directly by the

Massachusetts Constitution, by revising’ the

provision that already disqualified minors under the

age of eighteen years, persons under guardianship,

and persons convicted of corrupt election practices.

Pet. App. la-2a, 5a-6a. A year later, the

Massachusetts Legislature enacted a_ similar

amendment to the parallel statute that establishes

voting qualifications for all elections in the

Commonwealth of Massachusetts. Jd. Petitioners

make no claim that these laws were passed or

enacted with racially discriminatory intent or

purpose. Pet. App. 9a.

The questions presented are:

1. Should the dismissal of Petitioners’ claim

under § 2 of the Voting Rights Act, 42 U.S.C. § 1973,

be affirmed either (a) because VRA § 2 does not

apply to felon disenfranchisement laws, or at least

does not apply to such laws that are adopted without

racial animus, or (b) on the alternative ground that

Petitioners’ complaint fails to allege facts plausibly

suggesting that Petitioners were denied the right to

vote on account of race or color rather than on

account of being an incarcerated felon?

2. Did the court of appeals correctly apply the

long-settled rule of law that civil, regulatory

m:.3sures that are not punitive in purpose or effect

do not implicate the Ex Post Facto Clause of the

United States Constitution?

11

Table of Contents.

Page

mOOEIOT FP OOOOMIOG. oc csccsccsseeccncsccesccccessescsaseces reavecaees i

Ee he FeO iii sins aca ccs nrennst viens veedsesisnatvcdienessss iV

RINE OIE Fa Ry os viene ca vec ti cen cepenkssssasieniacasens l

(1) Inearcerated Felons May Not Vote in

Massachusetts and 47 Other States. ...........1

(2) Petitioners’ Claims of Disparate Impact.....2

(3) The Court of Appeals Dismissed the

Voting Rights Act Claim................... Sescndeaht 3

(4) The Court of Appeals Affirmed Judgment

Against the Ex Post Facto Claim................ 8

Reasons for Denying the Petition. .............. eusceen 9

1. No Review of the Voting Rights Act

Sent Th I og goooe sa cecesateetonsce seusisns 9

A. The Ninth Circuit May Join the

Growing Consensus that 42 U.S.C.

§ 1973 Does Not Apply to Laws that

Disqualify Felons From Voting............. 9

B. Certiorari Review Is Inappropriate

Because Petitioners Failed to Allege

Facts Plausibly Suggesting a Claim... 12

C. The Decision Below Is Consistent

with the Rules for Construing Laws

Enacted Under Congress's

Enforcement Powers. ................0.cseceees 16

Page

1. The Clear Statement Rule............ 17

a. Section 2 of the Voting

Rights Act Is Ambiguous........ 19

b. Applying VRA § 2 Here

Would Shift the

Constitutional Balance........... 21

c. Congress Provided No Clear

Statement That the Voting

Rights Act Was Intended to

Restrict the Power of States

to Disenfranchise Felons. .......24

2. The Canon of Constitutional

Avoidance Apples Because

Congress Made No Findings of a

Pattern of Unconstitutional

Felon Disenfranchisement............ 26

Il. No Review of the Ex Post Facto Claim

ee cccetadecectaiedladatm 31

RNG nL A he) dos Seb RA le 35

1V

Table of Authorities.

Page

Cases

Baker v. Pataki,

85 F.3d 919 (2nd Cir. 1996) ............................... 19

Bank of Am. Natl Trust & Savings Assoc. v. 203

North LaSalle St. Partnership,

TO A ely I 0 IID yank veneseavsedeyboneessncenevessndeaucna ea

Bell Atlantic v. Twombly,

Ree Wee BP CED ones cncevncscsccconcecnceeeess eueeeeees 13

Bernal v. Fainter,

AGT U.S. 216 (1984) ....cccccceccecceesceeceeseeeeee ee 22

Board of Trustees of Univ. of Ala. v. Garrett,

es od cyicuseusenanetvennstescessesevevsss 27

Chisom v. Roemer,

Be Fs ee CED vis dic'scnceccvsscsnenecosecnanacseose 18, 21

City of Boerne v. Flores,

ee Ae WO oo as ccc wncadesaseaevanscocsavecavantsivess 28

City of Mobile v. Bolden,

oo cash cx whaxasananbsneneraeunonane 6, 23

Clark v. Martinez,

B43 U.S. 371 (2008) .....cccccceccecsecccecececececeseseceeeeees 27

Dura Pharmaceuticals v. Broudo,

ee ee os cas ctigsc sadn eutuatavanetaskes 15

Farrakhan v. Washington,

338 F.3d 1009 (9th Cir. 2008)...................... 10, 11

V

Page

Farrakhan v. Washington,

359 F.3d 1116 (9th Cir. 2004)

(Kozinski, J., et al., dissenting from

denial of en banc review) ................. 11, 15, 26, 28

Farrakhan v. Gregoire,

2006 WL 1889273 (D. Wash. 2006),

reud, 590 F.3d 989 (9th Cir. Jan. 5, 2010),

petition for en banc review filed,

No. 06-35669 (March 5, 2010).................... 10n, 11

Florida Prepaid Postsecondary Educ. Expense

Bd. v. College Sav. Bank,

ee 0, Ee CN asa ak vo ctheccvdacneacivivuspaiannaboves

bo

~]

Goosby v. Town Bd. of Town of Hempstead, N.Y.,

180 F.3d 476 (2nd Cir. 1999) .............. ccc cece eens 21

Gray v. Sanders,

ee Ores Me CIID veniincicchavetussachicescrstacenceunes ee 23

Gregory v. Ashcroft,

BO1 U.S. 452 (1991) ......-ccccccccecceccececsseeseseeeees 22, 24

Hayden v. Pataki,

449 F.3d 305 (2nd Cir. 2006) (en banc)..... passim

Hudson v. United States,

B2QZ U.S. 93 (1997) ......cecccccececseeceecsecesseesereeceseesee 32

Hunter v. Underwood,

AT1 U.S. 222 (1985) ....-ccecececececeseseeeseseeeeees 4, 16, 23

Irby v. Virginia State Bd. of Elections,

889 F.2d 1352 (4th Cir. 1989)....................0..0.0. 14

vl

Page

Johnson v. Governor of the State of Florida,

405 F.3d 1214 (11th Cir.) (en banc), cert.

denied sub nom. Johnson v. Bush,

546 U.S. 1015 (20085)............... pesaseciaunsaaceina passim

Jones v. United States,

529 U.S. 848 (2000)............. PERRIS PERT URS LOUD. 26

Jones v. Yursa,

2008 WL 4997604 (D. Idaho 2008).................... 14

Kansas v. Hendricks,

OSE UB. Be Ca askds ssc ccna

Kennedy v. Mendoza-Martinez,

STE Ue. CE CE tkcsthcasecmenaeneis ee 32, 34

Laro v. New Hampshire,

BOS Fe FC Se Cae, BED cccccccncacececctcsatcaceeaans 27n

Lassiter v. Northampton Elec. Bd.,

SR 07s BO Ce a sesccesccesacionrevactteiolinsneentcaea 22

League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006) ........................csccece0e 21

Miller v. Johnson,

AT UF Be, Bere 0 rd vececssoraxcecarastatvaceteee 27

National Ass'n for Advancement of Colored

People v. New York,

S33 £3 2. le (at) sated 17

Northwest Austin Mun. Utility Dist. No. One

v. Holder, 129 S.Ct. 2504 (2009)............ 19, 22, 27

Vil

Page

O’Gilvie v. United States,

| nn |

Oregon v. Mitchell,

a Se 22, 20, 29, 3V

Ortiz v. City of Philadelphia Office of the City

Comms, 28 F.3d 306 (8d Cir. 1994)................. 14

Osburn v. Cox,

369 F.3d 1283 (11th Cir.), cert. denied, 543

Teen no. ccnsscntensessuceecosees 13

Pennsylvania Dept. of Corrections v. Yeskey,

524 U.S. 206 (1998)................ ce 20

Plaut v. Spendthrift Farm, Inc.,

Te To. onsscneceresceccsccccssccess 19

Richardson v. Ramirez,

418 U.S. 24 (1974)...... a ees 4, 23, 25

Romer v. Evans,

I TUNED ss cccccccendesccccccssssccccsccccscness 22

Salas uv. Southwest Texas Junior Coll. Dist.,

964 F.2d 1542 (5th Cir. 1992)......................... 14

Selective Service System v. Minnesota Public

Interest Research Group,

AGB U.S. 841 (1984) .occccceccccscsscecesessssessessesssseeesee: 34

Simmons v. Galvin,

575 F.3d 24 (1st Cir. 2009), petition for cert.

filed, No. 09-920 (February 1, 2010).......... passim

Vill

Smith v. Boyle,

144 F.3d 1060 (7th Cir. 1988) 21

Smith v. Doe.

538 U.S. 84 (2003) 31, 32, 33

Smith v. Salt River Project Agricultural

Improvement and Power District,

109 F.3d 586 (9th Cir. 1997)...... 13, 14

United States ex rel. Atlorney General |

Delaware & Hudson Co.

213 U.S. 366 (1909)......... 27

United States v. Johnston.

268 U.S. 220 (1925).... 35

United States v. Mississippi

380 U.S. 128 (1965)...... 17

United States v. One Assortment of 89 Firearms

465 U.S. 354 (1984)... | 33

United States v. Shabant,

513 U.S. 10 (1994)........ 19

United States v. Ward,

448 U.S. 242 (1980)..... a a. a SS

Webster v. Fall,

266 U.S. 507 (1925).... ; 19

Wesley v. Collins,

791 F.2d 1255 (6th Cir. 1986).. . .... 13,14

Statute

Constitutional Provisio

Rules

Statement of the Case.

(1) Incarcerated Felons May Not Vote in

Massachusetts and 47 Other States.

In 2000 and 2001, the Commonwealth of

Massachusetts joined 47 other states in barring

incarcerated felons from voting; only Maine and

Vermont do not. Pet. 6; Pet. App. la-2a; 13a. Unlike

in many other states, a felon who has been released

from prison is no longer disqualified from voting in

Massachusetts. Pet. App. 6a, lla.

Previously, the Massachusetts Constitution

disqualified minors under the age of eighteen years,

persons under guardianship, and persons convicted

of corrupt election practices from voting in elections

for Governor, Licutenant Governor, and State

Senators or Representatives. J/d.; Mass. Const.

amend. art. 3. A Massachusetts statute established

the same disqualifications for all other elections for

national, state, or local officials. See Mass. Gen. L.

c. 51, § 1.

In November 2000, the voters amended this

constitutional provision to add incarcerated felons to

the list of persons disqualified from voting. Pet. App.

6a. This amendment was approved by a vote of

60.3 percent voting “yes” to 33.9 percent voting “no.”

Id. 5a. In 2001, the Legislature enacted a similar

amendment to the voting qualification statute. /d.

6a. These laws were passed after Massachusetts

prisoners formed a political action committee and

“attempted to organized to change the laws under

which they were convicted, sentenced, and

imprisoned.” Pet. App. 19a; accord id. 3a.

Z

(2) Petitioners’ Claims of Disparate Impact.

Petitioners claimed that these Massachusetts

felon disenfranchisement laws violate VRA §2

“because the percentage of imprisoned felons who are

Hispanic or African-American is higher than the

percentages of those groups in the population of the

state....” Pet. App. 2a. “This is a claim based purely

on the allegation that” these laws have “a disparate

impact on minorities by disqualifying from voting

imprisoned felons.” Jd. 9a.

Petitioners “made no_ allegation that’ the

Commonwealth acted with racially discriminatory

intent or purpose” in_ enacting its’ felon

disenfranchisement laws, and “specifically disavowed

any such claim.” Pet. App. 9a. Indeed, there is no

claim that Massachusetts has any history of using

laws, rules, practices, tests, or devices to restrict,

impede, or discourage voting by racial minorities. /d.

9a, 19a-20a. “Nor is there any claim that

Massachusetts has defined ... disenfranchisement in

terms of felories that have higher conviction rates

for minorities than for whites.” Jd. 20a.

Petitioners’ complaint alleges that the

Massachusetts felon disenfranchisement laws have a

“disproportionately adverse effect on the voting

rights of African-Americans and Hispanic Americans

compared to [their] effect on the voting rights of

other citizens.” Pet. App. 7a. Petitioners further

allege that this effect “is caused by, among other

things, the facts that African-Americans and

Hispanic-Americans are over-represented in the

population of Massachusetts incarcerated felons, and

that there exists considerable racial and ethnic bias,

3

both direct and subtle, in the Massachusetts court

system.” Jd. Finally, they allege that these voting

qualification laws “each interact with social and

historical conditions to cause an inequality in the

opportunities enjoyed by minority and non-minority

voters to elect their preferred representatives.” Id.

The complaint refers to and incorporates the final

report of the Commission to Study Racial and Ethnic

Bias in the [Massachusetts] Courts, which was

issued in September 1994. Pet. App. 9a. “The report

did not conclude that any race bias resulted in

minority defendants being sentenced as _ felons,”

however. Pet. App. 10a n.3. The complaint refers to

Commission findings regarding the under-

representation of racial minorities in jury pools, a

lack of qualified interpreters, and the under-

representation of minorities on the Massachusetts

bench and in the Massachusetts bar. Jd. 9a-10a n.3.

The Commission tried to test the hypothesis that

racial and ethnic bias may influence sentencing

decisions by judges, but it could not do so because the

necessary data were unavailable. Jd.

(3) The Court of Appeals Dismissed the

Voting Rights Act Claim.

This action was commenced pro se in August

2001; counsel for plaintiffs was appointed in July

2002. Pet. 8. The original complaint was amended

twice by counsel. Pet. App. 7a. Petitioners claimed

that the Massachusetts felon disenfranchisement

laws violate VRA § 2, the Ex Post Facto Clause of

U.S. Const. Art. I, § 10, and the Equal Protection

Clause in the Fourteenth Amendment to the

Constitution. Pet. 8-9 & n.4; Pet. App. lla.

4

In August 2007, the district court granted

Respondent's motion for summary judgment on the

ex post facto and equal protection claims, and denied

Respondent’s motion for judgment on the pleadings

on the VRA claim. Pet. App. lla. The court of

appeals granted leave to appeal all three claims

under 28 U.S.C. § 1292(b). Jd. Petitioners waived

their equal protection claim by not appealing the

district court order dismissing it. Jd.

The court of appeals reversed with respect to the

VRA claim, and ordered that the claim be dismissed.

Pet. App. 3a, 13a-41a. It explained that “[w]e think

it clear from the language, history, and context of the

VRA that Congress never intended § 2 to prohibit the

states from disenfranchising currently incarcerated

felons.” Id. 3a.

The court began by discussing the constitutional

background. Jd. 15a-20a. It noted that “[t]he power

of the states to disqualify from voting those convicted

of crimes is explicitly set forth in §2 of the

Fourteenth Amendment.” Id. 15a-16a_ (citing

Richardson v. Ramirez, 418 U.S. 24, 55 (1974)). It

observed that felon disenfranchisement laws are

constitutional unless adopted with racially

discriminatory intent, but stressed that “plaintiffs

make no allegation of intentional discrimination, and

on appeal they allege no constitutional violation

other than the Ex Post Facto claim.” Id. 17a (citing

Hunter v. Underwood, 471 U.S. 222, 229 (1985)).

The court of appeals then analyzed the text of

VRA § 2, codified at 42 U.S.C. § 1973. Pet. App. 20a-

23a. It observed that, “under the plain terms of the

statute, not every ‘voter qualification is actionable

D

under § 2.” Jd. 2la. Only qualifications that

“result[] in a denial or abridgement of the right of

any citizen of the United States to vote on account of

race or color’ are barred by the state. Jd. (quoting 42

U.S.C. § 1973(a)).! The court found that:

[I]t is neither plain nor clear that the

plaintiffs’ claim fits within the text of § 2(a).

For example, it is logical to understand the

state law disenfranchisement of incarcerated

felons as not ‘resulting’ in a denial ‘on account

of race or color’ but on _ account of

imprisonment for a felony, and thus not within

the text of § 2 at all.

Pet. App. 23a.

1 In 1982, Congress amended VRA § 2 to read as follows:

(a) 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, or in

contravention of the guarantees set forth in section 4(f)(2)

[42 U.S.C. § 1973b(f)(2)], as provided in subsection (b).

(b) A violation of subsection (a) is established if, based

on the totality of circumstances, it is shown that the

political processes leading to nomination or election in the

State or political subdivision are not equally open to

participation by members of a class of citizens protected by

subsection (a) in that its members have less opportunity

than other members of the electorate to participate in the

political process and to elect representatives of their choice.

The extent to which members of a protected class have been

elected to office in the State or political subdivision is one

circumstance which may be considered: Provided, That

nothing in this section establishes a right to have members

of a protected class elected in numbers equal to their

proportion in the population.

96 Stat. 134, 42 U.S.C. § 1973.

6

The court concluded that “the language of § 2 (a)

is both broad and ambiguous and that judicial

interpretation of a claim under the VRA may not be

limited to the text of § 2(a) alone.” Jd. It observed

that “[t}he Supreme Court itself, in deciding § 2

cases|,] has never resorted to plain text alone t» give

§2 meaning,” but instead “has commonly used

legislative history.” Id. 24a.

The court of appeals “look[ed] at the terms of the

original VRA as a whole, the context, and recognized

sources of congressional intent,” and found “it is

clear the original § 2 of the VRA of 1965 was not

meant to create a cause of action against a state

which disenfranchises its incarcerated felons.” Id.

25a. Both the House and the Senate made clear

their understanding that the 1965 version of VRA

§ 4, which bars the use of facially neutral tests or

devices “with the effect of denying or abridging the

right to vote on account of race or color,” would not

proscribe state laws that disqualify felons from

voting. Id. 27a-28a. The court of appeals found that

“the express history” reflects Congress’s intent that

the Voting Rights Act as a whole not apply to felon

disenfranchisement laws. Id. 28a-29a.

It further found that the 1982 amendments to

VRA § 2 “did not alter the prior understanding that

the VRA did not reach the disenfranchisement of

currently incarcerated felons.” Pet. App. 33a.

“Congress's specific purpose in amending § 2 of the

VRA was to overrule certain aspects of the Supreme

Court’s decision in Bolden, which was concerned with

vote dilution claims, not direct denial claims.” Jd.

34a (discussing City of Mobile v. Bolden, 446 U.S. 55

(1980)). In particular, “Congress aimed to reinstate

7

the ‘results test, which had been the rule developed

in the pre-Bolden case law for vote dilution claims

under White.” Id. 35a (discussing White v. Regester,

412 U.S. 755 (1973)). “Nothing in the text, context,

or history supports [Petitioners’] position” that VRA

§ 2 applies to “the disenfranchisement of currently

incarcerated felons.” Jd. 33a.

Finally, the court observed that since 1982

Congress has enacted several laws that allow or

direct states to remove disenfranchised felons from

voter rolls. Pet. App. 37a-38a (discussing the

National Voter Registration Act of 1993, 42 U.S.C.

§ 1973gg-6(a)(3)(B), which authorizes states to purge

disenfranchised felons from voter rolls, and the Help

America Vote Act of 2002, 42 U.S.C. § 1973gg-6(g)(3),

which directs States to purge disenfranchised felons

from voting lists for federal elections). It found that

these more recent enactments are inconsistent with

reading VRA § 2 to create a cause of action against

the Massachusetts felon disenfranchisement laws.

Id. 38a.

The court of appeals did not “reach the serious

constitutional questions which the Commonwealth

argues would be raised were we to adopt plaintiffs’

construction of the statute.” Pet. App. 41a.

Respondent argued below that VRA § 2 must be

construed as not applying to felon

disenfranchisement laws that were enacted without

racial animus because: (i) that result is required by

the clear statement rule, since VRA § 2 is ambiguous

and applying it to felon disenfranchisement laws

that were enacted without racial animus would shift

the constitutional balance between the States and

the federal government; and (i) that result is also

8

required to avoid constitutional doubt created by the

absence of any congressional findings that States

engaged in a pattern of disenfranchising felons in a

deliberate attempt to discriminate on the basis of

race or color.

Nor did the court of appeals resolve Respondent’s

alternative argument that Petitioners’ complaint

alleges no facts plausibly suggesting’ the

Commonwealth has violated VRA § 2. Pet. App. 39a-

40a. However, the court did express serious doubt as

to whether Petitioners’ had stated a viable VRA

claim, even assuming that the statute could apply to

felon disenfranchisement laws. Id. n.23.

(4) The Court of Appeals Affirmed Judgment

Against the Ex Post Facto Claim.

With respect to Petitioners’ claim under the Ex

Post Facto Clause, the court of appeals affirmed the

grant of summary judgment in favor of the

Respondent. Pet. App. 42a-48a. It applied well-

settled precedent from this Court that “[o]nly a

punitive measure can violate the Ex Post Facto

Clause,” and that civil, regulatory measures that are

not punitive in nature cannot. Jd. 42a-43. The court

of appeals then found, based on the undisputed facts,

that the Massachusetts laws that disqualify

incarcerated felons—which appear “not in the

Commonwealth’s criminal code, but rather its civil

constitutional and statutory voter qualification

provisions,” Id. 44a—are civil, regulatory measures,

and are not punitive in nature. Jd. 43a-48a.

9

Reasons for Denying the Petition.

Further review of the first question, regarding

Petitioners’ claim under the Voting Rights Act, is not

warranted for several reasons. First, the circuit split

identified by Petitioners may soon disappear, if the

Ninth Circuit grants en banc review in a pending

action and joins with the First, Second, and Eleventh

Circuits in holding that 42 U.S.C. § 1973 does not

apply to felon disenfranchisement laws. Second, in

any case, Petitioners failed to allege facts plausibly

suggesting that the challenged Massachusetts laws

violate VRA § 2. Third, the court of appeals’ decision

in this case is consistent with this Court’s precedent

regarding application of the clear statement rule and

the canon of constitutional avoidance to laws enacted

by Congress pursuant to its enforcement powers

under the Fourteenth and Fifteenth Amendments.

Nor should the Court grant certiorari review of

the second question, regarding Petitioners’ claim

under the Ex Post Facto clause. The decision below

is consistent with the Court's well-established

standard for determining whether a law is a punitive

measure, and does not raise any important but

unresolved federal question.

I. No Review of the Voting Rights Act Claim

Is Warranted.

A. The Ninth Circuit May Join the

Growing Consensus that 42 U.S.C.

§ 1973 Does Not Apply to Laws that

Disqualify Felons From Voting.

The circuit conflict that is the main focus of the

petition, cf. Pet. 10-11, does not warrant this Court’s

10

review. There is an emerging consensus among the

circuits that VRA § 2 does not apply to state laws

that disqualify incarcerated felons from voting. Pet.

App. 13a-14a. The First, Second, and Eleventh

Circuits have all so held. Jd.; Simmons v. Galvin,

575 F.3d 24, 30-42 (1st Cir. 2009), petition for cert.

filed, No. 09-920 (February 1, 2010); Hayden ov.

Pataki, 449 F.3d 305, 312-329 (2nd Cir. 2006) (en

banc); Johnson v. Governor of the State of Florida,

405 F.3d 1214, 1227-1235 (11th Cir.) (en banc), cert.

denied sub nom. Johnson v. Bush, 546 U.S. 1015

(2005) (holding that VRA § 2 does not apply to state

laws that disqualify incarcerated felons and continue

to disenfranchise felons after release from prison).

Only the Ninth Circuit has disagreed. Pet. 10-11. In

2003, a three-judge panel held that the VRA applies

to state felon disenfranchisement laws. Farrakhan

v. Washington, 338 F.3d 1009, 1010-20 (9th Cir.

2003) (“Farrakhan I’).2, Seven judges dissented from

the denial of en banc review, and opined that the full

court should have held that plaintiffs failed to state a

claim under the VRA. Farrakhan v. Washington,

2 On remand, the district court granted summary

judgment for the defendant after finding “that the totality of

the circumstances does not support a finding that Washington's

felon disenfranchisement law results in discrimination in its

electoral process on account of race.” Farrakhan v. Gregoire,

2006 WL 1889273, *9 (D. Wash. 2006), rev'd, 590 F.3d 989 (9th

Cir. Jan. 5, 2010) (“Farrakhan IT’), petition for en banc review

filed, No. 06-35669 (March 5, 2010). The Ninth Circuit

reversed, and ordered that summary judgment be granted for

the plaintiffs. Farrakhan II, 509 F.3d at 1015. The panel held

that (1) it was bound by Farrakhan J, and (2) the undisputed

facts demonstrated that “racial minorities are over-represented

in the felon population based upon factors that cannot be

explained by non-racial reasons.” Id. at 999-1000, 1015.

11

359 F.3d 1116, 1117-19 (9th Cir. 2004) (Kozinski, J.,

et al., dissenting from denial of en banc review).

This circuit split may soon disappear, however.

The Ninth Circuit is considering whether to grant en

banc review of the decision after remand in

Farrakhan II, which would provide an opportunity to

reconsider Farrakhan I. In an unusual order, the

Ninth Circuit sua sponte directed the parties to “file

concurrent briefs setting forth their respective

positions on whether this case should be, or should

not be, reheard en banc.” See No. 06-35669, Order

dated February 12, 2010. The State of Washington,

in a brief filed on March 5, 2010, requested en banc

review, in part because the conflicting decisions in

Simmons, Hayden, and Johnson call into question

whether Farrakhan I was correctly decided. If the

Ninth Circuit were to grant en banc review in

Farrakhan II, its subsequent decision could

eliminate the circuit split that forms the main basis

for the petition for a writ of certiorari in this case.

Moreover, Farrakhan has not had significant

consequences so far. It appears that no court outside

the Ninth Circuit has allowed a Voting Rights Act

challenge to a felon disenfranchisement law to

proceed, other than the district courts whose orders

were on appeal in Simmons, Hayden, and Johnson.

Even within the Ninth Circuit, only one other case

has applied the Farrakhan I holding that a felon

disenfranchisement law may be challenged under

VRA § 2, and that action was dismissed on other

grounds. See Jones v. Yursa, 2008 WL 4997604, *3-

*4 (D. Idaho 2008) (while recognizing that “the Ninth

Circuit has been willing to apply the VRA where

felon disenfranchisement has been challenged,”

12

district court dismissed claim that Idaho law

disqualifying felons from voting violates VRA § 2

because plaintiff did not allege that he is a member

of a racial minority, and “also failed to point to any

specific evidence that would support his allegation

that Idaho’s alternative sentencing scheme works to

deny the right to vote based on race”).

While it is possible that the issue presented in the

first question may call for this Court’s review at

some later date in another case, review at this time

would be premature.

B. Certiorari Review Is Inappropriate

Because Petitioners Failed to Allege

Facts Plausibly Suggesting a Claim.

Even if the question whether VRA § 2 applies to

felon disenfranchisement laws otherwise warranted

review, this case would be a poor vehicle for

considering it, because the judgment of the court of

appeals could be affirmed on an alternative ground.

Petitioners’ second amended complaint failed to

allege facts plausibly suggesting that the

Massachusetts voter qualification laws denied

Petitioners the right to vote on account of race or

color, rather than on account of the fact that they

pleaded guilty to or were found guilty of committing

one or more felonies and are still serving the

resulting prison sentences. Pet. App. 39a-40a n.23.

And “[t]his is the situation eight years after

[plaintiffs] filed suit and have had discovery from

defendants.” Pet. App. 39a n.23.

Given the lack of any factual allegation plausibly

suggesting that the challenged Massachusetts laws

13

interacted with racial bias in the community to

disqualify voters on account of race or color,

Petitioners’ complaint failed to state a viable claim

under VRA § 2. See Osburn v. Cox, 369 F.3d 1283,

1289 (11th Cir.), cert. dented, 543 U.S. 943 (2004)

(affirming dismissal of VRA § 2 claim against

Georgia’s open primary system on this ground).

Petitioners have the burden at the pleading stage to

allege “enough facts to state a claim to relief that is

plausible on its face.” Bell Atlantic v. Twombly, 127

S.Ct. 1955, 1974 (2007). Federal R. Civ. P. 8(a)(2)

“requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of

action will not do.” Id. at 1964.

Petitioners’ allegation that the Massachusctts

felon disenfranchisement laws have a

“disproportionately adverse effect” on African-

American and Hispanic-American voters, Pet. App.

7a, would not state a claim upon which relief may be

granted even if the VRA applied to such laws. See

Wesley v. Collins, 791 F.2d 1255, 1260-1262 (6th Cir.

1986) (affirming dismissal of VRA § 2 claim against

Tennessee’s felon disenfranchisement law on this

ground). At least five courts of appeals have held

that evidence of statistical disparities alone is

insufficient as a matter of law to establish a VRA § 2

claim of vote denial on account of race. See Smith v.

Salt River Project Agricultural Improvement and

Power District, 109 F.3d 586, 588-589, 595-596 (9th

Cir. 1997) (rule that only land owners could vote in

agricultural and power district elections held not to

violate VRA, despite showing that a_ smaller

percentage of African-American residents own land

compared to whites); Ortiz v. City of Philadelphia

Office of the City Comm'rs, 28 F.3d 306, 307-15 (3d

14

Cir. 1994) (state law that purged from voter lists any

person who did not vote in two preceding years did

not violate VRA, even’ though law had

disproportionate impact on minority voters because

more minority members than whites were inactive

voters); Salas v. Southwest Texas Junior Coll. Dist..,

964 F.2d 1542, 1556 (5th Cir. 1992) (at-large district

to elect college board members held not to violate

VRA, despite showing of statistically significantly

lower turnout by Hispanic voters); Irby v. Virginia

State Bd. of Elections, 889 F.2d 1352, 1358-59 (4th

Cir. 1989) (appointive school boards held not to

violate VRA, despite statistical disparity between

percentage of African-Americans appointed to boards

compared to percentage in population); Wesley, 791

F.2d at 1260-1262 (allegation that Tennessee felon

disenfranchisement law had disproportionate impact

on Afrfieah Americans failed to state VRA claim)

(hese cases stand for the principle that a bare

statistical showing of disproportionate impact on a

racial minority does not satisfy the § 2 ‘results’

inquiry. ” Salt River, 109 F.3d at 595. Instead,

“there must be some causal connection between the

challenged electoral practice and the alleged [racial]

discrimination that results in a_ denial or

abridgement of the right to vote.” Ortiz, 28 F.3d

at 310. ‘he requirement of such a causal connection

follows from the language in VRA § 2 prohibiting a

vote denial or dilution “on account of race or color.”

See Johnson, 405 F.3d at 1238 & n.7 (Tyoflat, J.,

concurring); Salt River, 108 F.3d at 595 n.7; Wesley,

791 F.2d at 1260-1261. “The mere fact that many

incarcerated felons happen to be black and latino is

insufficient grounds to implicate ... the Voting Rights

Act.” Jones v. Edgar, 3 F.Supp.2d 979, 981 (C.D. Ill.

LD

1998) (dismissing VRA claim against Illinois felon

disenfranchisement law on this ground); accord

Farrakhan, 359 F.3d at 1117-1119 (Kozinski, J.)

(arguing for dismissal of VRA claim against

Washington law on this ground)

Nor did Petitioners allege any factual support for

the further, conclusory assertion that there is a

causal connection between any alleged “racial and

ethnic bias in the Massachusetts court system”

and the disqualification of incarcerated felons from

voting. Pet. App. 7a

The most plaintiffs have suggested is that

despite the self-evident racial neutrality of

depriving all incarcerated felons from voting

while imprisoned, there may be some causal

connection between being incarcerated for

felonies and their race. But the very 1994

Commission Report on which they rely

concludes that no such connection was shown

[and that] the data simply did not exist to

permit the testing of the hypothesis. ... There

is nothing else.

Pet. App. 39a-40a n.23. Such conclusory allegations

of causation are insufficient to state a claim. Dura

Pharmaceuticals v. Broudo, 544 U.S. 336, 347 (2005)

(applying Rule 8(a)(2) pleading requirements to

“causal connection” element of securities fraud

claim)

Because Petitioners failed to allege facts plausibly

suggesting that the Massachusetts felon

disenfranchisement laws violate VRA § 2, this is not

an appropriate case to review the first question

16

C. The Decision Below Is Consistent with

the Rules for Construing Laws Enacted

Under Congress’s Enforcement Powers.

Although this Court has not addressed whether

VRA § 2 applies to state laws that disqualify felons

from voting, the court of appeals’ decision that it does

not apply in the circumstances of this case is

consistent with well-established rules of construction

that weigh heavily in favor of the result reached by

the First Circuit. Congress may only exercise its

enforcement powers under the Fourteenth or

Fifteenth Amendment to limit States’ authority to

disenfranchise incarcerated felons if Congress clearly

and plainly stated its intent to do, and did so after

finding there to be a pattern of unconstitutional felon

disenfranchisement. Because those requirements

were not met here, the court of appeals’ decision was

sound and no further review by this Court is needed.

The decisions by the First Circuit in this case,

and by the Second and Eleventh Circuits in Hayden

and Johnson, do not leave States free to disqualify

criminals from voting in a deliberate attempt to

disenfranchise racial minorities. If a_ felon

disenfranchisement law were enacted with racially

discriminatory intent and effect, it would violate the

Equal Protection Clause. Hunter, 471 U.S. at 227-

28, 233. There was no need for Congress to exercise

its enforcement powers under the Fifteenth

Amendment to prevent the passage of felon

disenfranchisement laws motivated by racial

animus, “as these laws are already unconstitutional

under the Fourteenth Amendment.” Hayden, 449

F.3d at 316 n.11. Furthermore, such laws would also

seem to violate the Fifteenth Amendment ban on

17

state laws that deny the right to vote “on account of

race, color, or previous condition of servitude.” Cf.

United States v. Misstssippi, 380 U.S. 128 (1965)

(United States Attorney General could challenge

state literacy test and “good moral character” test for

voting registration on ground that Mississippi

adopted these laws with intent to deny nght to vote

on account of race or color and thus violated the

Fifteenth Amendment). The Fifteenth Amendment

‘4s. _self-executing.” See National Assn _ for

Advancement of Colored People v. New York, 413

U.S. 345, 350 (1973).

Thus, although construing the VRA not to apply

to felon disenfranchisement laws means that in this

respect the statute is narrower in scope than the

Reconstruction Amendments’ themselves, this

construction in no way undermines __ the

constitutional prohibitions against States adopting

laws to disqualify felons from voting with racially

discriminatory intent or purpose. In this case,

Petitioners did not allege that the Massachusetts

laws were the result of deliberate racial animus.

Pet. App. 2a, Qa.

1. The Clear Statement Rule.

The court of appeals’ holding that VRA § 2 must

be construed not to apply in the circumstances of this

case is consistent with this Court's precedent

regarding the “clear statement” or “plain statement”

rule. Hayden, 449 F.3d at 323-328; Johnson, 405

F.3d at 1232 & n. 35. The text of 42 U.S.C. § 1973

provides no clear indication that Congress intended

to shift the constitutional balance by limiting the

18

power of States acting without racial animus to

disenfranchise felons.

“When ‘Congress intends to alter the usual

constitutional balance between the States and the

Federal Government, it must make its intention to

do so unmistakably clear in the language of the

statute.” Raygor v. Regents of University of

Minnesota, 534 U.S. 533, 543 (2002) (quoting Will v.

Michigan Dept. of State Police, 491 U.S. 58, 65

(1989)). “This principle apphes when Congress

‘intends to pre-empt the historic powers of the States’

or when it legislates in ‘traditionally sensitive areas’

that ‘affec[t] the federal balance.” Raygor, 534 U.S.

at 543-544 (quoting Will, 491 U.S. at 65).

The clear statement rule applies with full force

when Congress acts pursuant to its enforcement

powers under the Reconstruction Amendments.

Gregory v. Ashcroft, 501 U.S. 452, 457-64, 467-70

(1991) (holding that “plain statement” rule requires

that ambiguous provision of the Age Discrimination

in Employment Act, a statute enacted under § 5 of

the Fourteenth Amendment, may not be construed to

limit States’ power to decide qualifications of judges);

see also Nevada Dept. of Human Resources v. Hibbs,

538 U.S. 721, 726 (2003) (requiring clear statement

of intent to use enforcement power under § 5 of the

Fourteenth Amendment to abrogate sovereign

immunity granted by Eleventh Amendment).

There is no merit to Petitioners’ suggestion that,

because the Court did not discuss the clear

statement rule when applying VRA § 2 to a vote

dilution claim in Chisom v. Roemer, 501 U.S. 380

(1991), that opinion constitutes “clear Supreme

19

Court authority that the plain statement rule does

not apply when determining coverage under § 2 of

the Voting Rights Act.” Pet. 19 n.6 (quoting Baker v.

Pataki, 85 F.3d 919, 938 (2nd Cir. 1996) (Feinberg,

J., for five of ten judges) (because the court was

evenly divided in Baker, their opinions were without

precedential effect; see id. at 921, n.2.). “[T]he

unexplained silences of [the Court’s] decisions lack

precedential weight.” Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 232 (1995); accord, e.g., United

States v. Shabani, 513 U.S. 10, 16 (1994) (questions

that “merely lurk in the record” have not been

resolved (quoting Webster v. Fall, 266 U.S. 507, 511

(1925))).

a. Section 2 of the Voting Rights

Act Is Ambiguous.

“As a matter of textual analysis, it is neither

plain nor clear that” VRA §2 e2pplies to felon

disenfranchisement laws. Pet. App. 23a. “[A]s it

exists today,” VRA § 2(a) “forbids any ‘standard,

practice, or procedure’ that ‘results in a denial or

abridgment of the right of any citizen of the United

States to vote on account of race or color.”

Northwest Austin Mun. Utility Dist. No. One v.

Holder, 129 S.Ct. 2504, 2509 (2009) (“NAMUDNO’”)

(quoting 42 U.S.C. § 1973(a)). In addition, VRA

§ 2(b) “make{s] clear that an application of the

results test requires an inquiry into ‘the totality of

the circumstances.” Chisom, 501 U.S. at 394

(construing 42 U.S.C. §1973(b)). Although the

requirements of the clear statement rule would be

“amply met” if the Voting Rights Act’s “language

unmistakeably include[d]” felon disenfranchisement

20

laws, see Pennsylvania Dept. of Corrections v. Yeskey,

524 U.S. 206, 209 (1998), that 1s not the case.

The only part of VRA § 2 that Petitioners claim to

be unambiguous is the phrase “voting qualification”

in § 2(a). Pet. 15-16. Petitioners contend that,

because Massachusetts law disqualifies incarcerated

felons from voting, those laws must be subject to

VRA § 2. Id. Only the first half of this contention is

correct. As Petitioners noted below, to characterize

the Massachusetts felon disenfranchisement laws “as

anything other than a ‘voting qualification’ is to

throw the concept of plain meaning out the window.”

Petitioners’ C.A. Principal and Response Brief 18.

This is why the court of appeals was right to affirm

dismissal of Petitioners’ claim under the Ex Post

Facto clause. See pages 31-35, below. But VRA

§ 2(a) only bars a voting qualification that “results in

a denial or abridgement of the right ... to vote on

account of race or color”. 42 U.S.C. § 1973(a).

Petitioners’ truncated analysis of the language of

VRA § 2 is flawed, and fails to address the ambiguity

in the phrase “on account of race or color.”

The language of VRA § 2(a) “is both broad and

ambiguous.” Pet. App. 23a. “Congress's decision to

retain the phrase ‘on account of race or color’ makes

it unclear as to whether Section 2 would apply to [a

State’s] felon disenfranchisement provision[s], which

. appl{y] to felons without regard to race or color.”

Johnson, 405 F.3d at 1229 n.80. As the Court has

observed in other contexts, “the phrase ‘on account

of does not unambiguously define itself,” and is

susceptible of different, plausible meanings.

O’Gilvie v. United States, 519 U.S. 79, 82 (1996)

(construing Internal Revenue Code); accord Bank of

21

Am. Natl Trust & Savings Assoc. v. 203 North

LaSalle St. Partnership, 526 U.S. 434, 449-54 (1999)

(construing Bankruptcy Code).

Furthermore, the “totality of the circumstances”

test in VRA § 2(b) “is exceptionally vague. [The

statutory language provides] almost no guidance as

to what illegally lessens the opportunity to vote.”

Goosby v. Town Bd. of Town of Hempstead, N.Y., 180

F.3d 476, 500 (2nd Cir. 1999) (Leval, J., concurring);

accord Smith v. Boyle, 144 F.3d 1060, 1063 (7th Cir.

1988) (§ 2(b) is a “notably vague standard”); see also

League of United Latin American Citizens v. Perry,

548 U.S. 399, 426 (2006) (“The general terms of the

statutory standard ‘totality of circumstances’ require

judicial interpretation.”). Since VRA § 2(a) cannot be

construed in isolation from § 2(b), see Chisom, 501

U.S. at 394, the scope of section 2 as a whole is not at

all clear from the statutory text.

b. Applying VRA § 2 Here Would

Shift the Constitutional

Balance.

Interpreting the VRA to apply in the

circumstances of this case, ve. to limit felon

disenfranchisement laws that were not adopted with

racially discriminatory intent, would alter the

existing constitutional balance of power between the

federal government and the States, and thus the

clear statement rule applies. See Hayden, 449 F.3d

at 326-328; Johnson, 405 F.3d at 1232 & n. 35.

There is no merit to Petitioners’ surprising assertion

that the clear statement rule does not apply in the

voting rights context because “[t]he very purpose of

the Fifteenth Amendment ... was to strip the [S]tates

22

of their power to regulate voting” and give that

power instead to Congress. Pet. 19 n.6.

“No function is more essential to the separate and

independent existence of the States and _ their

governments than the power to determine within the

limits of the Constitution the qualifications of their

own voters for state, county, and municipal offices

and the nature of their own machinery for filling

local public offices.” NAMUDNO, 129 S.Ct. at 2519

(Thomas, J., concurring in part and dissenting in

part) (quoting Oregon v. Mitchell, 400 U.S. 112, 125

(1970) (Black, J., announcing the judgment of the

Court)). “[T]he authority of the people of the States

to determine the qualifications of their most

important government officials. . . lies at ‘the heart

of representative government.” Gregory v. Ashcroft,

501 U.S. 452, 463 (1991) (quoting Bernal v. Fainter,

467 U.S. 216, 221 (1984)). “It is a power reserved to

the States under the Tenth Amendment and

guaranteed them by that provision of the

Constitution under which the United States

‘guarantee|s] to every State in this Union a

Republican Form of Government.’ ” Jd. (quoting U.S.

Const., Art. IV, § 4).

The Court has long upheld States’ authority to

prescribe reasonable voter qualifications that

included disenfranchisement for conviction of

particular crimes. See, e.g., Romer v. Evans, 517

U.S. 620, 634 (1996) (precedent that States may

disenfranchise convicted felons is “unexceptionable”);

Lassiter v. Northampton Elec. Bd., 360 U.S. 45, 51

(1959) (like residence and age, “criminal record” is an

“obvious” factor that “a State may take into

consideration in determining the qualifications of

23

voters’); Gray v. Sanders, 372 U.S. 368, 380 (1963)

(“[mJinors, felons, and other classes may be excluded”

from voting).

There is no merit to Petitioners’ assertion that

the Reconstruction Amendments already bar all

“racially discriminatory felon disenfranchisement

laws,” and that therefore applying VRA § 2 on the

facts of this case would not alter the constitutional

balance. Pet. 18 n.6. The notion that the Fourteenth

or Fifteenth Amendment would bar _ the

Massachusetts felon disenfranchisement laws even if

VRA § 2 did not is false. Since Petitioners make no

claim that the challenged Massachusetts laws were

adopted with racially discriminatory intent, but

allege merely that they result in a _ racially

disproportionate impact, those laws are

constitutionally permissible regulations of voting

qualifications.

“The power of the states to disqualify from voting

those convicted of crimes is explicitly set forth in § 2

of the Fourteenth Amendment.” Pet. App. 15a. The

States’ “exclusion of felons from the vote has an

affirmative sanction in § 2 of the Fourteenth

Amendment,” and thus as a general matter felon

disenfranchisement laws do not violate equal

protection. Richardson, 418 U.S. at 54-56. Indeed,

the Equal Protection Clause even allows States to

enforce a felon disenfranchisement law “that

produces disproportionate effects along racial lines,”

unless the law was adopted with “racially

discriminatory intent or purpose.” Hunter, 471 U.S.

at 227-28, 233. Similarly, “racially discriminatory

motivation is a necessary ingredient of a Fifteenth

Amendment violation.” Bolden, 446 U.S. at. 62.

24

Thus, applying the VRA to the circumstances of this

case would necessarily alter the constitutional

balance.

c. Congress Provided No Clear

Statement That the Voting

Rights Act Was Intended to

Restrict the Power of States to

Disenfranchise Felons.

Since the VRA contains no express mention of

felon disenfranchisement laws, and indeed the

legislative history reflects an intent that the VRA not

apply in these circumstances, “Congress

unquestionably did not manifest an ‘unmistakably

clear’ intent to include felon disenfranchisement laws

under the VRA.” Hayden, 449 F.3d at 328 (quoting

Gregory, 591 U.S. at 460).

The legislative history indicates that Congress

intended that: (1) the 1982 amendment to VRA § 2

be construed consistently with very similar language

appearing in the 1965 version of VRA § 4; and (2)

this language, as first appearing in the 1965 version

of VRA §4, does not encompass state laws that

disqualify felons from voting. See S. Rep. No. 97-417,

at 27-28, n.109 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 205-6 n.109 (discussing meaning

of the “results test” established by revised VRA § 2,

and noting that “[t]he same use of ‘on account of race

or color’ is made in a different context in Section

4(a)”); S. Rep. No. 89-162, at 24 (1965), reprinted in

1965 U.S.C.C.A.N. 2508, 2562 (stating that VRA § 4

“would not result in the proscription of the frequent

requirement of States and political subdivisions that

an applicant for voting or registration for voting be

25

free of conviction of a felony or mental disability”);

H. Rep. No. 89-439, at 25-26 (1965), reprinted in

1965 U.S.C.C.A.N. 2437, 2457 (similarly stating that

VRA §4 would not “proscribe a requirement of a

State or any political subdivision of a State that an

applicant for voting or registration for voting be free

of conviction of a felony or mental disability”).

“(Cjonsidering the prevalence of felon

disenfranchisement [provisions] in every region of

the country since the Founding, it seems

unfathomable that Congress would silently amend

the Voting Rights Act [in 1982] in a way that would

affect them.” Hayden, 449 F.3d at 317 (quoting

Johnson, 405 F.3d at 1234). The explicit

constitutional reservation of state power to

disenfranchise felons protects a “practice ... of

ancient origin” that has always been followed by the

vast majority of States. Hayden, 449 F.3d at 316-

317. For example, when the Fourteenth Amendment

was ratified in 1868, 29 of the 36 States “had

provisions in their constitutions [that] prohibited, or

authorized the legislature to prohibit, exercise of the

franchise by persons convicted of felonies or

infamous crimes.” Richardson, 418 U.S. at 48.

“Today, likewise, every state except Maine and

Vermont disenfranchises felons.” Hayden, 449 F.3d

at 317. “{I]t is unlikely that Congress would have

invalidated such laws—which have been widely-used

since the origins of the Republic—without any

discussion of the matter.” Jd. at 317 n.13.

In sum, because the result reached by the court of

appeals was required by the clear statement rule,

certiorari review of Petitioners’ VRA claim is not

warranted.

26

2. The Canon of Constitutional

Avoidance Applies Because

Congress Made No Findings of a

Pattern of Unconstitutional Felon

Disenfranchisement.

The court of appeals’ holding is also consistent

with the rule that an ambiguous statute should be

interpreted in a manner that’ will avoid

constitutional doubt. The text of VRA §2 is

ambiguous and can reasonably be construed not to

apply to state laws that disenfranchise individuals

on account of their being an incarcerated felon. Pet.

App. 23a; see also pages 19-21 above. Because

Congress never identified any history or pattern of

States unconstitutionally disenfranchising felons, it

would raise grave constitutional problems _ to

construe VRA §2 as applying to felon

disenfranchisement laws that were adopted with no

racially discriminatory intent. Hayden, 449 F.3d at

331, 334-36 (Walker, J., concurring); Johnson, 405

F.3d at 1231-32; Farrakhan, 359 F.3d at 1121-1125

(Kozinski, J., et al., dissenting from denial of en banc

review).

The First Circuit noted that by ruling as it did it

had “no need to reach the serious constitutional

questions which the Commonwealth argues would be

raised were we to adopt [Petitioners] construction of

the statute.” Pet. App. 4la. Where, as here, “a

statute is susceptible of two constructions, by one of

which grave and doubtful constitutional questions

arise and by the other of which such questions are

avoided, our duty is to adopt the latter.” Jones v.

United States, 529 U.S. 848, 857 (2000) (quoting

United States ex rel. Attorney General v. Delaware &

27

Hudson Co., 213 U.S. 366, 408 (1909)). This canon of

constitutional avoidance “is a tool for choosing

between competing plausible interpretations of a

statutory text, resting on the _ reasonable

presumption that Congress did not intend the

alternative which raises serious constitutional

doubts.” Clark v. Martinez, 543 U.S. 371, 381-82

(2005). This canon applies when construing the

Voting Rights Act. See Miller v. Johnson, 515 U.S.

900, 926-27 (1995).

The constitutional problem that would arise from

applying the VRA § 2 to felon disenfranchisement

laws is the lack of Congressional findings that such

laws have been used to disenfranchise voters on

account of race. “[P]rophylactic legislation designed

to enforce the Reconstruction Amendments must

‘identify conduct transgressing the ... substantive

provisions it seeks to enforce and be tailored ‘to

remedying or preventing such conduct.”

NAMUDNO, 129 S.Ct. at 2524-25 (quoting Florida

Prepaid Postsecondary Educ. Expense Bd. v. College

Sav. Bank, 527 U.S. 627, 639 (1999)). “Congress

must establish a ‘history and_ pattern’ of

constitutional violations to establish the need for”

provisions in the Voting Rights Act or any other

legislation “that pushes’ the limits” of its

constitutional authority” to enforce the Fourteenth or

Fifteenth Amendment. Jd. at 2525 (quoting Board of

Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368

(2001)).2 Thus, “as broad as the congressional

3 Congress may not be required to make such findings in

cases “where the targeted constitutional wrong is self-evident.”

Laro v. New Hampshire, 259 F.3d 1, 8 n.4 (ist Cir. 200)). But

this is not such a case. Petitioners do not allege that the

Massachusetts felon disenfranchisement laws were adopted

25

enforcement power is, it is not unlimited.” City of

Boerne v. Flores, 521 U.S. 507, 518 (1997) (quoting

Oregon v. Mitchell, 400 U.S. at128 (Black, J.,

announcing the judgment of the Court))

The Court struck down the portion of the 1970

amendment to the VRA that required States to lower

their minimum voting age to 18 years for state and

local elections, on the ground that this provision

exceeded conyressional Reconstruction Amendment

enforcement powers because “Congress made no

legislative findings that 21 year old requirement was

used by the States to disenfranchise voters on

account of race.” Mitchell, 400 U.S. at 130-32 (Black,

J.); accord id. at 212-13 (Harlan, J., concurring in

judgment); id. at 295-96 (Stewart, J., joined by

Burger, C.J., and Blackman, J., concurring in

judgment). “Securing the right to vote for 18-year-

olds required passage of the Twenty-Sixth

Amendment in 1971.” Farrakhan, 359 F.3d at 1122

(Kozinski, J.).

Given the holding in Mitchell, it would be highly

problematic at best to construe the current VRA § 2

as applying to state laws that disqualify voters

younger than the age of 18. One could imagine a

lawsuit in which a plaintiff alleged that a state law

disqualifying 17 year olds from voting has a

“disproportionately adverse effect on the voting

rights of African-Americans and Hispanic Americans

compared to its effect on the voting rights of other

citizens,” just as Petitioners claimed here regarding

with an intent to deny or abridge the right to vote on the basis

of race, “or of any history by Massachusetts of intentional

discrimination against minority voters.” Pet. App. 2a; see also

id. 9a, 17a, 26a.

29

the Massachusetts felon disenfranchisement laws.

Pet. App. 7a. But it would surely be inconsistent

with the holding in Mitchell to construc VRA § 2 as

encompassing such a claim. If Congress cannot

explicitly regulate minimum age requirements for

voting in State elections without first finding that

such rules have been used to disenfranchise voters

on account of race, as the Court held in Mitchell,

then Congress cannot do so implicitly through the

1982 amendment to VRA § 2. Nor would it do

violence to the plain language of the statute to

construe VRA § 2 as not applying to State laws that

disqualify persons younger than 18 years of age from

voting. Although such laws establish age as a

“voting qualification or prerequisite to voting,” they

do not do so “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.” 42 U.S.C

§ 1973.

The same is true here “As was the case in

Mitchell, when Congress enacted the VRA and its

subsequent amendments, there was a complete

absence of congressional findings that felon

disenfranchisement laws were used to discriminate

against minority voters.” Johnson, 405 F 3d at 1231

“Because the application of the VRA_ to felon

disenfranchisement statutes would not be a response

to specific, identified, unconstitutional wrongdoing, it

cannot be congruent and proportional,” and thus

would exceed Congress's powers under the

Fourteenth and Fifteenth Amendments Hayden,

449 F.3d at 335-36 (Walker, J., concurring)

Plaintiffs’ only nod to Oregon v. Mitchell is to

quote Justice Stewart's observation that Congress

30

was not required to find that “literacy tests unfairly

discriminate against Negroes in every State in the

Union” before barring literacy tests nationwide. Pet.

27 (quoting Mitchell, 400 U.S. at 284 (Stewart, J.,

concurring in part and dissenting in part)). But this

statement in no way supports’ Petitioners’ suggestion

that Congress could ban either literacy tests or felon

disenfranchisement laws without making “an

express Congressional finding of past. racial

discrimination.” Pet. 27. To the contrary, Justice

Stewart’s point was that the 1965 Congress had

made specific findings that literacy tests had been

used in multiple States to engage in a pattern of

unconstitutional denial of the right to vote based on

race, and that those findings “would have supported

a nationwide ban on literacy tests.” Mitchell, 400

U.S. at 284. Similarly, Justice Black explained that

the reason why Congress could ban literacy tests in

1970 was that it made “a finding ... that literacy

tests have been used to discriminate against voters

on account of their color,” based on evidence of “a

long history of the discriminatory use of literacy tests

to disfranchise voters on account of their race.” Id.,

400 U.S. at 117, 132 (Black, J., announcing the

judgment of the Court).

“There is, quite simply, no evidence in the record

before Congress of a history and pattern of invidious

felon disenfranchisement by the states.” Hayden,

449 F.3d at 331 (Walker, J., concurring). Thus, “no

basis exists to conclude that felon-

disenfranchisement statutes ...are part of the

history and pattern of unconstitutional

discrimination that the VRA was targeting.” Id.

at 334. In the absence of such findings, Congress

lacked the power under the Reconstruction

31

Amendments to revise the VRA to apply to felon

disenfranchisement laws that were not adopted with

discriminatory intent and that would thus pass

muster under the Fourteenth and the Fifteenth

Amendments.

In sum, because the result reached by the court of

appeals was also required by the need to construe

VRA §2 so as to avoid constitutional doubt,

certiorari review of Petitioners’ VRA claim is not

warranted.

Il. No Review of the Ex Post Facto Claim

Is Warranted.

Petitioners’ claim under the Ex Post Facto Clause

also does not merit certiorari review. The court of

appeals properly stated and applied the correct legal

standard in deciding this claim. Pet. App. 42a-48a.

Petitioners disagree with inferences drawn by the

First Circuit from the undisputed material facts, but

do not identify any unresolved and important federal

question that warrants certiorari review. Pet. 29-30.

The court of appeals correctly held that “[o]nly a

punitive measure can violate the Ex Post Facto

Clause,” Pet. App. 43a (citing Smith v. Doe, 538 U.S.

84, 92 (2003)), and that, where a legislative body

intended to enact a civil regulatory scheme, “courts

must further inquire whether “the statutory scheme

was so punitive either in purpose or effect as to

negate that intention,” Pct. App. 45a (quoting United

States v. Ward, 448 U.S. 242, 248-49 (1980)). The

court also correctly applied the well-established rule

that “‘only the clearest proof will suffice to override

legislative intent and transform what has been

denominated a civil remedy into a criminal penalty,”

32

id. (quoting Hudson v. United States, 522 U.S. 93,

100 (1997), quoting in turn Ward, 448 U.S. at 249);

accord Smith, 538 U.S. at 92. Finally, the court of

appeals correctly held that allegations of punitive

purpose or effect should be determined by applying

“the non-exclusive factors test” set forth in Kennedy

v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).

Pet. App. 46a (citing Smith, 538 U.S. at 97).

Petitioners argue that the middle step, regarding

application of the “clearest proof’ standard, broke

new ground and warrants certiorar. review. Pet. 11,

28-31. They mistakenly assert that: (i) the Court

has never determined whether “the ‘clearest proof

standard” for assessing punitive purpose or effect

applies “in the absence of a plain statement by the

legislature of civil regulatory intent... ,” Pet. 11;

(2)has only applied that standard where “a

legislative body has stated its intention to enact a

civil regulatory scheme,” Pet. 28; and (3) should

grant certiorari review to decide whether the same

standard applies where such legislative intent can be

inferred but was not “clearly-stated,” Pet. 30.

Petitioners misrepresent this Court’s holdings.

In fact, the Court has repeatedly held that the

“clearest proof’ standard for overriding legislative

intent that a measure be civil in nature applies

whether that intent is stated expressly or is implied

by the text, context, and structure of the enactment.

Smith, 538 U.S. at 93 (“The courts ‘must first ask

whether the legislature, in establishing the

penalizing mechanism, indicated either expressly or

impliedly a preference for one label or the other.”

(emphasis added, quoting Hudson, 522 U.S. at 99))

(describing standard for determining whether

33

enactment is civil or punitive for purposes of

applying Ex Post Facto Clause); accord United States

v. One Assortment of 89 Firearms, 465 U.S. 354, 362

(1984) (same when applying Double Jeopardy

Clause); Ward, 448 U.S. at 248 (same when applying

Fifth Amendment's guarantee against compulsory

self-incrimination). “Whether a statutory scheme is

civil or criminal ‘is first of all a question of statutory

construction.’ We consider the statute’s text and its

structure to determine the legislative objective.”

Smith, 538 U.S. at 92 (citations omitted) (quoting

Kansas v. Hendricks, 521 U.S. 346, 361 (1997)).

The Court has already determined that, in

addition to the statutory language, “[o]ther formal

attributes of a legislative enactment, such as the

manner of its codification or the enforcement

procedures it establishes, are probative of the

legislature’s intent” to pass a regulatory rather than

a punitive measure Smith, 538 US. at 94; accord

Hendricks, 521 U.S. at 361 (State’s “objective to

create a civil proceeding is evidenced by its

placement of the Act within the [State’s] probate

code, instead of the criminal code” (citations

omitted)).

Consistent with Smith and Hendricks, the court

of appeals held that the intent that the

Massachusetts felon disenfranchisement laws be

part of “a civil regulatory scheme” is demonstrated

by the undisputed facts that those laws are part of

“its civil constitutional and _ statutory voter

qualification provisions” and are “enforced civilly, not

criminally.” Pet. App. 44a-45a.

34

Although Petitioners disagree with the inferences

that the court of appeals drew from these undisputed

facts, that disagreement does not warrant review by

this Court. Petitioners note that the Acting

Governor stated at a press conference that “[p]rison

is supposed to mean punishment, not some

opportunity to form a political group,” when he

proposed a constitutional amendment _ to

disenfranchise aii persons incarcerated on account of

a criminal conviction, including misdemeanants as

well as felons. Pet. 6-7. That proposal “was never in

fact acted on by the legislature.” Pet. App. 42a; see

also id. 4a. Petitioners nonetheless argue that

statements by the Acting Governor are “a clear

manifestation of punitive intent” that “should have

marked the end of the First Circuit’s inquiry.” Pet.

30. The court of appeals disagreed, finding that the

information provided to voters regarding the

proposed constitutional amendment to

disenfranchise incarcerated felons “made no mention

of any goal of punishing prisoners.” Pet. App. 45a;

see also td. 4a, 48a. The court of appeals was not

required to find that “isolated statements” by the

Acting Governor, or by individual legislators,

demonstrated that the voters acted with punitive

intent. Cf. Selective Service System v. Minnesota

Public Interest Research Group, 468 U.S. 841, 855

n.15 (1984) (‘several isolated statements” by

legislators held insufficient to establish that

Congress had “punitive intent’).

Finally, Petitioners say that they “take issue

with” the court of appeals’ “analysis of the Mendoza-

Martinez factors,” Pet. 30 n.7, but do not suggest that

the First Circuit’s application of those factors to the

particular facts of this case warrants certiorari

35

review. The court of appeals’ application of those

factors was thoughtful and, as the First Circuit made

clear, consistent with this Court’s prior decisions.

See Pet. App. 46a-48a.

In sum, Petitioners have not identified any

unresolved question of federal law raised by their ex

post facto claim that would warrant certiorari

review. Petitioners may disagree with the dismissal

of their ex post facto claim, but that disagreement is

based on nothing more than an assertion that the

court of appeals misappled a well-settled rule of law.

It would not be appropriate to grant certiorari to

review the court of appeals’ application “of a properly

stated rule of law” to the facts of this particular case.

See Sup. Ct. R. 10; accord United States v. Johnston,

268 U.S. 220, 227 (1925) (“We do not grant certiorari

to review evidence and discuss specific facts.”).

Conclusion.

For the reasons stated, the petition for a writ of

certiorari should be denied.

March 25, 2010

36

Respectfully submitted,

MARTHA COAKLEY, Attorney General

for the Commonwealth of Massachusetts

ivenneth W. Salinger,

Assistant Attorney General

Counsel of Record

One Ashburton Place

Boston, MA 02108

ken.salinger@state.ma.us

617.963.2075

Counsel for the Respondent