Justia Federal District Court Opinions

David B. Salmons (Sheldon T. Bradshaw, Principal Deputy Assistant Attorney General, and Cynthia M. McKnight, David K. Flynn, and David White, Attorneys, of counsel, R. Alexander Acosta, Assistant Attorney General, on the brief), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for amicus curiae United States of America in support of Defendants-Appellees.

Peter T. Barbur, Cravath, Swaine & Moore, LLP, New York, NY, for amicus curiae Association of the Bar of the City of New York in support of Plaintiffs-Appellants.

Robert Bloom (Matthew Strugar, of counsel), Center for Constitutional Rights, New York, NY, for amici curiae Center for Constitutional Rights, National Alliance of Formerly Incarcerated Persons, Osborne Association, Coalition for Parole Restoration, Voice of the Ex-Offender, Eleventh Episcopal District Lay Organization, Ordinary People Society, Center for Law and Justice, and Malcolm X Center in support of Plaintiffs-Appellants.

Michael L. Foreman (Jon M. Greenbaum, Marcia F. Johnson-Blanco, Jonah H. Goldman, Lawyers' Committee for Civil Rights Under Law, Elliot M. Mincberg, Alma C. Henderson, People for the American Way Foundation, Angela Ciccolo, Interim General Counsel, Victor L. Goode, Assistant General Counsel, National Association for the Advancement of Colored People, Grasford W. Smith, Jr., National Black Law Student Association Northeast Region, of counsel), Lawyers' Committee for Civil Rights Under Law, Washington, DC, for amici curiae Lawyers' Committee for Civil Rights Under Law, People for the American Way Foundation, National Association for the Advancement of Colored People, and National Black Law Students Association Northeast Region, in support of Plaintiffs-Appellants.

Lawrence S. Lustberg, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., New York, NY, for amici curiae Zachary W. Carter, Veronica Coleman-Davis, Scott Lassar, Leonard Marks, Paul Schechtman, National Black Police Association, National Latino Officers Association of America, and 100 Blacks in Law Enforcement Who Care in support of Plaintiffs-Appellants.

Johanna Schmitt (Jonathan D. Hacker, Derek R.B. Douglas, Charles E. Borden, Scott M. Hammack, Danielle M. Estrada, of counsel), O'Melveny & Myers LLP, New York, NY, for amici curiae Center for Community Alternatives, National Association of Criminal Defense Lawyers, New York Association for Criminal Defense Lawyers, and the Sentencing Project in support of Plaintiffs-Appellants.

Steven R. Shapiro (Arthur N. Eisenberg, New York Civil Liberties Union Foundation, Laughlin McDonald, ACLU Voting Rights Project, of counsel), American Civil Liberties Union Foundation, New York, NY, for amici curiae American Civil Liberties Union and New York Civil Liberties Union in support of Plaintiffs-Appellants.

Derek S. Tarson, Debevoise & Plimpton LLP, New York, NY, for amici curiae certain criminologists in support of Plaintiffs-Appellants.

Brenda Wright (Lisa J. Danetz, of counsel), National Voting Rights Institute, Boston, MA, for amicus curiae National Voting Rights Institute and Prison Policy Initiative in support of Plaintiffs-Appellants.

George T. Conway III (Kenneth K. Lee, Wachtell, Lipton, Rosen & Katz, Kent S. Scheidegger, Criminal Justice Legal Foundation, Roger Clegg, Center for Equal Opportunity, of counsel), Wachtell, Lipton, Rosen & Katz, New York, NY, for amici curiae Diane Piagentini, Mary Piagentini, Deborah Piagentini, The Criminal Justice Legal Foundation, and the Center for Equal Opportunity in support of Defendants-Appellees.

Charles J. Cooper (Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, Litigation, R. Ted Cruz, Solicitor General, Matthew F. Stowe, Deputy Solicitor General, State of Texas, David H. Thompson, Cooper & Kirk, PLLC, of counsel), Cooper & Kirk, PLLC, Washington, DC, for amici curiae States of Texas, Alabama, Arkansas, Colorado, Delaware, Idaho, Michigan, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Utah, Virginia, and Washington in support of Defendants-Appellees.

Mitchell S. Garber (Gregory M. Longworth, of counsel), Worth, Longworth & London, LLP, New York, NY, for amicus curiae Patrolmen's Benevolent Association of the City of New York in support of Defendants-Appellees.

Before: WALKER, Chief Judge, JACOBS, CALABRESI, CABRANES, STRAUB, POOLER, SACK, SOTOMAYOR, KATZMANN, PARKER, RAGGI, WESLEY, and HALL, Circuit Judges.1

Chief Judge JOHN M. WALKER, JR., concurs in the judgment and in the opinion of the Court and files a separate concurring opinion, joined by Judge JACOBS.

Judge JACOBS concurs in the judgment and in the opinion of the Court and files a separate concurring opinion.

Judge STRAUB concurs in the judgment of the Court and in parts I, II, and IV of the opinion of the Court, and files a separate concurring opinion, joined by Judge SACK.

Judge SACK concurs in the judgment of the Court and in parts I, II, and IV of the opinion of the Court, and files a separate concurring opinion, part I of which is joined by Judge STRAUB.

Judge RAGGI concurs in the judgment and in the opinion of the Court and files a separate concurring opinion, joined by Judge JACOBS.

Judge PARKER dissents, in an opinion in which Judges CALABRESI, POOLER, and SOTOMAYOR concur.

Judge CALABRESI dissents in a separate opinion.

Judge SOTOMAYOR dissents in a separate opinion.

Judge KATZMANN dissents in a separate opinion.

JOSÉ A. CABRANES, Circuit Judge.

We have granted en banc review in order to decide whether plaintiffs can state a claim for violation of Section 2 of the Voting Rights Act ("VRA" or the "Act"), 42 U.S.C. § 1973, based on allegations that a New York State statute that disenfranchises currently incarcerated felons and parolees, N.Y. Election Law § 5-106, results in unlawful vote denial and vote dilution. Muntaqim v. Coombe, 396 F.3d 95 (2d Cir.2004). We consider two cases that were consolidated for the purpose of oral argument: Muntaqim v. Coombe, which was dismissed by the United States District Court for the Northern District of New York (Norman A. Mordue, Judge) on a motion for summary judgment, a decision which was then affirmed by a three-judge panel of this Court, Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.2004); and Hayden v. Pataki, which raises substantially identical claims, was dismissed on the pleadings by the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge), Hayden v. Pataki, No. 00 Civ. 8586(LMM), 2004 WL 1335921 (S.D.N.Y. June 14, 2004), and was consolidated with the Muntaqim en banc without having been considered by a three-judge panel.2 Simultaneously with the filing of this opinion, the en banc court has (1) entered an order deconsolidating the Muntaqim and Hayden cases, and (2) filed a separate opinion vacating the District Court's opinion in Muntaqim on the ground that the plaintiff in that case lacked standing to bring a claim.

We recognize that this case poses a complex and difficult question that, absent Congressional clarification, will only be definitively resolved by the Supreme Court. Indeed, this is the second time we have considered this question as an en banc court. See Baker v. Pataki, 85 F.3d 919 (2d Cir.1996) (affirming District Court judgment after evenly dividing on the merits); see also Muntaqim, 366 F.3d at 104 (recognizing that "this is a difficult question that can ultimately be resolved only by a determination of the United States Supreme Court"). Nevertheless, the question is now before us, and we hold that the Voting Rights Act does not encompass these felon disenfranchisement provisions, and, consequently, affirm the judgment of the District Court. Our holding is based on our conclusion that Congress did not intend or understand the Voting Rights Act to encompass such felon disenfranchisement statutes, that application of the Voting Rights Act to felon disenfranchisement statutes such as these would alter the constitutional balance between the States and the Federal Government, and that Congress at the very least did not clearly indicate that it intended the Voting Rights Act to alter the federal balance in this way.

Before turning to the substantive questions raised by this case, we summarize the path this case has taken since Muntaqim's complaint was first filed in 1994. We assume familiarity with the panel decision in Muntaqim and will limit our discussion of that opinion to facts necessary to explain our resolution of the present case. We also set forth here the background of the Hayden case, which no three-judge panel of this Court has yet addressed.

Muntaqim is a black inmate at the Shawangunk Correctional Facility in Wallkill, New York, and is currently serving a maximum sentence of life imprisonment after being convicted of two counts of murder in the first degree for killing two New York City police officers on May 21, 1971. On September 26, 1994, he filed a pro se complaint against several officials of the New York State Department of Correctional Services (collectively, "defendants") alleging, inter alia, that New York Election Law § 5-106 violates the Voting Rights Act because it "results in a denial or abridgement of the right . . . to vote on account of race." 42 U.S.C. § 1973(a). On January 24, 2001, upon defendants' motion for summary judgment, the District Court entered judgment in favor of defendants. An appeal followed.

A unanimous panel of this Court issued a decision on April 23, 2004, affirming the District Court's dismissal of the claim. Muntaqim, 366 F.3d at 104. The panel concluded that

in light of recent Supreme Court decisions that have clarified the scope of Congress's enforcement power under the Reconstruction Amendments, the application of the Voting Rights Act to felon disenfranchisement statutes such as that of New York would infringe upon the states' well-established discretion to deprive felons of the right to vote. Because the Supreme Court has instructed us that statutes should not be construed to alter the constitutional balance between the states and the federal government unless Congress makes its intent to do so unmistakably clear, we will not construe the Voting Rights Act to extend to New York's felon disenfranchisement statute.

Id. (footnote omitted).

On October 1, 2004, our Court voted to deny en banc review. Muntaqim v. Coombe, 385 F.3d 793, 793-94 (2d Cir. 2004). Following the Supreme Court's denial of certiorari, 543 U.S. 978, 125 S.Ct. 480, 160 L.Ed.2d 356 (2004), we revisited the case and agreed to rehear the case en banc, pursuant to Fed. R.App. P. 35(a). Muntaqim v. Coombe, 396 F.3d 95, 95 (2d Cir.2004). The en banc proceeding was convened to determine "whether, on the pleadings, a claim that a New York State statute, Section 5-106 of the New York Election Law, that disenfranchises currently imprisoned felons and parolees results in unlawful vote dilution, can state a claim for violation of Section 2 of the Voting Rights Act." Id.

The Hayden plaintiffs filed their initial complaint on November 9, 2000. The complaint names twenty-one plaintiffs, of whom six are currently incarcerated and four are currently on parole. Plaintiffs' amended complaint, filed March 18, 2003, challenges "New York State's unconstitutional and discriminatory practice of denying suffrage to persons who are incarcerated or on parole for a felony conviction and the resulting discriminatory impact that such denial of suffrage has on Blacks and Latinos in the State." Plaintiffs styled their complaint as a class action, with the class to include three subclasses: "(a) Black and Latino prisoners who are of lawful voting age, citizens of the United States, currently incarcerated in New York State as a result of a felony conviction, and otherwise qualified to vote but for their incarceration resulting from a felony conviction; (b) Black and Latino parolees who are of lawful voting age, citizens of the United States, currently on parole in New York State as a result of a felony conviction, and otherwise qualified to vote but for their parole resulting from a felony conviction; and (c) Black and Latino persons who are of lawful voting age, citizens of the United States, qualified to vote and denied an equal opportunity to participate in the political process in New York State because of the disproportionate disfranchisement under New York State Election Law § 5-106(2) of Black and Latino persons who are incarcerated or on parole for a felony conviction." Am. Compl. ¶ 29. Plaintiffs allege both vote denial and vote dilution claims under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Id. ¶¶ 87-93.

On June 14, 2004, the District Court issued a Memorandum and Order granting defendants' motion for judgment on the pleadings and dismissing all of plaintiffs' claims. Hayden v. Pataki, No. 00 Civ. 8586(LMM), 2004 WL 1335921, 2004 U.S. Dist. LEXIS 10863 (S.D.N.Y. June 14, 2004). As relevant for this appeal, the District Court summarily dismissed plaintiffs' Voting Rights Act claim in reliance on Muntaqim. The District Court's complete discussion of the issue was as follows:

Plaintiffs' claims under Section 2 of the Voting Rights Act of 1965, codified at 42 U.S.C. §, 1973, must be dismissed in light of the Second Circuit's recent holding in Muntaqim v. Coombe, 366 F.3d 102 (2d Cir.2004). There the Second Circuit held that "§ 1973 cannot be used to challenge the legality of § 5-106." Id. at 104.

Id. at *5, 2004 U.S. Dist. LEXIS 10863 at *16.3 Plaintiffs timely filed a notice of appeal.

After questions arose regarding Muntaqim's standing, we directed the filing of supplemental letter briefs on the question, and on February 24, 2005, we consolidated Hayden with Muntaqim for consideration en banc. Oral argument on the consolidated cases took place before the en banc court on June 22, 2005. In a separate opinion, we are dismissing Muntaqim for lack of standing.

Section 5-106 of the New York Election Law provides that no person convicted of a felony "shall have the right to register for or vote at any election" unless he has been pardoned, his maximum sentence of imprisonment has expired, or he has been discharged from parole.4 Accordingly, no resident of New York State who is presently incarcerated for a felony or is on parole may vote in local, state, or federal elections.5

Felon disenfranchisement has a long history in New York. The New York State Constitution of 1821 authorized the state legislature to enact laws disenfranchising those convicted of "infamous crimes." N.Y. Const. of 1821, art II, § 2. The state legislature passed such a law the next year. Act for Regulating Elections, ch. 250, § 25, 1822 N.Y. Laws 280. This law, as revised, has been in effect in the State ever since. It was modified in 1971 to provide that those convicted of felonies would automatically regain the right to vote once their maximum sentence had been served or they had been discharged from parole. Act of May 25, 1971, ch. 310, § 2, 1971 N.Y. Laws 952-53. In 1973, New York again amended the statute to ensure that felons were only disenfranchised if they were sentenced to a term of imprisonment and not if they were sentenced to fines, probation, or conditional discharge. Act of June 11, 1973, ch. 679, §§ 2-5, 1973 N.Y. Laws 2247-48.

Section 2 of the Voting Rights Act, codified at 42 U.S.C. § 1973(a) and originally enacted in 1965, currently provides:

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 . . . .

42 U.S.C. § 1973(a).6 Section 1973(b), originally enacted in 1982, states, in relevant part, that "[a] violation of subsection (a) . . . is established if, based on the totality of circumstances, it is shown that . . . members [of protected minority groups] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).

The current language of § 1973 was enacted by Congress as part of the Voting Rights Act Amendments of 1982, Pub.L. No. 97-205, § 3, 96 Stat. 131, 134, largely in response to the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). In Bolden, a plurality of the Court held that racially neutral state action violates § 1973 only if it is motivated by a discriminatory purpose. 446 U.S. at 62, 100 S.Ct. 1490. The amended version of § 1973 eliminates this "discriminatory purpose" requirement and, instead, prohibits any voting qualification or standard that "results" in the denial of the right to vote "on account of" race.

We do not write on a clean slate in addressing the question whether the Voting Rights Act encompasses felon disenfranchisement statutes. We ourselves considered this issue as an en banc court in 1996 but did not definitively resolve the issue at that time because we were evenly divided on the matter. Baker v. Pataki, 85 F.3d 919 (2d Cir.1996) (en banc). The Eleventh Circuit recently considered this question as an en banc court and, in an opinion by Judge Phyllis Kravitch, relying on the canon of statutory construction that counsels avoidance of potential constitutional infirmities, held that the provisions of the Voting Rights Act do not encompass felon disenfranchisement laws. Johnson v. Gov. of State of Florida, 405 F.3d 1214 (11th Cir.2005) (en banc). By contrast, a panel of the Ninth Circuit has determined that the Voting Rights Act does apply to felon disenfranchisement provisions. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003). Over a dissent written by Judge Alex Kozinski and joined by six other judges, the Ninth Circuit denied the defendant's petition for rehearing en banc. See Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir.2004).7 In light of the lengthy discussions of these cases (except the Johnson en banc) in the panel opinion, see Muntaqim, 366 F.3d at 107-15, we need not elaborate on them here, except as relevant for our analysis.

We thus confront the question whether the VRA applies to a claim that a prisoner disenfranchisement statute such as § 5-106, acting in combination with historic racial discrimination allegedly afflicting the New York criminal justice system as well as society at large, results in the denial to Black and Latino prisoners of the right to vote "on account of race or color."⁸ New York's statute, it is important to emphasize, disenfranchises only currently incarcerated prisoners and parolees. N.Y. Election Law § 5-106. In this respect, the statute may not raise the same issues that are implicated by provisions disenfranchising for life those convicted of felonies, such as the provision of the Florida Constitution addressed in the Eleventh Circuit's recent decision in Johnson or by the provision of the Washington Constitution addressed in Farrakhan.

The question whether a prisoner disenfranchisement statute such as New York's can be challenged under § 1973 depends primarily on our interpretation of the Voting Rights Act itself, as we must first determine whether the Act applies to such statutes at all. If the VRA does not encompass such statutes, that would end our inquiry; if, conversely, we conclude that it may apply to felon disenfranchisement laws, we would then need to evaluate such an interpretation of the VRA in light of its implications for our constitutional jurisprudence and the structure of our federal system.⁹

We thus consider the scope of § 1973. As we have noted, "[i]n interpreting a statute, we must first look to the language of the statute itself," and that "[i]f the statutory terms are unambiguous, our review generally ends and the statute is construed according to the plain meaning of its words." Greenery Rehab. Group v. Hammon, 150 F.3d 226, 231 (2d Cir.1998). The Supreme Court has made clear that "[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil, 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). There is no question that the language of § 1973 is extremely broad — any "voting qualification or prerequisite to voting or standard, practice, or procedure" that adversely affects the right to vote — and could be read to include felon disenfranchisement provisions if the phrase is read without the benefit of context and background assumptions supplied by other statutory and Constitutional wording, by history, and by the manifestations of intent by Congress at the time of the VRA's enactment and thereafter.

We are not convinced that the use of broad language in the statute necessarily means that the statute is unambiguous with regard to its application to felon disenfranchisement laws. In any event, our interpretation of a statute is not in all circumstances limited to any apparent "plain meaning." As Justice Holmes has observed, "[i]t is said that when the meaning of language is plain we are not to resort to evidence in order to raise doubts. That is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170 (1928). Here, there are persuasive reasons to believe that Congress did not intend to include felon disenfranchisement provisions within the coverage of the Voting Rights Act, and we must therefore look beyond the plain text of the statute in construing the reach of its provisions. See Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) ("The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect."). These reasons include (1) the explicit approval given such laws in the Fourteenth Amendment;¹⁰ (2) the long history and continuing prevalence of felon disenfranchisement provisions throughout the United States; (3) the statements in the House and Senate Judiciary Committee Reports and on the Senate floor explicitly excluding felon disenfranchisement laws from provisions of the statute; (4) the absence of any affirmative consideration of felon disenfranchisement laws during either the 1965 passage of the Act or its 1982 revision; (5) the introduction thereafter of bills specifically intended to include felon disenfranchisement provisions within the VRA's coverage; (6) the enactment of a felon disenfranchisement statute for the District of Columbia by Congress soon after the passage of the Voting Rights Act; and (7) the subsequent passage of statutes designed to facilitate the removal of convicted felons from the voting rolls. We therefore conclude that § 1973 was not intended to — and thus does not — encompass felon disenfranchisement provisions.

The starting point for our analysis is the explicit approval given felon disenfranchisement provisions in the Constitution. Section 2 of the Fourteenth Amendment provides that "when the right to vote at any [federal] election . . . is denied to any of the male inhabitants of [a] State . . . or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced . . . ." U.S. Const. amend. XIV, § 2 (emphasis added). The Supreme Court has ruled that, as a result of this language, felon disenfranchisement provisions are presumptively constitutional. Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (rejecting a nonracial Equal Protection challenge to the felon disenfranchisement provision of California's constitution).¹¹

Indeed, the practice of disenfranchising those convicted of crimes is of ancient origin. Professor Mirjan R. Damaska of the Yale Law School, among others, has recounted that in ancient Athens, the penalty for certain crimes was placement in a state of "infamy," which entailed the loss of those rights that enabled a citizen to participate in public affairs, such as the rights to vote, to attend assemblies, to make speeches, and to hold public office. Mirjan R. Damaska, Adverse Legal Consequences of Conviction and their Removal: A Comparative Study, 59 J.Crim. L., Criminology & Police Sci. 347, 351 (1968). The Roman Republic also employed infamy as a penalty for those convicted of crimes involving moral turpitude. Id.

The infamy practice in the ancient world over the years evolved into "civil death" laws in Medieval continental countries and into the "attainder" laws of Medieval England, which caused all family and political rights to be forfeited as additional punishment for crimes carrying sentences of death or life imprisonment. Id. The loss of any generally available voting rights was not a prominent focus of these attainder laws, for, as Judge Friendly wryly noted, "with nearly all felonies punishable by death in 18th century England, the voting rights of convicted felons had not been a very live issue there." Green v. Bd. of Elections, 380 F.2d 445, 450 (2d Cir.1967) (citation omitted). In Nineteenth Century Continental Europe, it was not uncommon for penal statutes to prescribe "the deprivation of the right to vote, to elect and to be elected . . . ." Damaska, 59 J.Crim. L., Criminology & Police Sci., at 352-53 (citing statutes from Belgium, Italy, Luxembourg, Monaco, Spain, Egypt, and Chile).

Similar laws disenfranchising felons were adopted in the American Colonies and the Early American Republic as well. In his opinion in Green v. Board of Elections, a 1967 nonracial challenge to New York's felon disenfranchisement provision (as it was at the time), Judge Friendly noted that "eleven state constitutions adopted between 1776 and 1821 prohibited or authorized the legislature to prohibit exercise of the franchise by convicted felons," Green, 380 F.2d at 450 (footnote omitted), and that "twenty-nine states had such provisions when the Fourteenth Amendment was adopted" in 1868. Id.¹² Today, likewise, every state except Maine and Vermont disenfranchises felons. See Developments in the Law: One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L.Rev.1939, 1942 (2002). As the Eleventh Circuit noted, quoting the panel opinion in Muntaqim, "`considering 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 a way that would affect them.'" Johnson, 405 F.3d at 1234 (quoting Muntaqim, 366 F.3d at 123-24). We now proceed to determine whether Congress in fact intended to do so.¹³

E. Congressional Intent in the Voting Rights Act

The Voting Rights Act, enacted in 1965, "was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). "The Act creates stringent new remedies for voting discrimination where it persists on a pervasive scale, and in addition the statute strengthens existing remedies for pockets of voting discrimination elsewhere in the country." Id. By its terms, the 1965 Act, prior to its subsequent amendment in 1982, prohibited States (or their political subdivisions) from imposing or applying any "voting qualification or prerequisite to voting, or standard, practice, or procedure . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color." Id. at 338, 86 S.Ct. 803. It is indisputable that the Congress intended "to give the Act the broadest possible scope." Allen v. State Bd. of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).

We do not believe that this general intent answers the specific question regarding whether the Act covers felon disenfranchisement laws, as it is equally indisputable that Congress did not explicitly consider felon disenfranchisement laws to be covered by the Act and indeed affirmatively stated that such laws were not implicated by provisions of the statute. In discussing Section 4(c) of the Voting Rights Act, 42 U.S.C. § 1973b(c) — which banned any "test or device" that limited the ability to vote to those individuals with "good moral character" — the Senate Judiciary Committee Report stated that the provision "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 free of conviction of a felony or mental disability." S.Rep. No. 89-162, at 24 (1965), reprinted in 1965 U.S.C.C.A.N. 2508, 2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, Tydings, Dirksen, Hruska, Fong, Scott, and Javits); see also H.R.Rep. No. 89-439, at 25-26 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2457 ("This subsection does 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.").¹⁴ Senator Joseph D. Tydings of Maryland "emphasize[d]" on the Senate floor that Section 4(c) was not intended to prohibit "a requirement that an applicant for voting or registration for voting be free of conviction of a felony or mental disability. Those grounds for disqualification are objective, easily applied, and do not lend themselves to fraudulent manipulation." 111 Cong. Rec. S8366 (daily ed. April 23, 1965) (statement of Sen. Tydings).¹⁵

Though these statements were made in the context of a particular VRA provision not at issue here — the provision banning any "test or device" — it is apparent to us that Congress's effort to highlight the exclusion of felon disenfranchisement laws from a VRA provision that otherwise would likely be read to invalidate such laws is indicative of its broader intention to exclude such laws from the reach of the statute. Indeed, the emphatic language chosen to provide assurance that felon disenfranchisement laws remain unaffected by the statute suggests that these statements be read to indicate that "not even this section applies to felon disenfranchisement laws," rather than "this section does not apply to felon disenfranchisement laws, but other sections might," as plaintiffs argue.

Further indications that Congress in 1965 did not intend or understand the Voting Rights Act (or its subsequent amendments) to apply to felon disenfranchisement provisions come from the unsuccessful attempts in the early 1970s to amend the statute to apply to such provisions. Following hearings by the House Judiciary Committee in 1972 to address "The Problems of the Ex-Offender," see Hearings on Corrections, Part VI, Illinois: The Problems of the Ex-Offender, Before Subcomm. No. 3 of the House Comm. on the Judiciary, 92d Cong. (1972), several notable proponents of the VRA, Representatives Robert W. Kastenmeier of Wisconsin, John Conyers, Jr. of Michigan, William Fitts Ryan of New York, Abner J. Mikva of Illinois, and Hamilton Fish, Jr. of New York, jointly introduced a bill designed "[t]o amend the Voting Rights Act of 1970 to prohibit the States from denying the right to vote in Federal elections to former criminal offenders who have not been convicted of any offense related to voting or elections and who are not confined in a correctional institution." H.R. 15049, 92d Cong. (1972). The bill was thus expressly intended to amend the Voting Rights Act to encompass the very laws that plaintiffs in the instant case insist were already covered by the 1965 Act. Apparently, no further action was taken on this bill.

In the next Congress, in 1973, Representative Kastenmeier, a supporter of the Voting Rights Act of 1965 and a "principal architect" of the re-authorization of the Voting Rights Act in 1968 as well as the enactment of the Civil Rights Act of 1964, see 102 Cong. Rec. S18797 (daily ed. Nov. 27, 1991) (statement of Sen. Kohl), introduced a new bill with the identical text. H.R. 9020, 93d Cong. (1973). A hearing on the proposed bill was held before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice (of which Representative Kastenmeier was Chairman) on January 30, 1974 and, as the published transcript indicates, was entirely predicated on the understanding that the Voting Rights Act did not cover felon disenfranchisement laws. Accordingly, the hearing focused on whether such an amendment to the VRA would be constitutional and whether it was sound policy. See Ex-Offenders Voting Rights: Hearing on H.R. 9020 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 93d Cong. 1-38 (1974).¹⁶ None of the Representatives who spoke at the hearing so much as intimated that the proposed bill was made unnecessary by the fact that the statute already encompassed felon disenfranchisement laws.

The proposed bills of 1972 and 1973 thus reveal that the law was not understood by those most familiar with it to encompass felon disenfranchisement provisions. Furthermore, because these proposed bills only sought to add Voting Rights Act coverage to those who were no longer "confined in a correctional institution," it is yet more implausible that the Voting Rights Act was understood to apply to prisoner disenfranchisement statutes. We are mindful, "`[o]f course, [that] the view of a later Congress does not establish definitively the meaning of an earlier enactment, but it does have persuasive value.'" Gozlon-Peretz v. United States, 498 U.S. 395, 406, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991) (quoting Bell v. New Jersey, 461 U.S. 773, 784, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983)). Here, the persuasive value of the subsequent legislative efforts is further enhanced by the temporal proximity of the later Congresses that understood the Voting Rights Act not to apply to felon disenfranchisement provisions and by the related fact that a number of the Representatives involved in the hearings were the very same legislators who had participated in the enactment of the original VRA just a few years earlier.

In this regard, it is also telling that during this same period, Congress affirmatively enacted a felon disenfranchisement statute in the District of Columbia, over which it had plenary power before the conferral of "home rule" in 1974. See Pub.L. No. 92-220, § 4, 85 Stat. 788, 788 (1971).¹⁷ It is highly implausible that shortly after passing a statute (the VRA) purportedly intended to limit such laws, Congress would have enacted for its local jurisdiction a new statute doing exactly what it had supposedly forbidden on a national level.

The 1982 amendment of the Voting Rights Act also gives no indication that the law is to apply to felon disenfranchisement provisions. As noted, this amendment was enacted for the specific purpose of overruling the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). See S.Rep. No. 97-417, at 15-16 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 192-94; see also William N. Eskridge, Jr. et al., Cases and Materials on Legislation 149 (3d ed. 2001) ("The Bolden result in the Supreme Court triggered a firestorm of protest from civil rights advocates and Members of Congress. Hearings in 1981 were replete with testimony that the Court's decision was a departure from earlier Fifteenth Amendment precedents, as Justice Marshall had argued in dissent. A bipartisan coalition voted to amend the Voting Rights Act in 1982 to overrule, in effect, the Bolden decision."). Bolden had concluded that "racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation," Bolden, 446 U.S. at 62, 100 S.Ct. 1490, and held that "the language of § 2 [of the VRA] no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself." Id. at 60-61, 100 S.Ct. 1490. Congress's amendment of the VRA was thus intended to make clear that § 2 covered both vote denial and vote dilution and to reinstate the "results test," which had been the rule developed in the pre-Bolden case law. See, e.g., White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); S.Rep. No. 97-417, at 27 (1982), reprinted in 1982 U.S.C.C.A.N. at 205 ("The `results' standard is meant to restore the pre-Mobile legal standard which governed cases challenging election systems or practices as an illegal dilution of the minority vote. Specifically, subsection (b) embodies the test laid down by the Supreme Court in White.").

In light of this history, it is apparent that Congress's intention in amending § 1973 was to target those electoral laws, practices, and procedures that resulted in diluting the strength of the votes of members of racial and ethnic minorities but did not on their face deny any individuals the vote. See S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-202 (citing Supreme Court cases that addressed apportionment and reapportionment plans). The addition of § 1973(b) further demonstrates that Congress's particular focus was these vote-diluting practices. Section 1973(b) provides that a violation of the VRA can be established if "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation" by members of a protected class of citizens such 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." 42 U.S.C. § 1973(b). There is no question that incarcerated persons cannot "fully participate in the political process" — they cannot petition, protest, campaign, travel, freely associate, or raise funds. It follows that Congress did not have this subpopulation in mind when the VRA section at issue took its present form in 1982.¹⁸

We acknowledge that subsection (b) differs from subsection (a). See Chisom v. Roemer, 501 U.S. 380, 395, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) ("The two purposes of the amendment [to Section 2] are apparent from its text. Section (a) adopts a results test, thus providing that proof of discriminatory intent is no longer necessary to establish any violation of the section. Section (b) provides guidance about how the results test is to be applied."). Nevertheless, the fact that the provision specifying how a claim is to be proved could not possibly apply to prisoners gives rise to greater doubt that Congress intended prisoners to be able to raise such a claim in the first place. We thus conclude that the amendment of subsection (a) to prohibit any "voting qualification or prerequisite to voting or standard, practice, or procedure that results in vote denial or vote dilution on account of race or color" was not contemplated or meant to include longstanding state felon disenfranchisement statutes, the existence and general validity of which were recognized both by the Fourteenth Amendment and in the legislative history of another section of the Voting Rights Act itself.¹⁹

Subsequent Congressional actions provide additional evidence that Congress has not understood the Voting Rights Act to cover felon disenfranchisement laws. For example, the National Voter Registration Act, enacted in 1993, explicitly provides for "criminal conviction" as a basis upon which voters' names may be removed from lists of eligible voters. See Pub.L. No. 103-31, 107 Stat. 77 (codified at 42 U.S.C. § 1973gg-6(a)(3)(B)). The Help America Vote Act of 2002 directs States to remove disenfranchised felons from their lists of those eligible to vote in federal elections. See Pub.L. No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C. § 15483(a)(2)(A)(ii)(I)). Finally, a number of bills have been proposed in the past several years that would limit States' ability to disenfranchise felons. See Civic Participation and Rehabilitation Act, H.R. 259, 108th Cong. 2(a)-(c) (2003); Ex-Offenders Voting Rights Act of 2003, H.R. 1433, 108th Cong. (2003); Ex-Offenders Voting Rights Act of 2005, H.R. 663, 109th Cong. (2005); Count Every Vote Act of 2005, S. 450, 109th Cong. (2005). These bills further indicate that Congress itself continues to assume that the Voting Rights Act does not apply to felon disenfranchisement provisions.

In light of this wealth of persuasive evidence that Congress has never intended to extend the coverage of the Voting Rights Act to felon disenfranchisement provisions, we deem this one of the "`rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'" United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (alteration in original)); cf. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (Scalia, J., concurring in the judgment) ("I think it entirely appropriate to consult all public materials, including . . . the legislative history . . ., to verify that what seems to us an unthinkable disposition . . . was indeed unthought of, and thus to justify a departure from the ordinary meaning of the [statute's text]."). In such cases, the Court has made clear, "the intention of the drafters, rather than the strict language, controls." Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026. As Judge Kozinski noted in his dissent from denial of rehearing en banc in the Ninth Circuit case, "[i]t's thus crystal clear that felon disenfranchisement wasn't one of the practices about which Congress was concerned. We are bound to respect that legislative judgment — not override it." Farrakhan, 359 F.3d at 1121. We accordingly construe the statute to not encompass felon disenfranchisement laws.²⁰

Our decision not to apply § 1973 to felon disenfranchisement provisions is confirmed and supported by the operation of the clear statement rule (also known as the "plain statement rule"), a canon of interpretation which requires Congress to make its intent "`unmistakably clear'" when enacting statutes that would alter the usual constitutional balance between the Federal Government and the States. Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)) (internal quotation marks omitted). Accordingly, to the extent that the Voting Rights Act would affect this balance if applied to felon disenfranchisement statutes, we must construe the statute not to encompass such provisions if it is even unclear whether Congress intended the Voting Rights Act to apply to such laws.

The clear statement rule provides that, "[i]f 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.'" Gregory, 501 U.S. at 460-61, 111 S.Ct. 2395 (quoting Atascadero, 473 U.S. at 242, 105 S.Ct. 3142) (internal quotation marks omitted). According to the Supreme Court, "[i]n traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision." Id. at 461, 111 S.Ct. 2395 (citations and internal quotation marks omitted) (emphasis added). Thus, we have stated that federal courts will construe a statute to alter the federal balance only when Congress expresses an "affirmative intention" to do so. DeMarco v. Holy Cross High Sch., 4 F.3d 166, 169 (2d Cir. 1993).

For the clear statement rule to apply here in defendants' favor, we would therefore need to conclude (1) that applying § 1973 to prisoner disenfranchisement laws would alter the constitutional balance between the States and the Federal Government and (2) that Congress has not made its intention to alter that balance unmistakably clear.

B. Threshold Question: Does the Clear Statement Rule Apply?

The threshold question to be confronted is whether the clear statement rule applies here at all. Plaintiffs forcefully argue that the clear statement rule only guides our statutory construction when the statutory language is ambiguous, relying on Gregory and post-Gregory decisions by the Supreme Court, and insist that the broad language of the Voting Rights Act is not ambiguous. We are not persuaded by plaintiffs' arguments.

The Gregory Court stated, in describing the operation of the clear statement rule, that "we must be absolutely certain that Congress intended such an exercise [of legislative power]," Gregory, 501 U.S. at 464, 111 S.Ct. 2395, and that "it must be plain to anyone reading the Act that it covers" the issue in question. Id. at 467, 111 S.Ct. 2395. Subsequent to Gregory, the Supreme Court, in BFP v. Resolution Trust Corp., formulated the analysis as follows: "[t]o displace traditional state regulation . . ., the federal statutory purpose must be `clear and manifest.'" 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)).

A few years later, the Supreme Court concluded that the clear statement rule did not apply in two cases. In 1997, in Salinas v. United States, the Court described Gregory as noting that "the principle it articulated did not apply when a statute was unambiguous." 522 U.S. 52, 60, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). The Court stated that "[t]he plain-statement requirement articulated in Gregory . . . does not warrant a departure from the statute's terms. The text of [the statute] is unambiguous on the point under consideration here . . . ." Id. The next term, the Court decided Pennsylvania Department of Corrections v. Yeskey, in which it assumed arguendo that the clear statement rule applied and held that "the requirement of the rule is amply met" because the statute was unambiguous. 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).²¹

These statements indicate that the clear statement rule does not require courts engaged in statutory interpretation to search for a construction of the statute that will not affect the federal balance, but rather, reveal the canon to be a default rule: when a particular construction of a statute would alter the federal balance, to the extent there is any doubt about whether Congress intended that construction, courts should assume that Congress did not mean to alter the federal balance. When the terms of a statute admit of no uncertainty, the statute, of course, serves as its own clear statement. In other words, a clear statement is only necessary when the statute does not itself constitute a clear statement on the relevant issue. Therefore, we will apply the clear statement rule when a statute admits of an interpretation that would alter the federal balance but there is reason to believe, either from the text of the statute, the context of its enactment, or its legislative history, that Congress may not have intended such an alteration of the federal balance.

The Court recently addressed the clear statement rule in a different context, but in terms that shed light on its operation here. Spector v. Norwegian Cruise Line, Ltd., 545 U.S. 119, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005). Discussing the "internal affairs" clear statement rule, which concerns "the presumption against applying general statutes to foreign vessels' internal affairs," id. at 2178, the plurality opinion noted that "[i]mplied limitation rules avoid applications of otherwise unambiguous statutes that would intrude on sensitive domains in a way that Congress is unlikely to have intended had it considered the matter," id. at 2182 (plurality opinion of Kennedy, J.)²² (emphasis added), and that "[t]hese clear statement rules ensure Congress does not, by broad or general language, legislate on a sensitive topic inadvertently or without due deliberation." Id. (emphasis added).

Though the Spector opinion nowhere cites the Gregory case, we note the striking similarity of the language used to describe the clear statement rule in these two areas, with both identifying the "sensitivity" of the area as the triggering condition for the clear statement rule. See Gregory, 501 U.S. at 461, 111 S.Ct. 2395 ("In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.") (citations and internal quotation marks omitted) (emphasis added). We thus read Spector as providing persuasive authority on the operation of the clear statement rule in the present context as well and as demonstrating that "broad or general language" — as the language of § 1973 might be described — does not necessarily constitute an unambiguous statement.

For the reasons discussed above, we believe Congress's intent regarding the coverage of felon disenfranchisement provisions by the Voting Rights Act is, at the very least, uncertain, despite the "broad and general language" used in that statute. Given the "sensitive topic" at issue, we would expect Congress to have specified that felon disenfranchisement provisions are covered by the Voting Rights Act if that were its intent. Inasmuch as Congress did not do so — and the evidence of Congressional intent suggests that Congress did not in fact intend to cover such provisions — we believe that the statute is sufficiently ambiguous for the clear statement rule to be applied here.

In applying the clear statement rule, we must first decide whether bringing felon disenfranchisement laws within the scope of the Voting Rights Act — as plaintiffs ask us to do — would "alter the usual constitutional balance between the States and the Federal Government." Gregory, 501 U.S. at 460, 111 S.Ct. 2395 (internal quotation marks omitted). As a preliminary matter, plaintiffs argue that the application of the Voting Rights Act to felon disenfranchisement provisions could not affect the "federal balance" because that balance was already changed by the passage of the Fourteenth and Fifteenth Amendments, and the sole task of the Voting Rights Act is to effectuate those constitutional provisions. Consequently, plaintiffs assert that bringing their claim within the scope of the VRA would not alter the federal balance.

We do not find this argument persuasive, for, while it undoubtedly rings true for the Voting Rights Act in general, Section 2 of the Fourteenth Amendment explicitly leaves the federal balance intact with regard to felon disenfranchisement laws specifically. See U.S. Const. amend. XIV, § 2 ("[W]hen the right to vote at any [federal] election . . . is denied to any of the male inhabitants of [a] state . . . or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced. . . .") (emphasis added). Therefore, extending the coverage of the Voting Rights Act to these provisions would introduce a change in the federal balance not contemplated by the framers of the Fourteenth Amendment.

We have little difficulty concluding that application of the Voting Rights Act to prisoner disenfranchisement provisions like that of New York would effect a change in the federal balance. These laws, applying as they do only to currently incarcerated felons and parolees, implicate no less than three important state interests: (1) the regulation of the franchise; (2) the State's authority to craft its criminal law; and (3) the regulation of correctional institutions. We address each of these interests in turn.

There is no question that regulation of the franchise is an important state interest and that interfering with a State's power to govern this area would disrupt the federal balance. "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." Oregon v. Mitchell, 400 U.S. 112, 125, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (opinion of Black, J.). In deciding that the Voting Rights Act did not apply to felon disenfranchisement provisions like that of Florida, the Eleventh Circuit drew an analogy to Gregory v. Ashcroft, which had addressed whether state judges could be subject to the provisions of the Americans with Disabilities Act and had concluded that "the authority of the people of the States to determine the qualifications of their most important government officials . . . lies at the heart of representative government." 501 U.S. at 463, 111 S.Ct. 2395. Judge Kravitch, writing for the Eleventh Circuit en banc, noted that "[i]f defining the qualifications of important government officials lies at the heart of representative government, then surely defining who decides what those qualifications will be is equally important." Johnson, 405 F.3d at 1232 n. 35. Indeed, as Judge Mahoney stated the last time we considered this question, "[t]he states have the primary responsibility for regulating the times, places, and manner of conducting federal elections, and even more obviously for regulating elections to state office." Baker, 85 F.3d at 931 (opinion of Mahoney, J.) (citation omitted). We agree with each of these formulations.

Second, the State of New York has made clear that its statute, § 5-106, constitutes an integral part of its criminal and penal systems. The New York statute, which formerly disenfranchised felons for life, was amended in 1971 to reach only currently incarcerated felons and parolees. See N.Y. Election Law § 5-106. The Bill Memorandum accompanying the amendment focused on the penal goals of the measure and justified the amendment by specifying that a primary concern of the penal system was "the rehabilitation of the offender" and that "[i]t is inconsistent with the general philosophy of corrections to continue punishment after a person has accounted." Bill Memorandum (Feb. 5, 1971), reprinted in Bill Jacket for ch. 310 (1971), at 3. The Model Penal Code likewise considers prisoner disenfranchisement provisions an integral part of the criminal law. See Model Penal Code § 306.3 (proposed official draft 1962). It is undisputed that "[u]nder our federal system, the States possess primary authority for defining and enforcing the criminal law." United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (internal quotation marks omitted). The Supreme Court has acknowledged and restated on numerous occasions "the States' sovereign power to punish offenders." Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also, e.g., Calderon v. Thompson, 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (same); McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (same). Accordingly, applying the Voting Rights Act to prisoner disenfranchisement provisions would intrude on New York's "sovereign power to punish offenders" and would thus alter the federal balance.

Third, as a related yet distinct matter, the State has a powerful interest in the administration of its prisons. Indeed, "[o]ne of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task." Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)). The Supreme Court has gone so far as to say that "`[i]t is difficult to imagine an activity in which a State has a stronger interest.'" Yeskey, 524 U.S. at 209, 118 S.Ct. 1952 (quoting Preiser v. Rodriguez, 411 U.S. 475, 491, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Inasmuch as New York's prisoner disenfranchisement provision is limited to those confined in penal institutions and on parole, applying the Voting Rights Act to the provision would surely affect the State's powers in this area as well.

In light of these three separate compelling state interests, we have little difficulty concluding that construing the VRA to encompass prisoner disenfranchisement provisions like that of New York would unquestionably alter the federal balance.²³ Accordingly, we proceed to the second prong of the clear statement test, which requires us to determine whether Congress has clearly signaled its intent to alter the federal balance by subjecting state prisoner disenfranchisement laws to the provisions of the Voting Rights Act.

D. Has Congress Made A Clear Statement?

As discussed at greater length above, our review of the legislative history of both the 1965 enactment and 1982 revision of the Voting Rights Act as well as our examination of other proposed legislation on this issue demonstrate Congress's lack of intent to include felon disenfranchisement provisions in the coverage of the Voting Rights Act, and compel us to conclude that Congress unquestionably did not manifest an "unmistakably clear" intent to include felon disenfranchisement laws under the VRA. As a result, we hold that the requirements of the clear statement rule are not met, and we will accordingly not construe the Voting Rights Act to reach these laws.

* * *

We therefore hold that the Voting Rights Act must be construed to not encompass prisoner disenfranchisement provisions like that of New York because (a) Congress did not intend the Voting Rights Act to cover such provisions; and (b) Congress made no clear statement of an intent to modify the federal balance by applying the Voting Rights Act to these provisions. Accordingly, we conclude that plaintiffs' vote denial claim, which seeks to challenge New York's prisoner disenfranchisement statute under the Voting Rights Act, must be dismissed and the judgment of the District Court must be affirmed.²⁴

Vote Dilution Claim

As noted above, plaintiffs have also raised a vote dilution claim based on "the disproportionate disfranchisement under New York State Election Law § 5-106(2) of Black and Latino persons who are incarcerated or on parole for a felony conviction." In light of our conclusion that the Voting Rights Act does not encompass felon disenfranchisement provisions and that plaintiffs thus cannot state a vote denial claim under the statute, it is clear that plaintiffs also cannot state a claim for vote dilution based on the assertion that the denial of the vote to incarcerated felons and parolees dilutes the voting strength of minority communities. Accordingly, this claim is likewise dismissed, and the judgment of the District Court is affirmed.

It is unclear whether plaintiffs' vote dilution claim also encompasses a claim on behalf of plaintiffs who are neither incarcerated nor on parole, that their votes are "diluted" because of New York's apportionment process, see N.Y. Const. art. III, § 4, which counts incarcerated prisoners as residents of the communities in which they are incarcerated, and has the alleged effect of increasing upstate New York regions' populations at the expense of New York City's.²⁵ Plaintiffs' complaint does not raise this claim explicitly, though it is briefly alluded to in their submissions before this Court. See Plaintiffs' Compl. ¶ 93 ("§ 5-106(2) of New York Election Law serves to dilute the voting strength of Blacks and Latinos and certain minority communities in New York State . . . in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973."); Pet'rs' Br., at 37-38 ("New York State's policy and practice of using Census Bureau data for Congressional, state legislative, and certain municipal redistricting whereby prisoners' residence is assigned to their prison rather than to the prisoners' home address distorts the principle of `one person, one vote' and dilutes the voting strength of prisoners' home communities . . . ."). Inasmuch as this question was neither considered by the District Court nor briefed by defendants, we intimate no view on the question and remand to the District Court to consider whether plaintiffs have indeed properly raised the claim, and, if so, to rule on the merits of the claim.

Conclusion

For the reasons stated above, we conclude that the Voting Rights Act must be construed to not encompass prisoner disenfranchisement provisions such as that of New York because (a) Congress did not intend the Voting Rights Act to cover such provisions; and (b) Congress made no clear statement of an intent to modify the federal balance by applying the Voting Rights Act to these provisions. Accordingly, we dismiss plaintiffs' Voting Rights Act claims challenging New York Election Law § 5-106.

The judgment of the District Court is AFFIRMED and the cause is remanded to the District Court for further proceedings consistent with this opinion.

JOHN M. WALKER, JR., Chief Judge, concurring, with whom Judge Jacobs joins.

As the majority fully explains, Congress never intended the Voting Rights Act ("VRA") to reach felon-disenfranchisement statutes. And even if, as the dissent argues, the plain language of the statute by its terms covers New York Election Law Section 5-106 ("Section 5-106"), this case presents the "rare and exceptional circumstance" where the plain meaning of a statute does not dictate the congressional intent nor the proper outcome. Ardestani v. INS, 502 U.S. 129, 135-36, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981)); see also United States v. Ron Pair Enters., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (noting that, when the legislative intent and the plain meaning of a statute contradict, "the intention of the drafter, rather than the strict language, controls"); Griffin v. Oceanic Contractors Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) ("[I]n rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling.").

Finally, even if Section 2 of the VRA applies to Section 5-106 and no contrary congressional intent were evident, then I believe that, as applied, the VRA would be unconstitutional because Congress would have exceeded its enforcement power under the Reconstruction Amendments. As the majority demonstrates, the case can be resolved without reaching this issue, but I believe it provides yet another sound basis for rejecting the dissent's position.

In a recent series of cases, the Supreme Court has delineated the scope of Congress's enforcement power under the Reconstruction Amendments.1 These cases teach that Congress is not confined to enacting prohibitions against activity proscribed by the Amendments themselves but also "may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct." Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727-28, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003); accord Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); City of Boerne v. Flores, 521 U.S. 507, 517-18, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Katzenbach v. Morgan, 384 U.S. 641, 658, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). However, Congress's power in this area has limits. Any prophylactic legislation must be an "appropriate remedy for identified constitutional violations, not `an attempt to substantively redefine the States' legal obligations.'" Hibbs, 538 U.S. at 728, 123 S.Ct. 1972 (quoting Kimel, 528 U.S. at 88, 120 S.Ct. 631); Boerne, 521 U.S. at 519, 117 S.Ct. 2157. Determining whether prophylactic legislation is authorized involves three steps: A court first must define "with some precision" the scope of the constitutional right that Congress seeks to enforce, Garrett, 531 U.S. at 365, 121 S.Ct. 955; then the court looks at "whether Congress identified a history and pattern" of unconstitutional violations of that right,2 id. at 367, 121 S.Ct. 955; and finally, the court must assess the means Congress has chosen to address these violations to determine whether its remedy is a congruent and proportional response to those violations, see Hibbs, 538 U.S. at 728, 123 S.Ct. 1972 (quoting Boerne, 521 U.S. at 520, 117 S.Ct. 2157).

Here, the right that the VRA was enacted to promote is the constitutional prohibition on racial discrimination in voting regulations. It is in the second step of the Court's test that the constitutionality of the VRA, if applied to Section 5-106,3 founders. There is, quite simply, no evidence in the record before Congress of a history and pattern of invidious felon disenfranchisement by the states.

Only in cases where Congress can point to evidence in the legislative record that establishes a pattern of unconstitutional discrimination involving the particular practices proscribed by the remedial scheme at issue has the Supreme Court upheld legislation as within Congress's enforcement power under the Reconstruction Amendments. For example, in Hibbs, the constitutionality of a provision allowing employees to sue the states for violations of the Family Medical Leave Act ("FMLA") turned on whether the legislative record revealed evidence of a pattern of constitutional violations by the states. 538 U.S. at 729, 123 S.Ct. 1972. This record, consisting of labor surveys and testimony at congressional hearings, showed that state employers' leave policies discriminated between men and women on the basis of gender stereotypes. 538 U.S. at 730-31 & nn. 3-5, 123 S.Ct. 1972. Because Congress made extensive and detailed findings that, when the FMLA was enacted, "States relied on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits," 538 U.S. at 735 n. 11, 123 S.Ct. 1972 (internal quotation and alteration marks omitted), the Court upheld the FMLA as a valid exercise of Congress's Section 5 power. Id. at 740, 123 S.Ct. 1972.

In Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), the Court upheld the application of Title II of the Americans with Disabilities Act of 1990 ("ADA") to the access to state courthouses on a similar basis. The ADA's legislative history includes the results of 13 congressional hearings and the findings of a special task force that gathered evidence from all 50 states. 541 U.S. at 516, 124 S.Ct. 1978. This extensive record revealed pervasive state laws discriminating against the disabled, id. at 524, 124 S.Ct. 1978, "hundreds of examples of unequal treatment of persons with disabilities by States," id. at 526, 124 S.Ct. 1978, the widespread inaccessibility of public services to those with disabilities, id. at 527, 124 S.Ct. 1978, and "numerous examples of the exclusion of persons with disabilities from state judicial services and programs," id. These findings constituted specific evidence that "many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities." Id. This record evidence before Congress enabled the Court to hold that applying the ADA to require access to courthouses was a constitutional exercise of Congress's Section 5 powers. Id. at 533-34, 124 S.Ct. 1978.

In both Hibbs and Lane, the Supreme Court was not satisfied simply with evidence of gender discrimination or disability discrimination generally. Prophylactic legislation, to be legitimate, must be supported by record evidence that demonstrates a pattern of pervasive discrimination in the particular area in which Congress is attempting to legislate. So in Hibbs, the necessary evidence was not a widespread pattern of gender discrimination; it was a widespread pattern of gender discrimination in the administration of leave benefits. Hibbs, 538 U.S. at 735 n. 11, 123 S.Ct. 1972. And in Lane, the requisite evidence showed a pattern of discrimination against the disabled specifically in the provision of public services, including access to court proceedings. Lane, 541 U.S. at 527, 124 S.Ct. 1978.

In contrast, the Court has struck down federal legislation unsupported by evidence identifying a pattern of specific unconstitutional state action to be remedied. In Boerne, the Court held that Congress exceeded its Section 5 powers under the Fourteenth Amendment in enacting the Religious Freedom Restoration Act of 1993 ("RFRA") because "RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry." Boerne, 521 U.S. at 530, 117 S.Ct. 2157. Similarly, in Kimel, finding that "Congress never identified any pattern of age discrimination by the States much less any discrimination whatsoever that rose to the level of constitutional violation," the Court held the Age Discrimination in Employment Act of 1967 ("ADEA") unconstitutional as applied to the states, terming it "an unwarranted response to a perhaps inconsequential problem." Kimel, 528 U.S. at 89, 120 S.Ct. 631. And Garrett held that Title I of the ADA was an invalid exercise of Congress's Section 5 powers because "[t]he legislative record of the ADA . . . simply fail[ed] to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled." Garrett, 531 U.S at 368, 121 S.Ct. 955. Garrett acknowledged some anecdotal evidence of constitutional violations, id. at 370, 121 S.Ct. 955; however, "these incidents taken together [fell] far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based," id. at 370, 121 S.Ct. 955. See also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Savs. Bank, 527 U.S. 627, 640, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (noting that Congress could not abrogate state sovereign immunity under its Section 5 powers via the Patent Remedy Act because "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations").4

The VRA is plainly intended to prohibit not only intentional discrimination but also measures that have discriminatory effects. E.g., 42 U.S.C. § 1973(a) ("No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed . . . in a manner which results in a denial or abridgement of the right . . . to vote . . . .") (emphasis added). But although the VRA reaches much state action that has discriminatory effects on minority voting, it does not encompass all such action. As the precedents above make plain, it can serve to invalidate measures with disparate racial impact only if there is evidence in the congressional record that those measures are part of a history and practice of unconstitutional intentional discrimination. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 117-18, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (upholding the VRA's prohibition on literacy tests but invalidating the provision authorizing 18-year-olds to vote in state and local elections).

Many of the VRA's prophylactic provisions do respond to record evidence of specific unconstitutional discrimination, and the Supreme Court has upheld them. For example, in upholding the VRA's suspension of literacy tests, the Court noted that, despite the fact that literacy tests are not in themselves violations of the Fifteenth Amendment, "the record shows that in most of the States covered by the Act . . . various tests and devices have been instituted with the purpose of disenfranchising Negroes." South Carolina v. Katzenbach, 383 U.S. 301, 333-34, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Similarly, in enacting Section 5 of the VRA, which requires certain jurisdictions to acquire federal approval of any changes in their voting laws, "Congress began work with reliable evidence of actual voting discrimination in a great majority of the States" covered by this requirement, thus justifying the application of that provision to those geographical areas. Id. at 329, 86 S.Ct. 803. And in amending Section 2 to clarify that practices that result in diluting the strength of minority votes are covered by the Act, see S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-201, Congress relied on evidence that specific practices, such as the use of at-large districts and majority voting requirements, perpetuated the effects of past intentional discrimination, id. at 7-10, 36-40, 1982 U.S.C.C.A.N. at 183-187, 214-218. Application of the VRA to these practices, which were facially constitutional but found to be tools of intentional discrimination against minorities, has been held to be an appropriately congruent and proportional exercise of Congress's enforcement powers under the Reconstruction Amendments.5

In contrast to those practices targeted by the VRA, no basis exists to conclude that felon-disenfranchisement statutes such as New York's are part of the history and pattern of unconstitutional discrimination that the VRA was targeting. Nowhere does the legislative record, compiled when the VRA was enacted in 1965, suggest that felon-disenfranchisement provisions were part of this country's history of intentional discrimination in voting. To the contrary, the legislative record of the VRA and the history of felon-disenfranchisement provisions indicate that they played no part in the "unremitting and ingenious defiance," South Carolina v. Katzenbach, 383 U.S. at 309, 86 S.Ct. 803, of the extension of the franchise to racial minorities.

With the exception of a debate regarding Section 4(c) of the VRA, the legislative record is wholly silent on the subject of felon-disenfranchisement provisions, and that lone debate plainly expressed the intent to exclude such provisions from the reach of the statute. As the majority points out, because felon-disenfranchisement statutes are blanket prohibitions and not subject to discretionary enforcement, they do not lend themselves to the discriminatory abuse characteristic of other voter qualification devices. See Maj. Op. at 319, supra. Indeed, New York and many other states enacted and enforced such laws in the early years of the Republic, well before African Americans were part of the voting population. See id. at 316-17, supra. Disenfranchisement for the commission of a crime was fully accepted as a legitimate, constitutional practice at the time the Fourteenth Amendment was drafted and ratified, see id., supra, as reflected in the express reference to felon disenfranchisement in Section 2 of the Fourteenth Amendment. U.S. Const. amend. XIV, § 2; see Richardson v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) ("We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court.").

Nor can the necessary evidentiary record be found at the time Congress amended Section 2 of the VRA in 1982. That legislative record reflects Congress's focus on overruling the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), to allow the VRA to reach vote-dilution practices such as at-large elections. S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-201; see Maj. Op. at 313, 321-22, supra. The 1982 legislative record does not even mention felon-disenfranchisement statutes, much less point to any evidence that these laws were used (either nationally or specifically in New York) as part of a history and pattern of unconstitutional discrimination.

This is not to say that there have not been isolated incidents of criminal-disenfranchisement laws being used invidiously. In Hunter v. Underwood, the Supreme Court struck down a provision of the Alabama Constitution that, among other things, disenfranchised persons convicted of crimes involving "moral turpitude" as determined at the discretion of the Boards of Registrars. 471 U.S. 222, 226, 229-30, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). Though facially race-neutral, the Court found that provision to have been adopted to intentionally disenfranchise African Americans. Id. Significantly, Hunter did not disturb the Alabama disenfranchisement provision as it applied to felons. See id. at 225, 105 S.Ct. 1916. Similarly, the portion of the Mississippi Constitution at issue in Williams v. Mississippi disenfranchised citizens who had committed specific felonies thought to be committed disproportionately by African Americans. 170 U.S. 213, 222, 225 n. 1, 18 S.Ct. 583, 42 L.Ed. 1012 (1898); see also Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir.1998) (stating that Section 241 of the Mississippi Constitution was unconstitutionally discriminatory when first adopted but subsequent amendments and reenactments for nondiscriminatory purposes cured it of its "odious origin"). Notably, the provisions in these cases did not apply to all criminals but were confined to those who had committed only those crimes "believed . . . to be more frequently committed by blacks." Hunter, 471 U.S. at 226-27, 105 S.Ct. 1916. Such selective and discretionary disenfranchisement is much more likely to be applied in a discriminatory manner than blanket provisions that bar all felons from the voting rolls. Measures enacted or administered with discriminatory intent remain unconstitutional and will be struck down when they are found. But as the Court pointed out in Garrett, isolated anecdotal evidence of discrimination is insufficient to support the exercise of Congress's Section 5 power. Garrett, 531 U.S. at 370, 121 S.Ct. 955. Moreover, the plaintiffs' success in Hunter indicates that whenever an isolated instance of unconstitutional criminal disenfranchisement occurs, it can be addressed under existing law. Isolated occurrences here and there do not provide a basis for invalidating all felon-disenfranchisement statutes nationwide.

Applying the VRA to New York's felon-disenfranchisement statute also runs afoul of the third part of the Supreme Court's test: even where the record establishes a history and pattern of constitutional violations, there "must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Boerne, 521 U.S. at 520, 117 S.Ct. 2157. To ensure congruence and proportionality, Section 5 enforcement measures frequently include geographic restrictions, sunset dates, or other limiting provisions. Boerne, 521 U.S. at 533, 117 S.Ct. 2157. Only statutes with these limitations in scope, specifically targeted to remedy identified patterns of constitutional violations, have been determined to be appropriately congruent and proportional. For example, most provisions in the VRA itself were carefully crafted to address the particular set of voting violations that Congress identified. See Garrett, 531 U.S. at 373, 121 S.Ct. 955 ("[B]efore enacting [the VRA], Congress explored with great care the problem of racial discrimination in voting" and created "a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant exercise of States' systematic denial of those rights was identified.") (quotation marks omitted); see also Lane, 541 U.S. at 531-32, 124 S.Ct. 1978 ("The remedy Congress chose is . . . a limited one . . . . It requires only `reasonable modifications . . . .'"); Hibbs, 538 U.S. at 738-39, 123 S.Ct. 1972 ("[T]he FMLA is narrowly targeted at the fault-line between work and family — precisely where sex-based overgeneralization has been and remains strongest — and affects only one aspect of the employment relationship . . . . We also find significant the many other limitations that Congress placed on the scope of this measure.").

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.6 Legislation unsupported by a record indicating the need for remedial measures consistently has been held to be "so out of proportion to a supposed remedial or preventive object that it cannot not be understood as responsive to . . . unconstitutional behavior." E.g., Boerne, 521 U.S. at 532, 117 S.Ct. 2157; Kimel, 528 U.S. at 91, 120 S.Ct. 631; Garrett, 531 U.S. at 372, 121 S.Ct. 955; see also United States v. Morrison, 529 U.S. 598, 626-28, 120 S.Ct. 1740, 146 L.Ed.2d 658 ("Congress'[s] findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the § 5 remedy upheld in Katzenbach v. Morgan was directed only to the State where the evil found by Congress existed, and in South Carolina v. Katzenbach, the remedy was directed only to those States in which Congress found that there had been discrimination.") (internal citations omitted). Such statutes overstep Congress's power by attempting to rewrite the substantive provisions of the Constitution. See Boerne, 521 U.S. at 508, 117 S.Ct. 2157. Thus the application of Section 2 of the VRA to Section 5-106, in the absence of any evidence of a history or pattern of discrimination from such a provision, would impermissibly alter the substance of the Reconstruction Amendments.

Nor can statutes that blithely disregard the divide between state and federal power qualify as congruent and proportional. To the contrary, measures passed under Congress's Section 5 power must minimize the extent to which they intrude on "States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." Boerne, 521 U.S. at 534, 117 S.Ct. 2157. Intrusion on a state's traditional regulatory power imposes too high a cost on that state unless there is a pattern or practice of unconstitutional conduct to justify it. Id. And nowhere does a state exercise its sovereignty more plainly than in regulating the sentencing and punishing of criminal offenders. See United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) ("Under our federal system, the States possess primary authority for defining and enforcing the criminal law.") (internal quotation marks omitted). Regulation of the voting franchise is also a traditional function of state government. See U.S. Const. art. I, § 2, cl. 1; Oregon v. Mitchell, 400 U.S. at 125, 91 S.Ct. 260 ("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."). Indeed, I am hard pressed to envision any set of circumstances in which a statute that is read to prevent states from engaging in activity expressly approved in the Constitution, such as felon disenfranchisement (see U.S. Const. amend. XIV § 2), could be congruent and proportional. But especially here, where Congress has found no pattern of unconstitutional violations involving New York's felon-disenfranchisement statute, the application of Section 2 of the VRA to Section 5-106 intrudes on New York's sovereignty far in excess of any justification for doing so. Without congruence and proportionality, Section 2 of the VRA as applied to New York's felon-disenfranchisement statute exceeds the enforcement power granted to Congress by the Fourteenth and Fifteenth Amendments.

For the reasons expressed both in the majority opinion and in this opinion, I concur in the judgment.

STRAUB, Circuit Judge, with whom Judge SACK joins, concurring in part and concurring in judgment.

We concur in the result reached by the majority and in its reasoning that the evidence of legislative intent weighs decisively against applying the Voting Rights Act to New York Election Law § 5-106. We also, specifically, concur in the majority's limited remand for purposes of determining whether plaintiffs have stated a vote dilution claim on behalf of non-disenfranchised residents, based on New York's system of apportioning electoral districts. We do not join in any holding that a clear statement rule applies here, as we believe such a rule, in addition to being unnecessary to the disposition of this case, would be inappropriate in the voting rights context.

SACK, Circuit Judge, with whom Judge STRAUB joins with respect to Part I, concurring in part and concurring in judgment.

* I write separately principally to respond to a portion of the dissent of my colleague, Judge Calabresi, in which he concludes that Judge Straub and I, being "motivated in large part by skepticism that Congress could have intended the result that the plaintiffs urge," Dissent of Judge Calabresi, post, at 365-66, have confused the views of the current Congress with that of the Congress that enacted the Voting Rights Act and its 1982 amendments. Judge Calabresi may or may not be right on the merits of this case, but in this respect he is surely wrong. What the current Congress, or a Congress that will next consider voting rights, thinks or will think is Congress's business, not ours. The question here is what the statute means.

It is in response to that question that we join Judge Cabranes's opinion insofar as it concludes that Congress did not intend the Voting Rights Act to encompass the type of felon disenfranchisement law at issue in this case. By amending Section 2 of the Voting Rights Act in 1982, Congress apparently sought to make clear that Section 2 covered both vote denial and vote dilution, and to reinstate the "results test," which Congress found to be the rule developed in the voting rights case law before the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), particularly White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973).1 Whatever one's view of the uses and misuses of legislative history to enlighten, or even to contradict plain meaning,2 insofar as the 1982 amendment was aimed specifically at overruling Bolden and reinstating previous case law, it is not that difficult to discern what Congress meant to do when it said what it said. See United States v. Rybicki, 354 F.3d 124, 136 (2d Cir.2003) (en banc), cert. denied, 543 U.S. 809, 125 S.Ct. 32, 160 L.Ed.2d 10 (2004) (reasoning that when a statute is adopted for the purpose of overruling a Supreme Court decision which in turn overruled previous law on the subject, Congress likely intended to reinstate the previous law).

The case law that Congress sought to reinstate, so far as we can tell, involved cases in which "designedly or otherwise, an apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." Zimmer, 485 F.2d at 1304 (internal quotation marks omitted; alterations incorporated) (quoted in S. Rep. 97-417 (1982), *23, 1982 U.S.C.C.A.N. 177, **200). As such, the White-Zimmer factors, under which a court assesses the result of a voting law under the totality of the circumstances, seem to us to be particularly suited — even if not exclusively so — to claims of apportionment and legislative districting.3 In amending the Voting Rights Act in 1982, Congress told the courts to resume doing what they had done in the White-Zimmer cases. There is no indication that any court pre-Bolden thought of using, let alone actually used, the White-Zimmer factors to strike down felon disenfranchisement laws. Cf. Rybicki, 354 F.3d at 138 (explaining that the phrase "intangible right of honest services" should be understood as codifying prior case law, and that "Congress was recriminalizing mail- and wire-fraud schemes to deprive others of that `intangible right of honest services,' which had been protected before McNally [v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987)], not all intangible rights of honest services whatever they might be thought to be" (emphasis in original)).

The plain meaning argument — as articulated by Judge Parker in his powerful opinion — is of course a compelling one. But none of our colleagues yet, so far as we can see, has presented a persuasive reason to think that if the language of section 2 covers felon disenfranchisement laws as applied to persons duly imprisoned, the result was intentional rather than an accident resulting from the breadth and generality of language used to accomplish specific, identifiable goals. At the end of the day, the notion that by using such language Congress "accidentally meant to" address the long-standing, nearly universal felon disenfranchisement laws recognized in the Fourteenth Amendment, just does not make sense to us. "Boggling," perhaps, is in the mind of the beholder. See Dissent of Judge Calabresi, post at 367.

II

Although I don't think it to be dispositive, I am also troubled that the central concern of these plaintiffs, obviously of enormous importance, seems to be tangential at best to the relief they seek under the Voting Rights Act. The plaintiffs assert that, in New York, criminal law-enforcement, prosecution, and punishment are corrupted by a deeply ingrained institutional bias against Blacks and Latinos. They "allege[] that the stark differences in incarceration and probation rates for Blacks and Latinos in New York, as opposed to Whites, have resulted from discrimination in New York's criminal justice system." Dissent of Judge Parker at 343.4 Perhaps giving the plaintiffs the right to vote from prison would have some positive impact on that system, but it would be a highly unusual remedy, in light of the ubiquitous state felon disenfranchisement laws, addressing the pleaded wrong very indirectly, indeed. It gives me pause: Did Congress mean, through the use of the general language of the Voting Rights Act, to seek to address the problem of racial discrimination in the states' administration of criminal justice?

III

I note, finally, that there may well be important distinctions between the impact of the felon disenfranchisement statute at issue here and those that provide for lifetime disenfranchisement, whether or not the difference matters for purposes of the Voting Rights Act analysis. They appear to me to be very different: One type (the one before us) appears to be connected to the issue of punishment — the removal of criminals from society for a term, for purposes of punishment, the safety of society, "rehabilitation" and the like. The other seems ultimately untethered to punitive segregation, since the disenfranchisement persists long after termination of the segregation, at which point punitive ends seem no longer to be at issue. Today's decision, of course, explicitly leaves the issue open. See Maj. Op. at 314.

RAGGI, Circuit Judge, concurring, with whom Judge JACOBS joins.

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

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

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

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

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

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

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

JACOBS, Circuit Judge, concurring.

The Opinion of the Court by Judge Cabranes covers the field, and I concur in it. The Opinion proceeds in the scholarly, systematic way needed to meet and rebut the arguments generated by years of ceaseless effort to enroll felons as members of the electorate. Although it has become necessary to meet these arguments and casuistries laboriously on their own terms, the case can be decided more simply.

Section 1973 is composed of subsections (a) and (b). Subsection (b) references and implements (a); so they must be read together. A reading that puts them at cross-purposes is untenable and cannot be called plain meaning.

The plaintiffs invoke subsection (a) as the premise for a right of felons to join the electorate:

(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 USCS § 1973b(f)(2)], as provided in subsection (b).

42 U.S.C. § 1973(a) (emphasis added). Subsection (b) expressly furnishes a touchstone for detecting a violation of the right to vote that is protected in subsection (a):

(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. . . .

42 U.S.C. § 1973(b) (emphasis added).

The right to vote in subsection (a) is thus informed by subsection (b): in particular, every "class of citizens protected by subsection (a)" (in this appeal, African-Americans) is composed of citizens who by law may and should enjoy as full an "opportunity [as] other members of the electorate to participate in the political process." Such a full "opportunity" includes the freedom to ring doorbells, speak on street-corners, assemble and rally, raise contributions (subject to campaign finance rules), and campaign for candidates everywhere the public can be found.

Thus no "class of persons protected by subsection (a)" could include felons who would otherwise be in that class, because some felons (i.e., prisoners) are legitimately deprived by the State of the full opportunity to participate in the political process, and would be so deprived even if they could vote. The enfranchisement of felons can never be a remedy for a violation of subsection (a) because afterward, the "class of citizens protected by subsection (a)" would still include persons who suffer a state-imposed deficit of the "opportunity" enjoyed by "other members of the electorate to participate in the political process . . . ." By the same token, the disenfranchisement of felons cannot be a practice that is limited by subsection (a).

Section 1973, read as a whole, does not allow a reading that would consider felons to be members of any "class of citizens protected by subsection (a)." It follows that no erosion of felon disenfranchisement was intended by the legislative intelligence that drafted and joined together the two complementary subsections.

Judge Parker's dissent (at footnote 1) responds in the words of Chisom v. Roemer, 501 U.S. at 395, 111 S.Ct. 2354, that the "purposes" of Section 2 "are apparent from its text": to adopt a "results test" in Section (a) and to give guidance in Section (b) "about how the results test is to be applied." So far, so good; and Chisom thus reconfirms that (a) and (b) are to be read together. The dissent then goes on, however — "[i]n other words" — to make a point that better serves the dissent's reading. My point remains, unimpaired: Sections (a) and (b), read together and given their plain meaning, reflect a draftsman's assumption that the enactment protects the rights of all who may and should enjoy as full an "opportunity [as] other members of the electorate to participate in the political process" and no one else — not children, not aliens, and not the imprisoned. Section 1973 reads unambiguously as a guarantee of rights for free people, and has nothing to do with the voting of persons who are not permitted to make unmonitored phone calls, or to go at large, or to eat their food with knives and forks.1 Arguments to the contrary demean the Voting Rights Act.