Voting Rights Act Protects Felons’ Right to Vote, NYC Bar Association Argues

The New York City Bar Association, through its Committees on Civil Rights and Corrections, has submitted an amicus brief arguing that the Voting Rights Act of 1965 prohibits all forms of racially discriminatory voter disenfranchisement; and that crucial protections in the Act can and should be applied to state statutes that disenfranchise incarcerated felons when the statute results in denial of the right to vote on account of race.

The Bar Association filed the brief at the invitation of the Second Circuit Court of Appeals. On December 29, 2004, the court granted a rehearing before the full court in a case concerning whether citizens are being denied their right to vote on account of their race because of racial discrimination inherent in the state’s criminal justice system. New York State, with a prison population that is overwhelmingly black and Hispanic, does not allow incarcerated or paroled felons to vote.

The question before the Court is whether Section 2 of the federal Voting Rights Act can be applied to felon disenfranchisement laws. The Association argues that felon disenfranchisement statutes are covered by the Voting Rights Act and that Section 2 of the Act is a justifiable exercise of Congress’s enforcement powers under the Fifteenth Amendment.

“Fundamentally, Congress’s intent in enacting the Voting Rights Act was to eradicate racially discriminatory voter disenfranchisement, no matter what its cause. To hold that Congress intended to exempt felon disenfranchisement statutes from that law is to hold that Congress actually intended to permit certain forms of racially discriminatory voter disenfranchisement. That plainly was not Congress’s intent,” says the brief.

The Voting Rights Act -- first enacted in 1965 at a time when black citizens were being denied their right to vote, particularly by states in the South -- helped restore voting privileges for blacks and overrode discrimination and voting restrictions previously enforced on a state-by-state basis. For example, in Mississippi, only five percent of eligible blacks were registered to vote in the 1960 election. The Voting Rights Act of 1965 supported the 15 th Amendment’s permanent guarantee that no person would be denied the right to vote on account of race or color.

“The Association considers the right to vote to be a fundamental right of citizenship. As lawyers,” says the City Bar Association, “we believe that universal suffrage is the cornerstone of the rule of law and of our participatory democracy. Accordingly, the Association is concerned about any mechanisms that impede full political participation or diminish the minority vote, countering decades of voting rights gains.”

Addressing the demographic disparity between the state’s voting population and its prison population, the Bar notes that, “There is a vast body of evidence showing that African-Americans and Latinos are arrested more often, convicted more often and given harsher sentences than members of other racial groups who commit the same types of crimes. Because New York does not allow incarcerated or paroled felons to vote, that evidence would show that people are being denied the right to vote on account of their race, in violation of the Voting Rights Act.”

Furthermore, national electoral events in the past decade suggest that felon disenfranchisement statutes such as New York’s may in fact change the outcomes of national elections, and may have altered the outcomes of seven recent Senate elections and at least one presidential election. “In light of the 2000 presidential election, which was determined by a margin of 537 votes in Florida, and research indicating that hundreds of thousands of persons in Florida were disenfranchised due to a prior felony conviction, the Association is more concerned than ever that N.Y. Elec. Law § 5-106 (McKinney 2004) poses a serious challenge to the legitimacy of our elections.”

Please contact Matt Kovary , Association press coordinator, for a copy of this well-documented civil rights report. He may be reached at (212) 382-6713, or at mkovary@nycbar.org.

About the Association

Founded in 1870, the Association is a professional association of more than 22,000 attorneys. Through its many standing committees, including those on Civil Rights and Corrections, the Association educates the bar and the public about legal issues relating to civil rights, including voting rights, incarceration and its alternatives, and the nature of Congressional power to enact remedial legislation to curb discriminatory state action. By the contributions of these committees, the Association also seeks to promote racial equality under law, including the equal treatment of people of color in our state’s criminal justice system.

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