THE VOTING RIGHTS ACT — already notorious for creating super -gerrymandered congressional districts and an unusual alliance between the Republican party and the Congressional Black Caucus — may soon produce its strangest progeny: prison voting booths.
The tradition of denying the vote to imprisoned felons, which predates the American founding and is enshrined in the laws of 47 states, is “now under attack as illegal, and, worse, racist. Inmates in New York state are demanding the franchise. Their argument rests not on some far-fetched legal theory, concocted by jailhouse lawyers, but rather on a reading of the Voting Rights Act plausible to some legal experts.
In a federal lawsuit, a group of maximum-security inmates argue that because New York prison populations are overwhelmingly minority, the state’s prohibition on voting by imprisoned felons dilutes minority voting strength — in violation of the Voting Rights Act.
The success of the inmates so far illustrates the degree to which the legal system no longer requires proof of intentional discrimination in civil-rights cases. Merely showing a discrepancy in the racial numbers, “disparate impact,” as the prisoners do, may be enough to win — no matter the reason for that discrepancy. Under the Voting Rights Act, the prisoners” claim of “disparate impact” cannot be laughed off. “It’s hard to call the case frivolous,” says Marc Stern, a lawyer with the American Jewish Congress and a voting rights expert.
There’s no doubt that New York’s law denying imprisoned felons the right to vote falls disproportionately on minorities. And while disparate impact alone may not have sufficed to establish a violation under the original Voting Rights Act of 1965, Congress changed this in 1982.
In response to a 1980 Supreme Court ruling that the Voting Rights Act prohibits only intentionally discriminatory practices, Congress amended the original act so that a mere technicality like discriminatory intent would not be needed to establish a voting rights violation.
Senator Bob Dole, who along with leading Republicans such as Henry Hyde supported the amended version, explained that he shared the view of the civil rights community that “in some voting cases, it is hard to prove intent.”
Now it’s unnecessary. Any voting requirement that happens to diminish minority voting strength can be illegal. The result is that the Voting Rights Act, like other pieces of 1960s legislation designed to combat genuine discrimination, now functions primarily as a legal cattle prod for group rights. Perfectly legitimate practices that happen to have a disproportionate, unintended impact on minorities are impugned.
Consider the 47 state laws barring imprisoned felons from voting. Normally, prisoners who challenged laws denying them the right to vote wouldn’t get any farther than they do with any of their other zany lawsuits. The 14th Amendment allows states to deny criminals the vote. And courts have generally upheld challenges to these laws — except when they are found to discriminate intentionally, or contain suspect criteria. (A law against voting by wife- beaters was struck down in part because of its suspect gender classification.)
But the game has now changed. lust ask the distinguished residents of the Green Haven Correctional Facility, in Stormville, New York.
During the 1993 New York City mayoral election, a group of black and Hispanic inmates at this maximum-security facility were eager to vote for David Dinkins. All that stood in their way, of course, were their convictions for second-degree murder, armed robbery, and drug dealing. But these civic- minded cons didn’t want to sit out the election. In September 1993, they challenged the law in federal court.
Their lawsuit, whose chief engineer was jailhouse lawyer Theodore Baker, a convicted murderer now gone to his reward, charges that because blacks are more likely than whites to be in ail for the same crimes, and because the state prison population is 82 percent minority, both the Voting Rights Act and the constitutional guarantees of equal protection are violated by New York’s law.
The lawsuit was dismissed by he United States District Court for the Southern District in February 1994. But the inmates had better luck with an appeal argued last December before the Ufiited States Court of Appeals for the 2nd Circuit by “Andrew Shapiro, then a Yale law student, now a contributing editor to the Nation.
Although the appeals court did’t think much of the inmates” constitutional claims, noting that establishing a violation of the 14th and !5th Amendments would require proof of intentional discrimination, it ruled this May that the case should be reinstated largely because it “raises novel and important legal issues” under the Voting Rights Act — and the prisoners should be allowed to try to establish a violation.
They have their work cut out for them. As Stern notes, “It doesn’t follow that because you’ve shown adverse impact, the practice is illegal.”
In determining whe ther a law has illegally diluted minority voting power, courts must consider the “totality of circumstances” outlined by Congress. This “totality” includes whether a requirement has worthy justification, and whether the state enacting it has a history of voting discrimination.
Under these standards, this particular case is a “hard call,” says University of Washington law professor Eric Schnapper, who lost the Supreme Court case that prompted Congress to amend the Voting Rights Act. “A reasonable judge could go either way.”
Regardless of the outcome, the case should give both liberals and conservatives something to mull over. Are left-liberal civil rights activists, so fond of using disparate impact to advance their cause, willing to make the case that prisoners should vote?
True, armed robbers and convicted murderers don’t make ideal poster children for the Voting Rights Act. But their claim isn’t much different in form from those of other civil rights litigants who use mere statistics to offer “legal” proof of discrimination and thereby demand remuneration — or to invalidate civil service exams and such when they fail to produce as high a rate of minority success as activists would prefer.
And before congressional Republicans get all huffy over states” being forced to allow criminals to vote, it’s worth remembering that they overwhelmingly supported the amended Voting Rights Act, which the Cardozos of the Green Haven Correctional Facility now hope to make a springboard to full civic participation.
If, on purely philosophic grounds, this doesn’t give GOP politicians pause, perhaps the specter of newly enfranchised felons will. Republicans should think twice before bowing to any more demands from the “civil rights” lobby. They may unwittingly have granted the Democrats a huge untapped constituency.
by Evan Gahr; Evan Gahr is a New York Post editorial writer
