Felon Disenfranchisement Issue Heading to the Supreme Court?

On Friday, a First Circuit Panel split 2-1 in Simmons v. Galvin, a case challenging the disenfranchisement of currently incarcerated Massachusetts felons under section 2 of the Voting Rights Act and the ex post facto clause. The opinions total 104 pages. The majority, in an opinion by Chief Judge Lynch, rejected the arguments. Judge Torruella issued a lengthy dissent, noting the close split within other circuits that have addressed the issue. Judge Torruella's position on the meaning of section 2 is very much like that expressed by Judge Sotomayor in Hayden v. Pakaki.

Judge Sotomayor: "It is plain to anyone reading the Voting Rights Act that it applies to all 'voting qualification[s]." And it is equally plain that s 5-106 disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to itscoverage.
The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. The majority's “wealth of persuasive evidence” that Congress intended felony disenfranchisement laws to be immune from scrutiny under s 2 of the Act, Maj. Op. at 25, includes not a single legislator actually saying so. But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of s 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent."

Judge Torruella: "Rather this is a case about interpreting a clearly worded congressional statute, the Voting Rights Act of 1965 ('VRA'), according to its terms, when there is no persuasive reason to do otherwise."

This case could well go to the Supreme Court on an issue that Judge Sotomayor knows well.

Posted by Rick Hasen at August 2, 2009 04:04 PM