2d Circuit rejects constitutional challenge to New York's felon disenfranchisement laws

The Court of Appeals has rejected an ambitious lawsuit alleging that New York's felon disenfranchisement law is discriminatory in violation of the Constitution. The case is Hayden v. Paterson, decided on January 28.

This case has reaches the Second Circuit for the second time. In 2006, an en banc Court of Appeals rejected the claim that the law prohibiting felons from voting violates the Voting Rights Act. This time around the Court takes up an Equal Protection Clause argument. Like the Voting Rights Act claim, the constitutional argument focuses on the law's effect on minority voters.

The plaintiffs argued that "there is a history of race discrimination in New
York State’s disenfranchisement laws, that there is disparate application of New York State Election Law § 5-106(2), and that racial disparities exist in the disenfranchisement rates of Blacks and Latinos. Based on these allegations, plaintiffs contend that New York’s constitutional provision mandating felon disenfranchisement was enacted with the intent to discriminate against persons on account of their race in violation of the" Constitution.

The New York Constitution was amended several times in the 1800's. Prior to 1894, the Second Circuit finds, racial discrimination did partially motivate state lawmakers to prohibit felons from voting while incarcerated and on parole. We know this from racist statements that the legislators themselves made in support of these restrictions. Along with the racially disparate impact these laws have on blacks and Hispanics, this kind of historical evidence is a good start in arguing that the current disenfranchisement laws are unconstitutional. But the roadblock is the 1894 state constitutional amendment which prohibits felons from voting. Here is where Iqbal plausibility kicks in.

Iqbal was a Supreme Court decision from 2009 which says that lawsuits have to allege a plausible basis for relief. There is no doubt that Iqbal places a new burden on plaintiffs in pleading their cases. It is no longer enough to say that the complaint on its face alleges a violation. It has to plausibly allege a violation. Here, the lawsuit fails under Iqbal. While the 1894 constitutional amendment furthers the felon disenfranchisement rule, the Court says that it is more plausible that this happened for non-racial reasons because the Legislature was required to pass laws like this. Here is the heart of the Second Circuit's reasoning:

In 1894, however, the constitutional delegates made permanent the mandatory aspect of the provision, and felon disenfranchisement laws have been required in New York ever since. This amendment served to substantively change how legislatures were permitted to consider, or no longer consider, whether felon disenfranchisement laws should be passed—such laws were mandated. Given this substantive amendment to New York’s constitutional provision and the lack of any allegations by plaintiffs of discriminatory intent “reasonably contemporaneous with the challenged decision,” we cannot hold that plaintiffs state a plausible claim of intentional discrimination as to the 1894 constitutional provision, which is the bridge necessary for plaintiffs to sufficiently trace any disparate impact of New York Election Law § 5-106(2) “to a purpose to discriminate on the basis of race.”

So the mandatory nature of the 1894 felon disenfranchisement amendment cuts off the racially-discriminatory motive that had long fueled these laws in the 19th Century. What also makes racial discrimination less plausible for the current disenfranchisement laws is another creation of the Iqbal ruling: the "obvious alternative explanation" that most states prohibit felons from voting and its widespread support among New York politicians. After deliberating on the appeal for more than two years, the Court of Appeals (Straub, Walker and Pooler) concludes, "Absent any adequately supported factual allegations as to discriminatory intent behind the enactment of the 1894 constitutional provision, we are compelled to find that the New York Constitution’s requirement that the legislature pass felon disenfranchisement laws is based on the obvious, noninvidious purpose of disenfranchising felons, not Blacks or Latinos." The only good news for plaintiffs is that the Court of Appeals gives them a second chance to amend the lawsuit to amend their deficient complaint.