The Federal Bureau of Prison's Administrative Maximum Security prison, ADX Federal Prison in Florence, Colorado

One of the biggest annoyances to the Left in recent years has been the Constitutional right of states to prohibit felons from voting. They have filed lawsuit after lawsuit (unsuccessfully) under the Voting Rights Act trying to overturn these laws. Fortunately, except for the Ninth Circuit (as usual), other circuit courts of appeal have properly recognized the constitutional authority of the states and have also held that the legislative history shows that Congress obviously did not consider such state laws to be subject to the prohibitions in the Voting Rights Act.

The Fourteenth Amendment to the Constitution specifically recognizes the rights of states to abridge the right to vote “for participation in rebellion, or other crime.” As the Second Circuit recognized in 2006 in Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), when it upheld New York’s law prohibiting incarcerated felons from voting, there were specific statements in the House and Senate Judiciary Committee Reports and on the Senate floor explicitly excluding felon disenfranchisement laws from provisions of the Voting Rights Act. In fact, this was so clearly the case that there were several unsuccessful attempts in the 1970’s by some in Congress to amend the VRA to have it apply to such state laws.

Yet in a dissenting opinion in Hayden, Judge Sonia Sotomayor, President Obama’s nominee to the Supreme Court, disagreed. She thought that the majority’s extensive look into the history of the Voting Rights Act, the legislative comments, and the felon disenfranchisement rights of states as outlined in the Fourteenth Amendment were a waste of time. Since the Voting Rights Act “applies to all voting qualifications” and the New York statute “disqualifies a group of people from voting,” that should “constitute the entirety of [the court’s] analysis.” Sotomayor then makes the duplicitous claim that she is just upholding the statute, saying that “even if Congress had doubts about the wisdom of subjecting felon disenfranchisement laws to the results test of §2 [of the Voting Rights Act], I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.” Far from this modest result, she was actually proposing that the courts alter the statute by applying it to state laws to which Congress never intended the law to apply, and for good reason.

Even more disturbing is the implication of her opinion that Congress could by statute run roughshod over express constitutional protections – in this case one that reserves a right to the states to determine whether criminals (even those in prison!) should be permitted to vote in their elections.

The plaintiffs in this case rested their claim on the strained theory that restrictions on felons voting disproportionately impact minorities. This is yet another sad example where Judge Sotomayor appears to have allowed her views on race to supersede the clear requirement of the law.