Background of the Case
The Hayden case involved a lawsuit brought by black and Latino inmates challenging a New York elections law that denies them the opportunity to vote. The inmates claimed that the law violated Section 2 of the Voting Rights Act, which applies to any state election requirement that has the "effect" of discriminating on the basis of race -- regardless of the state's underlying intent.
In 1996 the Second Circuit split evenly on the merits of an identical lawsuit. In 2006 Hayden was consolidated with a similar case and brought before the entire Second Circuit for review. The full Second Circuit dismissed the lawsuit by an 8-4 vote. Sotomayor dissented, as did esteemed judges Barrington Parker, Guido Calabresi and Robert Katzman. There were five separate concurring opinions.
In two other felon voting cases, the Ninth Circuit reached a different conclusion than the Second Circuit, but the Eleventh Circuit reached the same conclusion. The voter statutes in those two cases, however, are broader in scope, banning felons from voting even after release.
Hayden Majority's "Expansive" Statutory Interpretation
The majority in Hayden concedes that the plain language of the Voting Rights Act does not exempt felon-related voting legislation and that it applies to "any" voting requirement. Accordingly, to reach its conclusion, the majority decides to look beyond the plain language of the statute:
There is no question that the language of [Section 2 of the Voting Rights Act] is extremely broad —- any “voting qualification or prerequisite to voting or standard, practice, or procedure” that adversely affects the right to vote -— and could be read to include felon disenfranchisement provisions if the phrase is read without the benefit of context and background assumptions supplied by other statutory and Constitutional wording, by history, and by the manifestations of intent by Congress at the time of the VRA’s enactment and thereafter.Normally, a judge's decision to look beyond the language of a statute in order to come up with an interpretation that is not supplied by the law's plain meaning would send conservatives into a lather. Indeed, Justice Scalia is known for sticking closely to the plain language and insisting that Congress change the statute if it dislikes the outcome in a particular case. Scalia also rejects efforts to "find" the meaning of legislation by resorting to legislative history -- which the Hayden majority explicitly does. Narrow statutory reading is a hallmark of judicial restraint, which conservatives claim to love. Apparently, the Washington Times does not like this rule if following it would produce a liberal result.
We are not convinced that the use of broad language in the statute necessarily means that the statute is unambiguous with regard to its application to felon disenfranchisement laws. In any event, our interpretation of a statute is not in all circumstances limited to any apparent “plain meaning” . . . . Here, there are persuasive reasons to believe that Congress did not intend to include felon disenfranchisement provisions within the coverage of the Voting Rights Act, and we must therefore look beyond the plain text of the statute in construing the reach of its provisions. . . .
The Hayden dissenters chided the majority for essentially rewriting the statute to reach its conclusion. Because the case was decided on a motion to dismiss, the court was required to treat the allegations in the complaint as facts -- meaning that the court had to accept as true plaintiffs' assertion that New York's felon law systematically excluded blacks and Latinos from voting. Therefore, the only question the court needed to decide at this stage of the litigation was whether the Voting Rights Act applied to the case. Despite the plain language of the statute which imposes a broad prohibition against discriminatory laws, the majority dismissed the case.
Sotomayor's dissent epitomizes the judicial restraint that conservatives claim to appreciate. She also seems to respect the institutional power of Congress. Sotomayor argues that:
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 § 2 of the Act . . . 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 § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.Perhaps appreciating the irony that its editorial attacks Sotomayor for exercising judicial restraint, the Washington Times does not even attempt to engage this portion of her argument. The newspaper's silence on this issue speaks volumes.
The Washington Times Distorted Analysis
Despite the fact that the Hayden majority concedes that its ruling looks beyond the plain language of the statute, the Washington Times inaccurately concludes that Sotomayor offers a "dubious and extremely broad reading of the Voting Rights Act." This is plainly false. Sotomayor's reading, as demonstrated above, is in fact quite narrow and limited to the text of the statute.
The Washington Times also makes hay of the fact that she only wrote a brief (but apparently very broad) dissent. But with a lead opinion, five concurrences and three additional dissents, her decision to remain brief is hardly remarkable -- except perhaps to journalists.
The Washington Times also butchers the Hayden majority's logic. The case does not turn on the fact that "the Voting Rights Act was passed to help further the aims of the Constitution's 14th and 15th Amendments [and] the 14th Amendment specifically allows states to deny the vote to those convicted of crimes." Instead, as the majority explicitly concedes (see footnote 10), the Voting Rights Act was passed to enforce the Fifteenth Amendment, which (following interpretative rules established by conservative Supreme Court precedent) places a direct limitation on state authority supplied by the Fourteenth Amendment.
Accordingly, even if the Fourteenth Amendment allows states to restrict the ability of felons to vote, they cannot exercise this power in a way that amounts to racial discrimination. The Voting Rights Act elaborates the Fifteenth Amendment antidiscrimination principle and provides that "intent" is not a requirement of a violation. On this issue, the dissent has the better argument.
The Washington Times also makes the absurd claim that Sotomayor's opinion would allow Congress to "prohibit New York from doing something the Constitution itself specifically endorses." That is absolutely preposterous. The plaintiffs only argued that New York cannot discriminate on the basis of race in the voting context. The complaint does not argue the felon disenfranchisement statutes are per se unconstitutional -- and neither does Sotomayor.
The logic employed by the Washington Times would allow states to pass laws providing that only "black and Latino" or "white" felons cannot vote because, after all, states can ban all felons from voting pursuant to the Fourteenth Amendment. But this is an absurd result. Because the Voting Rights Act does not require "intent," New York's felon voting policies could operate as the practical legal equivalent of this hypothetical (and clearly unlawful) statute. Sotomayor and the other dissenters simply would have given the plaintiffs the opportunity to prove this point.
The most interesting aspect of this case is the fact that it turns on statutory interpretation -- not the announcement of a new constitutional right. Accordingly, Congress could merely reverse the ruling, if it disagrees. This is precisely the course of action Congress took with respect to the Ledbetter decision. This is precisely the argument that Justice Scalia frequently makes with respect to statutory interpretation.
Driven by partisan politics rather than ideological consistency, the Washington Times criticizes Sotomayor for following Scalia's lead and issuing a narrow reading of a plainly worded statute. The Washington Times should retract its misleading, blindly partisan, and "un-conservative" editorial.