Felon Disenfranchisement

The Second Circuit has finally issued its en banc decision about whether Section 2 of the Voting Rights Act (VRA) can be used to challenge state felon disenfranchisement laws.  The Second Circuit sides with the Eleventh Circuit in holding that the VRA cannot be so used.  This creates a circuit split with the Ninth Circuit -- and Rick Hasen furnishes some analysis of what the endgame might look like at the Supreme Court here and here.  The majority opinion in the Second Circuit mostly focuses on congressional intent, congressional silences, and clear statement rules that haven't been met.

Of particular interest in the ten separate opinions (!) filed in the Second Circuit case is Chief Judge Walker's (signed also by Dennis Jacobs, the heir apparent to the Chief-ship of the Second Circuit, whose individual opinion shows him to have been quite annoyed at having to deal with this case at all).  Walker uses the Boerne-Kimel-Garrett-Hibbs-Lane line of cases to argue that the VRA as applied to state felon disenfranchisement laws would be unconstitutional because no pattern of such discrimination was before Congress when it was purporting to exercise its Enforcement Powers in the VRA and because the remedy of striking down state disenfranchisement laws under the VRA would not be "congruent and proportional."

The problem of applying a line of cases about the 14th Amendment Enforcement Power to a case involving a 15th Amendment Enforcement Power is not lost on Walker -- and he addresses it in an interesting footnote:

It is true that the cases that define the limits of Congress’s enforcement power have focused primarily on that power as granted by Section 5 of the Fourteenth Amendment, whereas the VRA is an exercise of both Section 5’s enforcement power and the enforcement power granted by Section 2 of the Fifteenth Amendment. . . .  However, there is no significant reason to conclude that the scope of the enforcement power under the two amendments is different. First, the language of these two clauses is substantially identical: Congress has the power to “enforce” theprovisions of the respective amendments “by appropriate legislation.” U.S. Const. amend. XIV, § 5; id. amend. XV, § 2.  Second, the Supreme Court has equated Congress’s enforcement power under the two amendments. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 373 n.8 (2001) (noting that “Section 2 of the Fifteenth Amendment is virtually identical to § 5 of the Fourteenth Amendment”); City of Boerne v. Flores, 521 U.S. 507, 517-18 (1997) (describing Congress’s power under the Fourteenth Amendment as “parallel” to that under the Fifteenth Amendment); Katzenbach v. Morgan, 384 U.S. 641, 650-51 (1966) (describing Congress’s power under the Fourteenth Amendment as “sim ilar” to that under the Fifteenth Amendment). Third , the cases interpreting Congress’s power under Section 5 of the Fourteenth Amendment consistently refer to cases concerning the VRA, a statute enacted pursuant to the power of both amendments, in an attempt to explicate the proper parameters of Congress’s powers. . . .There is no indication in Supreme Court precedent, or in logic, that the Congress and the legislatures that enacted and ratified the Fourteenth and Fifteenth Amendments intended that they be “enforced” in different ways.

This may be explanation enough, though the idea that the Supreme Court would read Enforcement Powers differentially as they appear in different Amendments -- or even different Reconstruction Amendments -- is not so unlikely.  For example, we all know that the 13th Amendment's Enforcement Power is a bit broader that the 14th.  So is it obvious that the Enforcement Powers in the 15th should track the 14th (or that the Supreme Court would so hold if directly presented with the question)?  Maybe that is the best reading, when all is said and done (though remember that Scalia has defected from the Boerne test).  But it does show how lower courts can be creative with precedent when they want to be.