Bench Memos

Sotomayor and Felon Voting

The First Circuit Court of Appeals has joined the Eleventh and Second Circuits in refuting Judge Sonia Sotomayor’s views on felon voting and Section 2 of the Voting Rights Act. Sotomayor has been soundly criticized for her minority view in Hayden v. Pataki that the prohibitions of the Voting Rights Act applied to New York’s state law preventing incarcerated felons from voting despite the fact that the 14th Amendment to the Constitution specifically authorizes states to abridge the right to vote “for participation in rebellion, or other crime.”

Last week in Simmons v. Galvin, a three-judge panel upheld Massachusetts’s constitutional prohibition on voting by incarcerated felons. The Court concluded that, contrary to Judge Sotomayor’s opinion, it is “clear from the language, history, and context of the VRA that Congress never intended § 2 to prohibit the states from disenfranchising currently incarcerated felons.”

The history of Massachusetts’s ban on felon voting is actually very amusing. Until 2000, Massachusetts was one of the three states in the nation where felons could actually vote even when they were in prison.  However, in 1997, a group of prisoners formed a political action committee to lobby the state legislature on criminal justice issues. Elected officials (and voters) were outraged. Paul Cellucci, who had become the acting governor when William Weld resigned, proposed a constitutional amendment to disenfranchise all incarcerated individuals. He probably spoke for the vast majority of Americans when he said:

Criminals behind bars have no business deciding who should govern the law-abiding citizens of the Commonwealth. This proposed amendment will ensure that criminals pay their debt to society before they regain their rights to participate in the political process.

A slightly modified provision ended up as a ballot referendum. As the proponents pointed out, when someone is sentenced to jail “we deprive them of their liberty and right to exercise control over their own lives, yet current law allows these same criminals to continue to exercise control over our lives by voting from prison.” The statement of opponents to the ballot referendum offers an interesting insight into the liberal mind: “No one has alleged that prisoner voting has harmed our democracy or social fabric.” They seem oblivious to the clear and obvious harm that felons do to our “social fabric.”

The famously liberal state of Massachusetts passed the amendment overwhelmingly, with over 60% voting “yes.” One thing we know for sure — if this issue ever ends up before the Supreme Court and if the vote in Hayden is any guide, then its clear how soon-to-be Justice Sotomayor will vote: She will ignore constitutional prerogatives and vote to prohibit the rights of states to bar felons from voting.