I knew I’d written at some length about the disfranchisement case my brother argued, in which Sotomayor ultimately took his side (in dissent, alas), but I only just found it. It’s below the fold and originally appeared here, in 2005.

Among the dirty tricks the U.S. Constitution played in its wild younger days, the three-fifths compromise ranks high on the cynicism scale because it used black people to increase the voting power of white people who denied those black people the right to vote. Nor have the days of three-fifthsism passed. The U.S. Court of Appeals for the Second Circuit, in a rare procedure involving all of its sitting judges, is about to decide whether the modern version of three-fifthsism should survive. The U.S. Attorney General thinks it should, and argues that a federal statute cannot constitutionally apply in this case. And the federal statute the Attorney General is trying to have declared unconstitutional in this application is the Voting Rights Act.

The origins of this mess lie in the mind of Jalil Abdul Muntaqim, né Anthony Bottom, lately of Shawangunk Correctional Facility in Wallkill, NY. Muntaqim is a convicted cop-killer who decided to challenge New York State’s law that bars felons like him from voting. Muntaqim v. Coombe went to a three-judge panel of the Second Circuit Court, where Muntaqim lost. On appeal, the U.S. Supreme Court declined to hear the case. You might have heard nothing further about Muntaqim had not the Second Circuit, in an unusual move, granted his request that they hear the case in banc, which means that all thirteen active judges on the circuit will hear the case on June 22, 2005.

{Pedantic note, 1: Everyone, including me, spells it “en banc.” Except the Second Circuit, which uses “in banc.”}

{Pedantic note, 2: Argument on June 22 will consolidate Muntaqim v. Coombe with another case, Hayden v. Pataki, to combine questions the two cases pose (about vote denial and vote dilution) with respect to the Voting Rights Act.}

Muntaqim, as a cop-killer, does not strike me as the ideal poster-child for thwarted civic ambition. (By contrast note that the Brown in Brown v. Board was the Reverend Mr. Oliver Brown.) But Muntaqim’s case suggests that when he loses his vote — which may be, in itself, a just thing — bad practical consequences ensue for everyone else owing to neo-three-fifthsism.

Here’s how it works. Most prisoners in New York State come from the five boroughs of New York City. But in the last thirty years or so, the state has built all its prisons upstate. So all those downstate criminals get convicted and then moved upstate. And then, for the purposes of apportioning representation, this prison population counts in the upstate district — even though the felons can’t vote. The effect is the same as the three-fifths compromise — only now, five-fifths of disenfranchised people can count toward the representation of their enfranchised neighbors. In consequence seven New York Senate Districts would, without their prisoners, not have enough residents to qualify for representation.

{Pedantic note, 3: Historians use “disfranchisement,” an economical form. But everyone else likes “disenfranchisement.”}

{Pedantic note, 4: To put the apportionment problem more precisely, without the prisoners these seven districts would fall below the average district population by more than the allowable deviation, thus invalidating the scheme of representation under White v. Regester. The whole study by Peter Wagner is worth reading.}

As a result of this policy of disenfranchisement and relocation, New York City loses population and thus representation to upstate, rural areas. It is a very traditional, American outcome, as if New York State had its own miniature Senate or Electoral College. But insofar as race matters in voting — and U.S. law assumes it does — this policy causes worse problems. The prison population in New York State is about 80% black and Latino. So the state’s disenfranchisement and export of felons means that the otherwise fairly white counties upstate get a bloc of nonvoting minorities whose presence augments their right to representation in the state legislature, while the downstate counties get whiter by the number of prisoners exported.

Here the Voting Rights Act comes in. Passed in 1965 to provide federal oversight for elections in the Jim Crow South, its Section 2 originally stated that “No … standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” As later amended and passed in 1982, Section 2 now says, “No … procedure shall be imposed or applied by any State … in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color….” (Emphasis added.) Briefs offered in the Muntaqim case argue that the state’s felon disenfranchisement law as implemented counts as just such a procedure under the Voting Rights Act because it results in denial and abridgment of voting rights of a class defined by race.

At this stage the lines of legal conflict get truly tangled. Courts have by statute to notify the Attorney General if the constitutionality of a federal statute is questioned in a case to which the U.S. government is not a party. (The current version of this law is 28 U.S.C. 2403.) Congress enacted this requirement in 1937. As Rep. Hatton Sumners (D-TX), the bill’s author and sponsor, explained, it give the AG the power “to defend, solely, the question of constitutionality” and this power was “limited to the one thing, and that is the defense of the constitutionality of the act.” (81 Cong. Rec. 3254 and 3259) Muntaqim’s case draws into question the constitutionality of the Voting Rights Act. And the Attorney General is responding — only, he’s responding not to defend but to oppose the constitutionality of the Voting Rights Act in this application. The United States’ brief expresses disapproval of “the vast overinclusiveness of Section 2” of the Voting Rights Act. If Section 2 were enforced this way, the U.S. amicus brief argues, it “raises serious questions” about the constitutionality of at least this part of the Voting Rights Act. (Brief for the United States as amicus curiae in Muntaqim v. Coombe, 21)

Does the Attorney General’s unusual intervention reflect a partisan skew to the clash? Yes and no. The Senators from New York’s upstate districts that depend on prisoner populations to justify their representation are Republicans, and of course the Attorney General’s office is now staffed by Republicans. But this is not just about Republicans vs. Democrats. It’s about Republicans (2005 edition) vs. Republicans (1982 edition). Because the Voting Rights Act as it now stands, with that “overinclusive” Section 2 that tries to prevent procedures anywhere in the country from producing a racially discriminatory result, irrespective of intent, was passed by a majority-Republican Senate — even Strom Thurmond voted for it — and signed into law by Ronald Reagan. But you know Reagan and Thurmond. They were weedy liberals, with wild ideas about how “the right to vote is the crown jewel of American liberties, and we will not see its luster diminished.”

Disclaimer: The Second Circuit Court appointed counsel for Muntaqim in June 2002. This learned and charming counsel’s name is Jon Rauchway. These opinions are mine, not his. All information presented here is public record, and legal commenters generally agree on the importance of this case. See the NAACP LDF’s Muntaqim site; see Appellate Law &
Practice’s analysis; and also Chris Bowers at MyDD on “The Most Important Voting Rights Case in Decades.”

As of 3/31/05, former United States Attorneys Zachary Carter, Veronica Coleman-Davis, and Scott Lassar, together with the National Black Police Association, the National Latino Officers Association of America, and other current and former law enforcement officials have weighed in on the side opposite the Justice Department, arguing in their own amicus brief that concerns about federalism or law enforcement should not prevent the application of Section 2 of the Voting Rights Act in this case.