As soon as the family Christmas parties ended, I became rather ill. This will mean light posting today, and probably tomorrow as well. I am also unilaterally moving the Book Club discussion on The Republican Noise Machine to January 5th. Sorry, I just can't write a summary today--Chris

Felony disenfranchisement laws have been on the books for decades. With the massive upswing in the prisoner population over the past twenty-five years, these laws have contributed to a systematic disenfranchisement of minority communities. As the Sentencing Project notes:

Nationally, more than four million Americans are denied the right to vote as a result of laws that prohibit voting by felons or ex-felons. In 48 states (with the exception of Maine and Vermont) and the District of Columbia prisoners cannot vote, in 35 states felons on probation or parole are disenfranchised, and in 14 states a felony conviction can result in a lifetime ban long after the completion of a sentence. This fundamental obstacle to participation in democratic life is exacerbated by racial disparities in the criminal justice system, resulting in an estimated 13% of black men unable to vote.It is not a coincidence that the rise in the prison population was concurrent with the rise in conservative politics nationally. By disenfranchising millions of potential Democratic voters, conservatives titled the electorate in their favor. However, these laws are now being challenged:

The entire active roster of the U.S. Court of Appeals for the Second Circuit has agreed to rehear an April decision upholding a section of New York state's election law that denies prisoners and paroled felons the right to vote.

The court has voted to rehear in banc Muntaqim v. Coombe, 01-7260, in which a three-judge panel found that New York Election Law §5-106 does not violate §2 of the federal Voting Rights Act of 1965, 42 U.S.C. §1973.

Jalil Abdul Muntaqim, a black man incarcerated at Shawangunk Correctional Facility in Wallkill, acknowledged that the law was not intentionally discriminatory. Instead, he argued that it had the practical effect of diluting black and Hispanic voter rolls because the racial disparity in New York's prison population is driven, in part, by discriminatory sentencing practices.(...)

The decision to rehear the case in banc was made by a vote of the court's 13 active judges. It will be heard on April 7.

In a comment that I admit I have a difficult time understanding, legal observer and Dailykos commenter Glenn in NYC writes about the chances of the lawsuit to overturn the law: This case has some interesting procedural history -- interesting, of course, if you're the sort of legal geek (like me) who finds legal procedure interesting. A 3-judge panel of the Second Circuit upheld NY's felon-disenfranchisement law in April. Judge Jose Cabranes who, despite being appointed by Clinton, can be pretty conservative at times, wrote the opinion. The plaintiff (that is, the disenfranchised felon) petitioned to the Supreme Court for review in July and did not ask the entire Second Circuit to hear the case en banc (or "in banc," as the Second Circuit says). (The Second Circuit is notoriously loathe to rehear cases en banc, as opposed to other circuits like the Ninth.)

Meanwhile, one or more judges of the Second Circuit called for an en banc vote on his or her own initiative. This failed on October 1, apparently by a vote of 9-4, but something unusual happened. 4 judges who voted no said specifically that their votes were "without prejudice" to taking another vote if the Supreme Court chose not to hear the case. In other words, the "real" vote to hear the case (i.e., if the Supreme Court denied review) would be 7-6 in favor. (I say 7-6 rather than 8-5 because of Judge Jacobs' vote, noted below.) This is highly unusual, in my view, for these judges to say that if the Supreme Court didn't hear the case, then the lower court would review it again. This was pointed out by Judge Jacobs, who said he didn't favor in banc review but voted in favor since it was clear a majority really wanted it, and that it was improper to hold off review until after the Supreme Court looked at it. As he put it, "the court of last resort is on First Street [in D.C., i.e., the Supreme Court], not Foley Square [where the 2d Circuit is]."

Apparently, the Supremes agreed, because right after these votes were revealed, the Supremes denied review. (The docket shows a letter submission to the Supreme Court just after the denial; presumably counsel forwarded the order on to the Court.) I'm sure the Supremes figured if the lower court wanted to review it en banc, then by all means they should go ahead. And thus after the denial by the Supreme Court in November, apparently another vote was taken, and the result is the order referred to in pontificator's diary.

The 7-6 split mentioned above gives you a pretty good idea of the "liberal"/"conservative" split on the 2d Circuit now. (They're all pretty much moderates, however, with one or 2 exceptions.) So the way this goes is probably anybody's guess. Knowing the Circuit, if they can find a way not to decide it on the merits or to send it back for more fact-finding, they will. Still, it will be an interesting argument in April.

Within the last four years, Virginia and New Mexico voluntarily overturned their voting lifetime bans on ex-felons. If it takes a legal case to overturn these laws everywhere, then so be it.