Simmons v. Galvin

United States Court of Appeals
For the First Circuit

No. 08-1569

PAUL SIMMONS; PEDRO VALENTIN; DENNIS BELDOTTI,

Plaintiffs, Appellees/Cross-Appellants,

v.

WILLIAM FRANCIS GALVIN,
in his capacity as Secretary of the Commonwealth of Massachusetts,

Defendant, Appellant/Cross-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.

Kenneth W. Salinger, Assistant Attorney General, and Peter
Sacks, Assistant Attorney General, with whom Martha Coakley,
Attorney General of Massachusetts, was on brief for
appellant/cross-appellee.
Christopher P. Silva with whom Thomas H. Wintner, Gail E.
Cornwall, and Edwards Angell Palmer & Dodge, LLP were on brief for
appellee/cross-appellant.

July 31, 2009
 LYNCH, Chief Judge. By nearly a two-to-one margin in the

year 2000, Massachusetts voters passed Article 120, which amended

the state constitution to disqualify currently incarcerated felons

from voting in certain elections. Shortly thereafter, the state

legislature extended this disqualification by statute, Chapter 150,

to prevent inmates from voting in all Massachusetts elections.

In 2001, several incarcerated felons in state custody,

challenged these provisions (collectively "Article 120") by suing

the Secretary of the Commonwealth in federal court. This appeal

concerns two of their claims: (1) that the Commonwealth's

disenfranchisement provisions violated the Voting Rights Act

("VRA") § 2, 42 U.S.C. § 1973, because the percentage of imprisoned

felons who are Hispanic or African-American is higher than the

percentages of those groups in the population of the state; and (2)

that the provisions violated the Ex Post Facto Clause, U.S. Const.

art. I, § 10, as to those inmates who were not disqualified from

voting before the these provisions took effect. As to their claim

under the VRA, the plaintiffs make no allegation of any intentional

discrimination or of any history by Massachusetts of intentional

discrimination against minority voters. All they have claimed is

that past practices in the Massachusetts criminal justice system

produced inmate populations which, in combination with the

disqualification of inmates imprisoned for felonies, have resulted

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in disproportionate disqualification of minorities from voting.

Theirs is a claim of disparate impact.

After allowing initial discovery, the district court in

2007 denied the Commonwealth's motion for entry of judgment on the

pleadings on plaintiffs' VRA claim but granted the Commonwealth's

motion for summary judgment on the Ex Post Facto Clause argument.

We think it clear from the language, history, and context

of the VRA that Congress never intended § 2 to prohibit the states

from disenfranchising currently incarcerated felons. We do not say

that direct vote denial claims of other types may not be brought

under § 2, only that no VRA claim is stated against a state law

which disenfranchises incarcerated felons. We reverse and order

the dismissal of the VRA § 2 claim. We affirm the grant of summary

judgment on the Ex Post Facto claim.

I.

A. Enactment of the Massachusetts Incarcerated Felon
Disenfranchisement Provisions

Before Article 120 was enacted, prisoners were able to

vote by absentee ballot. In 1997, there was an unsuccessful

proposal for legislation to disenfranchise currently incarcerated

persons for certain felonies: murder, rape, other sex-related

offenses, and controlled substances offenses. Massachusetts

prisoners responded by forming a political action committee

("PAC"), aimed at influencing criminal justice issues, including

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sentencing, prison reform, and "Draconian laws on punishment."

PACs, inter alia, raise money for and endorse candidates.

State elected officials reacted swiftly. On August 12,

1997, then-Acting Governor Cellucci proposed a constitutional

amendment that would disenfranchise all incarcerated individuals

(not just felons), saying:

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 right
to participate in the political process.

The legislature did not act on this proposal. Rather, the

legislature approved a different proposed amendment that would

disenfranchise only those currently incarcerated for felonies.

Lawmakers received the legal opinions of House and Senate Counsel

that such an alternative amendment would be constitutional under

the U.S. Constitution.

Article 120, the proposed amendment to Article 3 of the

Amendments to the state constitution, was presented to the voters

along with an Information for Voters Guide. That Guide constitutes

relevant legislative history. The Guide included 150-word

arguments written by proponents and opponents of each ballot

question. The statement from the proponents stated, "A yes vote

prevents criminals serving time for a felony conviction from voting

in Massachusetts's elections while in jail." The proponents

argued:

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 When someone in Massachusetts is sentenced to
jail for committing a felony, 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.
This amendment will change the law that gives
jailed criminals the right to vote.

Massachusetts is one of only three states in
our nation where felons serving time may vote
while in jail. Voting yes on this important
question will make the Commonwealth the 48th
state to prohibit the practice of allowing
convicted criminals to vote from jail. This
change discriminates against no one except
jailed criminals.

The Guide also contained the opponents' argument:

The Constitution of Massachusetts is clear on
this point: Citizens retain their right to
vote even while incarcerated. The founders of
Massachusetts intended this right, and our
Supreme Judicial Court affirmed in in 1977.
In the history of the Commonwealth, we have
never amended our Constitution in order to
narrow fundamental rights. There is no reason
to do so now.

No one has alleged that prisoner voting has
harmed our democracy or social fabric. Very
few prisoners vote, and no one claims that
prisoner voting has negatively influenced any
election. Stripping incarcerated felons of
their right to vote serves no public safety
function. It will not deter crime, repair the
harm done by crime, nor help to rehabilitate
prisoners.

The voters approved the amendment with 60.3% voting "yes"

to 33.9% voting "no," and 5.8% of voters not casting a vote on the

question. The amendment took effect on December 6, 2000. Article

3 now reads:

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 Every citizen of eighteen years of age and
upwards, excepting persons who are
incarcerated in a correctional facility due to
a felony conviction, and excepting persons
under guardianship and persons temporarily or
permanently disqualified by law because of
corrupt practices in respect to elections who
shall have resided within the town or district
in which he may claim a right to vote, six
calendar months next preceding any election of
governor, lieutenant governor, senators or
representatives, shall have a right to vote in
such election of governor, lieutenant
governor, senators and representatives; and no
other person shall be entitled to vote in such
election.

Mass. Const. amend. art. 3 (emphasis added).

The Massachusetts legislature then enacted Chapter 150 of

the Acts of 2001, which effectuated Article 120 by broadening the

ban on felon voting to cover all Massachusetts elections and by

changing the statutory requirements for obtaining absentee ballots.

Chapter 150 took effect November 27, 2001. Unlike many other

states, Massachusetts does not disqualify convicted felons from

voting once they are released from prison.

B. Procedural History of the Litigation

Plaintiffs Paul Simmons, an African-American, Pedro

Valentin, a Hispanic-American, and Dennis J. Beldotti, a

Caucasian-American, are Massachusetts residents currently in the

custody of the Massachusetts Department of Correction for felonies

they committed on or before December 5, 2000. Plaintiffs were

eligible to be Massachusetts voters before that date, but the

record does not reveal whether they were registered to vote.

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 Plaintiffs' pro se complaint was amended twice by court-

appointed counsel. Their final amended complaint alleged that

Article 120 violates § 2 of the VRA because it has a

"disproportionately adverse effect on the voting rights of

African-Americans and Hispanic Americans compared to its effect on

the voting rights of other citizens." This effect "is caused by,

among other things, the facts that African-Americans and

Hispanic-Americans are over-represented in the population of

Massachusetts incarcerated felons, and that there exists

considerable racial and ethnic bias, both direct and subtle, in the

Massachusetts court system."1 Article 120, plaintiffs contended,

"interact[s] with social and historical conditions to cause an

inequality in the opportunities enjoyed by minority and

non-minority voters to elect their preferred representatives."

In describing plaintiffs' complaint, which alleges a

"vote denial" claim, we distinguish vote denial cases from vote

dilution2 claims under § 2 of the VRA. The Supreme Court first

1
By "over-represented" the complaint referred to the
representation of African-Americans and Hispanic-Americans in the
prison population compared with their representation in the
Massachusetts population at large, but gave no statistics.
2
Vote dilution claims comprise the vast majority of § 2
claims. See E. Katz et al., Documenting Discrimination in Voting:
Judicial Findings Under Section 2 of the Voting Rights Act Since
1982, 39 U. Mich. J.L. Reform 643, 650 (2005), available at
http://sitemaker.umich.edu/votingrights/files/finalreport.pdf; D.P.
Tokaji, The New Vote Denial: Where Election Reform Meets the Voting
Rights Act, 57 S.C. L. Rev. 689, 709 (2006) ("[I]t is clear that
the overwhelming majority of Section 2 lawsuits since 1982 have

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articulated the distinction in explaining that "[t]he right to vote

can be affected by a dilution of voting power as well as by an

absolute prohibition on casting a ballot." Shaw v. Reno, 509 U.S.

630, 640 (1993) (quoting Allen v. State Bd. of Elections, 393 U.S.

544, 569 (1969)). Thus in voting rights parlance, "'[v]ote denial'

refers to practices that prevent people from voting or having their

votes counted." D.P. Tokaji, The New Vote Denial: Where Election

Reform Meets the Voting Rights Act, 57 S.C. L. Rev. 689, 691

(2006). Vote denial cases challenge practices such as literacy

tests, poll taxes, white primaries, and English-only ballots. Id.

By contrast, vote dilution challenges involve "practices that

diminish minorities' political influence," such as at-large

elections and redistricting plans that either weaken or keep

minorities' voting strength weak. Id.; see also P.S. Karlan, The

Impact of the Voting Rights Act on African Americans, in Voting

Rights and Redistricting 121, 122 (M.E. Rush ed., 1998).

To be clear, plaintiffs did not allege and have disavowed

making a § 2 vote dilution claim, such as that the votes of

African-Americans and Hispanics who are not imprisoned for felonies

have been diluted by Article 120. This case also does not involve

any claim that generalized rules or practices governing the

administration of elections have resulted in a disproportionate

involved claims of vote dilution and not vote denial."); see
generally, Bartlett v. Strickland, 129 S. Ct. 1231, 1240-41 (2009)
(plurality opinion).

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denial of votes of minorities. Further, plaintiffs have not

asserted that the state has otherwise created barriers to the

election of minority group members or other participation of

minorities in the political process. Finally, the plaintiffs'

complaint made no allegation that the Commonwealth acted with

racially discriminatory intent or purpose in enacting Article 120,

and plaintiffs have specifically disavowed any such claim. This is

a claim based purely on the allegation that Article 120 has a

disparate impact on minorities by disqualifying from voting

imprisoned felons.

In support of their pleadings, the complaint referred to

and appended a 1994 Final Report by the Commission to Study Racial

and Ethnic Bias in the Courts to the Massachusetts Supreme Judicial

Court ("SJC").3 Plaintiffs alleged the legislators were aware of

or should have been aware of the conclusions in that 1994 Report.

That 1994 Report, however, was not referenced in or part of the

Voters Guide, and there is no claim the voters were aware of it.

3
The specific findings in the 1994 Commission Report, as
stated in the pleadings, included that "racial minorities were
underrepresented in jury pools selected from communities with
large racial and ethnic populations; that Massachusetts courts are
an unfriendly environment for people whose primary language is not
English . . . ; and that minorities are underrepresented in [the]
Massachusetts bar and bench." The 1994 Report itself goes on to
say, as to sentencing, that it lacked the necessary data to "test
[the] hypothesis" that "[r]acial and ethnic bias may influence
sentencing decisions." The report did not conclude that any race
bias resulted in minority defendants being sentenced as felons.

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 Plaintiffs further alleged that Article 120 is punitive

in purpose and effect and therefore violates the Ex Post Facto

Clause as to those inmates who committed their offenses before the

disenfranchisement measures took effect.

The relief sought was a declaration that Article 120 was

unconstitutional under the Ex Post Facto Clause and illegal under

§ 2 of the VRA, injunctive relief, and costs and attorneys' fees.

Plaintiffs unsuccessfully moved for a preliminary

injunction; defendant opposed, filing affidavits which described

the legislative history of Article 120 and the ratification

process. The parties conducted written discovery.4 Defendant then

moved for summary judgment as to the Ex Post Facto and equal

protection claims and for judgment on the pleadings as to the VRA

§ 2 claim on January 12, 2007. The plaintiffs opposed the

Commonwealth's motions and also cross-moved for summary judgment as

to the Ex Post Facto and equal protection claims.

On August 30, 2007, the district court granted the

Commonwealth's motion for summary judgment on the Ex Post Facto

Clause claim and the equal protection claim and denied plaintiffs'

4
Plaintiffs served interrogatories and document requests on
defendant William Galvin, Secretary of the Commonwealth, seeking
data as to the effect of Article 120 on minorities. For example,
plaintiffs requested through interrogatories information on all
individuals who have been arrested in Massachusetts since 1985 by
name, date of birth, Social Security Number, race, ethnicity, skin
color, and/or alleged offense. Defendant replied saying defendant
did not maintain such records and had no responsive information.

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cross-motion. The court denied the Commonwealth's motion on the

VRA claim. On January 16, 2008, the district court certified its

order on the VRA claim for interlocutory appeal. Plaintiffs

petitioned to cross-appeal on the Ex Post Facto and equal

protection claims. This court granted leave to appeal all three

claims under 28 U.S.C. § 1292(b). Plaintiffs have abandoned the

Equal Protection Clause claim and contest only the Ex Post Facto

Clause ruling, and the Commonwealth appeals the denial of its

motion for judgment on the pleadings as to the VRA § 2 claims.

C. Standard of Review

Our review of the court's ruling on both claims is de

novo, and we take the facts in the light most favorable to the

plaintiffs. Estate of Bennett v. Wainwright, 548 F.3d 155, 163,

165 (1st Cir. 2008) (considering dismissals under Rule 12(c) and

Rule 56). We treat the denial of a motion for judgment on the

pleadings "much like a Rule 12(b)(6) motion to dismiss."

Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008).5

"[T]o survive a Rule 12(b)(6) motion (and, by extension, a Rule

5
Despite the nomenclature of the defendant's motion on the
VRA § 2 claim as a motion for judgment on the pleadings, in fact
both sides brought additional undisputed materials to the court's
attention. "In reviewing a motion [for judgment on the pleadings]
under Rule 12(c) . . . we may consider 'documents the authenticity
of which are not disputed by the parties; . . . documents central
to plaintiffs' claim; [and] documents sufficiently referred to in
the complaint.'" Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.
2007) (alteration and omission in original) (quoting Watterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993)).

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12(c) motion) a complaint must contain factual allegations that

'raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true.'"

Id. (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965

(2007)). Nonetheless, questions of statutory interpretation are

questions of law ripe for resolution at the pleadings stage. Gen.

Motors Corp. v. Darling's, 444 F.3d 98, 107 (1st Cir. 2006)

("Statutory interpretation typically raises questions of law

engendering de novo review.").

II.

VRA § 2 CLAIM

Plaintiffs' § 2 challenge is to the Massachusetts law

disenfranchising only currently incarcerated felons. Article 120

is among the narrowest of state felon disenfranchisement

provisions.6 Only two states permit incarcerated felons to vote,

and Massachusetts is one of thirteen jurisdictions that limit

disenfranchisement to the period of incarceration. Currently,

thirty-five states prevent felons from voting during the period of

their parole or probation or both. Eleven states disenfranchise

6
See Developments in the Law -- One Person, No Vote: The
Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1942-49
(2002) (surveying state felon disenfranchisement statutes). This
led the student law review note to comment: "The nation seems to be
nearing a consensus that the presently incarcerated should not have
the right to vote." Id. at 1942.

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felons beyond the term of their incarceration, probation, and

parole. Two states disenfranchise felons for life.

The question of state felon disenfranchisement laws and

the VRA § 2 has been addressed by five circuits. Four circuits,

including two en banc, have rejected § 2 challenges to broader

disqualifications; one panel in the Ninth Circuit had allowed such

a § 2 challenge to go forward, although it was ultimately

unsuccessful. The Second Circuit, consistent with our holding

here, has rejected a § 2 challenge to a state statute

disenfranchising prisoners, as well as parolees. Hayden v. Pataki,

449 F.3d 305 (2d Cir. 2006) (en banc). Faced with a state lifetime

felon disenfranchisement law, the Eleventh Circuit concluded in an

en banc decision that all felon disenfranchisement claims are

excluded from the scope of § 2 of the VRA. Johnson v. Gov. of

Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc). Two circuits have

rejected similar claims on the pleadings without directly

considering whether felon disenfranchisement statutes are immune

from attack under § 2. Howard v. Gilmore, No. 99-2285, 2000 WL

203984, at *1 (4th Cir. Feb. 23, 2000) (per curiam); Wesley v.

Collins, 791 F.2d 1255, 1259-61 (6th Cir. 1986) (treating claim as

a dilution claim). Our conclusion accords with that of the

majority of the circuits.

A Ninth Circuit panel decision has concluded that some

disenfranchisement statutes, not as narrow as this one, may be

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challenged under § 2. Farrakhan v. Washington, 338 F.3d 1009 (9th

Cir. 2003) (addressing disenfranchisement of those convicted of an

"infamous crime" until those former felons comply with civil rights

restoration statute). Over a dissent by seven judges, the Ninth

Circuit denied the state's petition for rehearing en banc in that

case, Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir. 2004)

(Kozinski, J., dissenting). On remand, judgment was entered for

the state. Farrakhan v. Gregoire, No. CV-96-076-RHW, 2006 WL

1889273 (E.D. Wash. July 7, 2006).

A. Constitutional Background to the VRA § 2 Claim

Under the U.S. Constitution, the states generally set the

eligibility criteria for voters. "[T]he Constitution 'does not

confer the right of suffrage upon any one.'" Rodriguez v. Popular

Democratic Party, 457 U.S. 1, 9 (1982) (quoting Minor v.

Happersett, 88 U.S. (21 Wall.) 162, 178 (1875)); see also U.S.

Const. art. I, § 4; id. amend. XIV, § 2; Bush v. Gore, 531 U.S. 98,

104 (2000) (per curiam) ("The individual citizen has no federal

constitutional right to vote for electors for the President of the

United States unless and until the state legislature chooses a

statewide election as the means to implement its power to appoint

members of the electoral college.").

The criteria for eligibility to vote are defined by the

states, subject to certain federal restrictions, such as the

federal constitutional prohibition on exclusion from the franchise

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on the basis of race, sex, or payment of a poll tax. "No function

is more essential to the separate and independent existence of the

States and their governments than the power to determine within the

limits of the Constitution the qualifications of their own voters

for state, county, and municipal offices." Oregon v. Mitchell, 400

U.S. 112, 125 (1970).

The power of the states to disqualify from voting those

convicted of crimes is explicitly set forth in § 2 of the

Fourteenth Amendment. The Supreme Court has held, "the exclusion

of felons from the vote has an affirmative sanction in § 2 of the

Fourteenth Amendment." Richardson v. Ramirez, 418 U.S. 24, 55

(1974). Section 2 concerns the abridgement of the right to vote at

any election for "President and Vice President of the United

States, Representatives in Congress, the Executive and Judicial

officers of a State, or members of the Legislature." U.S. Const.

amend. XIV, § 2. The Amendment specifically excludes (from its

non-abridgement language) and thus provides for the denial by

states of the right to vote to persons "for participation in

rebellion, or other crime." Id. The Fourteenth Amendment also

grants Congress the power to enforce, by appropriate legislation,

the provisions of that article. Id. § 5. Thus, the state's denial

of the right to vote to felons has a constitutional grounding.

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 Broad felon disenfranchisement provisions are

presumptively constitutional. See Richardson, 418 U.S. at 54-55.7

There, the Court rejected a non-race-based equal protection

challenge to the felon disenfranchisement provision of

California's constitution. The Supreme Court has continued to

adhere to Richardson. See Romer v. Evans, 517 U.S. 620, 634

(1996) (describing principle that states may disenfranchise a

convicted felon as "unexceptionable").

Richardson, to be clear, does not hold that a state felon

disenfranchisement law may never raise equal protection concerns.

If a state enacts a law which disenfranchises felons "with the

intent of disenfranchising blacks," that state has run afoul of

§ 1 of the Fourteenth Amendment. Hunter v. Underwood, 471 U.S.

222, 229 (1985) (holding Alabama's petty crime and misdemeanor

disenfranchisement provisions unconstitutional under Equal

Protection Clause based on evidence of discriminatory intent); see

also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 477

n.25 (1985) ("[In Hunter], we did not suggest that felons could

not be deprived of the vote through a statute motivated by some

purpose other than racial discrimination."). Here, plaintiffs

make no allegation of intentional discrimination, and on appeal

7
The SJC has also recognized that under Richardson states
may disenfranchise felons. Dane v. Bd. of Registrars of Voters,
371 N.E.2d 1358, 1364 (Mass. 1978) ("Disfranchisement of convicted
criminals by State law was held by the . . . Supreme Court in
Richardson . . . not to violate the equal protection clause.").

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they allege no constitutional violation other than the Ex Post

Facto claim. By definition, then, plaintiffs do not assert that

whatever discrimination existed in the state's criminal justice

system rose to the level of an independent constitutional

violation which caused the vote denial.

A state's interest in preventing "persons who . . . were

not eligible to vote because they had been convicted of felonies"

from inflating its voter rolls was accepted only last year by the

Supreme Court as a "neutral and nondiscriminatory reason" for a

voter identification law. Crawford v. Marion County Election Bd.,

128 S. Ct. 1610, 1619-20 (2008).

The legitimacy of the reasons for this state interest in

disqualifying imprisoned felons from voting is apparent. Judge

Henry Friendly some time ago described some of the pragmatic

purposes underlying disenfranchisement laws:

[I]t can scarcely be deemed unreasonable for a
state to decide that perpetrators of serious
crimes shall not take part in electing the
legislators who make the laws, the executives
who enforce these, the prosecutors who must
try them for further violations, or the judges
who are to consider their cases.

Green v. Bd. of Elections, 380 F.2d 445, 451 (2d Cir. 1967).8

8
There are philosophical reasons as well, such as that those
who violate the laws so seriously have removed themselves from the
Lockean notion of the social contract:
The early exclusion of felons from the
franchise by many states could well have
rested on Locke's concept, so influential at
the time, that by entering into society every

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 Here, the Commonwealth enacted this prohibition after

prisoners attempted to organize to change the laws under which

they were convicted, sentenced, and imprisoned. The state has a

strong interest in setting its own qualifications for voters, a

strong interest in the integrity of its system of enforcing and

administering its criminal laws, and a strong interest in how its

correctional systems are maintained and run. Preiser v.

Rodriguez, 411 U.S. 475, 491-92 (1973) ("It is difficult to

imagine an activity in which a State has a stronger interest . . .

than the administration of its prisons."); cf. Hayden, 449 F.3d at

327. The Massachusetts provision, it is important to note, is

narrowly tailored. Because the disqualification is confined to

currently imprisoned felons, the state interests it serves are

clearly at their strongest.

Further, Article 120 of the Massachusetts constitution

does not raise issues about a history of laws in Massachusetts,

including felon disenfranchisement laws, that were used

deliberately to impede voting by minorities. Such historical

man "authorizes the society, or which is all
one, the legislature thereof, to make laws for
him as the public good of the society shall
require, to the execution whereof his own
assistance (as to his own decrees) is due." A
man who breaks the laws he has authorized his
agent to make for his own governance could
fairly have been thought to have abandoned the
right to participate in further administering
the compact.
Green, 380 F.2d at 451.

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concerns about practices in other states have been the subject of

academic commentary. See, e.g., G. Brooks, Comment, Felon

Disenfranchisement: Law, History, Policy and Politics, 32 Fordham

Urb. L.J. 851, 858-59 (2005) (concluding that the VRA does not

reach state felon disenfranchisement laws). Plaintiffs have made

no claim that Massachusetts has historically ever used any tests

or devices to discourage minority voting or minority candidates.

Nor is there any claim that Massachusetts has defined Article 120

disenfranchisement in terms of felonies that have higher

conviction rates for minorities than for whites. Cf. Hunter, 471

U.S. at 229.

B. Text, Context and Legislative History of § 2

It is against the backdrop of the Constitution's express

approval of felon disenfranchisement provisions, which were not

motivated by intentional race discrimination, that Congress

enacted the VRA in 1965.

Section 2 of the VRA, 42 U.S.C. § 1973, as amended in

1982, now provides:

(a) No voting qualification or prerequisite
to voting or standard, practice, or procedure
shall be imposed or applied by any State or
political subdivision in a manner which
results in a denial or abridgement of the
right of any citizen of the United States to
vote on account of race or color . . . .

(b) A violation of subsection (a) is
established if, based on the totality of
circumstances, it is shown that the political
processes leading to nomination or election in

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 the State or political subdivision are not
equally open to participation by members of a
class of citizens protected by subsection (a)
in that its members have less opportunity than
other members of the electorate to participate
in the political process and to elect
representatives of their choice.

While the language of the original § 2 tracked the language of the

Fifteenth Amendment, prohibiting practices that deny or abridge

the right to vote on account of race, the 1982 amendment to § 2

inserted the phrase "results in a denial or abridgment."

§ 1973(b) (emphasis added). The amendment of § 2 also made clear

that an abridgement or denial could be identified "as provided in

subsection (b)," which was added by the 1982 amendments.

To start, it is clear that under the plain terms of the

statute, not every "voter qualification" is actionable under § 2.

For § 2 to apply, the burden is on the plaintiffs to make other

showings, including that the qualification "results in a denial or

abridgement of the right of any citizen of the United States to

vote on account of race or color." § 1973(a); see also Metts v.

Murphy, 363 F.3d 8, 12 (1st Cir. 2004) (en banc) (per curiam).

Plaintiffs' theory of how they meet this burden under § 2

is that from the very enactment of § 2 in 1965, the broad language

of § 2 has created a cause of action on these facts. Article 120,

they contend, is obviously a voter disqualification and the

disqualification results in a denial of the right to vote "on

account of race" because the percentages of incarcerated felons

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who are black or Hispanic are higher than those two groups in the

population as a whole.

Plaintiffs argue the language of § 2(a) is so clear it

stands alone and that rules of statutory construction prohibit

consideration of the history or context of § 2.9 Plaintiffs' claim

assumes that felon disenfranchisement laws are not different from

and should be treated like any other voting qualification under

§ 2. That assumption is a fatal flaw in their case. Felon

disenfranchisement statutes are not like all other voting

qualifications. Congress has treated such laws differently. They

are deeply rooted in our history, in our laws, and in our

Constitution. We conclude Congress did not intend § 2 to provide

a cause of action against Article 120.

As a matter of textual analysis, it is neither plain nor

clear that plaintiffs' claim fits within the text of § 2(a). For

example, it is logical to understand the state law

9
In addition, plaintiffs contend § 2(a) must be read to be
independent of § 2(b), which was added by the 1982 amendments. And
even if § 2(b) is read as informing and restricting the meaning of
§ 2(a), plaintiffs submit, they have nonetheless stated a claim
under the clear language of § 2(a).
Plaintiffs alternatively argue that, to the extent § 2(b)
may be considered, it only establishes a totality of the
circumstances test for proving a violation of § 2(a) and in no way
limits the scope of § 2(a). Plaintiffs argue that, to the extent
§ 4 and § 5 (which ban certain practices) are relevant, those later
sections demonstrate only that Congress meant § 2(a) to be read
broadly. If legislative history is consulted, they argue that the
legislative history of § 2 establishes that their claim falls
within Congress's intent in enacting § 2.

-21-
disenfranchisement of incarcerated felons as not "resulting" in a

denial "on account of race or color" but on account of

imprisonment for a felony, and thus not within the text of § 2 at

all.10 We agree with the Second Circuit that the language of

§ 2(a) is both broad and ambiguous and that judicial

interpretation of a claim concerning felon disenfranchisement

under the VRA may not be limited to the text of § 2(a) alone. See

Hayden, 449 F.3d at 315 (citing Watt v. Alaska, 451 U.S. 259, 266

(1981); Boston Sand & Gravel Co. v. United States, 278 U.S. 41,

48(1928)).

Under any set of rules of construction, our inquiry into

§ 2(a) neither starts nor ends with an examination of that text.

"[S]tatutory interpretation turns on 'the language itself, the

specific context in which that language is used, and the broader

context of the statute as a whole.'" Nken v. Holder, No. 08-681,

___ S. Ct. ___, 2009 WL 1065976, at *6 (Apr. 22, 2009) (quoting

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).

Under Supreme Court precedent, we cannot adopt

plaintiffs' limited approach. The direction to look at context,

10
There are questions as to whether a claim of disparate
impact is sufficient to state a § 2 vote denial case. See Johnson,
405 F.3d at 1235-37 (Tjoflat, J., concurring); see also Goosby v.
Town Bd. of Hempstead, 180 F.3d 476, 499 (2d Cir. 1999) (Leval, J.,
concurring); Nipper v. Smith, 39 F.3d 1494, 1524-25 (11th Cir.
1994) (en banc); LULAC v. Clements, 999 F.2d 831, 859-63 (5th Cir.
1993) (en banc). Whether a claim of mere disproportionality alone
supports a "resulting" claim is not clear under § 2 and is a
difficult question we need not reach.

-22-
structure, history, and constitutional concerns is particularly

true of the VRA, a complex statute with an extensive legislative

history and caselaw. See Nw. Austin Mun. Util. Dist. No. 1 v.

Holder, No. 08-322, ___ S. Ct. ___, 2009 WL 1738645 at *10 (June

22, 2009) ("[S]pecific precedent, the structure of the Voting

Rights Act, and underlying constitutional concerns compel a

broader reading of the [VRA's] bailout provision."). The Supreme

Court itself, in deciding § 2 cases has never resorted to plain

text alone to give § 2 meaning. See, e.g., Chisom v. Roemer, 501

U.S. 380, 397 (1991). It has commonly used legislative history.

See League of United Latin Am. Citizens v. Perry, 548 U.S. 399,

426 (2006); see also 2A N.J. Singer & J.D. Singer, Sutherland

Statutes and Statutory Construction § 48A:11 (7th ed. 2008) ("In

reviewing legislative history, the Court consults . . . committee

reports, floor debates, hearings, rejected proposals, and even

legislative silence.").

In examining § 2, we are required to comply with "the

cardinal rule that a statute is to be read as a whole," King v.

St. Vincent's Hosp., 502 U.S. 215, 221 (1991). As "the meaning of

statutory language, plain or not, depends on context," id., we

must "look not only to the particular statutory language, but to

the design of the statute as a whole and to its object and

policy." Dada v. Mukasey, 128 S. Ct. 2307, 2317 (2008) (quoting

-23-
Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991))

(internal quotation marks omitted).

When we look at the terms of the original VRA as a whole,

the context, and recognized sources of congressional intent, it is

clear the original § 2 of the VRA of 1965 was not meant to create

a cause of action against a state which disenfranchises its

incarcerated felons. The purposes and congressional history of

the 1982 amendments, as well as congressional action after 1982,

further confirm our understanding that § 2 does not encompass this

claim.

1. The Original VRA of 1965

The original VRA was enacted against the background of

explicit constitutional and congressional11 approval of state felon

disenfranchisement laws and expressed no intention to invalidate

such laws, but rather an intention to leave such laws untouched.

Prior to the enactment of the VRA, enforcement of the

Fifteenth Amendment guarantee that the "right of citizens of the

United States to vote shall not be denied or abridged . . . on

account of race, color, or previous condition of servitude," U.S.

Const. amend. XV, § 1, was unsatisfactory. Nw. Austin, 2009 WL

1738645 at *4.

11
Indeed, in re-admitting southern states to the Union
following the Civil War, Congress approved new state constitutions
containing felon disenfranchisement provisions. Richardson, 418
U.S. at 48-52.

-24-
 In 1965, Congress enacted the VRA with the intent to

"banish the blight of racial discrimination in voting, which ha[d]

infected the electoral process in parts of our country for nearly

a century." South Carolina v. Katzenbach, 383 U.S. 301, 308

(1966). Plaintiffs' claim here concededly does not involve any

such intent. The language of the original § 2 "tracked . . . the

text of the Fifteenth Amendment," Bartlett, 129 S. Ct. at 1240.

The Court emphasized this point when it said that the original § 2

did "no more than elaborate[] upon . . . the Fifteenth Amendment,"

id. at 1241 (omission in original) (quoting City of Mobile v.

Bolden, 446 U.S. 55, 60-61 (1980) (plurality opinion)) (internal

quotation marks omitted). The VRA's original object was plainly

to combat specific forms of racial discrimination.12 Beyond § 2,

the remainder of the VRA set up a scheme of stringent remedies to

address the most flagrant practices. "[T]he Act directly

pre-empted the most powerful tools of black disenfranchisement in

the covered areas. All literacy tests and similar voting

qualifications were abolished by §4 of the Act." Nw. Austin, 2009

WL 1738645, at *4 (citing Voting Rights Act of 1965, §§ 4(a)-(d),

79 Stat. 437, 438-439).

12
Plaintiffs rely heavily on the Court's statement, in a vote
dilution case, that Congress intended "to give the Act the broadest
possible scope," Allen v. State Bd. of Elections, 393 U.S. 544, 567
(1969) (interpreting the phrase "qualification . . . or procedure"
in § 2(a)). This language in Allen must be understood in light of
the Court's other statements in subsequent cases, including Bolden
and Bartlett.

-25-
 The legislative history of the VRA shows that Congress

was not silent with respect to felon disenfranchisement laws. In

fact, Congress explicitly considered the effect of the VRA on

state felon disenfranchisement laws, and did so under § 4, rather

than under § 2.13 Section 4 of the VRA bans any "test or device"

that impermissibly limits the franchise. 42 U.S.C. § 1973b(c).

Congress, in enacting § 4(c) proscribed several categories of

historically discriminatory tests or devices, including some

literacy tests, educational achievement or knowledge tests, and

good moral character qualifications. But Congress was careful to

carve out from its proscription of tests for good moral character

any and all state felon disenfranchisement laws. H.R. Rep. No.

89-439 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2547-57. In

excluding felon disenfranchisement laws from the scope of § 4,

Congress took the view that it did not consider such laws to be a

discriminatory voter qualification or a "tool[] of black

disenfranchisement." Nw. Austin, 2009 WL 1738645, at *4.

The Senate Judiciary Committee Report explicitly stated

that this § 4 prohibition on tests and devices "would not result

in the proscription of the frequent requirement of States and

political subdivisions that an applicant for voting or

registration for voting be free of conviction of a felony or

13
The 1965 legislative history indicates that Congress
focused much more attention on the import of § 4 and § 5 than on
§ 2 of the VRA.

-26-
mental disability." S. Rep. No. 89-162 (1965), reprinted in 1965

U.S.C.C.A.N. 2508, 2562 (joint views of Senators Dodd, Hart, Long,

Kennedy, Bayh, Burdick, Tydings, Dirksen, Hruska, Fong, Scott, and

Javits).

The House Report confirms the Senate's understanding. It

stated that the VRA "does not proscribe a requirement of a State

or any political subdivision of a State that an applicant for

voting or registration for voting be free of conviction of a

felony or mental disability." H.R. Rep. No. 89-439, reprinted in

1965 U.S.C.C.A.N. at 2457.

In drafting the VRA, Congress considered felon

disenfranchisement statutes, and it viewed them as a potential

test or device that fell within the purview of § 4 and not § 2.

We are not free to second guess Congress's categorizations of

felon disenfranchisement statutes. Further, Congress made clear

that it did not purport to outlaw state felon disenfranchisement

statutes based on their effect. Rather, under § 4, Congress

enumerated and outlawed tests or devices it viewed as

disqualifications excluding minority voters. Felon

disenfranchisement laws were specifically removed from this

category by Congress and were considered nondiscriminatory.

In light of this express history, Congress could not have

intended to create a cause of action under § 2 of the VRA against

disenfranchisement of incarcerated felons while saying explicitly

-27-
elsewhere that it did not intend to proscribe any such laws.

Other courts agree with our conclusion. Hayden, 449 F.3d at 319

("[I]t is apparent to us that Congress's effort to highlight the

exclusion of felon disenfranchisement laws from a VRA provision

that otherwise would likely be read to invalidate such laws is

indicative of its broader intention to exclude such laws from the

reach of the statute."); see also Farrakhan, 359 F.3d at 1120-21

(Kozinski, J., dissenting from denial of reh'g en banc).

This point is buttressed by another aspect of § 4. As

drafted in 1965, § 4 applied to covered jurisdictions.14 Congress

would not have permitted felon disenfranchisement laws in covered

jurisdictions where there was a history of discrimination, while

prohibiting them in non-covered jurisdictions like Massachusetts.

To subject felon disenfranchisement in a non-covered jurisdiction

to a VRA cause of action while prohibiting such a cause of action

for a covered jurisdiction would itself raise significant

constitutional concerns. See Nw. Austin, 2009 WL 1738645, at *9.

If there were any doubt as to Congress's intent not to

create a cause of action against laws like Article 120, other

14
Congress continued to revisit the discriminatory tests or
devices banned by § 4. Later VRA amendments extended the § 4 ban
on literacy tests nationwide. See Voting Rights Act Amendments of
1970, Pub. L. No. 91-285, § 201, 84 Stat. 314, 315 (current version
at 42 U.S.C. § 1973aa) (extending temporary ban to entire nation);
Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, § 201, 89
Stat. 400, 400-01 (current version at 42 U.S.C. §§ 1973b-1973c)
(making the temporary nationwide ban permanent). Congress never
changed its view that felon disenfranchisement laws were not within
the reach of the VRA.

-28-
actions show congressional acceptance of even broader felon

disenfranchisement laws than involved here, reinforcing the

conclusion that § 2 was not meant to proscribe laws such as

Article 120. In 1971, just six years after passing the VRA,

Congress affirmatively enacted a broader felon disenfranchisement

statute covering both imprisoned and paroled felons in the

District of Columbia, over which it then exercised plenary power.

Act of Dec. 23, 1971, Pub. L. No. 92-220, § 4, 85 Stat. 788, 788;

see also Hayden, 449 F.3d at 315. Congress would not have

prohibited states from imposing such disqualifications when it

imposed them itself on the District.

Further, between the passage of the VRA in 1965 and the

1982 amendments, Congress considered and rejected proposals to

amend the VRA15 to prohibit certain types of state felon

disenfranchisement laws. Congress understood that the VRA, as

enacted in 1965, did not permit claims against state felon

disenfranchisement laws and that amendment of the VRA would be

needed to permit such suits, and it declined to make those

amendments. Two points are important. First, Congress rejected

each those proposed amendments. Second, even those rejected

amendments would have precluded suits raising claims of

15
The 1975 Amendments to the VRA added protections for
linguistic minorities and permanently banned literacy tests. 1975
Amendments §§ 203, 207, 89 Stat. at 401-02 (codified as amended at
42 U.S.C. §§ 1973b(f), 1973l(c)(3)). Nothing in those amendments
indicated any intent to broaden the VRA to permit suits against
state laws disenfranchising incarcerated felons.

-29-
disenfranchisement of a "citizen [who] is confined in a

correctional facility at the time of such . . . election," as does

Article 120 now at issue. See Ex-Offenders Voting Rights: Hearing

on H.R. 9020 Before the Subcomm. on Courts, Civil Liberties, and

the Administration of Justice of the H. Comm. on the Judiciary,

93d Cong. 4 (1974).

In 1972, the House Judiciary Committee held hearings on

"The Problems of the Ex-Offender." See Corrections, Part VI,

Illinois: The Problems of the Ex-Offender: Hearing Before Subcomm.

No. 3 of the H. Comm. on the Judiciary, 92d Cong. (1972). In

response to these hearings, several prominent VRA advocates in

Congress jointly introduced a bill designed "to amend the [VRA] to

prohibit the States from denying the right to vote in Federal

elections to former criminal offenders who have not been convicted

of any offense related to voting or elections and who are not

confined in a correctional institution." Hayden, 449 F.3d at 319

(emphasis added) (quoting H.R. 15,049, 92d Cong. (1972)) (internal

quotation marks omitted). The bill did not result in legislation.

Id.

Similarly, Congress held hearings in 1973 expressly

addressing but not adopting proposed amendments to the VRA to

allow challenges to felon disenfranchisement for only that

category of ex-offenders who were not imprisoned.16 See

16
The proposed amendment would have authorized "the Attorney
General . . . to institute in the name of the United States such

-30-
Ex-Offenders Voting Rights: Hearing on H.R. 9020, supra, 93d Cong.

1-38; see also Hayden, 449 F.3d at 319.

Plaintiffs' claim that § 2 as drafted in 1965 permits a

cause of action against Article 120 fails.

2. The 1982 Amendments

We reject plaintiffs' position that § 2(b), added in

1982, may not be considered in analyzing whether they have a claim

under § 2(a).17 Furthermore, we conclude that those amendments,

while altering the law as to vote dilution claims and perhaps as

to other claims (which we need not decide), undercut plaintiffs'

arguments that Congress intended the VRA to reach laws

disenfranchising incarcerated felons.

actions against States . . . including actions for injunctive
relief, as he may determine to be necessary to implement the
purposes of this title." Ex-Offenders Voting Rights: Hearing on
H.R. 9020, supra, at 4 (quoting H.R. 9020, 93d Cong. (1973)).
17
Under Supreme Court and circuit precedent, we read both §
2(a) and § 2(b) together and resort to legislative history. The
text of § 2(b) is explicit that its purpose is to give content and
context to the terms used in § 2(a). The Supreme Court has
interpreted both sections together. See Bartlett, 129 S. Ct. at
1241 ("The 1982 amendments . . . added . . . § 2(b), providing a
test for determining whether a § 2 violation has occurred.");
Chisom, 501 U.S. at 395 ("The two purposes of the amendment [to
§ 2] are apparent from its text. Section (a) adopts a results test
. . . . Section (b) provides guidance about how the results test
is to be applied.").
This court's precedent also requires we read §§ 2(a) and
2(b) together and in light of history and context. See Metts, 363
F.3d at 10 ("The Delphic language of the [1982] amendment [to § 2]
can be understood only against the background of its legislative
history and subsequent Supreme Court interpretation.").

-31-
 The 1982 amendments did not alter the prior understanding

that the VRA did not reach the disenfranchisement of currently

incarcerated felons. When "Congress adopts a new law

incorporating sections of a prior law, Congress normally can be

presumed to have had knowledge of the [administrative or judicial]

interpretation given to the incorporated law, at least insofar as

it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 581

(1978). Nothing in the text, context,18 or history supports

plaintiffs' position.

The Supreme Court held that "Congress amended § 2 of the

VRA to make clear that certain practices and procedures that

result in the denial or abridgement of the right to vote are

forbidden even though the absence of proof of discriminatory

intent protects them from constitutional challenge." Chisom, 501

U.S. at 383-84 (emphasis added); Johnson, 405 F.3d at 1228. Felon

disqualification was not among those certain practices and

procedures.

18
The context of the 1982 amendments confirms our
understanding that § 2 was not amended in isolation from the rest
of the statute and must be read in conjunction with the other
sections, including § 4. The 1982 amendments to § 2 arose in the
wake of Bolden because § 5 of the VRA was scheduled for
reauthorization in that year by the terms of the 1975 VRA
amendments. S. Issacharoff et al., The Law of Democracy 713-14
(rev. 2d ed. 2002). Indeed, in the House, most debate focused on
the structure of the preclearance and bailout provisions of the
VRA, while less attention focused on the § 2 amendments. Id. at
716; see also T.M. Boyd & S.J. Markman, The 1982 Amendments to the
Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev.
1347 (1983).

-32-
 Plaintiffs admirably admit that Congress's specific

purpose in amending § 2 of the VRA19 was to overrule certain

aspects of the Supreme Court's decision in Bolden, which was

concerned with vote dilution claims, not direct denial claims. We

explain. Prior to Bolden, in White v. Regester, 412 U.S. 755

(1973), minority plaintiffs had successfully challenged a state

districting plan on vote dilution grounds. There, the Court did

not require a showing of discriminatory intent. See id. at 766.

By contrast, the Bolden plurality held that state action "that is

racially neutral on its face violates the Fifteenth Amendment only

if motivated by a discriminatory purpose," 446 U.S. at 61, and

altered the White evidentiary standard in vote dilution cases to

19
Congress was clear about its intent. The Senate Report
states:
This Amendment is designed to make clear that
proof of discriminatory intent is not required
to establish a violation of Section 2. It
thereby restores the legal standards, based on
the controlling Supreme Court precedents,
which applied in voting discrimination claims
prior to the litigation involved in Mobile v.
Bolden. The amendment also adds a new
subsection to Section 2 which delineates the
legal standards under the results test by
codifying the leading pre-Bolden vote dilution
case, White v. Regester.See S. Rep. No.
97-417, at 2, reprinted in 1982 U.S.C.C.A.N.
177, 179; see also id. at 27, reprinted in
1982 U.S.C.C.A.N. at 205 ("The 'results'
standard is meant to restore the pre-Mobile
legal standard which governed [vote dilution
cases].").

-33-
require direct evidence of discriminatory intent.20 See Bartlett,

129 S. Ct. at 1240-41.

In 1982, Congress focused on reversing this aspect of

Bolden and clarifying the standard for vote dilution claims.

Congress aimed to reinstate the "results test," which had been the

rule developed in the pre-Bolden case law for vote dilution claims

under White. See Metts, 363 F.3d at 10 (stating the 1982

amendments made it clear that "discriminatory intent is not a

necessary element in a violation and that Congress [instead]

intended a broad range of factors to be taken into account"). But

the reinstated, multifactored results test was not meant to extend

to this limited felon disenfranchisement claim any more than the

pre-Bolden tests were. Nothing in the legislative history of

§ 2(b) indicated any intent to expand the VRA to create a cause of

action against a state felon disenfranchisement law such as

Article 120. To the contrary, in enacting § 2, Congress noted

that it was impossible to predict the variety of means that would

be used to infringe on the right to vote and that the voting

rights landscape was marked by innovation in discrimination. S.

Rep. No. 89-162, at 5 (1965); S. Rep. No. 89-439, at 10. But

these concerns do not go to felon disenfranchisement, which was

20
The Bolden plurality also held that the "language of § 2
[of the VRA] no more than elaborates upon that of the Fifteenth
Amendment, and the sparse legislative history of § 2 makes clear
that it was intended to have an effect no different from that of
the Fifteenth Amendment itself." 446 U.S. at 61.

-34-
 neither a new innovation nor a predictable future innovation.

Felon disenfranchisement was a well-known and accepted part of the

voting landscape. "The Senate Report, which details many

discriminatory techniques used by certain jurisdictions, made no

mention of felon disenfranchisement provisions." Johnson, 405

F.3d at 1234; see also Tokaji, supra, at 707 ("The legislative

history of the 1982 amendments thus shows that Congress was almost

exclusively focused on vote dilution claims.").21

Further, the language of § 2(b) undercuts plaintiffs'

assertion they have stated a claim under § 2(a). The text of

subsection (b) protects a "class of citizens" who by law may and

should enjoy as full an "opportunity [as] other members of the

electorate to participate in the political process." § 1973(b).

For a host of valid reasons, incarcerated prisoners cannot

participate in the political process equally with free citizens

outside the prison walls. Hayden, 449 F.3d at 342 (Jacobs, J.,

concurring). As noted by Hayden, "There is no question that

incarcerated persons cannot 'fully participate in the political

process' -- they cannot petition, protest, campaign, travel, freely

associate, or raise funds." Id. at 321.

Further, the 1982 Congress amended § 2 to assuage

expressed fears that the courts would interpret a results test as

21
We need not reach the question of whether this amendment
was meant to reach other types of § 2 claims than vote dilution
claims; even if so, the amendments were not meant to create a cause
of action against imprisoned felon disenfranchisement laws.

-35-
a requirement for proportional representation in vote dilution

cases, and therefore the statute was amended to expressly disclaim

any right to proportional representation. § 1973(b) ("[N]othing in

this section establishes a right to have members of a protected

class elected in numbers equal to their proportion in the

population."); Tokaji, supra, at 705-06. This suggests that

Congress was fundamentally concerned with remedying discrimination

in voting, rather than guaranteeing proportionality in political

representation. See, e.g., S. Issacharoff, Polarized Voting and the

Political Process, 90 Mich. L. Rev. 1833 (1992). Plaintiffs' claim,

which is based on mere disproportionality in the prison population

from felon disenfranchisement, does not implicate these concerns.

3. Post-1982 Congressional Actions Assume the
Validity of State and Federal Felon
Disenfranchisement Laws

Congressional action, both after 1982 and in the

aftermath of Bush v. Gore, also undercuts the plaintiffs' reading

of the amended § 2 to support a claim against imprisoned felon

disenfranchisement laws. These statutes show continuing

congressional approval of state laws disenfranchising imprisoned

felons. The National Voter Registration Act of 1993, which

generally restricts states' ability to remove names from the voter

rolls, explicitly exempts state decisions to disenfranchise

individuals "by reason of criminal conviction." 42 U.S.C.

§ 1973gg-6(a)(3)(B). The Help America Vote Act of 2002 directs

-36-
states to remove disenfranchised felons from their lists of those

eligible to vote in federal elections. 42 U.S.C.

§ 15483(a)(2)(A)(ii)(I). These two recent statutes are entirely

inconsistent with reading § 2, whatever its breadth, to create a

cause of action against Article 120.

Further, Congress has continued to consider and reject

numerous proposals to require states to enfranchise even former

felons. Even these efforts have expressly excluded currently

incarcerated felons. See, e.g., Civic Participation and

Rehabilitation Act of 1999: Hearing on H.R. 906 Before the Subcomm.

on the Constitution of the H. Comm. on the Judiciary, 106th Cong.

1, 3 (2000) (quoting H.R. 906, 106th Cong. (1999)).22

Congress has excepted from the reach of the VRA

protections from vote denial for claims against a state which

disenfranchises incarcerated felons. We do not need to decide23

22
The Civic Participation and Rehabilitation Act would have
restored the voting rights of ex-felons, but not imprisoned felons,
in federal elections. H.R. 906 was not drafted as an amendment to
the VRA, but contained a savings clause clarifying that the measure
operated in addition the VRA and the National Voter Registration
Act. Civic Participation and Rehabilitation Act of 1999: Hearing
on H.R. 906, supra, at 4. A number of recent unsuccessful bills
are consistent with H.R. 906's proposal to restore the rights of
only former felons. And even these have been flatly rejected by
Congress. See, e.g., Democracy Restoration Act of 2008, S. 3640,
110th Cong. (2008); Democracy Restoration Act of 2008, H.R. 7136,
110th Cong. (2008); Count Every Vote Act of 2005, S. 450, 109th
Cong. (2005); Ex-Offenders Voting Rights Act of 2005, H.R. 663,
109th Cong. (2005).
23
It is doubtful plaintiffs have articulated a viable § 2
direct denial theory, in any event. Plaintiffs have explained only
that they think this claim falls within a broad reading of § 2,

-37-
what is needed to prove a denial (as opposed to a dilution) claim

under § 2 which is not a claim against a state provision

disenfranchising imprisoned felons.24

provided one ignores the text of § 4, the legislative history of
the Act, and the purpose and context of § 2(b). But they have not
explained even what their theory of liability is, what standards a
court would apply, or what the components of a winning claim would
be. This is the situation eight years after they filed suit and
have had discovery from defendants.
The most plaintiffs have suggested is that despite the self-
evident racial neutrality of depriving all incarcerated felons from
voting while imprisoned, there may be some causal connection
between being incarcerated for felonies and their race. But the
very 1994 Commission Report on which they rely concludes that no
such connection was shown. More than that, it concluded that if
one wished to see if such a connection could be shown, the data
simply did not exist to permit the testing of the hypothesis. When
plaintiffs asked the defendant officials in discovery for data
which would presumably assist them, the defendants said they did
not have and did not keep such data.
There is nothing else. Even if one were to look more broadly
at the Senate factors so often used in vote dilution cases, see S.
Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N.
177, 206-07, those factors do not aid plaintiffs.
Further, given our disposition of the case, we need not reach
the concerns raised by Judge Kozinski about the role of evidence of
statistical disparities in § 2 challenges. Farrakhan, 359 F.3d at
1119 (Kozinski, J. dissenting from denial of reh'g en banc); see
also Ricci v. DeStefano, No. 07-1428, --- S.Ct. ----, 2009 WL
1835138, at *19 (June 29, 2009) (reliance on threshold showing of
a raw statistical disparity in test results is not strong evidence
of disparate impact).
24
Some have commented on a "potential tension in the case law
[because] . . . section 2 [from 1982 onward] had been used almost
entirely for vote dilution claims [while] [t]he felon
disenfranchisement cases involve an older kind of claim involving
access to the ballot itself; such cases involve not vote dilution
but vote denial." S. Issacharoff et al., The Law of Democracy 140
(rev. 2d ed. Supp. 2006); see Tokaji, supra, at 709 ("While Gingles
and its progeny have generated a well-established standard for vote
dilution, a satisfactory test for vote denial cases under Section
2 has yet to emerge. . . . [and] the Supreme Court's seminal
opinion in Gingles . . . is of little use in vote denial cases.");
Karlan, supra, at 122 (["T]he second generation of voting rights

-38-
 Given the historic legitimacy of felon

disenfranchisement, the constitutional recognition of the authority

of states to disenfranchise imprisoned felons, the congressional

recognition of that authority and the express congressional

statements that the VRA was not meant to proscribe that authority,

this is not the case in which to test the standards for other types

of purported direct disenfranchisement claims. While our emphasis

is somewhat different, we agree with the Second Circuit in Hayden

that the seven circumstances it identifies all necessitate the

conclusion that the this claim is not actionable. 449 F.3d at 315-

16.

Plaintiffs have failed to state a claim under VRA § 2.

We have no need to reach the serious constitutional questions which

the Commonwealth argues would be raised were we to adopt plaintiffs'

construction of the statute. In Northwest Austin, the Supreme Court

emphasized the principle that courts, particularly in VRA cases,

should avoid deciding constitutional issues where statutory

interpretation obviates the issue, as here. Nw. Austin, 2009 WL

1738645 at *4 ("Our usual practice is to avoid the unnecessary

resolution of constitutional questions.); see also Hayden, 449 F.3d

at 328 n.24; Johnson, 405 F.3d at 1230.

activity address the problem of racial vote dilution rather than
outright disenfranchisement."); A.A. Peacock, From Beer to
Eternity, in Redistricting in the New Millennium 119, 125 (P.F.
Galderisi ed., 2005) 119, 125 (same).

-39-
 III.

EX POST FACTO CLAUSE CLAIM

We turn to plaintiffs' appeal from the district court's

grant of summary judgment in favor of the Commonwealth on the Ex

Post Facto Clause arguments. There are no material facts in dispute

in the record.

Plaintiffs argue the Ex Post Facto Clause was violated

because "the only plainly discernible purpose for Article 120 was

to seek to impose an additional measure of punishment upon those who

had violated the laws of the Commonwealth." Plaintiffs point to the

a transcript of the debates at the 1998 and 2000 Constitutional

Conventions over the bill that ultimately became Article 120.

Plaintiffs also rely on language from Acting Governor Cellucci's

proposed amendment and his statements to the public, an amendment

which was not accepted. These statements include: "The time has

come to tell would-be criminals in Massachusetts that committing

crimes has serious consequences," and that "[p]risons are a place

for punishment." Even though his initial proposal was never in

fact acted on by the legislature, we consider his comments as part

of the background.

Analysis of the Ex Post Facto Clause claim involves a

two-part inquiry. The first asks whether the denial of the right

to vote is a civil, regulatory measure within the meaning of the

caselaw, or whether it is punitive. "[W]here unpleasant

-40-
consequences are brought to bear upon an individual for prior

conduct," the central question "is whether the legislative aim was

to punish that individual for past activity, or whether the

restriction of the individual comes about as a relevant incident to

a regulation of a present situation." De Veau v. Braisted, 363 U.S.

144, 160 (1960) (holding that state statutory bans against

employment of convicted felons in certain jobs did not impose

punishment under Ex Post Facto Clause). Only a punitive measure can

violate the Ex Post Facto Clause. See, e.g., Smith v. Doe, 538 U.S.

84, 92 (2003); see also United States v. Salerno, 481 U.S. 739

(1987) (holding preventative detention under the Bail Reform Act was

permissible because it was regulatory and preventative, rather than

punitive).

The Supreme Court has stated that felon

disenfranchisement provisions are considered regulatory rather then

punitive. In Trop v. Dulles, 356 U.S. 86 (1958), the Court

explained:

[A] statute has been considered nonpenal if it
imposes a disability, not to punish, but to
accomplish some other legitimate governmental
purpose. . . . The point may be illustrated by
the situation of an ordinary felon. A person
who commits a bank robbery, for instance,
loses his right to liberty and often his right
to vote. If, in the exercise of the power to
protect banks, both sanctions were imposed for
the purpose of punishing bank robbers, the
statutes authorizing both disabilities would
be penal. But because the purpose of the
latter statute is to designate a reasonable
ground of eligibility for voting, this law is

-41-
 sustained as a nonpenal exercise of the power
to regulate the franchise.

Id. at 96-97; see also Lassiter v. N. Hampton County Bd. of

Elections, 360 U.S. 45, 51 (1959) (criminal record is an "obvious"

factor that "a State may take into consideration in determining the

qualifications of voters"). Article 120 is no exception.

Even if the Supreme Court had not already described such

regulation of the franchise with respect to incarcerated felons as

nonpenal, we would still find Article 120 to be a civil regulatory

scheme. In examining Article 120 "on its face," Hudson v. United

States, 522 U.S. 93, 100 (1997), there is no language indicating the

Commonwealth's provision is penal. Article 120 is not in the

Commonwealth's criminal code, but rather its civil constitutional

and statutory voter qualification provisions. See Hendricks, 521

U.S. at 361, ("[The State's] objective to create a civil proceeding

is evidenced by its placement of the Act within the [State's]

probate code, instead of the criminal code" (citations omitted)).

Article 120 also disenfranchises persons under guardianship, persons

disqualified because of corrupt elections practices, and all persons

under eighteen years of age, as well as incarcerated felons. And

the disqualification is enforced civilly, not criminally.

Article 120 does not involve a more general period of

disenfranchisement because of commission of a felony; rather Article

120 is limited to the period of incarceration. Article 120 thus

creates a temporary qualification on the right to vote coincident

-42-
with imprisonment, rather than a long-term consequence for the

commission of a crime.

Article 120 is a constitutional amendment, which was

later effectuated and extended by statute. The voters of

Massachusetts ratified Article 120 in a statewide election. The

Voter Guide read by the voters, which we described earlier, made no

mention of any goal of punishing prisoners. "The Ex Post Facto

Clause does not preclude a State from making reasonable categorical

judgments that conviction of specified crimes should entail

particular regulatory consequences." Smith, 538 U.S. at 1153.

Secondly, even if the legislature intended to deem a

particular law "civil," courts must further inquire whether "the

statutory scheme was so punitive either in purpose or effect as to

negate that intention." United States v. Ward, 448 U.S. 242, 248-49

(1980). "'[O]nly the clearest proof' will suffice to override

legislative intent and transform what has been denominated a civil

remedy into a criminal penalty." Hudson, 522 U.S. at 100 (quoting

Ward, 448 U.S. at 249). Plaintiffs fail to meet this standard.

We review whether plaintiffs' allegations of punitive

purpose meet the non-exclusive factors test set forth in Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and followed in

Smith, 538 U.S. at 97.

The Mendoza-Martinez factors are: (1) whether the

sanction involves an affirmative disability or restraint; (2)

-43-
whether it has historically been regarded as punishment; (3) whether

it comes into play only on a finding of scienter; (4) whether its

operation will promote the traditional aims of punishment --

retribution and deterrence; (5) whether the behavior to which it

applies is already a crime; (6) whether there is a rational

connection to a nonpunitive purpose; and (7) whether it appears

excessive in relation to the alternative purpose assigned. Mendoza-

Martinez, 372 U.S. at 168-69. The most relevant factors are whether

felon disenfranchisement "has been regarded in our history and

traditions as a punishment; imposes an affirmative disability or

restraint; promotes the traditional aims of punishment; has a

rational connection to a nonpunitive purpose; or is excessive with

respect to this purpose." Smith, 538 U.S. at 97.

First, Article 120 does not impose any affirmative

disability or restraint, physical or otherwise. See Smith, 538 U.S.

at 100 ("[I]mprisonment . . . is the paradigmatic affirmative

disability or restraint."). Disenfranchisement during the period

of incarceration imposes no additional term of imprisonment, see

Flemming v. Nestor, 363 U.S. 603, 617 (1960), and is not as enduring

as permanent occupational debarment, which the Court has held is

nonpunitive. Hudson, 522 U.S. at 104; De Veau, 363 U.S. at 144;

Hawker v. New York, 170 U.S. 189 (1898) (revocation of a medical

license does not violate Ex Post Facto clause).

-44-
 Second, felon disenfranchisement has historically not

been regarded as punitive in the United States, as the Supreme Court

indicated in Trop v. Dulles. Indeed, in holding that felon

disenfranchisement has "affirmative sanction" in § 2 of the

Fourteenth Amendment of the U.S. Constitution, Richardson, 418 U.S.

at 54, the Supreme Court noted the historical prevalence of state

felon disenfranchisement laws and never characterized even

California's broad disqualification of former felons as punitive.

Id. at 55.

As to the third and fifth factors, Article 120 is

effective regardless of a finding of scienter or the type of crime

so long as it is a felony. That Article 120 may be "tied to

criminal activity" is "insufficient to render the statut[e]

punitive." United States v. Ursery, 518 U.S. 267, 291 (1996).

The fourth Mendoza-Martinez factor considers whether

felon disenfranchisement will promote the traditional aims of

punishment, retribution and deterrence, to see whether plaintiffs

have offered the clearest proof to overcome the statement of

nonpenal purpose. Plaintiffs rely on some statements made by some

legislators that could be viewed as retributive, such as that felons

"don't deserve to vote." To the extent the legislators' comments

are relevant, they are sporadic and do not clearly evince a

retributive purpose. More significantly, since Article 120 was put

before the voters, the Information for Voters Guide is a better

-45-
source of context. The Guide contained a balanced debate about the

merits of allowing currently incarcerated felons to vote in state

elections, noted the problem of prisoners being able to affect the

laws under which they were confined by voting, and nowhere suggests

an intent to punish prisoners.

As to the sixth factor, there is an obvious rational

nonpunitive purpose for disenfranchisement: as the Guide shows,

voters were concerned about the influence of currently incarcerated

felons in "exercis[ing] control over [their] lives by voting from

prison." See also Smith, 538 U.S. at 1147 (noting that "even if the

objective of the Act is consistent with the purposes of the [state]

criminal justice system, the State's pursuit of it in a regulatory

scheme does not make the objective punitive."). Finally, Article

120 is not excessive in accomplishing this purpose. Article 120

does not violate the Ex Post Facto Clause.

IV.

The entry of judgment against the plaintiffs' Ex Post

Facto Clause claim is affirmed; the court's denial of the motion to

dismiss the VRA claim is reversed and the case is remanded to the

district court for dismissal of both claims with prejudice. Each

side shall bear its own costs.

So ordered.

-Dissenting Opinion Follows-

-46-
 TORRUELLA, Circuit Judge (Dissenting). Lest we be misled

by the majority's choice of emphasis, this is not a case about the

state's authority to disenfranchise convicted felons, nor about the

popularity or desirability of that practice. Were that the issue

before us, I too would be in the majority, as the validity of felon

disenfranchisement laws, as a general matter, has been established.

See Richardson v. Ramirez, 418 U.S. 24, 56 (1974). Moreover, were

that the issue before us, it would not have spawned reams of

conflicting opinions, vigorous dissents and en banc reversals among

our sister circuits.25

Rather this is a case about interpreting a clearly worded

congressional statute, the Voting Rights Act of 1965 ("VRA"),

according to its terms, when there is no persuasive reason to do

otherwise. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S.

____ (2009), 2009 WL 1738645 at *9 ("The Fifteenth Amendment

25
Compare Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.
2003) (holding that § 2 of the VRA applies to felon
disenfranchisement statutes); Johnson v. Governor of Fla., 353 F.3d
1287 (11th Cir. 2003) (same); Baker v. Cuomo, 58 F.3d 814 (2d Cir.
1995) (same); Howard v. Gilmore, No. 99-2285, 2000 WL 203984, at *1
(4th Cir. Feb. 23, 2000)(assuming without expressly deciding that
§ 2 of the VRA applies to felon disenfranchisement laws and
evaluating plaintiff's vote dilution claim thereunder); Wesley v.
Collins, 791 F.2d 1255 (6th Cir. 1986) (same) with Hayden v.
Pataki, 449 F.3d 305 (2d Cir. 2006) (en banc) (reversing its
previous decision and denying coverage under the § 2 of the VRA for
felon disenfranchisement statutes); Johnson v. Governor of Fla.,
405 F.3d 1214 (11th Cir. 2005) (en banc) (same); Baker v. Pataki,
85 F.3d 919 (2d Cir. 1996) (en banc) (dividing evenly on the
question of whether felon disenfranchisement claim can proceed
under § 2 the VRA, thus reinstating the district court decision
dismissing the claim).

-47-
empowers 'Congress,' not the [c]ourt[s], to determine in the first

instance what legislation is needed to enforce it."). It is also

a case about the constitutional validity of altering the legal

consequences for committing a crime, long after the crime's

completion. Because I disagree with the majority's resolution of

both of these novel issues, I respectfully dissent.

I. Voting Rights Act Claim

Section 2 of the VRA, as amended in 1982, plainly

provides that "[n]o voting qualification or prerequisite to voting

or standard, practice, or procedure shall be imposed or applied by

any State . . . in a manner which results in a denial or abridgement

of the right . . . to vote on account of race or color . . . ." 42

U.S.C. § 1973(2)(a) (emphasis added); see also Nw. Austin, 557 U.S.

at ____, 2009 WL 1738645 at *4. Notably, § 2(a) employs a

"'results'" test, under which proof of discriminatory intent is not

necessary to establish a violation of the section. Chisom v.

Roemer, 501 U.S. 380, 395 (1991). Rather, plaintiffs can state a

§ 2 claim by showing that under the "totality of circumstances," a

"certain electoral law, practice, or structure interacts with social

and historical conditions to cause an inequality in the

opportunities enjoyed by black and white voters to elect their

preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 43-

-48-
44 (1986).26 The allegations in plaintiffs' complaint, which we

must accept as true at this preliminary stage, see Pérez-Acevedo v.

Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008), are that

Massachusetts' Article 120, which disqualifies incarcerated felons

from voting in the Commonwealth, has a disproportionately adverse

effect on the voting rights of African-Americans and Hispanic-

Americans, who are over-represented in the incarcerated felon

population. Plaintiffs allege that this disparate impact is caused,

in part, by racial and ethnic bias in the Massachusetts court

system, and operates to deny these racial minorities the right to

vote, in violation of § 2 of the VRA. Plaintiffs further allege

26
Among the non-exhaustive factors listed by the Senate as
relevant to assessing the validity of a voter qualification is "the
extent to which members of the minority group in the state or
political subdivision bear the effects of discrimination in such
areas as education, employment and health, which hinder their
ability to participate effectively in the political process." S.
Rep. No. 94-417, at 29 (1982), as reprinted in 1982 U.S.C.C.A.N.
177, 207. The ultimate inquiry, according to the Senate Report is
"whether, in the particular situation, the practice operated to
deny the minority plaintiff an equal opportunity to participate and
to elect candidates of their [sic] choice." Id. at 30. The Ninth
Circuit, applying this test, has explicitly held that evidence of
racial bias in the criminal justice system is a relevant "social
and historical condition" for purposes of the totality of the
circumstances test, reasoning that "such discrimination would
clearly hinder the ability of racial minorities to participate
effectively in the political process as disenfranchisement is
automatic." Farrakhan, 338 F.3d at 1020; see also Nipper v. Smith,
39 F.3d 1494, 1513-14 (11th Cir. 1994) (en banc) (holding that the
existence of racial bias in the community is relevant to a § 2
claim). "Thus, racial bias in the criminal justice system may very
well interact with voter disqualifications to create the kinds of
barriers to political participation on account of race that are
prohibited by Section 2." Farrakhan, 338 F.3d at 1020.

-49-
that when enacting Article 120, Massachusetts legislators were aware

of the data regarding racial bias in the criminal justice system.27

The felon disenfranchisement provision at issue is

clearly a "voting qualification." Whether or not this provision

results in the denial of the right to vote "on account of race or

color" under the "totality of the circumstances" remains the

ultimate question for the trier of fact. But "[e]ven if serious

problems lie ahead in applying the 'totality of the circumstances

standard described in [VRA] § 2(b), that task, difficult as it may

prove to be, cannot justify a judicially created limitation on the

coverage of the broadly worded statute, as enacted and amended by

Congress." Chisom, 501 U.S. at 403. Plaintiffs have stated a claim

sufficient to preclude dismissal at this preliminary stage and are

entitled to the opportunity to develop it.

In order to avoid this obvious result, the majority makes

an expansive and unwarranted holding. It holds that despite the

broad language of VRA § 2, covering all "voting qualifications,"

Congress actually never intended for felon disenfranchisement laws,

even discriminatory ones, to be challengeable under that provision.

27
Notably, bearing on the question of plausibility of
plaintiffs' claim, one scholar has found that an analysis of the
factors inducing states to impose or eliminate felon
disenfranchisement provisions concluded that "[s]tates with greater
nonwhite prison populations have been more likely to ban convicted
felons from voting than states with proportionally fewer non-whites
in the criminal justice system." Angela Behrens, et al., Ballot
Manipulation and the "Menace of Negro Domination": Racial Threat
and Felon Disenfranchisement in the United States, 1850-2002, 109
Am. J. Soc. 559, 596 (2003).

-50-
It does so by disregarding the plain and unambiguous text of the

statute and resorting to a collection of secondary evidence, none

of which stand for the proposition the majority seeks to establish.

In the face of so startling a holding, I am left wondering, in the

words of Judge Calabresi, "[w]hat is behind this remarkable decision

to buck text, context, and legislative history in order to insulate

a particular racially discriminatory practice from an

anti-discrimination rule of general applicability?" Hayden, 449

F.3d at 365 (Calabresi, J., dissenting).

The fatal flaw in the majority's reasoning begins with

its improper reliance on legislative history given the plain and

unambiguous language of § 2(a), the section of the VRA governing the

central "applicability" question before us. See Robinson v. Shell

Oil Co., 519 U.S. 337, 340 (1997) ("Our first step in interpreting

a statute is to determine whether the language at issue has a plain

and unambiguous meaning with regard to the particular dispute in the

case." (emphasis added)). The plain language of § 2(a)

unambiguously applies to all "voting qualifications." 42 U.S.C. §

1973. A provision disqualifying incarcerated felons, listed among

the provisions of the Massachusetts Constitution governing

qualifications to vote, clearly constitutes a "voting

qualification." Therefore, where it is alleged, as here, that this

"qualification" is being applied "in a manner which results" in the

denial of the right to vote on account of race, a cognizable VRA

-51-
claim has been stated. Id. As the text of the statute

unambiguously manifests its meaning, there was no need to go any

further in order to conclude that plaintiffs have stated a

cognizable claim under § 2 of the VRA.

This is the reasoning upon which the Ninth Circuit

decision, holding that an identical VRA claim had been stated in

that Circuit, starts and ends. See Farrakhan, 338 F.3d at 1016

("Plaintiff's claim of vote denial [resulting from Washington's

felon disenfranchisement law] is cognizable under Section 2 of the

VRA" because '[f]elon disenfranchisement is a voting qualification,

and Section 2 is clear that any voting qualification that denies

citizens the right to vote in a discriminatory manner violates the

VRA (emphasis added))."28 As Judge Sotomayor similarly explained in

her powerful dissenting opinion in Hayden:

It is plain to anyone reading the Voting
Rights Act that it applies to all 'voting
qualifications.' And it is equally plain that
[the felon disenfranchisement provision at
issue] disqualifies a group of people from
voting. These two propositions should
constitute the entirety of our analysis.

28
The majority attempts to distinguish Farrakhan on the
ground that the Washington provision at issue in that case was "not
as narrow as this one." I, however, see no meaningful difference
between disenfranchising felons until the completion of their
sentences as under the Washington statute, or only while
incarcerated, as in the case before us. In any event, the
narrowness or breadth of a particular felon disenfranchisement
scheme bears no relevance upon the question of whether challenges
to these types of laws are cognizable under the VRA.

-52-
449 F.3d at 367-68; see also Johnson, 405 F.3d at 1247 (Barkett, J.,

dissenting) ("[Plaintiffs'] contention that Florida's felon

disenfranchisement law effectively denies their right to vote

because they are black is clearly encompassed by the plain language

of the VRA.").

The majority cannot dispute "the traditional rule that

where the plain text of the statute is unmistakably clear on its

face, there is no need to discuss legislative history." Succar v.

Ashcroft, 394 F.3d 8, 31 (1st Cir. 2005) (Lynch, J.) (quoting Sutton

v. United Air Lines, Inc., 527 U.S. 471, 481 (1999)). While the

majority cites Nken v. Holder, 129 S. Ct. 1749 (2009) for the

general proposition that statutory interpretations turns on

language as well as context, id. at 1756, neither Nken nor the case

upon which it relies addressed a statute whose plain meaning is as

evident and clear on its face as the one before us. In fact,

contrary to the majority’s contention, even with complicated

statutory schemes like the VRA, courts have not hesitated to rely

on the plain language of the text, where the text plainly answers

the very question before them. See, e.g., Lopez v. Monterey County,

525 U.S. 266, 278-79 (1999); Chisom, 501 U.S. at 396. There is

simply no support in our precedent for disregarding so plain and

unambiguous a statutory mandate based on nothing more than our own

assumption that Congress did not mean what it said. See BedRoc

Ltd., LLC, 541 U.S. at 183 (explaining that absent ambiguity we are

-53-
bound by the "preeminent canon of statutory interpretation [that]

requires us to presume that [the] legislature says in a statute what

it means and means in a statute what it says there" (internal

quotation marks omitted)); United States v. Shreveport Grain &

Elevator Co., 287 U.S. 77, 83 (1928) (quoting Hamilton v. Rathbone,

175 U.S. 414, 421 (1899) for proposition that legislative history

may be resorted to in order "to solve, but not to create, an

ambiguity" (emphasis added)); Ruiz v. Bally Total Fitness Holding

Corp., 496 F.3d 1, 8 (1st Cir. 2007) (explaining that we "are not

free to disregard the plain language of a statute and, instead,

conjure up legislative purposes and intent out of thin air").

Though it is unable to point to any actual textual

ambiguity, the majority nevertheless makes a conclusory assertion

that "[t]he language of § 2(a) is both broad and ambiguous."

Breadth, however, does not render a statute ambiguous. See BedRoc

Ltd., LLC v. United States, 541 U.S. 176, 187 n.8 (2004) ("Where a

law is plain and unambiguous, whether it be expressed in general or

limited terms, the legislature should be intended to mean what they

have plainly expressed, and consequently no room is left for

construction." (emphasis added & citation omitted)); Diamond v.

Chakrabarty, 447 U.S. 303, 315 (1980) ("Broad general language is

not necessarily ambiguous when congressional objectives require

broad terms."). Rather, "a statute is ambiguous only if it admits

of more than one reasonable interpretation." United States v.

-54-
Vidal-Reyes, 562 F.3d 43, 51 (1st Cir. 2009) (quoting United States

v. Godin, 534 F.3d 51, 56 (1st Cir. 2008)). But "[c]onspicuously

absent from the majority opinion is so much as a hint of an

intelligible reading under which [the felon disenfranchisement

provision] is not a 'voting qualification or prerequisite to voting

or standard, practice or procedure.' (What else on earth could [the

provision] possibly be?)". Hayden, 449 F.3d at 346 (Parker, J.,

dissenting). There is simply no reasonable interpretation of § 2

under which a felon disenfranchisement law would not be a "voting

qualification or prerequisite to voting" actionable thereunder.29

Given the clarity of the VRA language, which plainly

encompasses the claim before us, the majority's resort to secondary

sources to justify its contrary result constitutes a "radical

abandonment of our longstanding precedents that permit resort to

legislative history only when necessary to interpret ambiguous

statutory text." Id. at 187 n.8. I cannot endorse this

impermissible practice. But even if, for the sake of argument, I

take up the majority's invitation to investigate history and

context, I find that none of the evidence cited by the majority

29
We acknowledge that § 2(b) of the VRA, containing a
"totality of the circumstances" test for proving a violation of
§ 2(a), may require further interpretation. However, any ambiguity
in § 2(b) is irrelevant to whether a felon disenfranchisement
provision is a voting qualification governed by the Act - a
question which the plain language of § 2(a) unambiguously answers
in the affirmative. See Robinson, 519 U.S. at 340 (identifying the
relevant question as "whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in the
case." (emphasis added)).

-55-
indicates congressional intent to exclude felon disenfranchisement

laws from § 2's purview so as to justify departing from the plain

language of that provision. In fact, my reading of the legislative

history is that it confirms the plain meaning of the text.

One need not delve too deeply into the legislative

history to discover that Congress enacted the Voting Rights Act of

1965 pursuant to its powers to enforce the Fifteenth Amendment for

the "broad remedial purpose of 'rid[ding] the country of racial

discrimination in voting.'" Chisom, 501 U.S. at 403 (quoting South

Carolina v. Katzenbach, 383 U.S. 301, 315 (1966)); see also Nw.

Austin, 557 U.S. at ____, 2009 WL 1738645, at *4-5.30 At that time,

although the Fifteenth Amendment guaranteeing the right to vote

without regard to race or color had been in effect for nearly a

hundred years, and thus, intentional discrimination was already

prohibited, states continued to devise facially "neutral" devices

such as gerrymandering, poll taxes, literacy tests and grandfather

clauses, which, coupled with violence and intimidation, served to

effectively bar minorities from access to the polls and preclude the

Fifteenth Amendment's promise of racial equality in voting from

becoming a reality. See Nw. Austin, 557 U.S. at ____, 2009 WL

1738645, at *4-5 (describing "the first century of congressional

30
Notably, despite its insistence on resorting to secondary
sources to ascertain congressional intent, the majority places
curiously little emphasis on the historical and policy
considerations that prompted Congress to pass into law the very
statute whose meaning it endeavors to ascertain.

-56-
enforcement of the [Fifteenth] Amendment" as a "failure" and noting

the "creativ[ity] [of states] in 'contriving new rules' to continue

violating the Fifteenth Amendment" (quoting Katzenbach, 383 U.S. at

335); Andrew L. Shapiro, Note, Challenging Criminal

Disenfranchisement Under the Voting Rights Act: A New Strategy, 103

Yale L. J. 537, 543 (1993). Accordingly, the text of the original

§ 2 "tracked, in part, the text of the Fifteenth Amendment."

Bartlett v. Strickland, 129 S. Ct. 1231, 1240 (2009). While the

legislative history of § 2 of the VRA is silent on the particular

question of felon disenfranchisement, that history does clearly

indicate that Congress intentionally kept § 2(a) as broad as

possible because it found it "impossible to predict the variety of

means that would be used to infringe on the right to vote" and

wanted to encompass all such measures that states could devise.

Johnson, 405 F.3d at 1243 (Wilson, J., concurring in part and

dissenting in part); see also Katzenbach, 383 U.S. at 335 (noting

that "Congress knew that some of the States . . . had resorted to

the extraordinary stratagem of contriving new rules of various kinds

for the sole purpose of perpetuating voting discrimination in the

face of adverse federal court decrees" and that "Congress had reason

to suppose that these States might try similar maneuvers in the

future"); H.R. Rep. 89-439, at 10 (1965), reprinted in 1965

U.S.C.C.A.N. 2437 (1965) (describing how, "even after defeat

resisters s[ought] new ways and means of discriminating," and, as

-57-
a result, rejected the case by case approach that "too often ha[d]

caused no change in result, only in methods."). Thus, Congress

intentionally chose the expansive language "voting qualifications

or prerequisite to voting, or standard, practice, or procedure" for

§ 2 so as to be "all-inclusive of any kind of practice" that might

be used by states to deny citizens that right. Allen v. State Bd.

of Elections, 393 U.S. 544, 566-67 (1969) (citing testimony from

Senate Judiciary Committee Hearings on the VRA).31 As the Supreme

Court has held, Congress intended the term "voting qualification"

in § 2 to have the "broadest possible scope" and to reach "any state

enactment which altered the election of a covered State in even a

minor way." Id., 393 U.S. at 566-67.32

31
Indicative of Congress's intent to give this prophylactic
statute the broadest possible scope, it is notable that an earlier
draft of § 2(a) used the slightly narrower language "qualification
or procedure," but during Senate Hearings on the bill, one Senator
expressed concern that the word 'procedure' was not broad enough to
cover all the various practices that might effectively be employed
to deny citizens their right to vote. See Allen, 393 U.S. at
566-67 & n.8 (citing legislative history). In response, the
Attorney General said he had no objection to expanding the language
of the section, to be all-inclusive. Id. Congress then expanded
the language in the final version of § 2 to include any "'voting
qualifications or prerequisite to voting, or standard, practice, or
procedure.'" Id. (quoting 42 U.S.C. § 1973 (1964)).
32
In fact, in his concurrence in Holder v. Hall, Justice
Thomas acknowledged that § 2 of the VRA was broadly phrased "with
an eye to eliminating the possibility of evasion." 512 U.S. 874,
917 (1994) (Thomas, J., Concurring). Although Justice Thomas
argued for a more restrictive interpretation of the scope of § 2
than the majority of the Supreme Court had recognized, his more
restrictive interpretation of the provision was as follows:

[T]he specific items described in § 2(a) . . .
indicate that Congress was concerned in this

-58-
 "Criminal disenfranchisement is an outright barrier to

voting that, like the poll tax and literacy test, was adopted in

some states with racially discriminatory intent and has operated

throughout our nation with racially discriminatory results."

Shapiro, supra, at 543.33 Thus, these laws were precisely the type

of potentially discriminatory qualification that Congress intended

to subject to scrutiny under the VRA. Yet the majority definitively

concludes that the VRA of 1965 was not meant to allow such an action

against any felon disenfranchisement law.

section with any procedure, however it might
be denominated, that regulates citizens'
access to the ballot – that is, any procedure
that might erect a barrier to prevent the
potential voter from casting his vote.

Id. (emphasis added). Surely, felon disenfranchisement laws, which
outright bar a segment of the population from voting, fall into
this expansive category.
33
See also George Brooks, Comment, Felon Disenfranchisement:
Law, History, Policy and Politics, 32 Fordham Urb. L.J. 851, 858
(2005) (noting that "[f]elon disenfranchisement was sometimes used
as a tool by the states to disenfranchise blacks" and citing
examples of states passing laws "disenfranchising those convicted
of what were considered to be 'black' crimes, while those convicted
of 'white' crimes did not lose their right to vote"); Virginia E.
Hench, The Death of Voting Rights: The Legal Disenfranchisement of
Minority Voters, 48 Case W. Res. L. Rev. 727, 738 (1998)
(describing how, during Reconstruction, in an effort to prevent
African-Americans from voting, several states enacted felon
disenfranchisement laws and "carefully selected disenfranchising
crimes in order to disqualify a disproportionate number of black
voters" and noting that "many of today's laws disenfranchising
felons can trace their roots to attempts by Reconstruction
constitutional conventions to enact laws that would keep black
voters out of the electoral process").

-59-
 The majority makes much of the fact that felon

disenfranchisement was not specifically mentioned in the legislative

history, but "it would be a strange canon of statutory construction

that would require Congress to state in committee reports or

elsewhere in its deliberations that which is obvious on the face of

a statute." Harrison v. PPG Industries, Inc., 446 U.S. 578, 592

(1980). It is also illogical to interpret silence as intent to

exclude, given that the very purpose of § 2's broad language was to

avoid reciting the various maneuvers that states may devise in the

course of their "unremitting and ingenious defiance." Katzenbach,

383 U.S. at 309. Rather, the VRA subjects all voting qualifications

to scrutiny. In any event, if I were to read anything into that

silence, I would reach the opposite conclusion. This is because

felon disenfranchisement laws, which were undoubtedly among the

mechanisms being employed by states throughout the post-

reconstruction era to deprive minorities of the vote,34 were

inevitably within Congress's contemplation when drafting the VRA.

Had Congress had intended to exclude this particular type of

qualification from the reach of the statute, it could have done so

explicitly. But Congress made no provisos to carve felon

disenfranchisement laws out from the purposely "all inclusive"

language of § 2(a). See Allen, 393 U.S. at 566. In this historical

34
See, e.g., Shapiro, supra, at 543; Brooks, supra, at 858;
Hench, supra, at 738.

-60-
context, congressional silence suggests, if anything, that no such

exclusion was intended.

Moreover, through the 1982 amendments to the VRA,

Congress expanded the remedial power of the Act even further by

relieving plaintiffs of the burden of proving discriminatory intent.

Overturning a Supreme Court case that held that the original Act

contained such a requirement, see Mobile v. Bolden, 446 U.S. 55, 61

(1980), Congress, through the 1982 amendments, made clear that a

violation of § 2 could be established by proof of discriminatory

results. See Thornburg, 478 U.S. at 43-44 (emphasis added) (reading

the 1982 Amendment to the VRA as effectively overturning the Bolden

requirement of showing purposeful discrimination); S. Rep. No.

97-417, at 27-28, 36-37 (1982), as reprinted in 1982 U.S.C.C.A.N.

177, 204-06, 214-15 (noting that the purpose of the Amendments was

to repeal Bolden and to focus the judicial inquiry only into whether

there exists equal access to electoral opportunity). Congress did

so because it recognized the difficulty of proving deliberate and

purposeful discrimination, and sought to ensure that "in the context

of all the circumstances in the jurisdiction in question," any

disparate racial impact of facially neutral voting requirements did

not result from racial discrimination. S. Rep. No. 97-417 at 27.

This "results test" was intended "to serve as a prophylactic against

voting practices -- such as felon disenfranchisement . . . adopted

or retained due to intentional discrimination that would be

-61-
difficult to prove in court." Daniel P. Tokaji, The New Vote

Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C.

L. Rev. 689, 722 (2006). And its Report accompanying the enactment

of the 1982 amendments, the Senate endorsed statements made by the

Attorney General during the original VRA hearings that the purpose

of "Section 2 w[as] [to] ban 'any kind of practice . . . if its

purpose or effect was to deny or abridge the right to vote on

account of race or color." S. Rep. No. 97-417, at 17 (emphasis

added). Given this history, it would be wholly incongruous with

Congress's broad ameliorative intent to conclude, as does the

majority, that where the particular voter qualification that results

in racial discrimination happens to be a felon disenfranchisement

law, in this eventuality only, does the VRA provide no relief and

permit the discriminatory qualification to persist.

To reach this unlikely result, the majority relies on

assorted evidence of the widespread use and general sanction of

felon disenfranchisement laws in various contexts. But all that any

of this evidence actually shows is that felon disenfranchisement is

not presumptively invalid, a proposition as to which, after

Richardson, 418 U.S. at 56, there is no doubt. None of the

majority's arguments support its conclusion that Congress intended

to insulate such laws from scrutiny under § 2 of the VRA where they

are alleged to effect a discriminatory result. Specifically, the

evidence relied on by the majority includes (1) § 2 of the

-62-
Fourteenth Amendment, (2) the legislative history of VRA § 4, and

(3) Congressional endorsement of felon disenfranchisement generally.

I will address each of these sources in turn.

A. Section 2 of the Fourteenth Amendment

The majority suggests that felon disenfranchisement

somehow differs from other voting qualifications because the "power

of the states to disqualify from voting those convicted of crimes

is explicitly set forth in § 2 of the Fourteenth Amendment." But,

looking at the text of that provision in context, it is by no means

a grant of power to states to disenfranchise felons. See U.S.

Const. amend. XIV, § 2. Rather, that provision simply states that

disenfranchised felons, unlike other persons disenfranchised by the

States, are to be included within the census for purposes of

apportioning representatives.35

35
In relevant part, that provision states as follows:

Representatives shall be apportioned among the
several States according to their respective
numbers, . . . . But when the right to vote
. . . is denied to any of the male inhabitants
of such State, being twenty-one years of age,
and citizens of the United States, or in any
way abridged, except for participation in
rebellion, or other crime, the basis of
representation therein shall be reduced in the
proportion which the number of such male
citizens shall bear to the whole number of
male citizens twenty-one years of age in such
State.

U.S. Const. amend. XIV, § 2.

-63-
 The most that can be gleaned from this language is that

by addressing the eventuality of "abridg[ment] . . . for

participation in . . . crime," Congress contemplated that at least

in some circumstances, felon disenfranchisement could exist. Thus,

it merely implies that there is no per se ban on such laws. But VRA

§ 2 is targeted at precisely those voting qualifications that are

not the subject of a per se ban. See S. Rep. No. 97-417, at 16

(explaining that under § 2 as amended in 1982, "electoral devices

. . . per se would not be subject to attack under section 2. They

would only be vulnerable, if, in the totality of circumstances, they

resulted in the denial of equal access to the electoral process").

As plaintiffs do not allege that felon disenfranchisement laws are

unlawful per se, but only as applied in Massachusetts, where they

"result in a denial . . . of the right . . . to vote on account of

race," 42 U.S.C. § 1973, there is absolutely no conflict between §

2 of the Fourteenth Amendment and allowing plaintiffs to challenge

disenfranchisement laws under the VRA.

In other words, that § 2 of the Fourteenth Amendment

contemplates disenfranchisement as a potential qualification is

unremarkable. As similarly emphasized by the majority, "[t]he

criteria for eligibility to vote are defined by the states," and

states have the power to fix all kinds of qualifications for voting,

disqualifying felons included, but only where the exercise of that

power "do[es] not contravene any restriction that Congress, acting

-64-
pursuant to its constitutional powers, has imposed." Lassiter v.

Northampton County Bd. Of Elections, 360 U.S. 45, 50 (1959).36

However, "[w]hile a State may choose to disenfranchise some, all or

none of its felons based on legitimate concerns, it may not do so

based upon distinctions that have the effect, whether intentional

or not, of disenfranchising felons because of their race." Hayden,

449 F.3d at 346 (Parker, J., dissenting) (quoting Baker, 85 F.3d at

937); see also Farrakhan, 338 F.3d at 1016 (noting that although,

as a general matter, "states may deprive felons of the right to vote

without violating the Fourteenth Amendment, . . . when felon

disenfranchisement results in denial of the right to vote . . . on

account of race or color, Section 2 affords disenfranchised felons

the means to seek redress").

B. Legislative History of VRA § 4

To support its contention that Congress did not intend to

include felon disenfranchisement laws within the scope of VRA § 2,

the majority also relies on statements in the legislative history

36
In fact, the majority’s contrary interpretation of § 2 of
the Fourteenth Amendment, i.e. that felon disenfranchisement is
constitutionally protected and cannot be restricted, would result
in a direct conflict between constitutional directives in that it
is well-established that a felon disenfranchisement statute
intended to discriminate against minorities are prohibited under
§ 1 of the Fourteenth Amendment. See Hunter v. Underwood, 471 U.S.
222, 229 (1985) (holding Alabama's disenfranchisement for
commission of petty crime or misdemeanor provision
unconstitutional). The only reading of § 2 that respects the
validity of Hunter and similar precedent is one that permits states
to disenfranchise felons only where federal law does not otherwise
preclude them from doing so.

-65-
of § 4, claiming that § 4 "would not result in the proscription of

the frequent requirement of States . . . that an applicant for

voting . . . be free of conviction of a felony." S. Rep. No. 89-162

(1965), as reprinted in 1965 U.S.C.C.A.N. 2508, 2562. This argument

is deeply flawed. It is error to assume that a statement about one

section of a statute applies to all other sections thereof. See

Hayden, 449 F.3d at 352-53 (Parker, J., dissenting) (stating that

legislative history of one section of an expansive statute such as

VRA is "typically of no value" when attempting to understand

another, entirely different, section). In fact, the Supreme Court

has explicitly warned against doing so in the VRA context. Hall,

512 U.S. at 883 ("To be sure, if the structure and purpose of § 2

mirrored that of § 5, then the case for interpreting §§ 2 and 5 to

have the same application in all cases would be convincing. But the

two sections differ in structure, purpose, and application."). This

is especially true in the case before us given that the two

provisions, § 2 and § 4, "differ in structure, purpose, and

application." Id. Specifically, § 4 is a provision that

categorically bans, in covered jurisdictions, the use of certain

facially neutral tests or devices including literacy tests,

educational requirements, and "any requirement that a person as a

prerequisite for voting or registration for voting . . . possess

good moral character." See 42 U.S.C. § 1973b(a)(1)(A), § 1973b(c).

In contrast, § 2 applies to "a broader range of practices than those

-66-
'tests and devices' defined in Section 4." Johnson, 353 F.3d at

1306 n.27. While § 4 applies only to "covered jurisdictions," and

"imposes an outright ban on tests or devices," "§ 2(a), [applies

nationally, and] creates a 'results' test, which requires

investigating and weighing numerous factors." Hayden, 449 F.3d at

353 (Parker, J., dissenting) (internal citation omitted); see also

Nw. Austin, 557 U.S. at __, 2009 WL 1738645 at *4 (distinguishing

§ 2 of the VRA, which "operates nationwide . . . [to] forbid[] any

'standard practice or procedure' that 'results in a denial or the

abridgment of the right of any citizen . . . to vote on account of

race or color'" from § 4 and the remainder of the VRA which,

"[r]ather than continuing to depend on case-by-case litigation . . .

directly pre-empted the most powerful tools of black

disenfranchisement in the covered areas." (emphasis added & internal

citations omitted)).

Thus, considering congressional statements about § 4 in

the context of the provision at which they were addressed (§ 4),

they signify nothing about the scope of what § 2 was intended to

cover. Given § 4's absolute bar on "good moral character" tests,

and the natural susceptibility of "moral character" being read as

a proxy for criminal history, the statements upon which the majority

relies merely clarify that the categorical bar on "good moral

character" tests in § 4 should not be interpreted as also an

outright ban on felon disenfranchisement. See Hayden, 449 F.3d at

-67-
364-65 (Calabresi, J., dissenting) ("[S]uch legislative statements

simply make the uncontroversial point that felon disenfranchisement

laws are not 'good moral character' requirements within the meaning

of § 4(c)."). In contrast, "section 2 addresses voting regulations

that are not per se invalid under section 4 but nonetheless result

in a racially disparate impact on voting rights." Thomas G. Varnum,

Let's Not Jump to Conclusions: Approaching Felon Disenfranchisement

Challenges Under the Voting Rights Act, 14 Mich. J. Race & L. 109,

136 (2008). Statements regarding § 4 thus provide no indication

that Congress intended to insulate felon disenfranchisement laws

from scrutiny under § 2 where it is alleged that the operation of

a particular law results in the denial of the right to vote on

account of race. See Johnson, 405 F.3d at 1249 (Barkett, J.,

dissenting) (noting that decision not to add felon

disenfranchisement statutes to list of per se violations does not

show intent to exempt these laws from the VRA); Hayden, 449 F.3d at

365 (Calabresi, J., dissenting) ("The fact that race-neutral felon

disenfranchisement is permissible under § 4(c) tells us nothing at

all about whether § 2 allows racially discriminatory felon

disenfranchisement." (emphasis in original)).

In support of its argument for applying § 4's legislative

history to § 2, the majority suggests that, in light of § 4's

limited applicability to "covered jurisdictions" with a history of

discrimination, in contrast to § 2's nationwide reach, Congress

-68-
could not have "permitted" felon disenfranchisement laws in covered

jurisdictions, while "prohibiting" them in non-covered jurisdictions

like Massachusetts. But this argument similarly misses the mark,

precisely because it mischaracterizes the statute. To be sure, the

majority’s argument would be persuasive if § 2 categorically

"prohibit[ted]" felon disenfranchisement laws in Massachusetts and

other "non-covered" jurisdictions. But it does not. See S. Rep.

No. 97-417, at 16. Nor does the VRA "permit" felon

disenfranchisement laws, in "covered jurisdictions," or otherwise.

Rather, § 2 uniformly imposes a "totality of the circumstances" test

to all "voting qualifications," anywhere in the country, prohibiting

them only in the event that they result in racial discrimination.

There is nothing illogical about creating a per se ban on certain

presumptively discriminatory qualifications in "covered

jurisdictions" only, as was done in § 4, but also permitting

scrutiny of all voting qualifications nationally, including felon

disenfranchisement laws, to ensure that no particular qualification

is discriminatory as applied under the particular circumstances.

And that is precisely what Congress did through § 2.

By exporting the legislative history of § 4 into the § 2

context, the majority ignores the very plausible interpretation that

Congress intended § 2 to include felony disenfranchisement laws

precisely because it chose to exclude them from § 4's list of

categorically barred regulations. While Congress did not seek to

-69-
have felon disenfranchisement banned in all cases, it nevertheless

intended that they be subjected, just like every other voting

qualification anywhere in the country, to a "totality of the

circumstances" test to assess whether they effectuate a

discriminatory result. The fact that members of Congress were

sufficiently cognizant of felon disenfranchisement laws to carve

them out from the scope of § 4, yet made no such statements in

regard to § 2, despite the intentionally broad language of that

provision, indicates that Congress did not in fact intend a similar

restriction in the § 2 context. See Vidal-Reyes, 562 F.3d at 53

(quoting United States v. Councilman, 418 F.3d 67, 73 (1st Cir.

2005)) ("'[W]here Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.'").37 Thus, as

it stands, the legislative history of § 4 shows that while Congress

did not intend to enact a blanket ban on felon disenfranchisement

laws as a prohibited "moral character" requirement neither did it

intend to exclude discriminatory laws from the scope of VRA

scrutiny.

37
While this rule, known as the expressio unius est exclusio
alterius canon of construction, see Councilman, 418 F.3d at 73-74,
is useful for evaluating the import of omissions and inclusions in
statutory text, I believe its principle is equally persuasive with
respect to express omissions and inclusions in the legislative
history of a statute.

-70-
 C. Historical Legitimacy and Congressional Endorsement
of Felon Disenfranchisement Law

The remainder of the arguments in the majority opinion

rely on Congress' sanctioning or presupposing the validity of felon

disenfranchisement in various contexts, such as where (1) it has

rejected proposals to outright bar felon disenfranchisement, either

through the VRA or otherwise, and (2) endorsed disenfranchisement

laws generally in the aftermath of the VRA. First of all,

"subsequent legislative history will rarely override a reasonable

interpretation of a statute that can be gleaned from its language

and legislative history prior to its enactment." Solid Waste Agency

of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 170

n.5 (2001) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania,

Inc., 447 U.S. 102, 118 n.13 (1980)). But more importantly, these

arguments are entirely irrelevant to the question before us.

Congressional refusal to pass categorical prohibitions on felon

disenfranchisement or even its subsequent affirmation of the

practice generally, is not inconsistent with Congress's clear intent

to subject to scrutiny, through § 2 of the VRA, "any state enactment

which altered the election law of a covered State in even a minor

way." Allen, 393 U.S. at 566-67 (emphasis added). Congress may

very well have decided not to bar felon disenfranchisement wholesale

(as it did by omitting it from § 4) and may even have endorsed the

practice where it was motivated by and served legitimate ends. But

it may have nevertheless chosen, in order to make the guarantees of

-71-
the Fifteenth Amendment meaningful, to restrict the adoption of this

"qualification" in those cases where it is applied "in a manner

which results" in the denial of the right to vote on account of

race. This reading of the legislative history, which is consistent

with the statutory text, is far more compelling than the majority's

analysis.

Ultimately, "the plainer the language, the more

convincing contrary legislative history must be to overcome the

natural purport of a statute's language." United States v. U.S.

Steel Corp., 482 F.2d 439, 444 (7th Cir.), cert. denied, 414 U.S.

909 (1973). I see a clear textual mandate, uncontradicted by any

legislative history, that felon disenfranchisement laws, like all

voting qualifications, may be challenged under § 2 of the VRA. "If

the language of law is to have any meaning at all, then surely it

must prevail over the kind of speculation that is entailed in such

an enterprise as th[is] court[] ha[s] undertaken." United States

ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1355 (4th

Cir. 1994).

The plain language of the statute being as clear as it

is, and the legislative history and purpose only bolstering that

clarity, I cannot help but speculate that the majority is jumping

through hoops to defeat the remedial purpose for which the provision

was enacted in order to produce a result consistent with its own

preference in policy. But "[t]he Fifteenth Amendment empowers

-72-
'Congress,' not the [c]ourt[s], to determine in the first instance

what legislation is needed to enforce it." Nw. Austin, 557 U.S. at

___, 2009 WL 1738645 at *9. And even if we "question the wisdom of

Congress's decision to enact a statute that permits challenging

felon disenfranchisement laws, we are judges, not policy-makers."

Hayden, 449 F.3d at 348 (Parker, J., dissenting). "The duty of a

judge is to follow the law, not to question its plain terms." Id.,

449 F.3d at 368 (Sotomayor, J., dissenting). "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." Id.

Finally, I see no constitutional issues posed by

interpreting the VRA according to its language and consistent with

its purpose, so as to encompass felon disenfranchisement laws.

Rather, § 2 of the VRA is firmly within the scope of Congress’s

power to enforce the Reconstruction amendments, which includes the

power to "enact so-called prophylactic legislation that proscribes

facially constitutional conduct, in order to prevent and deter

unconstitutional conduct." Nev. Dep't of Human Res. v. Hibbs, 538

U.S. 721, 727-28 (2003). Finding challenges to felon

disenfranchisement laws to be cognizable under the VRA, I have no

trouble concluding that the plaintiffs have stated a claim

sufficient to preclude dismissal at this early juncture. Thus, I

would affirm the district court's decision on this issue.

-73-
 II. Ex Post Facto Clause Claim

The second issue raised on appeal, a question of first

impression in this circuit, is whether the retroactive application

of a felon disenfranchisement provision violates the Ex Post Facto

Clause when it is applied to felons incarcerated for crimes

committed prior to the provision's passage into law. The Ex Post

Facto Clause "bars application of a law 'that changes the

punishment, and inflicts a greater punishment, than the law annexed

to the crime, when committed[.]'" Johnson v. United States, 529

U.S. 694, 699 (2000) (quoting Calder v. Bull, 3 U.S. 386, 390

(1798)); see U.S. Const. art. 1, § 10 ("No State shall . . . pass

any . . . ex post facto Law."). Plaintiffs, incarcerated in

Massachusetts for offenses committed prior to Article 120's

enactment, contend that Article 120 is unconstitutional as applied

to them because it subjects them to additional punishment not

provided for by the laws of the Commonwealth when they committed the

acts underlying their convictions. The majority affirms the

dismissal of plaintiffs' claim on grounds that the deprivation of

the right to vote, as accomplished by Article 120, does not

constitute "punishment," and thus, falls outside the protections of

the Ex Post Facto Clause. I cannot agree. While disenfranchising

convicted felons prospectively might be perfectly constitutional,

I would hold that the disenfranchisement provision here is a

punitive measure, which cannot be retroactively applied.

-74-
 "The deprivation of any rights, civil or political,

previously enjoyed, may be punishment, the circumstances attending

and the causes of the deprivation determining this fact." Cummings

v. Missouri, 71 U.S. 277, 320 (1866). As the majority accurately

explains, analysis of whether a particular enactment imposes

retroactive punishment so as to implicate the Ex Post Facto Clause

requires a two-part inquiry. The first part asks whether the

challenged law has a civil, regulatory purpose, or whether it is

intended to punish. See Smith v. Doe, 538 U.S. 84, 92 (2002)

(citing Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). If a court

finds that the law was intended to be punitive, then it constitutes

"punishment" for purposes of the Ex Post Facto Clause and would

violate the clause if retroactively applied. Id. However, if the

law conveys a non-punitive, regulatory purpose, the court moves to

the second part of the test to ascertain whether the law is "so

punitive either in purpose or effect as to negate [the state's]

intention to deem it civil." Id. (quoting United States v. Ward,

448 U.S. 242, 248-49 (1980)). The ultimate question is "whether

[Article 120] is intended to be, or by its nature necessarily is,

criminal and punitive, or civil and remedial." United States v. One

Assortment of 89 Firearms, 465 U.S. 354, 362 (1984).

While legislative purpose is not easily discernible given

the unique procedural history of Article 120's enactment by popular

referendum, I nevertheless find that a close look at the provision's

-75-
language and history reveals that it was intended by its proponents

to be a primarily punitive measure. Moreover, even if the primary

intent behind the enactment of Article 120 could not be clearly

identified,38 I would find this disenfranchisement law to be so

punitive in effect that it nevertheless constitutes a criminal

punishment under the second prong of Smith.

A. The Legislative Intent Was Punitive

We first ask whether Article 120 was intended to be a

civil or criminal measure. See Smith, 538 U.S. at 92. Determining

whether Article 120 was intended to be civil or criminal "'is first

of all a question of statutory construction.'" Id. (quoting

Hendricks, 521 U.S. at 361). As this court has made clear, analysis

of statutory construction "begin[s] with the language of the

statute." Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 139

(1st Cir. 2006) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438,

450 (2002)). Yet, in holding that Article 120 conveys a regulatory

intent, the majority again departs from this well-established

framework.

The majority disposes of the first prong of Smith by

citing Trop v. Dulles for the proposition that "felon

38
See Gabriel J. Chin, Are Collateral Sanctions Premised on
Conduct or Conviction?, 30 Fordham Urb. L.J. 1685, 1686 (2003)
(opining that "it is not always clear that the primary legislative
motivation for a collateral sanction is civil rather than punitive,
nor is it always a simple matter to discern the primary
motivation").

-76-
disenfranchisement provisions are considered regulatory rather then

punitive." See 356 U.S. 86, 94 (1958). But leaving aside the

merits of this proposition for the moment, the fact that

disenfranchisement provisions are generally considered regulatory

rather than punitive is not dispositive of what the Massachusetts

voters and legislators intended here. Rather, the relevant

questions are what Article 120's particular language says and if

there are any inferences that can be drawn from its broader

structure. See Smith, 538 U.S. at 92 (instructing that we should

first "consider the statute's text and its structure to determine

the legislative objective"). "[C]onsiderable deference must be

accorded to the intent as the legislature has stated it." Id.

In this case, looking at the text of Article 120, there

is no indication on the face of the provision of the legislative

intent behind its enactment. Article 120, which was passed pursuant

to a ballot question placed before Commonwealth voters, lacks any

kind of express "statement of purpose" which legislation often

includes, and none of its language reveals a particular government

interest in felon disenfranchisement, either regulatory or

punitive.39 Instead, Article 120 merely lays out the substantive

39
For an example of the kind of clear language "express[ing]
the objective of [a] law in the statutory text itself," see Smith,
538 U.S. at 93 (citing the Alaska Legislature's public safety
interest in "protecting the public from sex offenders" as the basis
for its sex offender registration provision).

-77-
voting requirements, including the newly enacted exclusion of

incarcerated felons.

Beyond the language of the provision, it is possible that

the "broader structure" of the provision may provide some indication

of its purpose. Id. The majority relies on the placement of

Article 120 within the Commonwealth's civil voter qualification

provisions, rather than in its criminal code, to infer a regulatory

purpose. But while manner of codification is certainly one factor

relevant to ascertaining the nature of a provision, the Supreme

Court has held that the "location and labels of a statutory

provision do not by themselves transform a civil remedy into a

criminal one," or vice versa. Smith, 538 U.S. at 94; see also Trop,

356 U.S. at 94 ("How simple would be the tasks of constitutional

adjudication and of law generally if specific problems could be

solved by inspection of the labels pasted on them! Manifestly the

issue of whether [a statute] is a penal law cannot be thus

determined."). Rather, the Supreme Court instructs that "a penalty

[] cannot be converted into [a non-penal measure] by so naming it,"

and we must "ascribe to [the particular statute] the character

disclosed by its purpose and operation, regardless of name." United

States v. Constantine, 296 U.S. 287, 294 (1935) (holding that even

though labeled a "tax" on conducting retail liquor business,

challenged statute was nevertheless a "penalty" designed to punish

the violation of state liquor laws). Likewise, "even a clear

-78-
legislative classification of a statute as 'non-penal' would not

alter the fundamental nature of a plainly penal statute." Trop, 356

U.S. at 95 (holding that a statute stripping army deserters of

citizenship is a "penal law" despite its codification amidst the

regulatory provisions of the "Nationality Act"); see also One

Assortment of 89 Firearms, 465 U.S. at 364-65 (holding a forfeiture

provision to be a civil action despite its codification in the

state's criminal code). It follows that the Commonwealth's

authority to regulate voting requirements as part of its civil power

does not, in and of itself, establish that Article 120 was intended

as a regulatory measure.

Moreover, any inference of legislative intent that could

be drawn from the codification of Article 120 in a civil section of

Massachusetts' constitution is undermined by the fact that the

Commonwealth was required to amend that constitutional provision,

which governs voting qualifications generally, in order to

disenfranchise felons. In addition, the subject matter of Article

120 is consistent not only with civil voting requirements, but also

with criminal rules imposing an additional deprivation upon persons

convicted of particular crimes and in the custody of the criminal

justice system. In that sense, Article 120's broader structure

implies both criminal punishment and civil regulation. In sum,

neither the language nor the structure of Article 120 betrays a

clear regulatory or punitive intent.

-79-
 Without a clear indication of intended purpose from

Article 120 itself, we look to legislative history for evidence of

legislative intent.40 Rolland v. Romney, 318 F.3d 42, 48 (1st Cir.

2003). Here, there are two helpful sources of legislative history

-- public statements made by Massachusetts' politicians about a

series of disenfranchisement proposals that ultimately resulted in

Article 120,41 and the "Information for Voters" Guide ("the Guide")

that was distributed to voters at the law's ratification stage.

First, the public statements of proponents of the

legislation are quite revealing of the punitive motivation behind

Article 120. Writing to the Massachusetts Legislature to propose

an earlier version of the instant disenfranchisement law, Governor

Cellucci argued that "the time has come to tell would-be criminals

in Massachusetts that committing crimes has serious consequences."42

40
It is surprising that, given its extensive reliance on
statements in the legislative history to analyze the clear
statutory language of the VRA, the majority only mentions
legislative history briefly in its Ex Post Facto Clause analysis,
even though the language and structure of Article 120 is actually
ambiguous as to whether Article 120 was intended to be punitive or
regulatory. While the majority states that it will consider
certain comments made by Governor Cellucci, it never analyzes these
or other comments by Article 120's proponents relevant to the
legislative history of the provision.
41
The legislative process resulting in the passage of Article
120 is worth noting. A constitutional amendment initiated by a
legislator must be approved by two successive joint sessions of the
Massachusetts legislature and then ratified by Massachusetts
voters. Commonwealth Mass. Const. Art. 49, Init., pt. IV, §§ 2-5.
42
I agree with the majority that, even though earlier
proposals for felon disenfranchisement laws did not pass, their
legislative histories are relevant here. These earlier proposals

-80-
He advocated for the proposal because it would "ensure that

criminals pay their debt to society before they regain their right

to participate in the political process." Governor Cellucci also

argued in favor of disenfranchising incarcerated felons because

"prisons are a place for punishment." Striking a similar tone,

State Representative Paul Frost argued that prisoners "don't deserve

to vote" and that "this is an issue about justice." Senator Guy

Glodis advocated for the law by stating that "philosophically, no

inmates deserve the right to vote." These comments, reflecting

classic punitive rationales, see, infra, section II.B.4 (discussing

traditional theories of criminal punishment), provide strong

evidence that Article 120 was motivated by an intent to punish

felons.

As the majority recognizes, the Guide for voters

regarding the ballot question that culminated in the enactment of

Article 120, is also relevant to deciphering legislative intent.

The Guide stated that the proposal would change the law that "allows

criminals to continue to exercise control over our lives by voting

from prison." The majority found such language to indicate

regulatory intent. I disagree. While this language is more

ambiguous as to intent than anything else, it suggests to me another

are nearly identical to Article 120, so the motivation for them is
relevant evidence for the motivation behind Article 120. See
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 180 (1963) (using the
legislative history of earlier legislation when assessing the
motivation of a law "quite obviously patterned on that of its
predecessor").

-81-
retributive statement about what felons "deserve," i.e. to have

their right to participate in government revoked. See id. The

Guide also stated that "[a] yes vote will protect democracy's

greatest gift - the right to vote, by reserving it for the law-

abiding." I believe this language is further evidence of the

punitive principle of "just desert." In any event, the ambiguous

indications of intent revealed by the Guide do not outweigh the

plainly punitive comments by the measure's proponents.

Confronted with potentially mixed manifestations of

legislative purpose -- and I believe such a characterization is

generous to the Commonwealth's position -- this court should

decipher the law's "primary function." See Mendoza-Martinez, 372

U.S. at 169 (emphasis added). Whereas Article 120 itself is unclear

as to intent, the Guide is also, at best, ambiguous, and the

statements made by Massachusetts politicians are strongly indicative

of punitive intent, I find that plaintiffs have made a compelling

argument that the weight of the evidence of intent reveals Article

120 to have been intended primarily as a punitive measure. This

punitive measure having been applied to plaintiffs retroactively,

I believe that an Ex Post Facto violation could be found without

further inquiry. But in an abundance of caution, I will proceed.

B. The Effect of Article 120 Is Punitive

Under the second prong of the Smith analysis, even if a

clear punitive intent is not discernable for the challenged law, it

-82-
would nevertheless constitute a criminal punishment subject to the

Ex Post Facto Clause if the measure's effect is so punitive as to

negate any intent to deem it civil. Hendricks, 521 U.S. at 361

(citing Ward, 448 U.S. at 248-49). The majority correctly explains

that, in order to gauge the actual effect of the law, this court

reviews the seven factors described in Mendoza-Martinez:

[(1)] Whether the sanction involves an
affirmative disability or restraint, [(2)]
whether it has historically been regarded as
a punishment, [(3)] whether it comes into play
only on a finding of scienter, [(4)] whether
its operation will promote the traditional
aims of punishment-retribution and deterrence,
[(5)] whether the behavior to which it applies
is already a crime, [(6)] whether an
alternative purpose to which it may rationally
be connected is assignable for it, and [(7)]
whether it appears excessive in relation to
the alternative purpose assigned.

See Mendoza-Martinez, 372 U.S. at 168-69 (footnotes omitted). These

factors, which are "neither exhaustive nor dispositive," serve as

"useful guideposts." Smith, 538 U.S. at 97 (citations omitted).

I agree with the majority that, where the legislature has

clearly stated a civil regulatory intent in enacting the challenged

sanction, "'only the clearest proof' will suffice to override

legislative intent and transform what has been denominated a civil

remedy into a criminal penalty." Hudson v. United States, 52 U.S.

93, 100 (1997) (quoting Ward, 448 U.S. at 249). However, I disagree

that plaintiffs should be held to that burden, in this case, where

the legislative intent is ambiguous at best. The Supreme Court has

-83-
not resolved this particular question directly. However, where the

legislature fails to make its intent clear through express language,

or by implication through a law's broader structure, or even through

legislative history, there is strong support for the proposition

that a challenged law should be subjected to neutral evaluation when

determining its effect. See Mendoza-Martinez, 372 U.S. at 169

(holding that, "[a]bsent conclusive evidence of congressional intent

as to the penal nature of a statute, these factors must be

considered in relation to the statute on its face"); Smith, 538 U.S.

at 107 (Souter, J., concurring) (distinguishing between cases where

the legislative intent is clear and those where it is ambiguous, and

rejecting the "clearest proof" burden where it is ambiguous).

Accordingly, I would approach the application of the Mendoza-

Martinez factors, without any starting presumption, to determine

whether the actual purpose or effect of Article 120 is punitive.

See Mendoza-Martinez, 372 U.S. at 168-69. Applying the most

relevant of these factors to the inquiry before us, I find that each

of them weighs in favor of recognizing Article 120 to be a penal

measure subject to the Ex Post Facto Clause.

1. Scienter & Criminality

The third and fifth Mendoza-Martinez factors, "whether

the challenged sanction comes into place only on a finding of

scienter," and relatedly, "whether the behavior to which it applies

is already a crime," weigh heavily in favor of concluding that

-84-
Article 120 is a penal statute. See id. at 168. First of all, "the

disciplinary sanction here [is] triggered by a criminal conviction

which incorporate[s] a finding of criminal intent, and so the

disciplinary sanction came into play 'only on a finding of

scienter,'" Porter v. Coughlin, 421 F.3d 141, 147 (2d Cir. 2005)

(quoting Mendoza-Martinez, 372 U.S. at 168). Similarly, as Article

120 applies only to persons who have already been convicted of a

felony, "the behavior to which it applies is [undoubtedly] already

a crime," as the fifth Mendoza-Martinez factor requires. Mendoza-

Martinez, 372 U.S. at 168; see also Dep't of Revenue of Montana v.

Kurth Ranch, 511 U.S. 767, 781 (1994) (noting that fact that a tax

on marijuana was "conditioned on the commission of a crime" is

"'significant of [its] penal and prohibitory intent'").

2. History

The second Mendoza-Martinez factor asks whether a

particular sanction has "historically been regarded as punishment."

Id. at 168. There is substantial evidence to this effect. First

of all, federal courts have frequently characterized felon

disenfranchisement as a punitive measure. In its decision in

Johnson, the Eleventh Circuit described felon disenfranchisement

laws as a "punitive device stemming from criminal law" and explained

that "throughout history, criminal disenfranchisement provisions

have existed as a punitive device." See 405 F.3d at 1228 & n.5.

Similarly, the Second Circuit has noted the "nearly universal use

-85-
of felon disenfranchisement as a punitive device." Muntaqim v.

Coombe, 366 F.3d 102, 123 (2d Cir. 2004) (vacated en banc on other

grounds). "Congress [has also] recognized the punitive nature of

felon disenfranchisement laws." See Pamela A. Wilkins, The Mark of

Cain: Disenfranchised Felons and the Constitutional No Man's Land,

56 Syracuse L. Rev. 85, 133-34 (2005) (describing how Congressional

acts readmitting former Confederate States to the Union did so on

the condition that States prohibited disenfranchisement "except as

a punishment for . . . crimes"). This point is reinforced by

renowned historian, Alexander Keyssar's review of voting rights in

this country in which he unequivocally characterizes America's felon

disenfranchisement laws as an intentionally punitive device. Id.

(citing Alexander Keyssar, The Right to Vote: The Contested History

of Democracy in the United States 316 (2000)). And the ALI's Model

Penal Code, a compilation examining the penal law of the United

States, labels prisoner disenfranchisement "an integral part of the

criminal law." Model Penal Code § 306.3 (Proposed Official Draft

1962). This is strong evidence that, regardless of how a particular

disenfranchisement provision is codified, the purpose of

disenfranchising felons in American history has been to punish them

for their crimes.

There is also substantial evidence, presented by

plaintiffs, of the historical use of felon disenfranchisement as a

penal mechanism throughout the world. See Hayden, 449 F.3d at 315-

-86-
16 (describing use of "civil death" laws in Medieval continental

Europe, "attainder" laws in medieval England, and "infamy" laws in

ancient Greece and Rome, all of which revoked political rights,

including the right to vote, "as additional punishment for [certain]

crimes"); Keyssar, supra, at 62-63 ("Disenfranchisement for

[infamous] crimes had a long history in English, European, and even

Roman law, and it [is] hardly surprising that the principle of

attaching civil disabilities to the commission of crimes appeared

in American law as well."). Although the district court dismissed

this evidence as not relevant to disenfranchisement provisions in

American history, that approach misreads this factor as used in

Mendoza-Martinez. In fact, in Mendoza-Martinez itself, the Supreme

Court explicitly relied on the history of citizenship deprivation

in other countries in determining that the challenged law depriving

draft evaders of citizenship was punitive in effect. See 372 U.S.

at 168 n.23 (discussing Roman and English societies' use of

forfeiting citizenship as a punishment). Thus, evidence of the

historical use of felony disenfranchisement laws both in this

country and others is relevant, and both reveal the prevalent

historic use of such laws as a penal mechanism.

To refute the extensive evidence that disenfranchisement laws

have been historically regarded as punitive, the majority cites one

court decision that did not concern the disenfranchisement of

felons, Trop. See 365 U.S. at 96-97. Trop does contain dicta

-87-
suggesting hypothetically that "the purpose of [a felon

disenfranchisement statute] is to designate a reasonable ground of

eligibility for voting," id., but as dicta, that language is not

binding upon us. See Wilkins, supra, at 102 (arguing that "Trop's

discussion of disenfranchisement statutes was dicta and, therefore,

does not excuse judges from the hard work necessary to analyze real

disenfranchisement laws"). Trop also explains alternatively, that

if "[disenfranchisement] were imposed for the purpose of punishing

[an offender], the statute[] would be penal." 365 U.S. at 96-97.

Moreover, that decision says nothing about how such laws have

historically been regarded. In any event, the problem with relying

on Trop's suggestion that felon disenfranchisement could be a

"reasonable ground of eligibility for voting," is that Trop fails

to reveal what legitimate purpose disenfranchisement serves that

would render it a "reasonable ground." This failure to identify why

disqualifying felons is a "reasonable ground" is particularly

problematic in light of the fact that both cases cited by Trop for

this proposition, Davis v. Beason and Murphy v. Ramsey, involve

voting qualifications that are no longer regarded as valid.43 As

43
See Romer v. Evans, 517 U.S. 620, 634 (1996) (holding that
the decision of the Court in Davis v. Beason, 133 U.S. 333 (1890),
which upheld the disenfranchisement of polygamists on grounds that
they advocate "practical resistance to the laws of the Territory"
and "approve the commission of crimes forbidden by it" is "no
longer good law" because "persons advocating a certain practice may
[not] be denied the right to vote"). Murphy v. Ramsey, 114 U.S. 15
(1885), involved a suit similar to Davis in which the Supreme Court
upheld a voting qualification disqualifying any "polygamist,
bigamist, or any person cohabiting with more than one woman . . ."

-88-
several scholars argue, Trop was decided at a time when the

government had virtually unrestricted power to regulate the

franchise, prior to the Warren's court's curtailment of that power

when it recognized the fundamental nature of voting rights. See

Wilkins, supra, at 102-04; Pamela S. Karlan, Convictions and Doubts:

Retribution, Representation, and the Debate Over Felon

Disenfranchisement, 56 Stan. L. Rev. 1147, 1150-54 (2004). As such,

scholars argue that the dicta in Trop regarding the regulatory

nature of felon disenfranchisement laws was premised on an "outdated

conception of voting rights," rendering its continued validity

questionable. Wilkins, supra, at 102-04.

Thus, seeing sparse evidence to the contrary, I am

persuaded that the evidence cited by plaintiffs of the historical

use of disenfranchisement weighs in favor of deeming the practice

to be a punitive device.

3. Affirmative Disability or Restraint

In light of this country's struggle for independence in

pursuit of participatory democracy and the centrality attributed to

from voting in Utah. Id. at 38, 42-43. Though Murphy was not
expressly overruled by name, as was Davis in Romer, it is evident,
given the similarity between the Davis and Murphy challenges, that
neither decision continues to represent valid law. The rejection
of this line of cases suggests that keeping "undesirable" persons,
including felons, from voting is no longer a valid regulatory
purpose.

-89-
the right to vote in our legal and political culture,44 I am

compelled to conclude that the deprivation of the franchise is an

"affirmative disability or restraint" of the gravest sort.

Yet the majority concludes otherwise. In support of its

holding that felon disenfranchisement does not constitute criminal

punishment, the majority concludes that Article 120 does not impose

"any affirmative disability or restraint, physical or otherwise."

To the extent the majority suggests that a restraint need be

"physical" in order to resemble a punitive sanction, such a

requirement simply does not exist. Rather, Smith discusses physical

restraints as only one kind of possible restraint a criminal law

might impose. Smith, 538 U.S. at 100. In fact, our society

regularly punishes wrongdoers without actually imposing physical

restraints on them, most commonly, with criminal fines. And Supreme

Court decisions tasked with applying the Mendoza-Martinez factors

to ascertain the penal or regulatory nature of a particular sanction

have regularly found non-physical sanctions to be affirmative

disabilities or restraints. See, e.g., Kurth Ranch, 511 U.S. at 774

(holding a tax on illegal drugs to be a punitive measure in part

because it "allowed for sanctions by restraint of Debtors'

property"). In fact, Mendoza-Martinez itself held a non-physical

44
See Werme v. Merrill, 84 F.3d 479, 482 (1st Cir. 1996) ("It
is apodictic that the right to vote is a right that helps to
preserve all other rights.").

-90-
sanction, the deprivation of citizenship, to constitute a sanction

"essentially penal in character."

The majority also argues that disenfranchisement during

incarceration is not an affirmative disability because it is "not

as enduring as permanent occupational debarment." See Hawker v. New

York, 170 U.S. 189 (1898) (holding that revocation of medical

license does not violate the Ex Post Facto clause). But revoking

a license to practice a particular profession is also not the

deprivation of a fundamental right. In holding the revocation of

citizenship rights to be punitive in Mendoza-Martinez, the Supreme

Court emphasized that it is the "utmost import" and "value" of

citizenship rights that renders their deprivation among the gravest

of sanctions. Mendoza-Martinez, 372 U.S. at 160. Like citizenship

itself, the right to vote, a fundamental component of citizenship,

is certainly comparable in its utmost value and importance.

Tashjian v. Republican Party, 479 U.S. 208, 217 (1986) (noting that

the right to vote is a fundamental right inherent in citizenship).

It is the importance of the right to vote that renders the gravity

of its deprivation so devastating a "disability." See Reynolds v.

Sims, 377 U.S. 533, 555 (1964) ("The right to vote freely for the

candidate of one's choice is of the essence of a democratic society,

and any restrictions on that right strikes at the heart of

representative government."); Igartúa-De La Rosa v. United States,

417 F.3d 145, 177 (1st Cir. 2005) (Torruella, J., dissenting)

-91-
("There are few countries in the world in which the right to vote

is as exalted as it is in the United States."); McLaughlin v. City

of Canton, 947 F. Supp. 954, 971 (S. D. Miss. 1995) (describing

disenfranchisement as the harshest sanction imposed by a democratic

society and noting that when one is "brought beneath its axe, the

disenfranchised is severed from the body politic and condemned to

the lowest form of citizenship, where voiceless at the ballot box

the disenfranchised, the disinherited must sit idly by while others

elect his civic leaders and while others choose the fiscal and

governmental policies that will govern him and his family").

Disenfranchisement, though neither physical nor permanent, deprives

U.S. citizens of a fundamental right, and as such, is undoubtedly

an affirmative disability.

4. Traditional Aims of Punishment

The fourth Mendoza-Martinez factor provides that a

sanction is more likely punitive if "its operation will promote the

traditional aims of punishment - retribution and deterrence."

Mendoza-Martinez, 372 U.S. at 168; see also Bell v. Wolfish, 441

U.S. 520, 539 (1979) (noting that the Supreme Court has established

that "[r]etribution and deterrence are not legitimate nonpunitive

governmental objectives" (emphasis added)).45 Of course, the threat

45
See also Wilkins, supra, at 133 & n.316 (noting that in his
history of American suffrage, Alexander Keyssar characterized felon
disenfranchisement laws as intentionally punitive, noting that
"disenfranchisement, whether permanent or for an extended period,
serves as retribution for committing a crime and as a deterrent to

-92-
of being deprived of a fundamental right will, to a certain extent,

always operate to deter a rational person from engaging in unlawful

conduct.46 But as the Supreme Court has recognized, the deterrent

effect of a sanction cannot be wholly dispositive of criminal

punishment as all civil penalties have some deterrent effect. See

Kurth Ranch, 511 U.S. at 777. It is, however, in its retributive

nature that felon disenfranchisement truly reveals its punitive

colors. See Karlan, supra, at 1166 (arguing that

"disenfranchisement really can be justified only under a retributive

theory of criminal punishment"). In this sense, this factor also

conclusively weighs in favor of the plaintiffs.

As a form of retribution, "'[p]unishment is the way in

which society expresses its denunciation of wrongdoing.'" Gregg v.

Georgia, 428 U.S. 153, 184 n.30. The notion is that the offender

"owes a debt to society" and "must now atone for his sins by

suffering punishment for his transgression." Peter W. Low et. al.,

future criminal behavior").
46
That some of Article 120's proponents considered this
possibility is evident from statements such as that of Governor
Celucci in his letter in support of the disenfranchisement
amendment:

The time has come to tell would be criminals
in Massachusetts that committing crimes has
serious consequences, not only in terms of
prison time, but also in terms of the right to
participate in deciding how society should be
run.

(Emphasis added). This language suggests that the proposal was
intended to deter "would be" criminals from committing crimes.

-93-
Criminal Law 2 (1982). "This . . . conception of punishment . . .

makes primary the meting out to a responsible wrongdoer of his just

deserts." H.L.A. Hart, Punishment and Responsibility, 158-59

(1968). Other scholars have characterized the retributive aim of

criminal punishment as predicated upon the notion of restoring the

status quo after an offender, by his contravention of the law, has

usurped from his victim or from society generally, something to

which he is not fairly entitled. See, e.g., Herbert Morris, Guilt

and Innocence, 33-36 (1976) (characterizing punishment as restoring

the fair distribution of benefits and burdens that is displaced when

a person violates the rules that others have assumed, thereby

gaining an unfair advantage); Jean Hampton, Retributivism and Its

Critics (1992) (characterizing retributive punishment as a message

that restores the prior status hierarchy between victim and offender

which was violated by an offender's degradation of a victim's worth

through criminality).

In the context of the retributive purposes of criminal

punishment, it becomes apparent how fundamentally intertwined

criminal disenfranchisement laws generally, and Article 120 in

particular, are with this punitive objective. The statement from

Governor Cellucci's letter, referenced supra, that the

disenfranchisement proposal would "ensure that criminals pay their

debt to society" is the textbook articulation of the retributive

theory. Similarly, Representative Frost's statement that felons do

-94-
not "deserve to vote" is fundamentally linked to the retributive

notion of "just deserts." And Representative Marini's promise that

the law would apply to those who did "despicable things" is

consistent with theory of retributive punishment as a means by which

society expresses its moral denunciation of unlawful conduct.

Moreover, even the statements contained in the

Information for Voters guide, cited by the Commonwealth as

evidencing a regulatory non-punitive purpose, in fact, reveal the

opposite when considered in the context of criminal punishment

theory. For example, the statement that Article 120 would change

the law that "allows criminals to continue to exercise control over

our lives by voting from prison," is consistent with Morris' and

Hampton's notions of retributive punishment as a means of restoring

the proper hierarchy between the offender and society, unfairly

tipped in the offender's favor by his desecration of society's

rules. By preventing offenders from benefitting further, at

society's expense, through their political participation,

disenfranchisement helps to restore that lost equilibrium. Finally,

felon disenfranchisement laws, by "deny[ing] the civic and human

dignity of persons who have been convicted of doing wrong," are

emblematic of the denunciatory function of criminal law. See Bell,

441 U.S. at 592-93 n.26 (Stevens, J., dissenting) (citing letter

from Learned Hand to the University of Chicago Law Review).

-95-
 5. Connection to Non-Punitive Purpose

The sixth Mendoza-Martinez factor asks "whether an

alternative purpose to which [the challenged sanction] may

rationally be connected is assignable for it." 372 U.S. at 168-69.

I note, as a threshold matter and as discussed above,

that there was no legitimate non-punitive purpose expressly assigned

to Article 120, and that the purpose of the statute as revealed by

its legislative history is primarily punitive. But even if we were

to speculate as to non-punitive rationales potentially assignable

to the provision, I simply cannot agree with the majority that there

is an "obvious rational non-punitive purpose for

disenfranchisement." The reality is that "[c]ourts have been hard

pressed to define the state interest served by laws disenfranchising

persons convicted of crimes." Dillenburg v. Kramer, 469 F.2d 1222,

1224-25 (9th Cir. 1972) ("Appellee does not explain why

disenfranchisement of those convicted of offenses that can result

in confinement in state prison is 'necessary' to vindicate any

identified state interest."); see also Stephens v. Yeomans, 327 F.

Supp. 1182, 1188 (D.N.J. 1970) (striking down New Jersey felon

disenfranchisement law because court "perceive[d] no rational basis

for the . . . classification" of felons as a group that could not

vote).

My reading of the legislative history of Article 120,

much of which indicates a punitive motivation, and the lack of a

-96-
sufficient rational nexus to any non-punitive purpose, suggest that

any purported regulatory motivations are, in fact, disingenuous.

Moreover, the potential non-punitive rationales for felon

disenfranchisement are, in many cases, now regarded as illegitimate

grounds for restricting the vote, and as such, should not be

credited. See Trop, 356 U.S. at 96 (holding that a statute is

non-penal "if it imposes a disability, not to punish but to

accomplish some other legitimate governmental purpose." (emphasis

added)). That leaves criminal punishment as the only legitimate

discernible "legislative aim" behind Article 120. I will consider,

in turn, the various non-punitive justifications potentially

assignable to Article 120 and explain why each cannot be rationally

assignable to it.

First, the majority suggests that the "obvious rational

non-punitive purpose for disenfranchisement" is the concern about

felons "exercis[ing] control over [people's] lives by voting from

prison." But as explained supra, this concern actually boils down

to the punitive sentiment that felons do not "deserve" to do so.

Second, the Commonwealth argues, on appeal, that the

purpose of Article 120, evidenced by its placement alongside other

valid voter qualifications in the Massachusetts constitution, was

to exempt from the franchise those persons "deem[ed] unfit to vote,"

such as minors, persons under guardianships, and persons convicted

of corrupt election practices. That argument rests on the principle

-97-
that, due to their lack of respect for the criminal law, felons,

like minors and mentally incompetent persons, "have raised questions

about their ability to vote responsibly," and therefore, "cannot be

trusted" to do so. Given the absence of any reference to voter

"competence" in the legislative history of Article 120, and the weak

connection between disenfranchising incarcerated felons and the

alleged interest in responsible voting, I am inclined to dismiss

this explanation as a pre-textual rationale masking a punitive

purpose. See Hendricks, 521 U.S. at 371 (Kennedy, J., concurring)

("If the object or purpose of the Kansas law had been to provide

treatment but the treatment provisions were adopted as a sham or

mere pretext, there would have been an indication of the forbidden

purpose to punish."). This is because disenfranchising felons is

both under and over-inclusive of this alleged rationale. It is

under-inclusive because if persons who violate the law have shown

that they cannot vote responsibly, then not only incarcerated

felons, but all persons who commit any kind of crime should be

disenfranchised, whether they are serving a custodial sentence or

not. Moreover, all citizens who for any reason have shown

themselves to be irresponsible voters should be disenfranchised as

well. It is over-inclusive because some incarcerated felons,

despite their prior transgressions, may have, through the

rehabilitative elements of their sentence, developed great respect

for society's rules. While it is true that "[a] statute is not

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deemed punitive simply because it lacks a close or perfect fit with

the non-punitive aims it seeks to advance," Smith, 538 U.S. at 102-

03 (emphasis added), the connection here seems especially

attenuated, especially in light of the fundamental right that is at

stake. This suggests that the concern with felons being

"unqualified" is "simply a fictional concern advanced to mask a

punitive purpose." United States v. Brown, 381 U.S. 437, 446-47

(White, J., dissenting).

More importantly, I question whether the Commonwealth can

rely on a felon's purported incapacity to vote responsibly as the

"non-punitive rationale" for Article 120 given that neither the

ability to vote responsibly nor respect for the existing law remain

"reasonable ground[s] of eligibility for voting." See Trop, 356 U.S.

at 96-97. Rather, the idea that a particular group may be

disqualified from voting based on a lack of respect for existing

criminal law now constitutes a form of viewpoint discrimination that

has been expressly rejected. See, e.g., Romer, 517 U.S. at 634 (see

parenthetical, supra, n.19); Dunn v. Blumstein, 405 U.S. 330, 354-56

(1972) (rejecting durational residency requirements that rested on

claims about the desirability of ensuring that citizens understood,

and shared, community values before they were permitted to vote);

see also Carrington v. Rash, 380 U.S. 89, 94 (1965) ("'Fencing out'

from the franchise a sector of the population because of the way

they may vote is constitutionally impermissible."). Thus, according

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to one scholar, "contemporary voting rights doctrine casts a serious

shadow on the central traditional non-penal justification for felon

disenfranchisement: the claim that ex-offenders should not be

permitted to vote because they lack the qualities of mind or

character voters ought to possess." Karlan, supra, at 1152.

Third, a similar analysis applies to the purported non-

punitive "regulatory" purpose arbitrarily assigned to Article 120

by the district court. The district court suggested that prisoners

are somehow unqualified to participate in the "participatory and

collegial process" of "representative democracy" because they "have

limited access to information and little opportunity to discuss

issues with individuals who are not also being punished for breaking

the law." Not only is this "inability-to-become-informed" rationale

entirely absent from the discussions motivating the enactment of

Article 120, but it is simply not rationally connected with

disenfranchising the entire convicted felon population, many of whom

may very well have access to newspapers, media, and contact to

outside visitors, as well as the leisure time to become politically

informed, and thereby, even more knowledgeable voters than law-

abiding persons on the "outside." But again, and more importantly,

the Supreme Court has consistently rejected restrictions on the

franchise in order to further "knowledgeable or intelligent voting."

See, e.g., Dunn, 405 U.S. at 356. Thus, "[i]f neither good

character nor intelligent use of the ballot nor support for existing

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criminal laws are generally permissible prerequisites for voting,

then it would be perverse to rely on criminal convictions as

evidence that individuals lack qualities that voters are not

required to have." Karlan, supra, at 1155. "The obvious

alternative is to conclude that disenfranchisement is indeed

punitive and that if it is to be justified, it must be justified as

a legitimate form of punishment, rather than as a species of

political regulation." Id.

Finally, that this "alternative purpose" factor of the

Mendoza-Martinez analysis weighs in favor of deeming Article 120 a

punitive sanction is bolstered by examining what has been found to

constitute a "legitimate non-punitive purpose" in prior Mendoza-

Martinez cases, and what has not. That examination reveals that

those cases holding particular sanctions to constitute non-punitive

regulatory measures have served far clearer and more substantial

societal interests than the attenuated justifications provided for

felon disenfranchisement. For example, in Hendricks, the state

civil commitment law held to be non-punitive was intended to protect

the public from dangerous mentally ill persons "likely to engage in

'predatory acts of sexual violence.'" 521 U.S. at 350. Similarly,

Alaska's sexual offender registration requirement, held to be

non-punitive in Smith, had the express purpose of "protecting the

public from sex offenders" who "pose a high risk of reoffending."

538 U.S. at 93; see also United States v. Salerno, 481 U.S. 739, 747

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(1987) (holding that preventative detention under Bail Reform Act,

justified by the need to prevent "danger to the community," was

regulatory and preventative, rather than punitive).

On the other hand, the provision being challenged before

us bears a far greater resemblance to the one at issue in Mendoza-

Martinez itself. In Mendoza-Martinez, where "there was no reference

to the societal good that would be wrought by the legislation," the

Supreme Court concluded that "the obvious inference" was that

"Congress was concerned solely with inflicting effective retribution

upon this class of draft evaders and, no doubt, on others similarly

situated." Mendoza-Martinez, 372 U.S. at 182; see also Trop, 356

U.S. at 97-98 (holding that statute stripping military deserters of

citizenship rights cannot rationally be treated other than as a

penal law). Finding no legitimate non-penal interest served by the

legislation, the Supreme Court in Mendoza-Martinez did not go on to

speculate as to potential alternative justifications. But even if

it had, the conceivable legitimate non-penal justification for

stripping an American of his citizenship rights for violating a

criminal statute prohibiting the evasion of military service, as in

Mendoza-Martinez and Trop, is no more substantial than the

conceivable justifications for stripping a U.S. citizen of an

essential component of those rights (i.e. voting), for violating

another criminal statute. Of course, one could argue that by

abandoning the obligations of citizenship by evading the military

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obligations attendant thereto, a person shows that he is not

"competent" to exercise the benefits and burdens of citizenship,

just like one could argue that a person who breaches the criminal

law shows that he is not competent to exercise the responsibility

of aiding in its enactment. But the Supreme Court has refused to

make this leap, and neither should we here. Given the similarities

between the respective sanctions47 -- deprivation of citizenship and

deprivation of voting rights -- the lack of any clear non-punitive

interest for either sanction, and the similar triggering event for

the imposition of each, namely, violation of a criminal law, I think

we are compelled by Mendoza-Martinez to hold Article 120 to be a

penal measure. Finding Article 120 to be a penal measure, its

constitutionality is subject to the constraints of the Ex Post Facto

Clause, and violates that clause as retroactively applied to the

plaintiffs.

To be abundantly clear, I see nothing constitutionally

impermissible about disenfranchising felons as a form of criminal

punishment. Criminals who are convicted of serious offenses

pursuant to a legitimate process are properly deprived by the state

47
See Nw. Austin, 557 U.S. at ___, 2009 WL 1738645 at *7
(describing "the right to vote" as "one of the most fundamental
rights our citizens"); Tashjian, 479 U.S. at 217; Wolfish, 441
U.S. at 589-90 & n.22 (Stevens, J. dissenting) (noting that "[t]he
withdrawal of rights is itself among the most basic punishments
that society can exact, for such a withdrawal qualifies the
subject's citizenship and violates his dignity" and citing
disenfranchisement as the "classic example of the coincidence of
punishment and the total deprivation of rights").

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of a panoply of fundamental individual and civil rights. But

"punishment" must be labeled what it is, and imposed only in

compliance with the time-honored constitutional guarantees that

legitimate the exercise of that practice. Central among these

guarantees is the prohibition against the enactment of ex post facto

laws. As Article 120 inflicts a greater punishment upon convicted

felons than the law annexed to their crimes when committed, see

Calder v. Bull, 3 Dall. 386, 390 (1798), I would invalidate its

retroactive application. Thus, I would reverse the decision of the

district court as to the ex post facto claim, and order that

judgment be entered for plaintiffs.

For the reasons herein stated, I respectfully dissent.

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