concurring,
with whom Judge Jacobs joins.As the majority fully explains, Congress never intended the Voting Rights Act (“VRA”) to reach felon-disenfranchisement statutes. And even if, as the dissent argues, the plain language of the statute by its terms covers New York Election Law Section 5-106 (“Section 5-106”), this case presents the “rare and exceptional circumstance” where the plain meaning of a statute does not dictate the congressional intent nor the proper outcome. Ardestani v. INS, 502 U.S. 129, 135-36, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981)); see also United States v. Ron Pair Enters., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (noting that, when the legislative intent and the plain meaning of a statute contradict, “the intention of the drafter, rather than the strict language, controls”); Griffin v. Oceanic Contractors Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (“[I]n rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions *330of its drafters, and those intentions must be controlling.”).
Finally, even if Section 2 of the VRA applies to Section 5-106 and no contrary congressional intent were evident, then I believe that, as applied, the VRA would be unconstitutional because Congress would have exceeded its enforcement power under the Reconstruction Amendments. As the majority demonstrates, the case can be resolved without reaching this issue, but I believe it provides yet another sound basis for rejecting the dissent’s position.
In a recent series of cases, the Supreme Court has delineated the scope of Congress’s enforcement power under the Reconstruction Amendments.1 These cases teach that Congress is not confined to enacting prohibitions against activity proscribed by the Amendments themselves but also “may 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, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003); accord Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); City of Boerne v. Flores, 521 U.S. 507, 517-18, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Katzenbach v. Morgan, 384 U.S. 641, 658, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). However, Congress’s power in this area has limits. Any prophylactic legislation must be an “appropriate remedy for identified constitutional violations, not ‘an attempt to substantively redefine the States’ legal obligations.’ ” Hibbs, 538 U.S. at 728, 123 S.Ct. 1972 (quoting Kimel, 528 U.S. at 88, 120 S.Ct. 631); Boerne, 521 U.S. at 519, 117 S.Ct. 2157. Determining whether prophylactic legislation is authorized involves three steps: A court first must define “with some precision” the scope of the constitutional right that Con*331gress seeks to enforce, Garrett, 531 U.S. at 365, 121 S.Ct. 955; then the court looks at “whether Congress identified a history and pattern” of unconstitutional violations of that right,2 id. at 367, 121 S.Ct. 955; and finally, the court must assess the means Congress has chosen to address these violations to determine whether its remedy is a congruent and proportional response to those violations, see Hibbs, 538 U.S. at 728, 123 S.Ct. 1972 (quoting Boerne, 521 U.S. at 520, 117 S.Ct. 2157).
Here, the right that the VRA was enacted to promote is the constitutional prohibition on racial discrimination in voting regulations. It is in the second step of the Court’s test that the constitutionality of the VRA, if applied to Section 5-106,3 founders. There is, quite simply, no evidence in the record before Congress of a history and pattern of invidious felon disenfranchisement by the states.
Only in cases where Congress can point to evidence in the legislative record that establishes a pattern of unconstitutional discrimination involving the particular practices proscribed by the remedial scheme at issue has the Supreme Court upheld legislation as within Congress’s enforcement power under the Reconstruction Amendments. For example, in Hibbs, the constitutionality of a provision allowing employees to sue the states for violations of the Family Medical Leave Act (“FMLA”) turned on whether the legislative record revealed evidence of a pattern of constitutional violations by the states. 538 U.S. at 729, 123 S.Ct. 1972. This record, consisting of labor surveys and testimony at congressional hearings, showed that state employers’ leave policies discriminated between men and women on the basis of gender stereotypes. 538 U.S. at 730-31 & nn. 3-5, 123 S.Ct. 1972. Because Congress made extensive and detailed findings that, when the FMLA was enacted, “States relied on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits,” 538 U.S. at 735 n. 11, 123 S.Ct. 1972 (internal quotation and alteration marks omitted), the Court upheld the FMLA as a valid exercise of Congress’s Section 5 power. Id. at 740, 123 S.Ct. 1972.
In Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), the Court upheld the application of Title II of the Americans with Disabilities Act of 1990 (“ADA”) to the access to state courthouses on a similar basis. The ADA’s legislative history includes the results of 13 congressional hearings and the findings of a special task force that gathered evidence from all 50 states. 541 U.S. at 516, 124 S.Ct. 1978. This extensive record revealed pervasive state laws discriminating against the disabled, id. at 524, 124 S.Ct. 1978, “hundreds of examples of unequal treatment of persons with disabilities by States,” id. at 526, 124 S.Ct. 1978, the widespread inaccessibility of public services to those with disabilities, id. at 527, 124 S.Ct. 1978, and “numerous examples of the exclusion of persons with disabilities from state judicial services and programs,” id. These findings constituted specific evidence that “many individuals, in many *332States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities.” Id. This record evidence before Congress enabled the Court to hold that applying the ADA to require access to courthouses was a constitutional exercise of Congress’s Section 5 powers. Id. at 533-34, 124 S.Ct. 1978.
In both Hibbs and Lane, the Supreme Court was not satisfied simply with evidence of gender discrimination or disability discrimination generally. Prophylactic legislation, to be legitimate, must be supported by record evidence that demonstrates a pattern of pervasive discrimination in the particular area in which Congress is attempting to legislate. So in Hibbs, the necessary evidence was not a widespread pattern of gender discrimination; it was a widespread pattern of gender discrimination in the administration of leave benefits. Hibbs, 538 U.S. at 735 n. 11, 123 S.Ct. 1972. And in Lane, the requisite evidence showed a pattern of discrimination against the disabled specifically in the provision of public services, including access to court proceedings. Lane, 541 U.S. at 527, 124 S.Ct. 1978.
In contrast, the Court has struck down federal legislation unsupported by evidence identifying a pattern of specific unconstitutional state action to be remedied. In Boerne, the Court held that Congress exceeded its Section 5 powers under the Fourteenth Amendment in enacting the Religious Freedom Restoration Act of 1993 (“RFRA”) because “RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.” Boerne, 521 U.S. at 530, 117 S.Ct. 2157. Similarly, in Kimel, finding that “Congress never identified any pattern of age discrimination by the States much less any discrimination whatsoever that rose to the level of constitutional violation,” the Court held the Age Discrimination in Employment Act of 1967 (“ADEA”) unconstitutional as applied to the states, terming it “an unwarranted response to a perhaps inconsequential problem.” Kimel, 528 U.S. at 89, 120 S.Ct. 631. And Garrett held that Title I of the ADA was an invalid exercise of Congress’s Section 5 powers because “[t]he legislative record of the ADA ... simply fail[ed] to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.” Garrett, 531 U.S at 368, 121 S.Ct. 955. Garrett acknowledged some anecdotal evidence of constitutional violations, id. at 370, 121 S.Ct. 955; however, “these incidents taken together [fell] far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based,” id. at 370, 121 S.Ct. 955. See also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Savs. Bank, 527 U.S. 627, 640, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (noting that Congress could not abrogate state sovereign immunity under its Section 5 powers via the Patent Remedy Act because “Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations”).4
The VRA is plainly intended to prohibit not only intentional discrimination but also *333measures that have discriminatory effects. E.g., 42 U.S.C. § 1973(a) (“No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed ... in a manner which results in a denial or abridgement of the right ... to vote ....”) (emphasis added). But although the VRA reaches much state action that has discriminatory effects on minority voting, it does not encompass all such action. As the precedents above make plain, it can serve to invalidate measures with disparate racial impact only if there is evidence in the congressional record that those measures are part of a history and practice of unconstitutional intentional discrimination. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 117-18, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (upholding the VRA’s prohibition on literacy tests but invalidating the provision authorizing 18-year-olds to vote in state and local elections).
Many of the VRA’s prophylactic provisions do respond to record evidence of specific unconstitutional discrimination, and the Supreme Court has upheld them. For example, in upholding the VRA’s suspension of literacy tests, the Court noted that, despite the fact that literacy tests are not in themselves violations of the Fifteenth Amendment, “the record shows that in most of the States covered by the Act ... various tests and devices have been instituted with the purpose of disenfranchising Negroes.” South Carolina v. Katzenbach, 383 U.S. 301, 333-34, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Similarly, in enacting Section 5 of the VRA, which requires certain jurisdictions to acquire federal approval of any changes in their voting laws, “Congress began work with reliable evidence of actual voting discrimination in a great majority of the States” covered by this requirement, thus justifying the application of that provision to those geographical areas. Id. at 329, 86 S.Ct. 803. And in amending Section 2 to clarify that practices that result in diluting the strength of minority votes are covered by the Act, see S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-201, Congress relied on evidence that specific practices, such as the use of at-large districts and majority voting requirements, perpetuated the effects of past intentional discrimination, id. at 7-10, 36-10, 1982 U.S.C.C.A.N. at 183-187, 214-218. Application of the VRA to these practices, which were facially constitutional but found to be tools of intentional discrimination against minorities, has been held to be an appropriately congruent and proportional exercise of Congress’s enforcement powers under the Reconstruction Amendments.5
*334In contrast to those practices targeted by the VRA, no basis exists to conclude that felon-disenfranchisement statutes such as New York’s are part of the history and pattern of unconstitutional discrimination that the VRA was targeting. Nowhere does the legislative record, compiled when the VRA was enacted in 1965, suggest that felon-disenfranchisement provisions were part of this country’s history of intentional discrimination in voting. To the contrary, the legislative record of the VRA and the history of felon-disenfranchisement provisions indicate that they played no part in the “unremitting and ingenious defiance,” South Carolina v. Katzenbach, 383 U.S. at 309, 86 S.Ct. 803, of the extension of the franchise to racial minorities.
With the exception of a debate regarding Section 4(c) of the VRA, the legislative record is wholly silent on the subject of felon-disenfranchisement provisions, and that lone debate plainly expressed the intent to exclude such provisions from the reach of the statute. As the majority points out, because felon-disenfranchisement statutes are blanket prohibitions and not subject to discretionary enforcement, they do not lend themselves to the discriminatory abuse characteristic of other voter qualification devices. See Maj. Op. at 319, supra. Indeed, New York and many other states enacted and enforced such laws in the early years of the Republic, well before African Americans were part of the voting population. See id. at 316-17, supra. Disenfranchisement for the commission of a crime was fully accepted as a legitimate, constitutional practice at the time the Fourteenth Amendment was drafted and ratified, see id., supra, as reflected in the express reference to felon disenfranchisement in Section 2 of the Fourteenth Amendment. U.S. Const. amend. XIV, § 2; see Richardson v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (“We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment’s applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court.”).
Nor can the necessary evidentiary record be found at the time Congress amended Section 2 of the VRA in 1982. That legislative record reflects Congress’s focus on overruling the Supreme Court’s decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), to allow the VRA to reach vote-dilution practices such as at-large elections. S.Rep. No. 97-417, at 19-24 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 196-201; see Maj. Op. at 313, 321-22, supra. The 1982 legislative record does not even mention felon-disenfranchisement statutes, much less point to any evidence that these laws were used (either nationally or specifically in New York) as part of a history and pattern of unconstitutional discrimination.
This is not to say that there have not been isolated incidents of criminal-disenfranchisement laws being used invidiously. In Hunter v. Underwood, the Supreme Court struck down a provision of the Alabama Constitution that, among other things, disenfranchised persons convicted of crimes involving “moral turpitude” as determined at the discretion of the Boards of Registrars. 471 U.S. 222, 226, 229-30, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). Though facially race-neutral, the Court found that provision to have been adopted to intentionally disenfranchise African Americans. Id. Significantly, Hunter did not disturb the Alabama disenfranchise*335ment provision as it applied to felons. See id. at 225, 105 S.Ct. 1916. Similarly, the portion of the Mississippi Constitution at issue in Williams v. Mississippi disenfranchised citizens who had committed specific felonies thought to be committed disproportionately by African Americans. 170 U.S. 213, 222, 225 n. 1, 18 S.Ct. 583, 42 L.Ed. 1012 (1898); see also Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir.1998) (stating that Section 241 of the Mississippi Constitution was unconstitutionally discriminatory when first adopted but subsequent amendments and reenactments for nondiscriminatory purposes cured it of its “odious origin”). Notably, the provisions in these cases did not apply to all criminals but were confined to those who had committed only those crimes “believed ... to be more frequently committed by blacks.” Hunter, 471 U.S. at 226-27, 105 S.Ct. 1916. Such selective and discretionary disenfranchisement is much more likely to be applied in a discriminatory manner than blanket provisions that bar all felons from the voting rolls. Measures enacted or administered with discriminatory intent remain unconstitutional and will be struck down when they are found. But as the Court pointed out in Garrett, isolated anecdotal evidence of discrimination is insufficient to support the exercise of Congress’s Section 5 power. Garrett, 531 U.S. at 370, 121 S.Ct. 955. Moreover, the plaintiffs’ success in Hunter indicates that whenever an isolated instance of unconstitutional criminal disenfranchisement occurs, it can be addressed under existing law. Isolated occurrences here and there do not provide a basis for invalidating all felon-disenfranchisement statutes nationwide.
Applying the VRA to New York’s felon-disenfranchisement statute also runs afoul of the third part of the Supreme Court’s test: even where the record establishes a history and pattern of constitutional violations, there “must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Boerne, 521 U.S. at 520, 117 S.Ct. 2157. To ensure congruence and proportionality, Section 5 enforcement measures frequently include geographic restrictions, sunset dates, or other limiting provisions. Boerne, 521 U.S. at 533, 117 S.Ct. 2157. Only statutes with these limitations in scope, specifically targeted to remedy identified patterns of constitutional violations, have been determined to be appropriately congruent and proportional. For example, most provisions in the VRA itself were carefully crafted to address the particular set of voting violations that Congress identified. See Garrett, 531 U.S. at 373, 121 S.Ct. 955 (“[Bjefore enacting [the VRA], Congress explored with great care the problem of racial discrimination in voting” and created “a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant exercise of States’ systematic denial of those rights was identified.”) (quotation marks omitted); see also Lane, 541 U.S. at 531-32, 124 S.Ct. 1978 (“The remedy Congress chose is ... a limited one .... It requires only Reasonable modifications .... ’ ”); Hibbs, 538 U.S. at 738-39, 123 S.Ct. 1972 (“[T]he FMLA is narrowly targeted at the fault-line between work and family — precisely where sex-based overgeneralization has been and remains strongesU-and affects only one aspect of the employment relationship .... We also find significant the many other limitations that Congress placed on the scope of this measure.”).
Because the application of the VRA to felon-disenfranchisement statutes would not be a response to specific, identified, unconstitutional wrongdoing, it cannot be *336congruent and proportional.6 Legislation unsupported by a record indicating the need for remedial measures consistently has been held to be “so out of proportion to a supposed remedial or preventive object that it cannot not be understood as responsive to ... unconstitutional behavior.” E.g., Boerne, 521 U.S. at 532, 117 S.Ct. 2157; Kimel, 528 U.S. at 91, 120 S.Ct. 631; Garrett, 531 U.S. at 372, 121 5.Ct. 955; see also United States v. Morrison, 529 U.S. 598, 626-28, 120 S.Ct. 1740, 146 L.Ed.2d 658 (“Congresses] findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the § 5 remedy upheld in Katzenbach v. Morgan was directed only to the State where the evil found by Congress existed, and in South Carolina v. Katzenbach, the remedy was directed only to those States in which Congress found that there had been discrimination.”) (internal citations omitted). Such statutes overstep Congress’s power by attempting to rewrite the substantive provisions of the Constitution. See Boerne, 521 U.S. at 508, 117 S.Ct. 2157. Thus the application of Section 2 of the VRA to Section 5-106, in the absence of any evidence of a history or pattern of discrimination from such a provision, would impermissibly alter the substance of the Reconstruction Amendments.
Nor can statutes that blithely disregard the divide between state and federal power qualify as congruent and proportional. To the contrary, measures passed under Congress’s Section 5 power must minimize the extent to which they intrude on “States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.” Boerne, 521 U.S. at 534, 117 S.Ct. 2157. Intrusion on a state’s traditional regulatory power imposes too high a cost on that state unless there is a pattern or practice of unconstitutional conduct to justify it. Id. And nowhere does a state exercise its sovereignty more plainly than in regulating the sentencing and punishing of criminal offenders. See United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (“Under our federal system, the States possess primary authority for defining and enforcing the criminal law.”) (internal quotation marks omitted). Regulation of the voting franchise is also a traditional function of state government. See U.S. Const. art. I, § 2, cl. 1; Oregon v. Mitchell, 400 U.S. at 125, 91 S.Ct. 260 (“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 and the nature of their own machinery for filling local public offices.”). Indeed, I am hard pressed to envision any set of circumstances in which a statute that is read to prevent states from engaging in activity expressly approved in the Constitution, such as felon disenfranchisement (see U.S. Const. amend. XIV § 2), could be congruent and proportional. But especially here, where Congress has found no pattern of unconstitutional violations involving New York’s felon-disenfranchisement statute, the application of Section 2 of the VRA to Section 5-106 intrudes on New York’s sovereignty far in excess of any justification for doing so. Without congruence and proportionality, Section 2 of the VRA as applied *337to New York’s felon-disenfranchisement statute exceeds the enforcement power granted to Congress by the Fourteenth and Fifteenth Amendments.
For the reasons expressed both in the majority opinion and in this opinion, I concur in the judgment.
. It is true that the cases that define the limits of Congress's enforcement power have focused primarily on that power as granted by Section 5 of the Fourteenth Amendment, whereas the VRA is an exercise of both Section 5's enforcement power and the enforcement power granted by Section 2 of the Fifteenth Amendment. H.R.Rep. No. 89-439 (1965), reprinted in 1965 U.S.C.C.A.N. 2437; S.Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177. However, there is no significant reason to conclude that the scope of the enforcement power under the two amendments is different. First, the language of these two clauses is substantially identical; Congress has the power to "enforce” the provisions of the respective amendments "by appropriate legislation.” U.S. Const. amend. XIV, § 5; id. amend. XV, § 2. Second, the Supreme Court has equated Congress's enforcement power under the two amendments. Bd. of Trustees of the Univ. of Ala. v. Gairett, 531 U.S. 356, 373 n. 8, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (noting that "Section 2 of the Fifteenth Amendment is virtually identical to § 5 of the Fourteenth Amendment”); City of Boerne v. Flores, 521 U.S. 507, 517-18, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (describing Congress's power under the Fourteenth Amendment as "parallel” to that under the Fifteenth Amendment); Katzenbach v. Morgan, 384 U.S. 641, 650-51, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (describing Congress’s power under the Fourteenth Amendment as "similar” to that under the Fifteenth Amendment). Third, the cases interpreting Congress's power under Section 5 of the Fourteenth Amendment consistently refer to cases concerning the VRA, a statute enacted pursuant to the power of both amendments, in an attempt to explicate the proper parameters of Congress's powers. E.g., Tennessee v. Lane, 541 U.S. 509, 520 n. 4, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004); Garrett, 531 U.S. at 373, 121 S.Ct. 955; United States v. Morrison, 529 U.S. 598, 626, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); Boerne, 521 U.S. at 526, 117 S.Ct. 2157. There is no indication in Supreme Court precedent, or in logic, that the Congress and the legislatures that enacted and ratified the Fourteenth and Fifteenth Amendments intended that they be "enforced” in different ways.
. It is insufficient for a court to make a finding of a history and pattern of unconstitutionality in the absence of a congressional finding to the same effect. The Supreme Court has never relied on a judicial finding alone to sustain prophylactic legislation.
. New York Election Law Section 5-106 disenfranchises prisoners and parolees. The statutory permanent disenfranchisement of felons, upheld against a similar challenge in Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir.2003), while it would be covered by the same analysis, is not directly at issue in this case.
. As the dissent suggests, when the alleged constitutional violation at issue involves a suspect class such as race, more rigorous scrutiny of government action is appropriate, and it is therefore easier for Congress to establish a pattern of constitutional violations. See Hibbs, 538 U.S. at 736, 123 S.Ct. 1972; Lane, 541 U.S. at 522-23, 124 S.Ct. 1978. But a pattern of violations must nonetheless be established. In this case, there is simply no evidence that banning felon-disenfranchisement laws would be an appropriate means of remedying intentional discrimination in voting.
. Contrary to the dissent's implication, we have no quarrel with the Supreme Court decisions holding that, in many respects, the VRA is a model of congruent and proportional prophylactic legislation. E.g., South Carolina v. Katzenbach, 383 U.S. at 337, 86 S.Ct. 803. Nothing in these holdings, however, guarantees that every possible application of the statute will be constitutional. Indeed, more than one member of the Supreme Court has left open the possibility that the entirety of Section 2, as amended, is constitutionally infirm. See Bush v. Vera, 517 U.S. 952, 990, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (O'Connor, J., concurring) ("In the 14 years since the enactment of § 2(b), we have interpreted and enforced the obligations that it places on States in a succession of cases, assuming but never directly addressing its constitutionality.”); Chisom v. Roemer, 501 U.S. 380, 418, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (Kennedy, J., dissenting) (“Nothing in today’s decision addresses the question whether § 2 of the Voting Rights Act of 1965 ... is consistent with the requirements of the United States Constitution.”). Here, I do not question the constitutionality of Section 2 as a whole. But I do believe that, under the dissent's interpretation of Section 2 as applying to New York's felon and parolee disenfranchisement statute, Section 2 exceeds constitutional limits.
. The dissent suggests that my view leads to the inevitable conclusion that Congress lacks the authority to remedy race-based voter discrimination. See Dissent of Judge Parker at 362, infra. Not so. Congress may restrict the use of any device that results in discrimination against minority voters. To do so, however, it must first demonstrate that the device is part of a history and pattern of intentional racial discrimination.