by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

So far, a lion’s share of debate over the nomination of Judge Sonia Sotomayor to the Supreme Court has focused on a single ruling by Judge Sotomayor in a case involving a New Haven fire fighter named Frank Ricci. This outsized focus on the Ricci case is explained in part by the fact that the Supreme Court is currently reviewing Ricci and will issue its ruling later this month. But Ricci (which we discussed last week here) is just one of several imminent rulings by the Supreme Court involving important legal issues, and over the next several days, Text & History will examine these cases — and Judge Sotomayor’s rulings involving related issues — in a series of posts under the name Beyond Ricci: Judge Sotomayor and the Supreme Court.

This series starts with Judge Sotomayor’s participation in Hayden v. Pataki, a 2006 case heard by the entire Second Circuit involving the question whether the Voting Rights Act’s nationwide ban on voting laws and practices that result in racial discrimination in voting applies to felon disenfranchisement laws. This significant question has divided the Second Circuit – the full court has twice considered the issue –and also produced split opinions in the Ninth and Eleventh Circuits. The issue one day may come before the Supreme Court. Judge Sotomayor’s decision in Hayden is not only substantively important, it also sheds light on how she might approach voting rights cases more generally, including the Supreme Court’s much awaited decision in Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO). (For a full description of NAMUDNO, see here, here, and here).

The issue in Hayden was whether New York’s felon disenfranchisement law, which prohibits convicted felons from voting until pardoned or cleared from parole, fell within the scope of Section 2 of the Voting Rights Act, which provides:
[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied in any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the of the United States to vote on account of race and color.
The plaintiffs argued that the New York law disproportionately deprived African American and Latino citizens of the right to vote in violation of Section 2. The complaint was dismissed at the pleading stage, before the plaintiffs had any opportunity to prove their case, and the issue before the full Second Circuit was whether the Voting Rights Act applied at all.

By an 8-5 vote, with Judge Sotomayor in dissent, the Second Circuit held that felon disenfranchisement laws are outside the scope of the Voting Rights Act. Given the plain text of the Act, this is a startling conclusion. As Judge Sotomayor’s dissent shows, the majority’s decision was contrary to the express language of the Act. As she wrote, “[i]t is plain to anyone reading the Voting Rights Act that it applies to all ‘voting qualification[s]’. And it is equally plain that [the New York statute] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.” Finding that felon disenfranchisement laws are not “immune from scrutiny under § 2 of the Act,” Judge Sotomayor would have reversed the dismissal of the plaintiffs’ complaint and given them the opportunity to prove their claim that the New York statute discriminatorily denied African Americans and Latinos of their right to vote.

The majority recognized that the language of the Voting Rights Act was “extremely broad,” but rejected Judge Sotomayor’s powerful and simple textual case by offering arguments rooted in legislative history that the majority believed undercut the force of Judge Sotomayor’s application of clear statutory text. If this story sounds familiar, it is: in many cases at the Supreme Court, Justice Scalia has criticized his colleagues for relying on legislative history to avoid the answer compelled by statutory text. In Hayden, Judge Sotomayor’s dissent drew on this same approach to statutory interpretation, emphasizing that “[t]he duty of a judge is to follow the law, not to question its plain terms.”

In addition to penning her own dissent, Judge Sotomayor joined in full the principal Hayden dissenting opinion, written by George W. Bush appointee Barrington Parker. Judge Parker’s dissent analyzed the relationship between the Fourteenth and Fifteenth Amendments, and the Constitution’s protection of voting rights. Most important, given the imminent ruling in NAMUDNO, Judge Parker (and thus Judge Sotomayor) had a good deal to say about congressional power to enforce the Constitution’s ban on racial discriminating in voting, the issue at the heart of NAMUDNO.

Judge Parker’s dissent supported a broad reading of congressional enforcement power to ban racial discrimination in voting, arguing that the Voting Rights Act should not be read narrowly because of constitutional concerns about intruding on state sovereignty. To do so would be to ignore the text and history of the Civil War Amendments, and the changes in the federal-state balance made to the Constitution “more than 130 years ago when the Reconstruction Amendments were passed and ratified.” As Judge Parker explained, “the seismic shift created by the Fourteenth and Fifteenth Amendments clearly altered the federal-state balance in an attempt to address a truly compelling national interest – namely, reducing racial discrimination perpetuated by the states.”

Judge Parker noted that congressional power under the Civil War Amendments “is at its zenith when protecting against discrimination based on suspect classifications (race) or when protecting fundamental rights (such as voting),” and emphasized that “the scope of the constitutional rights . . . are expansive, and not subject to artificial narrowing.” Judge Parker had no doubt that Congress could prohibit states from using voting qualifications or other laws that result in a discriminatory denial of the right to vote to African Americans and Latinos, concluding that Congress’ nationwide ban on such voting discrimination “was comfortably within its expansive enforcement powers . . . .”

Combined, the opinion that Judge Sotomayor wrote and the opinion she joined in Hayden indicate that she could be a powerful addition to the Supreme Court. Hayden shows that she takes the Constitution’s text and history seriously, and can demonstrate the document’s progressive promise.

In NAMUDNO, constitutional text and history point to only one conclusion: the preclearance provision of the 2006 Voting Rights Act (VRA) is a constitutional exercise of congressional authority. Hopefully, the Supreme Court will reach that decision later this month. If not – if the Court makes what should be the unthinkable move of striking down a critical portion of the VRA – the NAMUDNO case, even more than Ricci, will frame both Judge Sotomayor’s confirmation hearing and her tenure on the Court. A ruling striking down the Voting Rights Act would illustrate that the Court’s conservatives are not willing to take text and history of the Civil War Amendments seriously, and the need for Justices who will.