Anti-Sotomayor Fearmongering Campaign Opens New Front: Felons And The Vote

Fresh off arguing that GOP senators should “stand up for the white working class” by obstructing Judge Sotomayor, Pat Buchanan accused Sotomayor on MSNBC yesterday of “insanity” because “she tried to overturn a law in New York State which prohibits felons from being allowed to vote who are in the penitentiary.” Watch it:

Buchanan’s attack echoes a claim by the conservative Washington Times that “[t]here is growing evidence that Judge Sotomayor believes some races are more equal than others,” in part because Sotomayor voted to allow a challenge to New York’s felony disenfranchisement law to move forward:

In Hayden v. Pataki, a number of inmates in New York state filed suit claiming that because blacks and Latinos make up a disproportionate share of the prison population, the state’s refusal to allow them ballot access amounts to an unlawful, race-based denial of their right to vote. […]

Yet, operating on a dubious and extremely broad reading of the Voting Rights Act, Ms. Sotomayor dissented from the decision. In a remarkably dismissive, four-paragraph opinion, she alleged that the “plain terms” of the Voting Rights Act would allow such race-based claims to go forward.

These attacks misrepresent Sotomayor’s decision. First of all, Sotomayor did not “tr[y] to overturn” anything. The majority in Hayden voted to toss several inmates out of court before they could be given a trial to determine whether New York engages in race discrimination. Judge Sotomayor’s dissent—and the 20 page dissent by Judge Parker which Sotomayor joined—said nothing about whether New York violated the Voting Rights Act; the dissents merely argued that the inmates should be given the opportunity to prove their discrimination claims at trial.

More importantly, Judge Sotomayor based her dissent, not on the notion that “some races are more equal than others,” but instead on the radical notion that judges should follow the law as it is written.

The plaintiffs in Hayden claimed that New York systematically discriminates against people of color by incarcerating them at higher rates than white New Yorkers. Although only 31% of New Yorkers are racial minorities, the plaintiffs claimed that 86% of the prison population are non-white. Moreover, the Voting Rights Act provides that no state may impose any voting restriction which sorts its citizens by race:

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 . . . .

In a case called Chisom v. Roemer, the Supreme Court held that a state law violates the Voting Rights Act even if it unintentionally causes people to lose their right to vote on account their skin color. So if New York actually does systematically disenfranchise minorities by overincarcerating them, the Voting Rights Act forbids New York from continuing this practice.

Nevertheless, a majority of the court held that felony disenfranchisement laws are immune to scrutiny under the Act. Essentially, the court said that Congress did not really mean it when it enacted a law providing that “no voting qualification” may discriminate.

This is why Sotomayor dissented from the majority’s decision. As she explained in dissent, “[t]he duty of a judge is to follow the law, not to question its plain terms. 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.” This textualist approach to the law is exactly the same approach advocated by conservative Supreme Court Justice Antonin Scalia.

Judge Sotomayor did nothing more than insist that judges cannot second-guess Congress—by its express terms, the Voting Rights Act applies to felony disenfranchisement laws. Perhaps this explains why 19 state governors, including conservatives like Louisiana Governor Bobby Jindal and then-Texas Governor George W. Bush “have either restored voting rights to people in the criminal justice system or eased the restoration process.”