EDITORIAL: The franchise for felons

Supreme Court nominee Sonia Sotomayor wants to give jailbirds the right to vote. It’s her opinion that the federal Voting Rights Act can be used to force states to allow voting by currently imprisoned felons. Ms. Sotomayor’s dissenting opinion in a 2006 felon-voting case should make senators extremely wary of confirming her for the high court.

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. Eight of 13 judges on the liberal-leaning Second Circuit dismissed their arguments, and the 11th Circuit Court of Appeals ruled likewise in a similar case.

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.

Judge Jose Cabranes, who like Ms. Sotomayor was appointed by President Bill Clinton, didn’t find the matter to be so clear. His majority decision against the criminal felons, in favor of the state, comprised 36 tightly reasoned pages. Particularly compelling is the fact that the Voting Rights Act was passed to help further the aims of the Constitution’s 14th and 15th Amendments. The 14th Amendment specifically allows states to deny the vote to those convicted of crimes.

Ms. Sotomayor is thus in the position of asserting that Congress can prohibit New York from doing something the Constitution itself specifically endorses. It’s as if she thinks black and Hispanic felons are convicted in order to deny them the vote, rather than that they are denied the vote as a result of being duly convicted. Her position ignores the fact that it is the convicts’ own actions, their crimes - not any state-based racial discrimination - that make those felons ineligible to vote.

As almost every state has done since the United States was founded, New York forbids currently incarcerated or paroled prisoners from voting. Some states go even farther by prohibiting some felons from voting even after they have served their sentences. New York’s law is not so stringent. It only applies to felons still under criminal sentences. It equally applies to all felons, black or white.

There is growing evidence that Judge Sotomayor believes some races are more equal than others. She said in a 2001 speech that she would expect a Latina judge to reach the right decision more often than would a white male judge. Her dissenting opinion in Hayden v. Pataki is another example of her taking racial grievance-mongering to absurd new depths. They are depths unbefitting a Supreme Court justice.

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