THEODORE BAKER and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants. RAYMOND STRAWDER and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants. MILTON GOODMAN and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants. ANTHONY CANADY and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants. RICHARD JACKSON and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants. YOHANNES JOHNSON and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants. MARK SIMON and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants. TYRONE SANCHEZ and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants. MALCOLM NELSON and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and Thomas Coughlin, Commissioner of New York State Department of Correction Services, Defendants.



93 Civ. 6839 (VLB), 93 Civ. 8420 (VLB), 93 Civ. 8421 (VLB), 93 Civ. 8422 (VLB), 93 Civ. 8423 (VLB), 93 Civ. 8424 (VLB), 93 Civ. 8425 (VLB), 93 Civ. 8426 (VLB), 93 Civ. 8427 (VLB)



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK



842 F. Supp. 718; 1993 U.S. Dist. LEXIS 18415



December 22, 1993, Decided













COUNSEL: [**1] Pro Se Office, US District Court, Southern District of New York, Foley Square, New York, NY 10007.


Theodore Baker, Pro Se, # 76A4121, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.


Raymond Strawder, Pro Se, # 84B1138, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.


Milton Goodman, Pro Se, # 87A1104, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.


Anthony Canady, Pro Se, # 86A9232, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.


Richard Jackson, Pro Se, # 86B2070, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.


Yohannes Johnson, Pro Se, # 82A1913, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.


Mark Simon, Pro Se, # 90A1620, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.


Tyrone Sanchez, Pro Se, # 84B0500, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.


Malcolm Nelson, Pro Se, # 81A0764, Drawer B, Green Haven Correctional Facility, Stormville, NY 12582.



JUDGES: BRODERICK



OPINIONBY: VINCENT L. BRODERICK



OPINION:

[*720] MEMORANDUM ORDER


VINCENT L. BRODERICK, U.S.D.J.

I

These nine identical actions are brought under 42 USC 1983 [**2] by prisoners at the Green Haven Correctional Facility (collectively, "plaintiffs"). Each action alleges unconstitutional deprivation of the right to vote because of incarceration for a felony conviction. Plaintiffs seek monetary damages of $ 1.50 per day, as well as declaratory and injunctive relief.

The related cases in the caption of this memorandum order are consolidated under the following caption: n1


THEODORE BAKER, RAYMOND STRAWDER, MILTON GOODMAN, ANTHONY CANADY, RICHARD JACKSON, YOHANNES JOHNSON, MARK SIMON, TYRONE SANCHEZ, MALCOLM NELSON and all individuals similarly situated, Plaintiffs, v. MARIO CUOMO, Governor of the State of New York and THOMAS COUGHLIN, Commissioner of New York State Department of Correction Services, Defendants.


93 Civ 6839 (VLB)


All future filings should include this caption and case number.



n1 Class certification is not discussed because all complaints will be dismissed unless cause to the contrary can be shown, as set forth below.


Plaintiffs allege that New York Election [**3] Law § 5-106(2), which prohibits incarcerated felons from voting in federal, state, and local elections, unconstitutionally discriminates against Blacks and Hispanics, who allegedly comprise 87% of the total prison population and 25% of the population of New York state.

II

The case raises profound issues, but these have already been examined by the judiciary with uniform negative outcomes. If a different approach is to be taken, it would be more appropriate for such a step to be initiated by the higher courts rather than at the trial level. Unless this is to be done, appointment of counsel at the district court level or awaiting responses by the defendants would consume resources with little likelihood of benefit to plaintiffs or the public.

Because of the possibility that an appellate court may choose to appoint counsel at the appellate level or to grant relief, it may be useful to consider the variety of options which might be available were the existing rule to be re-examined.

The preponderance of minority groups in our prisons is a subject of profound concern. The ability of the judiciary to confront the underlying reasons for this phenomenon is limited. n2



n2 See Toliver v. Sullivan Diagnostic Center, 812 F. Supp. 411 (SDNY 1993).


[**4]

Under our system of justice, governed by if not always attaining due process and providing numerous safeguards to defendants, political empowerment of those convicted of crime cannot necessarily be assumed to be in the interest of citizens who are members of minority communities. The Equal Protection Clause and the federal Voting Rights [*721] Act seek to protect such citizens. n3 The victims of crime are also predominantly members of minority groups, as eloquently pointed out by Representative Charles Rangel and former Manhattan Borough President William Sutton. n4



n3 For historic roots of judicial concern relating to adequacy of political representation for all groups of citizens, see United States v. Carolene Products Co, 304 U.S. 144, 152-53 n 4, 82 L. Ed. 1234, 58 S. Ct. 778 (1938).

n4 See Stewart v. United States, 817 F. Supp. 12 (SDNY 1993).


Permitting prisoners to vote in local elections might swamp local electorates, depriving innocent citizens of the opportunity to guide the [**5] destiny of their municipalities or obtain representation at the county or state level. The resultant practical disenfranchisement of local residents would itself be unjustifiably discriminatory. n5 Moreover, local services in such political subdivisions are also usually separate from those provided in prisons, in regard to which prisoner franchise would be of greatest significance if local prisoner representation were to be required.



n5 One can readily imagine the effect on a locality of a majority of voters consisting of prisoners electing a mayor who appointed a police commissioner chosen for acceptability to the constituency which put that mayor in office. The evils of faction foreseen in The Federalist No 10 (Madison) might well be significant, with impacts beyond the locality involved, and potentially indeed of national concern.

Placement of prison facilities carrying voting rights of the inmates into local communities would also make it difficult to obtain local acquiescence or cooperation. The "Not In My Backyard" ("NIMBY") objection would doubtless acquire additional notoriety.


[**6]

Prisoner voting at the statewide level or at the former residence of a prisoner is permitted in some states (see part IV below). An appellate court has not as yet, but might, determine that there is no sufficient reason for denying the franchise at that level to prisoners.

Were this to occur, the result would be to avoid reducing the total weight of the minority vote in the states and in voting for members of the Electoral College, while likewise avoiding discriminatory adverse discrimination against local citizens with the misfortune to live in a political subdivision containing a prison. A ruling of this type, if made, might be based on the importance of voting rights and weakness of contrary imperatives at the statewide level, thus avoiding the need for complex and controversial resort to statistical analyses.

III

Voting is a fundamental political right, Yick Wo v. Hopkins, 118 U.S. 356, 370, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). Disenfranchisement of felons under state law, however, has been consistently upheld. Richardson v. Ramirez, 418 U.S. 24, 53, 41 L. Ed. 2d 551, 94 S. Ct. 2655 (1974); Owens v. Barnes, 711 F.2d 25, 27 (3d Cir), cert denied [**7] 464 U.S. 963, 78 L. Ed. 2d 341, 104 S. Ct. 400 (1983); Green v. Board of Elections of City of New York, 380 F.2d 445, 451 (2d Cir 1967), cert denied 389 U.S. 1048, 19 L. Ed. 2d 840, 88 S. Ct. 768 (1968). n6



n6 Even the ability of states to disenfranchise ex-felons who have completed their sentence and parole has been upheld. Richardson v. Ramirez, 418 U.S. 24, 41 L. Ed. 2d 551, 94 S. Ct. 2655 (1974); see Price v. Johnston, 334 U.S. 266, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948).


Section 2 of the Fourteenth Amendment provides that representation of a state in the House of Representatives and Electoral College may be reduced "when the right to vote at any election . . . is denied . . . or in any way abridged, except for participation in rebellion, or other crime" (emphasis supplied).

The Voting Rights Act, 42 USC 1973(a) ("Voting Rights Act"), protects an individual's right to vote by prohibiting states from creating voter qualifications that result in discrimination [**8] based on race or color. This entails avoidance of vote dilution, which may occur when voting arrangements prevent effective use of the franchise. See White v. Regester, 412 U.S. 755, 37 L. Ed. 2d 314, 93 S. Ct. 2332 (1973); Wesley v. Collins, 605 F. Supp. 802 (MD Tenn 1985), aff'd 791 F.2d 1255 (6th Cir 1986). The Voting Rights Act does not guarantee minority groups proportional representation but does guarantee everyone an opportunity equal to [*722] that of others to obtain representation. Butts v. City of New York, 779 F.2d 141 (2d Cir 1985), cert denied 478 U.S. 1021, 92 L. Ed. 2d 740, 106 S. Ct. 3335 (1986).

The legislative history of the Voting Rights Act, see S Rep No. 205, 97th Cong, 2d Sess 27, reprinted in 1982 US Code & Cong Admin News 177, 205 (hereinafter "Senate Report"), lists numerous factors to be considered by a court in weighing the totality of the circumstances analysis to determine if challenged election procedures violates the Act. See White v. Regester, 412 U.S. 755, 37 L. Ed. 2d 314, 93 S. Ct. 2332 (1973); Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir 1973), [**9] aff'd on other grounds sub nom East Carroll Parish School Bd v. Marshall, 424 U.S. 636, 47 L. Ed. 2d 296, 96 S. Ct. 1083 (1976); Wesley v. Collins, 791 F.2d 1255, 1260 n 5 (6th Cir 1986). Such factors are "neither exclusive nor controlling", and "the 'totality of the circumstances' analysis requires a highly individualistic inquiry." Wesley, 791 F.2d at 1260.

Disproportionate racial impact of felon disenfranchisement on a minority voting population does not establish a violation of the Voting Rights Act absent other reasons to find discrimination. Id. at 1261. In concluding that a Tennessee statute which disenfranchised felons did not violate the Voting Rights Act, the court in Wesley held that disproportionate impact "does not 'result' from the state's qualification of the right to vote on account of race or color," id at 1262, but rather, "felons [are] disenfranchised because of their conscious decision to commit a criminal act for which they assume the risks of detention and punishment." Id. n7



n7 The court also distinguished the Tennessee statute from the statute that was invalidated in Hunter v. Underwood, 471 U.S. 222, 85 L. Ed. 2d 222, 105 S. Ct. 1916 (1985). In Underwood, a provision of the Alabama constitution which disenfranchised those convicted of crimes of "moral turpitude" was invalidated as overly broad, and because it was enacted with the intent to discriminate against blacks.


[**10]

IV

Some states grant incarcerated felons the right to vote but the vast majority of states do not. This is pertinent although not controlling. Massachusetts allows incarcerated felons to vote in statewide elections, a fundamental right guaranteed by the state constitution, n8 and on the legal theory that incarcerated persons have the capacity to acquire domicile in Massachusetts. n9 See Dane v. Bd of Registrars of Voters, 374 Mass. 152, 371 N.E.2d 1358 (1978). The court in Dane noted that the majority of states, including New York, do not allow felons to acquire domicile for purposes of voting. See Urbano v. News Syndicate Co., 232 F. Supp. 237, 239 n 1 (SDNY 1964), rev'd on other grounds 358 F.2d 145 (2d Cir), cert denied 385 U.S. 831, 17 L. Ed. 2d 66, 87 S. Ct. 68 (1966). Under Vermont law, for example, "notwithstanding any other provision of law," a convicted criminal retains the right to vote by absentee ballot at the last voluntary residence, but may not acquire residence at the location of incarceration. 28 Vt Stat Ann § 807.



n8 Unlike New York, Massachusetts has a constitutional provision which renders voting an "essential and unalienable right". Const, Commonwealth of Mass., Art. 1, § 1. In Massachusetts, "the right to vote is a fundamental personal and political right. The equal right of all qualified to elect officers is one of the securities of the Declaration of Rights, Arts. 1-9." Attorney General v. Suffolk County Apportionment Comm'rs, 224 Mass. 598, 601, 113 N.E. 581 (1916). The basic constitutional qualifications are codified in Mass Gen Laws ch 51 § 1. [**11]




n9 In Dane v. Bd of Registrars of Voters, 374 Mass. 152, 371 N.E.2d 1358 (1978), an unsuccessful challenge by a registered voter to the voting rights of inmates of a prison, the court identified a rebuttable presumption that inmates have retained their former domicile for voting purposes. Mass Gen Law ch 51 § 49 places the burden on prisoners to rebut this presumption by showing that they have formed the requisite intent to make the location of their incarceration their domicile. Id.


V

Plaintiffs assert that disenfranchisement for crime amounts to taxation without representation. This argument has been rejected by the Ninth Circuit in an unpublished opinion, which, because of Ninth Circuit Rule 36-3, I do not cite as precedent but the reasoning of which is persuasive on its merits; no other cases dealing with this specific [*723] contention have been found. In Gage v. Hawkins, 919 F.2d 144 (9th Cir 1990) (table), 1990 WL 186809, 1990 U.S. App. LEXIS 20804, cert denied 111 S. Ct. 1688, 114 L. Ed. 2d 83 (1991), [**12] the court denied a prisoner's claim of the right to register to vote or, in the alternative, to the return to him of all taxes paid during his imprisonment.

VI

Plaintiffs have requested appointment of counsel. Under 28 USC 1915(d), a district court may exercise discretion in deciding whether counsel should be appointed for an indigent incarcerated litigant. Cooper v. A. Sargenti Co., 877 F.2d 170 at 170-72 (2d Cir 1989); Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir 1983). The court must first determine whether the litigant's claim meets a threshold showing of merit. Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir 1986). Only if the litigant's position is likely to be of substance does the court then consider the plaintiff's ability to obtain representation, the ability to handle the case without assistance in light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity. Cooper, 877 F.2d at 172.

The merits of the indigent's claim is [**13] the primary factor in determining whether to appoint counsel. Id. at 170-72; Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir 1986). Even if the claim is not frivolous, if the chances of succeeding on the merits are only slight, counsel may be denied because volunteer attorney time is a scarce commodity which must be allocated judiciously. "Every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. We cannot afford that waste." Cooper, 877 F.2d at 172.

Because of the lack of probability of success, appointment of counsel is denied.

VII

Plaintiffs may within 45 (forty-five) days of the date of this memorandum order respond to the considerations outlined above. Unless persuasive reasons not to do so are submitted, the complaints will then be dismissed for failure to state claims on which relief may be granted. This action will in that event be taken, on notice, under Fed.R.Civ.P. 1 and 12, rather than under 28 USC 1915(d) relating to frivolous in forma pauperis complaints. See generally [**14] Denton v. Hernandez, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992); Celotex Corp v. Catrett, 477 U.S. 317, 326, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Defendants' time to answer or move is tolled pending action to be taken after the expiration of the 45-day period.

SO ORDERED.


Dated: White Plains, New York

December 22, 1993

VINCENT L. BRODERICK, U.S.D.J.